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602 F.Supp. 25 (1985) ASAHI AMERICA, INC., Plaintiff, v. The M/V ARILD MAERSK, her engines, boilers, etc., and A.P. Moller (Maersk Line), Defendants. and A.P. MOLLER, Third-Party Plaintiff, v. WM. McCULLOUGH TRANSPORTATION CO., INC., Third-Party Defendant. No. 83 Civ. 4387 (KTD). United States District Court, S.D. New York. January 8, 1985. *26 Purrington, McConnell & Agus, New York City, for plaintiff; Stephen A. Agus, New York City, of counsel. Gillen & Caliendo, New York City, for third-party defendant; Fredric P. Gallin, New York City, of counsel. MEMORANDUM & ORDER KEVIN THOMAS DUFFY, District Judge: In these days of containerized shipments moving from port-to-port and thence overland, the question of the applicability of the limitation of liability provided for in the Carriage of Goods by Sea Act ("COGSA") to the overland portion of the trip is one which has to fascinate all who are involved in admiralty law. But this case will not provide the resolution to the deep and difficult policy questions involved therein. The facts, as agreed to among the parties, are as follows. Plaintiff Asahi America, Inc. ("Asahi") purchased a shipment of six "house to house" containers holding pallets of plumbing valves and one container of pallets of pipe fittings. Agreed Statement of Facts ¶ 6. Plaintiff's cargo was shipped on the "M/V Arild Maersk" pursuant to a Bill of Lading dated February 5, 1981. Id. The ship's Bill of Lading indicated that the destination of the shipment was "Boston C.Y." Agreed Statement of Facts, Exh. 1 (The "port of discharge" listed is New York but the "place of delivery" listed is "Boston C.Y."). The "M/V Arild Maersk" arrived at Port Newark on approximately February 28, 1981 and the containers were discharged. Id. ¶ 8. Local agents for Maersk Line, defendant and third-party plaintiff, Moller Steamship Co., Inc. ("Moller") arranged with third-party defendant William McCullough Transportation Co., Inc. ("McCullough") for overland transportation to the Boston terminal and an inland Bill of Lading was issued. See id. On March 3, 1983, Rosario Carbone, an owner of and the driver for McCullough picked up one of the containers (No. MAEU-2116764) from a pier in Newark for transportation to Boston. After receiving the container, Carbone drove from Newark to Queens. He left the container overnight on the chassis with the cab attached on a local Queens street. Id. ¶ 10. On March 4, 1984, at 5:15 a.m., Carbone reported the theft of the container and cab to the 114th Precinct in Queens. Id. ¶ 11. More than an hour earlier, at approximately 4:00 a.m., the police had been called to investigate an accident on the Bruckner Expressway in the Bronx. Id. ¶ 12. The police discovered the cargo container resting on its side in the median between the Northbound and Southbound Lanes of the Lower Bruckner Expressway. Id. The container had been torn apart and separated from the chassis which was no longer at the site. Id. The cargo was found strewn along the median for sixty feet. Only eight pallets were found intact. Id. Arrangements were made to forward to Boston the recoverable material, id. ¶ 13, and surveys were performed, id. ¶ 14. The parties agree that if plaintiff's recovery from McCullough is limited to $500.00 *27 per package, plaintiff is entitled to $22,500.00 for forty-five pallets. If plaintiff's loss is not so limited, the parties have not stipulated to what the actual loss is. McCullough argues that the $500.00 per package limitation applies to it because as a subcontractor of Maersk Line, it is accorded the benefit of the COGSA's limitation which is incorporated by reference into the ocean Bill of Lading. McCullough argues alternatively that because it is merely a third-party defendant, it is liable only to the extent that the defendant is found liable. Both of McCullough's arguments, however, lead to the inescapable conclusion that McCullough is liable ultimately for plaintiff's actual loss. If COGSA does apply to McCullough's trip, it applies in its entirety; the deviation provision as well as the limitation provision would necessarily have to be applied. Thus, assuming arguendo that a per package limitation is applicable, McCullough's overnight deviation to Queens, which I find to be totally unreasonable, would vitiate the effect of such limitation. See General Electric Co. v. S.S. Nancy Lykes, 706 F.2d 80, 84-86 (2d Cir.1983) (deviation is unreasonable when it "substantially increases the exposure of cargo to forseeable dangers that would have been avoided had no deviation occurred"). Furthermore, if COGSA does not apply to the inland transportation leg of the trip to Boston, then through the application of either state law or the Interstate Commerce Act, McCullough would be nonetheless liable to plaintiff for its actual loss. Thus, under the circumstances of this case, I need not reach the issue of whether COGSA's limitation would apply to the overland portion of the shipment of plaintiff's goods. I note also that there is no merit to McCullough's argument that its liability is limited to $500.00 per package because Maersk's liability is so limited and Maersk's action against McCullough is for indemnification. Maersk's liability, however, is not limited under COGSA, as McCullough's deviation is imputable to Maersk. It is stipulated that Maersk arranged for inland shipment by McCullough. McCullough is clearly the sub-contractor of or agent for Maersk as plaintiff contracted only with Maersk for delivery in Boston. See Agrico Chemical Co. v. S.S. Atlantic Forest, 459 F.Supp. 638, 647 (E.D.La.1978), aff'd, 620 F.2d 487 (5th Cir.1980). Accordingly, I conclude that plaintiff is entitled to recover an amount equal to its actual loss without the application of COGSA's limitation. Plaintiff's damages shall be fixed by Magistrate Grubin after inquest. SO ORDERED.

894 F.2d 127 15 Fed.R.Serv.3d 1293 Andrew B. PHILLIPS, Plaintiff-Appellee,v.CHAS. SCHREINER BANK and Schreiner Bancshares, Defendants-Appellants. No. 89-5563. United States Court of Appeals,Fifth Circuit. Jan. 31, 1990. Sharon E. Callaway, Robert Kelly, Groce, Locke & Hebdon, San Antonio, Tex., for defendants-appellants. Stephen Mark Murray, Murray, McClenahan & Sparr, San Antonio, Tex., Dana G. Kirk, Don M. Kennedy, Kirk & Carrigan, Houston, Tex., for plaintiff-appellee. Appeal from the United States District Court for the Western District of Texas. Before HIGGINBOTHAM, SMITH, and DUHE, Circuit Judges. JERRY E. SMITH, Circuit Judge: 1 Defendants Chas. Schreiner Bank and Schreiner Bancshares (collectively, "Schreiner Bank") seek interlocutory relief from an order forbidding them from pursuing foreclosure proceedings during the pendency of this action. Concluding that the challenged order is an injunction and that it was issued in violation of Fed.R.Civ.P. 65 and the Anti-Injunction Act, 28 U.S.C. Sec. 2283, we reverse and remand. I. 2 Over the course of several years, Schreiner Bank financed Phillips's participation in numerous real estate ventures, typically securing payment of the loans by obtaining deeds of trust on the properties. By January 1989, Phillips had become dissatisfied with this once-harmonious business relationship. He filed a "lender liability" suit against Schreiner Bank in federal district court, basing jurisdiction upon the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Secs. 1961-1968, and also asserting various state statutory and common law causes of action. Phillips's complaint sought actual and exemplary damages, but not recovery of the real property securing the loans. 3 The parties soon became embroiled in a discovery battle. After Schreiner Bank succeeded in quashing two depositions, Phillips moved for expedited discovery, citing a need to prepare a defense to state court foreclosure proceedings which he expected Schreiner Bank to initiate. The district court granted Phillips's motion by setting stringent deadlines in its March 7, 1989, scheduling order. That order required the parties to amend their pleadings and to file all dispositive motions by April 17 and to complete discovery by May 8. 4 On March 13, Schreiner Bank moved for a reconsideration of the March 7 scheduling order and assured the court that it would seek only judicial foreclosure on Phillips's properties.1 The court took no action on the motion to reconsider, and on April 14 Schreiner Bank again moved to extend discovery deadlines. On April 25, the bank filed suit in Texas state court, seeking to foreclose on some of Phillips's encumbered properties, and on April 26 it notified Phillips by letter that it planned to foreclose on his home. The letter did not indicate whether the bank planned to seek judicial or non-judicial foreclosure. 5 Complaining of "foot-dragging" by Schreiner Bank, on April 26 Phillips filed a motion to compel the production of documents and a motion for sanctions. On May 3, Phillips moved for an expedited trial setting because of the bank's initiation of state court foreclosure proceedings. 6 On May 5, the district court, purportedly in response to the bank's motion for extension, entered an order that granted Phillips's motion to compel production and Schreiner Bank's motion to extend the discovery cut-off. In that same order, the court prohibited the parties from taking any further action in state or federal court or attempting to foreclose on any of the properties involved in the suit.2 Neither party had moved formally for such relief, and Schreiner Bank first learned that it had been prohibited from pursuing state foreclosure remedies when it received a copy of the court's order in the mail.3 Schreiner Bank now brings this interlocutory appeal, asking us to dissolve the order as violative of Fed.R.Civ.P. 65 and the Anti-Injunction Act. II. 7 Before reaching the merits of this appeal, we must first address Phillips's contention that we are without jurisdiction to hear it. Phillips maintains that the challenged order is not an injunction but merely an effort by the district court to enforce Schreiner Bank's compliance with scheduling and discovery deadlines.4 As such, Phillips argues, the order was not an appealable injunction within the meaning of 28 U.S.C. Sec. 1292(a)(1). That provision authorizes appeals from interlocutory orders that grant or deny injunctions but "does not authorize appeals from orders that compel or restrain conduct pursuant to the court's authority to control proceedings before it, even if the order is cast in injunctive terms." Hunt v. Bankers Trust Co., 799 F.2d 1060, 1066 (5th Cir.1986). 8 We find Phillips's argument to be without merit in light of Hamilton v. Robertson, 854 F.2d 740 (5th Cir.1988) (per curiam). There, we noted that this circuit has "long recognized a clean distinction between injunctions prohibiting proceedings in other courts, which are appealable, and orders, whether or not styled 'injunctions,' that control proceedings only in the court that issues the order." 854 F.2d at 741. Thus, "[i]f a district court acts to halt proceedings in another court, its action is indeed an injunction within the meaning of section 1292(a)(1)...." Id. (quoting Castanho v. Jackson Marine, Inc., 650 F.2d 546, 548-49 (5th Cir. Unit A Jun. 1981) (court's emphasis)). 9 The challenged order prevents Schreiner Bank from taking any "further action in any state or federal court." It therefore is an injunction, and section 1292(a)(1) authorizes this interlocutory appeal. III. 10 Having determined that the challenged order is an injunction, we have little difficulty in concluding that it was entered in violation of Fed.R.Civ.P. 65. Rule 65(a)(1) states that "[n]o preliminary injunction shall issue without notice to the adverse party."5 The courts consistently have treated rule 65(a)(1) as mandatory and have not hesitated to dissolve preliminary injunctions issued without notice or the opportunity for a hearing on disputed questions of fact and law. See, e.g., Reed v. Cleveland Bd. of Ed., 581 F.2d 570, 573 (6th Cir.1978); Consolidation Coal Co. v. Disabled Miners of S. W. Va., 442 F.2d 1261, 1269-70 (4th Cir.), cert. denied, 404 U.S. 911, 92 S.Ct. 228, 30 L.Ed.2d 184 (1971); Sims v. Greene, 161 F.2d 87, 88-89 (3d Cir.1947). 11 Moreover, the Supreme Court has indicated that this notice requirement is more than a mere procedural formality; instead, rule 65(b)'s stringent restrictions "on the availability of ex parte temporary restraining orders reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute." Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439, 94 S.Ct. 1113, 1124, 39 L.Ed.2d 435 (1974). See also Reed, 581 F.2d at 573. 12 Here, the record establishes that Schreiner Bank was not notified or given the opportunity to respond before the order was entered; indeed, it was unaware that Phillips had sought a preliminary injunction until it received a copy of the court's order, by then a fait accompli, in the mail. Hence, the injunction was issued in violation of rule 65(a)(1) and must be dissolved. 13 We also find reversible error in the district court's failure to follow rule 65(c), which directs that "[n]o ... preliminary injunction shall issue except upon the giving of security by the applicant ... for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined." As we recently noted in Continuum Co. v. Incepts, Inc., 873 F.2d 801, 803 (5th Cir.1989), the bond requirement serves to protect the interests of both parties. It "assures the enjoined party that it may readily collect damages ... in the event that it was wrongfully enjoined, without further litigation and without regard to the possible insolvency" of the applicant,6 and "it provides the plaintiff with notice of the maximum extent of its potential liability...." Because of the importance of the bond requirement, "failure to require the posting of a bond or other security constitutes grounds for reversal" of an injunction. Id. (citing 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2954 at 524 (2d ed. 1982)). 14 While we leave it to the district court on remand to determine the proper amount of bond (if the court should elect to enter an injunction), we hold that Phillips is not entitled to a preliminary injunction unless he posts security indemnifying Schreiner Bank against the financial losses it might suffer as a result of a wrongful injunction. IV. 15 Our decision is without prejudice to a renewal of Phillips's motion for injunctive relief from prospective state foreclosure proceedings and to the proper granting of such relief in a proceeding in which the requirements of rule 65 are met. We conclude, however, that the Anti-Injunction Act, 28 U.S.C. Sec. 2283, precludes any stay of the April 25 state court foreclosure proceedings, which were already pending when the district court issued its May 5 injunctive order. 16 The Anti-Injunction Act provides that "[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments." It has been interpreted consistently as an absolute bar to any federal court action7 that has the effect of staying a pending state court proceeding8 unless that action falls within one of the Act's three specifically designated exceptions. Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630, 97 S.Ct. 2881, 2887, 53 L.Ed.2d 1009 (1977); Mitchum v. Foster, 407 U.S. 225, 228-29, 92 S.Ct. 2151, 2155, 32 L.Ed.2d 705 (1972). 17 We reject Phillips's rather inventive argument that the district court's order falls within the "necessary in aid of its jurisdiction" exception to the Anti-Injunction Act's general prohibition on stays of pending state court actions. While conceding that that exception comes into play only when a state court proceeding "threatens to dispose of property that forms the basis for federal in rem jurisdiction," Texas v. United States, 837 F.2d 184, 186-87 n. 4 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988) (citing Signal Properties, Inc. v. Farha, 482 F.2d 1136, 1140 (5th Cir.1973)), Phillips maintains that Schreiner Bank placed his encumbered properties within the jurisdiction of the district court when it represented that it would seek only judicial foreclosure on those properties. Without expressing any opinion regarding whether Schreiner Bank reneged on its promise to the court, we can easily dispense with Phillips's attempt to characterize this lawsuit as an in rem proceeding. 18 An in rem action is brought against "property alone, treated as responsible for the claims asserted by ... the plaintiffs. The property itself ... is the defendant ... and its forfeiture or sale is sought for the wrong...." Freeman v. Alderson, 119 U.S. 185, 187, 7 S.Ct. 165, 166, 30 L.Ed. 372 (1886). An in personam action, by contrast, determines a defendant's personal rights and liabilities. Phillips's complaint seeks monetary damages for wrongs allegedly committed by Schreiner Bank. This lawsuit is thus an ordinary in personam action, and the mere fact that debts secured by real property are at issue in the dispute does not transform it into an in rem proceeding. See e.g., Universal Business Computing Co. v. Comprehensive Accounting Corp., 539 F.Supp. 1142, 1144 (N.D.Ill.1982) (lawsuit not an in rem proceeding merely because both parties claim a proprietary interest in a computer software design). 19 Here, the district court's in personam jurisdiction is not threatened by the possibility that the state court might allow Schreiner Bank to foreclose on the properties at issue in the April 25 action. Indeed, the only risk presented by the state proceeding is that it might result in a judgment inconsistent with the judgment of the district court. The law is well settled, however, that "in no event may the 'aid of jurisdiction' exception be invoked merely because of the prospect that a concurrent state proceeding might result in a judgment inconsistent with the judgment of the district court." Texas v. United States, 837 F.2d at 186-87 n. 4 (citing Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 295-96, 90 S.Ct. 1739, 1747-48, 26 L.Ed.2d 234 (1970)). Hence, the district court cannot enjoin Schreiner Bank's prosecution of the April 25 state foreclosure action. The district court is directed to vacate that portion of its order proscribing foreclosures and actions in other courts. 20 REVERSED and REMANDED. The mandate shall issue forthwith. 1 Texas law allows a mortgagee either to sell property in a non-judicial foreclosure pursuant to powers expressly granted in a deed of trust, Tex.Prop.Code Sec. 51.002, or to bring a judicial foreclosure action 2 The order reads, in its entirety, as follows: BE IT REMEMBERED that on the 4th day of May, 1989, came on to be heard Defendant's Motion to Extend Discovery Deadlines. And the Court after considering the same is of the opinion that it should be GRANTED. Accordingly, it is ORDERED as follows: 1 The discovery cut off date shall be extended until Friday, May 26, 1989 2 Defendant shall produce for inspection and copying all documents which have been requested by Plaintiff, no later than Monday, May 8, 1989. If any documents are not produced based on a claim of work product or attorney client privilege or for any other reason, Defendant shall provide a list of all such documents which are being withheld to the court and opposing counsel, with sufficient description of date, and subject matter for the Court to rule on the privilege claimed 3 Due to the need for an immediate resolution of this dispute which has been expressed to the Court by both parties, and to avoid duplicitous [sic] and unnecessary litigation pertaining to the issues to be resolved in this case, the parties are hereby ORDERED to take no further action in any state or federal court or attempt to foreclose upon any of the properties involved in this lawsuit until a trial on the merits has been concluded in this Court It is so ORDERED. 3 Counsel for Schreiner Bank became suspicious of the order when they noticed that it contained word-processing coding information that included the initials of one of Phillips's attorneys, thus suggesting that that attorney, and not the court, had prepared the order. Quizzed on this matter at oral argument, Phillips's appellate counsel stated that Phillips's trial counsel (not the same person) had received a telephone call from the district judge, ex parte, asking him to prepare and submit the subject form of order; the attorney complied with the court's request. However, neither Phillips's attorney nor the court provided Schreiner Bank's counsel with a copy of the proposed order; hence, the bank was unaware of the same until it received the signed order in the mail This is an unacceptable procedure and contravenes the spirit of the federal rules. While we are confident that the district judge had the best of intentions in requesting the subject order, and was only trying to expedite resolution of the dispute, the court deprived the bank of the opportunity to comment upon the proposed relief. In fact, that is the primary reason why we today reverse: The rules afford the bank the right to know that an injunction is being requested and to have a hearing on that request. The ex parte communication also was extraordinary, and in any event Phillips's attorney should have provided opposing counsel with a copy of whatever it submitted to the court. If these procedures had been followed, the instant appeal might very well have been unnecessary. 4 Phillips characterizes the April 26 state court foreclosure filing as an attempted "end run" around the April 17 deadline for amending pleadings and the fast-approaching May 8 discovery cut-off 5 Although Rule 65(b) allows the ex parte issuance of temporary restraining orders under certain limited circumstances, it also provides that a temporary restraining order "shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes...." Because the challenged order is of indefinite duration, it is a preliminary injunction rather than a temporary restraining order. See, e.g., Telex Corp. v. International Business Machs. Corp., 464 F.2d 1025, 1025 (8th Cir.1972) 6 This protection is especially important in light of the Supreme Court's holding in W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757, 770 n. 14, 103 S.Ct. 2177, 2185 n. 14, 76 L.Ed.2d 298 (1983), that "[a] party injured by the issuance of an injunction later determined to be erroneous has no action for damages in the absence of a bond." 7 Even orders that technically are not injunctions may violate the Anti-Injunction Act if they have the effect of staying a pending state proceeding. For example, in Texas Employers' Ins. Ass'n v. Jackson, 862 F.2d 491 (5th Cir.1988) (en banc), cert. denied, --- U.S. ----, 109 S.Ct. 1932, 104 L.Ed.2d 404 (1989), we held that a declaratory judgment to the effect that certain state law claims were preempted by the Longshore and Harbor Workers' Compensation Act violated the Anti-Injunction Act because it effectively halted a pending state court proceeding 8 The Anti-Injunction Act does not prevent federal courts from enjoining the initiation of prospective state court actions. See Jackson, 862 F.2d at 507-08; Response of Carolina v. Leasco Response, Inc., 498 F.2d 314, 317 n. 4 (5th Cir.), cert. denied, 419 U.S. 1050, 95 S.Ct. 626, 42 L.Ed.2d 645 (1974) (citing Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S.Ct. 1116, 1119 n. 2, 14 L.Ed.2d 22 (1965))

786 F.2d 959 James L. TATUM, Plaintiff-Appellant,v.Robert CHRISTENSEN, Defendant-Appellee. Nos. 85-5790, 85-6132. United States Court of Appeals,Ninth Circuit. Submitted Feb. 4, 1986.*Decided April 8, 1986. James L. Tatum, pro se. David G. Freedman, Asst. U.S. Atty., Los Angeles, Cal., for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before FLETCHER, FERGUSON, and NELSON, Circuit Judges. PER CURIAM: 1 Pro se petitioner James L. Tatum appeals the dismissal of his habeas corpus petition challenging a Parole Commission determination revoking his parole. We affirm. I. 2 In May 1965 the United States District Court sentenced Tatum to fifteen years in prison following his conviction for forgery and counterfeiting in violation of 18 U.S.C. Sec. 471. He was paroled June 16, 1975. In 1979, while on parole, Tatum was indicted on four felony counts: committing perjury to a grand jury, conspiracy to maliciously destroy property, aiding and abetting in, and the malicious destruction of property by means of explosives. 3 In 1980, after the five-year statutory supervision period,1 the Parole Commission made a preliminary determination that Tatum should continue on supervised parole. After Tatum was notified of this decision, he signed a Termination Notice/Waiver form which stated that, by waiving a section 4211(c)(1) hearing, he understood that he would remain under supervision according to the conditions of his release. Tatum alleges that he was not told what the form meant, and that he thought it terminated his parole. 4 In December 1980 a jury in the United States District Court convicted Tatum of making a false declaration to a grand jury in violation of 18 U.S.C. Sec. 1621. Tatum fled the jurisdiction while released on bail pending sentencing. In January 1982 he was apprehended and sentenced to concurrent terms of five years for perjury and four years for bail jumping. 5 After Tatum's 1980 conviction, the Parole Commission issued a parole violation warrant based on that conviction, failure to report a change of address, and failure to submit a monthly supervision report. The Parole Commission issued supplemental warrants in June 1981 and in April and September 1982, adding charges of malicious destruction of property, unauthorized association with persons having criminal records, and conviction for bail jumping. 6 In January 1983 Tatum received a combined dispositional revocation/initial hearing ("1983 Hearing") to determine the parole dates for his 1965 sentence and his new perjury/bail jumping sentence. At the 1983 Hearing, Tatum stated that he did not have the in-person hearing required by 18 U.S.C. Sec. 4211(c)(1) on the extension of his parole term beyond five years ("Parole Extension Hearing"). The panel made no findings on this allegation. The panel found that Tatum violated his parole and recommended revocation of parole and a term of 84 to 1122 months, without credit for time spent on parole, to be served consecutively with his perjury and bail-jumping sentences. The Regional Commission and the National Appeals Board denied Tatum's appeals and approved the panel's recommendation. 7 Tatum filed this habeas corpus petition in federal district court in September 1984. The petition included two challenges to the Parole Commission determination. First, Tatum challenged his parole revocation on the ground that under 18 U.S.C. Sec. 4211(c)(1) his parole automatically terminated after five years, on June 16, 1980; therefore, any extension of parole was invalid. Because he was not on parole when the Parole Commission issued the parole violation warrants, he argued, the parole revocation was void. Second, Tatum argued that he should have been given credit for the time he spent on parole because he received inadequate notice that his subsequent conviction could cause forfeiture of street time. 8 In February 1985, based on the papers, the magistrate recommended dismissal of the petition. He found that, by signing the waiver form, Tatum waived his right to challenge the extension of his parole term. Since Tatum based his challenge to the parole revocation on his challenge to the extension of his parole term, the parole revocation claim failed. The magistrate also found that habeas corpus relief was not available for this type of claim. On the forfeiture of street time claim the magistrate found that Tatum failed to exhaust his administrative remedies before the Parole Commission. Tatum filed objections to the magistrate's report, challenging the exhaustion of administrative remedies requirement. The magistrate rejected Tatum's argument and filed a final report and recommendation in March 1985. The district court adopted the findings, conclusions, and recommendations of the magistrate. 9 Tatum timely appeals the revocation and forfeiture rulings. He also raises other denial of due process claims: failure to inform him of his right to appear before the Early Termination Board; failure to permit him to review his record prior to the 1983 Hearing;3 failure to set a parole date within the parole guidelines, and failure to have his sentences run concurrently rather than consecutively.II. 10 We review de novo the district court decision on a petition for writ of habeas corpus. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985). Parole Commission determinations are reviewed for abuse of discretion. Torres-Macias v. United States Parole Commission, 730 F.2d 1214, 1216 (9th Cir.1984). Our jurisdiction to decide issues raised for the first time on appeal is discretionary, Yuckert v. Heckler, 774 F.2d 1365, 1367 (9th Cir.1985), but exercised only if the issues are purely legal, central to the case, and important to the public, id. 11 Tatum argues that the Early Termination of Parole section of the Parole Commission and Reorganization Act entitled him to automatic termination of his parole status after five years on parole. This section provides that parole shall be terminated five years after release unless it is determined, after a Parole Extension Hearing, that supervision should continue because the individual is likely to engage in criminal activity. 18 U.S.C. Sec. 4211(c)(1). Tatum claims that because his parole term expired on June 16, 1980, the Parole Commission had no jurisdiction to issue parole violation warrants in 1981 or 1982. Thus, holding him in custody is illegal and he should be released on habeas because he has now finished serving his perjury and bail-jumping sentences. Tatum also claims that he did not knowingly and voluntarily waive his right to a Parole Extension Hearing when he signed the waiver form. 12 The government argues that the district court finding of waiver was not clearly erroneous. Furthermore, it contends that the district court correctly held that, notwithstanding the waiver, the Commission's failure to hold a Parole Extension Hearing must be challenged through a mandamus action, not a petition for writ of habeas corpus. See United States ex rel. Pullia v. Luther, 635 F.2d 612, 617 (7th Cir.1980). 13 We hold that the lapse of five years on parole did not entitle Tatum to automatic release under the Early Parole Termination provision of the Parole Act.4 See Luther, 635 F.2d at 616-17. The statute states that "[T]he Commission shall terminate supervision over such parolee unless it is determined ... supervision should not be terminated." 18 U.S.C. Sec. 4211(c)(1) (emphasis added). In Luther, the petitioner argued that since a hearing did not occur within the five years, his parole automatically terminated on the last day of the fifth year. Luther, 635 F.2d at 612. The Seventh Circuit's review of the Parole Act's legislative history demonstrates that this result was not intended by Congress; rather, even if a hearing was not held before the precise five-year date, Congress intended the Commission to exercise its judgment before releasing any parolee from supervision. Id. at 616-17. The court concluded, and we agree, that the statute gives a parolee a right to a Parole Extension Hearing, not a right to automatic termination or release. Id.; see also Sacasas v. Rison, 755 F.2d 1533, 1535-36 (11th Cir.1985). 14 We also hold that the extension of Tatum's supervised parole was statutorily authorized. Section 4211(c)(1) indicates that supervised parole should not be terminated if "there is a likelihood that the parolee will engage in conduct violating any criminal law." We find Tatum's 1979 indictments sufficiently indicative of a likelihood to engage in criminal conduct to warrant an extension of his parole. Thus, whether or not Tatum waived his right to a hearing, or had a hearing, the Parole Commission would have extended his parole. See Sacasas, 755 F.2d at 1535 (petitioner entitled to hearing but no prejudice shown because evidence strongly suggested supervision would have continued). 15 Revocation of Tatum's parole was not an abuse of discretion. Parole does not automatically terminate at the end of five years. Furthermore, Tatum's felony indictments certainly entitled the Parole Commission to continue his supervision. When Tatum was subsequently convicted for perjury and bail jumping, he violated the terms of his parole and was duly reincarcerated. 16 Tatum's second claim was that the government's failure to specify in his warrant that his perjury conviction could result in forfeiture of street time on parole violated his due process rights.5 See Vanes v. United States Parole Commission, 741 F.2d 1197, 1202 (9th Cir.1984) (parolee has a due process right to be informed in a parole violator warrant of the parole violation charges and their possible consequences). The district court correctly dismissed this claim because Tatum failed to exhaust his administrative remedies. See Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir.1983). That Tatum is sixty-five, blind, and in ill health does not constitute sufficient "extraordinary circumstances" to override the exhaustion requirement. Id. If Tatum wishes to pursue this claim, he must present it to the Parole Commission. Once he exhausts his administrative remedies, he may file a new habeas petition.6 17 Tatum raises several due process claims on appeal that he did not raise before the district court: failure to permit him to review his records before the 1983 Hearing; failure to inform him that beginning in 1977 he could apply for early termination of parole; failure to have his original sentence run concurrently with his perjury and bail-jumping sentences; failure to set a parole date within the parole guidelines. We decline to review the merits of these claims because Tatum did not raise them in the district court and their resolution is not central to the case. See Yuckert, 774 F.2d at 1367. Additionally, he failed to exhaust administrative remedies on the application for parole and review of his records allegations. See Ruviwat, 701 F.2d at 845. 18 AFFIRMED. * This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 3(f) 1 18 U.S.C. Sec. 4211(c)(1) provides: Five years after each parolee's release on parole, the Commission shall terminate supervision over such parolee unless it is determined, after a hearing conducted in accordance with the procedures prescribed in section 4214(a)(2), that such supervision should not be terminated because there is a likelihood that the parolee will engage in conduct violating any criminal law. 2 The term represented 78 to 100 months on the 1965 sentence plus 6 to 12 months for bail jumping 3 This claim is repeated for another hearing that Tatum says occurred in March 1985. Because the habeas petition was filed in 1984 and the magistrate's recommendation was made in February 1985, the claim is outside the scope of this petition 4 This circuit has not addressed, and we do not decide, whether the proper way to challenge the Parole Commission's failure to provide a Parole Extension Hearing under 18 U.S.C. Sec. 4211(c)(1) is by a writ of mandamus rather than a writ of habeas corpus. Since we construe pro se complaints liberally, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1977), we reach the merits without determining whether the form was correct 5 Tatum also argues that the statute, 18 U.S.C. Sec. 4210(b)(1), conflicts with the applicable regulation, 28 C.F.R. Sec. 2.52, over whether forfeiture is mandatory or discretionary. We do not address this issue because of the exhaustion requirement 6 The new petition would not be precluded as a successive filing of the same claim because the district court dismissed it without considering the merits. See Polizzi v. United States, 550 F.2d 1133, 1135-36 (9th Cir.1976)

34 A.3d 229 (2011) COM. v. PERRY. No. 2957 EDA 2010. Superior Court of Pennsylvania. September 16, 2011. Affirmed.

Case: 19-1400 Document: 139 Page: 1 Filed: 07/15/2020 United States Court of Appeals for the Federal Circuit ______________________ PROSPERITY TIEH ENTERPRISE CO., LTD., YIEH PHUI ENTERPRISE CO., LTD., Plaintiffs-Appellants v. UNITED STATES, NUCOR CORPORATION, STEEL DYNAMICS, INC., ARCELORMITTAL USA LLC, Defendants-Appellees CALIFORNIA STEEL INDUSTRIES, INC., UNITED STATES STEEL CORPORATION, Defendants v. AK STEEL CORP., Defendant-Cross-Appellant ______________________ 2019-1400, 2019-1562, 2019-1563 ______________________ Appeals from the United States Court of International Trade in Nos. 1:16-cv-00138-TCS, 1:16-cv-00154-TCS, Chief Judge Timothy C. Stanceu. ______________________ Decided: July 15, 2020 ______________________ Case: 19-1400 Document: 139 Page: 2 Filed: 07/15/2020 2 PROSPERITY TIEH ENTER. CO. v. UNITED STATES DONALD CAMERON, JR., Morris, Manning & Martin, LLP, Washington, DC, argued for plaintiff-appellant Pros- perity Tieh Enterprise Co., Ltd. Also represented by SABAHAT CHAUDHARY, MARY HODGINS, JULIE MENDOZA, BRADY MILLS, R. WILL PLANERT, EUGENE DEGNAN. KELLY ALICE SLATER, Appleton Luff Pte. Ltd., Wash- ington, DC, argued for plaintiff-appellant Yieh Phui Enter- prise Co., Ltd. ELIZABETH ANNE SPECK, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, argued for defendant-appellee United States. Also represented by ETHAN P. DAVIS, CLAUDIA BURKE, JEANNE DAVIDSON; MICHAEL THOMAS GAGAIN, Office of the Chief Counsel for Import Administra- tion, United States Department of Commerce, Washington, DC. DANIEL SCHNEIDERMAN, King & Spalding LLP, Wash- ington, DC, argued for defendant-cross-appellant. TIMOTHY C. BRIGHTBILL, Wiley Rein, LLP, Washington, DC, for defendant-appellee Nucor Corporation. Also repre- sented by TESSA V. CAPELOTO, ADAM MILAN TESLIK, MAUREEN E. THORSON, CHRISTOPHER B. WELD. ROGER BRIAN SCHAGRIN, Schagrin Associates, Wash- ington, DC, for defendant-appellee Steel Dynamics, Inc. Also represented by CHRISTOPHER CLOUTIER, ELIZABETH DRAKE, PAUL WRIGHT JAMESON, LUKE A. MEISNER, KELSEY RULE. JOHN M. HERRMANN, Kelley Drye & Warren, LLP, Washington, DC, for defendant-appellee Arcelormittal USA LLC. Also represented by KATHLEEN CANNON, ROBERT ALAN LUBERDA, JOSHUA MOREY, PAUL C. ROSENTHAL. Case: 19-1400 Document: 139 Page: 3 Filed: 07/15/2020 PROSPERITY TIEH ENTER. CO. v. UNITED STATES 3 ______________________ Before NEWMAN, DYK, and REYNA, Circuit Judges. REYNA, Circuit Judge. This appeal arises from an antidumping duty investi- gation in which the United States Department of Com- merce “collapsed” into a single entity three Taiwanese producers of goods subject to the investigation. We con- clude that Commerce’s collapsing determination is con- trary to law and unsupported by substantial evidence. We also conclude on cross-appeal that the United States Court of International Trade erred when it reversed Commerce’s determination that Prosperity submitted inaccurate ques- tionnaire responses. We therefore vacate and remand to the Trade Court. BACKGROUND On June 3, 2015, AK Steel Corporation (“AK Steel”) filed a petition with the United States Department of Com- merce (“Commerce”) seeking initiation of an antidumping duty investigation covering certain corrosion-resistant steel products (“CORE”) from Taiwan. Corrosion-Resistant Steel Products, 80 Fed. Reg. 37228 (June 30, 2015) (Initia- tion of Investigation). CORE is used in the manufacture of automobile bodies, commercial buildings, residential build- ings, and in appliances. Commerce instituted an investigation into CORE sold in the United States during the period of investigation of April 1, 2014, through March 31, 2015. Commerce selected as mandatory respondents the two largest exporters of CORE from Taiwan: Prosperity Tieh Enterprise Co., Ltd. (“Prosperity”) and Yieh Phui Enterprise Co., Ltd. (“Yieh”). During the investigation, Prosperity and Yieh disclosed that they were affiliated with a third company, Synn In- dustrial Co. Ltd. (“Synn”). Commerce decided to “collapse” all three entities, and treat Prosperity, Yieh, and Synn as Case: 19-1400 Document: 139 Page: 4 Filed: 07/15/2020 4 PROSPERITY TIEH ENTER. CO. v. UNITED STATES a single entity for purposes of the investigation. Com- merce’s collapsing decision is central to this appeal. A. “Collapsing” Antidumping duties are imposed on imports of goods that Commerce determines are being, or are likely to be, sold in the United States at less than fair value. 19 U.S.C. § 1673. 1 In general, Commerce calculates antidumping du- ties by subtracting the normal value (the home market price in the exporting country) from the export price (the United States price). 19 U.S.C. § 1677(35). To establish both normal value and export price, Commerce will make numerous price adjustments for a variety of reasons. These calculations are based on price and trade data pro- vided by, among other sources, companies (“respondents”) that are subject to the investigation; U.S. companies that sell goods similar to the goods subject to the investigation; and the petitioner. In some instances, Commerce will treat related entities as a single entity for purposes of these cal- culations. Carpenter Tech. Corp. v. United States, 510 F.3d 1370, 1373 (Fed. Cir. 2007). The purpose of collapsing mul- tiple entities into a single entity is to prevent affiliated en- tities from circumventing antidumping duties by “channel[ing] production of subject merchandise through 1 Antidumping duty investigations proceed along two distinct tracks administered by Commerce and the U.S. International Trade Commission. In general, Com- merce investigates whether goods that are subject to the investigation are sold in the United States at less than fair value, i.e., “dumped.” Cleo Inc. v. United States, 501 F.3d 1291, 1294 (Fed. Cir. 2007). The Commission investigates whether a U.S. “domestic industry” is materially injured or threatened with material injury by reason of goods that Commerce has determined are sold at less than fair value. Id. at 1295. This appeal involves only Commerce’s investi- gation. Case: 19-1400 Document: 139 Page: 5 Filed: 07/15/2020 PROSPERITY TIEH ENTER. CO. v. UNITED STATES 5 the affiliate with the lowest potential dumping margin.” Slater Steels Corp. v. United States, 279 F. Supp. 2d 1370, 1376 (Ct. Int’l Trade 2003). Commerce’s authority to col- lapse arises out of “the Department’s responsibility to pre- vent circumvention of the antidumping law.” Queen’s Flowers de Colom. v. United States, 981 F. Supp. 617, 622 (Ct. Int’l Trade 1997). This appeal involves Commerce’s practice of collapsing entities. Commerce’s practice of collapsing entities is governed by 19 C.F.R. § 351.401(f). Section 351.401(f) sets forth three collapsing requirements: (1) the entities must be “af- filiated”; (2) the entities must have “production facilities for similar or identical products that would not require sub- stantial retooling of either facility in order to restructure manufacturing priorities”; and (3) Commerce must find “a significant potential for the manipulation of price or pro- duction.” Id. The third requirement is the focus of this appeal. To determine whether there exists “a significant poten- tial for the manipulation of price or production,” Commerce “may consider” the following non-exhaustive list of factors: (i) the level of common ownership; (ii) the extent to which managerial employees or board members of one company sit on the board of directors for an affiliated company; and (iii) whether operations are intertwined. 19 C.F.R. § 351.401(f)(2). “Commerce need not find all of the factors in the regulation present to find a significant potential for manipulation of price or production.” U.S. Steel Corp. v. United States, 179 F. Supp. 3d 1114, 1139 (Ct. Int’l Trade 2016). But Commerce must consider the “totality of the circumstances.” Zhaging New Zhongya Aluminum Co. v. United States, 70 F. Supp. 3d 1298, 1304 (Ct. Int’l Trade 2015); Preamble, 62 Fed. Reg. 27,346 (May 19, 1997) (not- ing that collapsing determinations “are very much fact-spe- cific in nature, requiring a case-by-case analysis”). Case: 19-1400 Document: 139 Page: 6 Filed: 07/15/2020 6 PROSPERITY TIEH ENTER. CO. v. UNITED STATES When Commerce promulgated 19 C.F.R. § 351.401(f), it emphasized that collapsing requires a “significant” po- tential for manipulation: The suggestion that the Department collapse upon finding any potential for price manipulation would lead to collapsing in almost all circumstances in which the Department finds producers to be affili- ated. This is neither the Department’s current nor intended practice. 62 Fed. Reg. 27,345 (May 19, 1997) (emphasis added). Commerce also clarified that it considers “future manipu- lation” when assessing the third requirement. Id. at 27,346. B. Collapse of Prosperity, Yieh, and Synn In its Preliminary Determination, Commerce collapsed Yieh and Synn (“Yieh/Synn”). Corrosion-Resistant Steel Products, 81 Fed. Reg. 72 (Jan. 4, 2016) (Preliminary De- termination). Commerce calculated company-specific pre- liminary dumping margins of 0.0% for both Prosperity and the Yieh/Synn collapsed entity, and preliminarily deter- mined that CORE from Taiwan was not being, and was not likely to be, sold in the United States at less than fair value. In its Final Determination, Commerce collapsed Pros- perity, Yieh, and Synn (“Prosperity-Yieh-Synn”). Certain Corrosion-Resistant Steel Products, 81 Fed. Reg. 35,313 (June 2, 2016) (Final Determination). Commerce calcu- lated dumping margins of 10.34% for the Prosperity-Yieh- Synn entity. 2 Corrosion-Resistant Steel Products, 81 Fed. Reg. 48,390 (July 25, 2016). 2 In its initial Final Determination, Commerce de- termined that the dumping margin for Prosperity-Yieh- Case: 19-1400 Document: 139 Page: 7 Filed: 07/15/2020 PROSPERITY TIEH ENTER. CO. v. UNITED STATES 7 Prosperity and Yieh appealed Commerce’s final deter- mination to the United States Court of International Trade (“Trade Court”). Prosperity and Yieh challenged various aspects of Commerce’s duty calculations, and they alleged that Commerce considered evidence outside the period of investigation when deciding to collapse Prosperity, Yieh, and Synn. The Trade Court vacated Commerce’s Final De- termination, concluding that Commerce had improperly re- lied on evidence outside of the period of investigation. Prosperity Tieh Enter. Co. v. United States, 284 F. Supp. 3d 1364, 1373–75 (Ct. Int’l Trade 2018) (“Prosperity I”). The Trade Court remanded for Commerce to reperform its col- lapse analysis. Id. On remand, Commerce emphasized that only one “col- lapsing”-related issue remained in dispute: whether there existed a “significant potential for the manipulation of price or production” satisfying the third requirement of § 351.401(f) and justifying the collapse of Prosperity, Yieh, and Synn. 3 J.A. 22–23. Commerce determined that the “totality of the circumstances” showed a “significant poten- tial for the manipulation of price or production,” and col- lapsed Prosperity, Synn, and Yieh into a single entity. J.A. 25–28. When analyzing the third requirement of § 351.401(f) on remand, Commerce only analyzed the relationship be- tween Prosperity and Synn. Commerce found a significant Synn was 3.77%. After AK Steel identified errors in that decision, Commerce amended its Final Determination to reflect a calculated dumping margin of 10.34%. 3 No party challenged Commerce’s decision to col- lapse Yieh and Synn, and there was no dispute that the first two requirements of § 351.401(f) were met as to all three entities (i.e., Prosperity, Yieh, and Synn were all af- filiated and all three parties produced the subject merchan- dise). J.A. 22–23. Case: 19-1400 Document: 139 Page: 8 Filed: 07/15/2020 8 PROSPERITY TIEH ENTER. CO. v. UNITED STATES potential for manipulation between Prosperity and Synn. J.A. 27–28. Commerce relied on evidence showing that (i) Prosperity had a 20% ownership interest in Synn; (ii) a key official for Prosperity served on Synn’s corporate board; (iii) Prosperity and Synn had a galvanizing services agreement that allowed them to “shift production during a significant portion of the [period of investigation]” ; (iv) the parties had a purchase and sale agreement “indicative of intertwined operations”; and (v) Prosperity had significant business transactions with Synn (sales and purchases) during the period of investigation. J.A. 25–28, 31, 42–43. Commerce did not consider Prosperity’s relationship with Yieh or Prosperity’s relationship with Yieh/Synn. Be- cause Commerce had already collapsed Yieh and Synn without objection, it explained that the collapse of all three entities was appropriate based solely on Prosperity’s rela- tionship with Synn. Commerce explained that “neither the statute nor regulations” required Commerce to consider Prosperity’s relationship to Yieh or to Yieh/Synn. J.A. 39 (opining that there is “no required sequence or hierarchy to be applied with respect to the collapsing analysis where more than two entities are subject to such analysis”). Prosperity and Yieh appealed the remand determina- tion to the Trade Court. The Trade Court affirmed that Commerce’s decision to collapse Prosperity, Yieh, and Synn was reasonable and supported by substantial evidence. C. Yield Strength During the investigation, Commerce disseminated questionnaires that sought from Prosperity sales and costs information for CORE products having certain product characteristics. One of the product characteristics identi- fied by Commerce was “minimum specified yield strength,” i.e., “yield strength.” Yield strength designates the mini- mum stress under which a CORE product permanently de- forms. Standards setting organizations such as the ASTM International establish minimum specific yield strengths Case: 19-1400 Document: 139 Page: 9 Filed: 07/15/2020 PROSPERITY TIEH ENTER. CO. v. UNITED STATES 9 for CORE products, providing consumers with the ability to order CORE products based on a specific yield strength necessary for specific structural applications (e.g., a yield strength of not less than 80,000 psi). Commerce’s questionnaire and accompanying memo- randum asked Prosperity to identify its sales using differ- ent categories of yield strength, as shown below: J.A. 1177. In its Final Determination, Commerce determined that Prosperity misreported the yield strength for certain sales. J.A. 17561. Specifically, Commerce found that Prosperity coded products with a minimum yield strength of 80,000 psi as a “7” (minimum yield strength over 80,000 psi) ra- ther than properly coding those products as a “6” (mini- mum specified yield strength of >=65,000 psi but <= 80,000 psi). Id. Prosperity claimed that it had reported yield strength based on its “own internal method,” rather than the ASTM industry standard for yield strength. Prosperity Reply Br. 28. Commerce determined that Prosperity failed to comply with its requests for information. On this basis, Commerce applied “adverse facts available” pursuant to 19 U.S.C. § 1677e, applying higher costs to the affected sales in a way that resulted in increased antidumping duties cal- culated on Prosperity. Case: 19-1400 Document: 139 Page: 10 Filed: 07/15/2020 10 PROSPERITY TIEH ENTER. CO. v. UNITED STATES In Prosperity I, the Trade Court concluded that Com- merce’s “factual finding that Prosperity ‘misreported’ yield strength” was unsupported by substantial evidence. Pros- perity I, 284 F. Supp. 3d at 1378. Prosperity argued that it had provided accurate answers to Commerce’s ambiguous questions on yield strength. The Trade Court agreed. The Trade Court found that Commerce had not specifically re- quested yield strength information “as specified by a stand- ards organization.” Id.at 1380. Thus, the Trade Court concluded, Prosperity reasonably reported yield strength based on its interpretation of those instructions by report- ing yield strength based on its internal method. Id. The Trade Court instructed Commerce to accept Prosperity’s data as reported. On remand, Commerce complied with the Trade Court’s instruction and recalculated the dump- ing margin without applying adverse facts, resulting in a decreased margin from 10.34 percent to 3.66 percent. Prosperity and Yieh timely appealed the Trade Court’s affirmance of Commerce’s collapsing decision. AK Steel cross-appealed the Trade Court’s “yield strength” determi- nation. We have jurisdiction under 28 U.S.C. § 1295(a)(5). ANALYSIS We review de novo decisions of the Trade Court regard- ing Commerce’s antidumping duty determinations. Car- penter, 510 F.3d at 1372. In doing so, we apply the same standard of review as the Court of International Trade ap- plies to Commerce’s determination. Id.; Dupont Teijin Films USA, LP v. United States, 407 F.3d 1211, 1215 (Fed. Cir. 2005). We therefore uphold Commerce’s determina- tion unless it is unsupported by substantial evidence or is otherwise contrary to law. 19 U.S.C. § 1516a(b)(1)(B)(i). The factual findings underlying Commerce’s decision to collapse entities are reviewed for substantial evidence. Dupont Teijin, 407 F.3d at 1215. Substantial evidence is “such relevant evidence as a reasonable mind might accept Case: 19-1400 Document: 139 Page: 11 Filed: 07/15/2020 PROSPERITY TIEH ENTER. CO. v. UNITED STATES 11 as adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). A. This case presents an issue of first impression to this Court: whether Commerce’s collapsing analysis requires that Commerce consider the factors under 19 C.F.R. § 351.401(f) between all entities being collapsed. We con- clude that Commerce acted contrary to law when it col- lapsed Prosperity, Yieh, and Synn without considering the § 351.401(f) factors as between the relationships of Pros- perity and Yieh or between Prosperity and Yieh/Synn. We hold that Commerce must consider the “totality of the cir- cumstances” between all entities when it evaluates whether, for purposes of collapsing entities, there is signif- icant potential for manipulation of price or production to circumvent antidumping duties. Koyo Seiko Co. v. United States, 516 F. Supp. 2d 1323, 1347 (Ct. Int’l Trade 2007), aff’d sub nom. 551 F.3d 1286 (Fed. Cir. 2008); Zhaoging New Zhongya Aluminum, 70 F. Supp. 3d at 1304; Catfish Farmers of Am. v. United States, 641 F. Supp. 2d 1362, 1373 (Ct. Int’l Trade 2009) (explaining that a collapsing de- termination is “dependent upon the totality of the facts and circumstances”); see also Preamble, 62 Fed. Reg. 27,346 (May 19, 1997) (noting that collapsing determinations “are very much fact-specific in nature, requiring a case-by-case analysis”). Neither the Trade Court nor the parties dispute this requirement. J.A. 23; Government Br. 5–6; AK Steel Br. 6; Prosperity Br. 29; Yieh Br. 13. An analysis of the “totality of the circumstances” re- quires an “evaluation of all pertinent evidence.” Nobel Bi- ocare Servs. AG v. Instradent USA, Inc., 903 F.3d 1365, 1378 (Fed. Cir. 2018), as amended (Sept. 20, 2018); see also Cont’l Plastic Containers v. Owens Brockway Plastic Prod., Inc., 141 F.3d 1073, 1082 (Fed. Cir. 1998) (Newman, J. con- curring) (“The totality of the circumstances does not rise and fall with any single consideration; it is determined on Case: 19-1400 Document: 139 Page: 12 Filed: 07/15/2020 12 PROSPERITY TIEH ENTER. CO. v. UNITED STATES all the facts.”). As the Trade Court explained in Bell Sup- ply Co., LLC v. United States: Although a totality of the circumstances analysis eschews bright line rules for balancing, Commerce must explain how each factor weighs in the balance and why. The failure to explain the reasonableness and weight of each factor results in an “I know it when I see it test,” which is no test at all. 348 F. Supp. 3d 1281, 1295 (Ct. Int’l Trade 2018). Commerce claims that it considered the “totality of the circumstances,” but it expressly declined to consider evi- dence related to the relationship between the two largest entities among the three: Prosperity and Yieh. J.A. 39–40. Commerce likewise declined to consider evidence related to the relationship between Prosperity and Yieh/Synn. In- stead, Commerce expressly confined the “totality of the cir- cumstances” to evidence concerning the relationship between Prosperity and Synn: Specifically, the totality of circumstances takes into consideration the [20] percent ownership of Synn by Prosperity, overlap in the board of direc- tors, galvanizing operations performed by Prosper- ity for Synn pursuant to a tolling contract which accounted for [8.35] percent of Synn’s total produc- tion of CORE during the POI and allowed Synn ac- cess to certain of Prosperity’s books and records, Synn’s performance of cold-rolling for Prosperity under a purchase and sale agreement during the first month of the POI, and certain purchases and sales between Prosperity and Synn. J.A. 38–39 (brackets in original). Commerce never ex- plained how Prosperity, Yieh, and Synn could potentially manipulate pricing and production to the entity with the lowest antidumping duty rate. Case: 19-1400 Document: 139 Page: 13 Filed: 07/15/2020 PROSPERITY TIEH ENTER. CO. v. UNITED STATES 13 Commerce opined that it was “not required to conduct its collapsing analysis with respect to Prosperity and Yieh” and that “it is entirely appropriate to focus on Prosperity’s relationship with Synn.” J.A. 39, 40. This was error. By disregarding Prosperity’s relationship with Yieh and Yieh/Synn, Commerce failed to consider the “totality of cir- cumstances” relevant to whether Prosperity, Yieh, and Synn present a “significant potential for the manipulation of price or production.” Prosperity argues that Commerce can satisfy § 351.401(f) only by analyzing Prosperity’s relationship to Yieh/Synn, rather than analyzing the relationships be- tween all three individual entities. Prosperity Br. 16. Prosperity asserts that “once two companies are collapsed into a single entity, they must be treated as a single entity for all purposes.” Id. at 10 (citing AK Steel Corp. v. United States, 34 F. Supp. 2d 756, 768 (Ct. Int’l Trade 1998), rev’d on other grounds, 226 F.3d 1361, 1376 (Fed. Cir. 2000)). Prosperity concedes that “AK Steel is not binding on this Court,” and recognizes that AK Steel involved only the question of affiliation under 19 U.S.C. §§ 1677(33)(E)–(F). Id. at 15–16. Nonetheless, Prosperity argues, “the logic of AK Steel squarely applies here”: that “Commerce may not analyze the relationship of members of [a collapsed entity] to the outside world as if they were independent once it has collapsed them.” Id. (quoting AK Steel, 34 F. Supp. 2d at 768). We disagree. Commerce must consider the “totality of the circum- stances” relevant to whether there is “significant potential for manipulation of price or production” by evaluating ei- ther: (i) the relationship between each individual entity being considered for collapse (here, Prosperity to Synn, Prosperity to Yieh, and Yieh to Synn) or (ii) the relation- ship between an individual entity and an already collapsed entity with which it is being considered for further collaps- ing (here, Prosperity to Yieh/Synn). Because Commerce conducted neither of these inquiries, its Final Case: 19-1400 Document: 139 Page: 14 Filed: 07/15/2020 14 PROSPERITY TIEH ENTER. CO. v. UNITED STATES Determination is contrary to law and unsupported by sub- stantial evidence. We conclude that the Trade Court erred when it affirmed Commerce’s collapsing determination. We vacate that aspect of the Trade Court’s judgment. B. On cross-appeal, domestic producer AK Steel argues that the Trade Court erred when it overturned Commerce’s factual finding that Prosperity misreported the yield strength of its sales. We agree. Substantial evidence sup- ports Commerce’s determination that Prosperity misre- ported the yield strength of its sales and did not comply with Commerce’s requests for information. For example, Commerce’s questionnaire and accompa- nying memorandum supports Commerce’s finding that Commerce’s questionnaire sought yield strength infor- mation based on the ASTM industry standard. The ques- tionnaire and memorandum provided several examples to assist respondents in responding accurately to the yield strength portions of the questionnaire. J.A. 1177–1178. Each example indicated that yield strength should be re- ported based on ASTM specifications. Id. Substantial evi- dence also supports Commerce’s finding that “minimum specified yield strength” has a common meaning in the in- dustry, which incorporates ASTM specifications. For ex- ample, Prosperity’s sales and purchase records recite ASTM specifications rather than specifications calculated using Prosperity’s “internal method.” J.A. 15333–15396. Substantial evidence also supports Commerce’s finding that Prosperity failed to provide yield strength information based on the ASTM industry standard: for example, Pros- perity’s responses to the questionnaire. J.A. 17561, J.A. l9002; see Prosperity Reply Br. 28. Taken together, this is evidence that a reasonable mind might accept as adequate to show that Prosperity misreported the yield strength of its sales and did not comply with Commerce’s requests for information. Case: 19-1400 Document: 139 Page: 15 Filed: 07/15/2020 PROSPERITY TIEH ENTER. CO. v. UNITED STATES 15 We thus conclude that the Trade Court erred when it reversed Commerce’s finding that Prosperity misreported yield strength. We vacate that aspect of the Trade Court’s judgment. CONCLUSION We remand to the Trade Court for further proceedings consistent with this opinion. VACATED AND REMANDED 

NONPRECEDENTIAL DISPOSITION  To be cited only in accordance with Fed. R. App. P. 32.1    United States Court of Appeals For the Seventh Circuit  Chicago, Illinois 60604    Submitted April 22, 2019*  Decided April 23, 2019    Before    DIANE P. WOOD, Chief Judge    WILLIAM J. BAUER, Circuit Judge    DIANE S. SYKES, Circuit Judge    No. 18‐3075    ERIC D. CONNER,    Appeal from the      Plaintiff‐Appellant,  United States District Court for the      Eastern District of Wisconsin.        v.  No. 17‐CV‐1387      STACEY HOEM, et al.,  David E. Jones,    Defendants‐Appellees.  Magistrate Judge.    O R D E R    Eric Conner, a Wisconsin inmate, sued the prison’s psychological‐services staff  and correctional officers, contending that they violated the Eighth Amendment by  depriving him of a blanket, a washcloth, soap, and dental‐hygiene items while he was  in clinical observation for attempted suicide. See 42 U.S.C. § 1983. Magistrate Judge  Jones, presiding by consent, see 28 U.S.C. § 636(c), granted the defendants’ motion for  summary judgment and denied Conner’s cross‐motion. Because no reasonable juror                                                    * We agreed to decide the case without oral argument because the briefs and  record adequately present the facts and legal arguments, and oral argument would not  significantly aid the court. See FED. R. APP. P. 34(a)(2)(C).  No. 18‐3075    Page  2    could infer that Conner’s lack of personal‐care and dental‐hygiene items was  sufficiently egregious to violate the Eighth Amendment or that the withholding of his  blanket was reckless, we affirm the judgment.      On cross‐motions for summary judgment, we construe all facts and draw all  reasonable inferences in favor of Conner, the party against whom the motion was filed.  See Kemp v. Liebel, 877 F.3d 346, 350 (7th Cir. 2017). Conner has a long history of self‐ harm in prison, including attempts to choke himself in his cell with a noose fashioned  out of towels or bedsheets. The suicide attempts prompted prison staff to place him in  clinical‐observation status, a nonpunitive status for an inmate in danger of harming  himself that allows prison staff to monitor the inmate every 15 minutes in an  observation cell. In this status the psychological services unit (“PSU”) staff, in  consultation with security, determine what property items are safe for an inmate to  have in his cell.      On March 20, 2017, after Conner attempted to suffocate himself with a plastic  bag, PSU staff placed Conner in observation status, where he remained for the next  month. (He had been under observation earlier in March, too, and was released shortly  before this incident.) During this month, Conner used items in his cell to prevent the  staff from observing him—he covered the video camera in his cell with toilet paper and  hid under his security smock. PSU staff limited Conner’s property and hygiene items:  he received soap five times (about a quarter‐bar each time) and was offered weekly  showers, but he received a washcloth only once and did not have a blanket or a bath  towel for the month. Connor received Spiffies, dental cleaning wipes, whenever he  requested them, but he had no toothbrush, toothpaste, or floss. Connor had cavities that  later required tooth extractions.    PSU staff repeatedly visited Conner’s cell and attempted to speak with him to  assess the risks to his safety, but he refused to cooperate and spoke only to security  officers. He complained to them multiple times that he wanted a washcloth, bath towel,  a full bar of soap, and a blanket because he was cold. He also complained that he could  not take a shower because he did not have access to his medicated skin lotion. Security  staff referred him to PSU to request items instead. When he submitted a written request  to PSU, he was told that the items were removed as a safety precaution and that he had  to speak with a psychologist. When he complained to the health unit about not having  skin lotion, the health staff told him that he could not have it because he used the lotion  to cover the security camera in his cell and that it was a “PSU decision.” But he was told  that the nurses could schedule lotion applications.    No. 18‐3075    Page  3    After Conner left observation status, he requested information from the prison  maintenance staff about the temperature in his observation cell and asked the dental  staff whether the lack of a toothbrush, toothpaste, and floss caused his tooth extractions.  The maintenance staff replied that the computer system showed interior temperatures  between 71 and 73 degrees while he was in observation (wearing only a “security  smock”). Dental staff responded that they had recommended the extractions of two  teeth after Conner’s January 2016 oral exam, more than a year before his time in  observation status, but Conner did not request an appointment.    Conner filed this lawsuit alleging that the PSU staff members (a licensed  psychologist, psychologist supervisor, and psychological associate) violated the Eighth  Amendment by refusing to provide him with hygiene items. They also allegedly  exposed him to “extreme cold cell temps” while denying his requests for a blanket.  Conner further alleged that prison security officers assigned to monitor his observation  cell ignored his complaints and requests for items. The magistrate judge concluded,  however, that weekly showers and the lack of personal care and dental‐hygiene items  did not violate the Eighth Amendment. Further, there was no evidence from which a  reasonable jury could infer that the blanket restriction was either deliberate indifference  or retaliation.      On appeal Conner first contends that the infrequency of his showers violated the  Eighth Amendment. He asserts now, for the first time, that he was offered just four  showers from March 3 to April 20 (not March 20 to April 20), thus he did not have  access to “weekly” showers. But the complaint and the parties’ proposed findings of  fact addressed only Conner’s property restrictions between March 20 and April 20, not  during his time in observation earlier in March, so we cannot consider Conner’s new  assertion. See Midwest Fence Corp. v. U.S. Depʹt of Transp., 840 F.3d 932, 946 (7th Cir.  2016). It is undisputed that Conner was offered weekly showers between March 20 and  April 20. And we have said that restricting inmates to weekly showers does not violate  the Eighth Amendment. Jaros v. Ill. Dep’t of Corrs., 684 F.3d 667, 671 (7th Cir. 2012).  Conner protests that under prison policy he should have been able to shower three  times a week. But the policy he cites was not in effect at the time he was under  observation; the applicable policy does not specify an inmate’s shower frequency. In  any case, the Constitution does not require state actors to enforce their own policies and  regulations. Garcia v. Kankakee Cty. Hous. Auth., 279 F.3d 532, 535 (7th Cir. 2002).      Conner also argues that the magistrate judge failed to consider the evidence that  the opportunity to shower was not meaningful because he had just a quarter‐bar of  No. 18‐3075    Page  4    soap, a washcloth only once, and no bath towel or skin lotion. He says that without  these items, he had to endure “harsh and disconcerting shower conditions.” The soap  was inadequate, he had to air‐dry or use his “dirty smock” to dry himself before getting  a clean smock, and his skin would dry out after showering. Although these conditions  made showering unpleasant, no reasonable jury could find that they were “cruel and  unusual under the contemporary standard[s] of decency” or that they effectively  deprived Conner of “basic human needs.” See Rhodes v. Chapman, 452 U.S. 337, 347  (1981). Moreover, given Conner’s suicide attempts, no rational jury could find that the  PSU staff acted recklessly, or worse, by restricting items that Conner could use to harm  himself or hide himself from observation. See Farmer v. Brennan, 511 U.S. 825, 846 (1994).      Next, Conner contends that a factual dispute exists about whether dental wipes  were an adequate alternative to toothpaste, toothbrush, and floss, and whether  withholding these items caused the cavities that necessitated his tooth extractions. But  the prison doctor attested that Spiffies were sufficient for cleaning Conner’s teeth, and  Conner has provided no evidence to dispute that conclusion. Therefore, this case is not  like Board v. Farnham, which involved a long‐term denial of all oral‐hygiene products.  394 F.3d 469, 483 (7th Cir. 2005). And Conner’s health records confirm that dental staff  recommended extractions more than a year before his placement in observation status.  Without medical evidence that the use of dental wipes in the meantime worsened his  condition, a reasonable jury would be unable to find that the lack of a toothbrush and  toothpaste caused the dental extractions.      Conner further argues that the magistrate judge incorrectly resolved disputed  facts by finding that the PSU staff acted to ensure his safety when they disallowed a  blanket for a month despite “freezing cell temperatures.” He argues that the PSU staff’s  decision to withhold his blanket was retaliation for declining treatment and refusing to  speak with them. Even if we assume that this is a protected activity, the magistrate  judge did not resolve a dispute because Conner provided no evidence from which a  reasonable jury could infer a retaliatory motive in the staff’s blanket restriction.  See Arnett v. Webster, 658 F.3d 742, 760 (7th Cir. 2011); see also FED. R. CIV. P. 56(e). The  requirement that he speak to PSU staff before receiving a blanket cannot reasonably be  viewed as a reprisal for ignoring them because it is undisputed that the PSU staff had to  assess Conner’s mental state before approving items for his cell. Conner did not submit  any evidence that undercuts this rationale.    Conner also contends that disputed facts regarding his cell temperature are  material and cannot be determined at summary judgment. Conner provided a letter  No. 18‐3075    Page  5    from the maintenance department stating that cell temperatures were between 71 and  73 degrees and three affidavits from inmates averring that the cells were “extremely  cold.” Even if we conclude, as the magistrate judge did, that it is a disputed fact  whether the observation cells were cold, Conner has not provided evidence from which  it could be inferred that the PSU staff knew that it was too cold and disregarded a risk  of serious harm. See Farmer, 511 U.S. at 846. It is undisputed that Conner was placed in  observation status because he attempted suicide repeatedly by misusing property in his  cell, including a bedsheet or a towel. The parties agree that Conner refused to allow  staff to assess his risk level to determine what property he could safely have, and he  continued to abuse property while under observation (putting toilet paper over a  camera lens and hiding under his smock). Given this record, no reasonable jury could  conclude that the blanket restriction was “blatantly inappropriate” or reckless.  See Arnett, 658 F.3d at 751; see also Hayes v. Snyder, 546 F.3d 516, 524 (7th Cir. 2008).      Finally, Conner contends that the magistrate judge erred by concluding that the  security staff could not be liable because they lacked discretion to alter his property  restrictions. He argues that prison policy granted PSU staff the authority to authorize  property allowances “in consultation with security staff.” But Conner has provided no  evidence for the proposition that the security officers could have effectively overruled  the psychological staff by providing him with items that they had restricted.     AFFIRMED  

543 U.S. 1052 WALTERSv.DAUGHTERS OF CHARITY NATIONAL HEALTH SYSTEM, INC., DBA PROVIDENCE HOSPITAL, ET AL. No. 04-566. Supreme Court of United States. January 10, 2005. 1 C. A. 11th Cir. Certiorari denied. Reported below: 112 Fed. Appx. 3.

USCA1 Opinion [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 97-1214 STANLEY R. GREEN, Plaintiff, Appellant, v. UNITED STATES OF AMERICA, Defendant, Appellee. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Robert E. Keeton, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Stahl and Lynch, Circuit Judges. ______________ ____________________ Stanley R. Green on brief pro se. ________________ Donald K. Stern, United States Attorney, and George B. Henderson, _______________ ____________________ II, Assistant United States Attorney, on Motion for Summary __ Disposition, for appellee. ____________________ June 9, 1997 ____________________ Per Curiam. We carefully have reviewed the record __________ and the briefs of the parties. We therefore summarily affirm _________ ______ the judgment of the district court for essentially the reasons stated in its Memorandum and Order, dated December 30, 1996. See Local Rule 27.1. ___ -2-

Filed 12/4/14 P. v Campbell CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E059507 v. (Super.Ct.No. FVI1300914) DANNY RAY CAMPBELL, OPINION Defendant and Appellant. APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed. Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood, Meagan J. Beale, and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent. 1  I INTRODUCTION1 A jury convicted defendant Danny Ray Campbell on count 2 of simple assault—a lesser included offense of the original charge of aggravated assault (Pen. Code, §§ 240, 245, subd. (a)(4))—and on count 3 of making criminal threats. (§ 422.)2 In a bifurcated proceeding, the trial court found true defendant’s four prior felony convictions for which he had served prison terms. (§ 667.5, subd. (b).) The court sentenced defendant to six years in state prison, consisting of the middle term of two years on count 3 plus one year each for defendant’s prior convictions. On appeal, defendant makes two arguments: that he received ineffective assistance of counsel (IAC) because defense counsel did not object to prejudicial out-of- court statements and that the trial court erred by not instructing the jury on the lesser included offense of attempted criminal threats. In either instance, any error was harmless. We affirm the judgment. II STATEMENT OF FACTS Defendant rented a room in a Hesperia apartment from Delois Young for about two months. Tammy Kent was Young’s daughter. Also sharing the two-bedroom apartment were four other people: Young’s other daughter, Miracle, and three children, 1 All statutory references are to the Penal Code unless stated otherwise. 2 Count 1 for residential burglary (§ 459) was dismissed. 2 including Kent’s six-year-old son. Defendant was angry about the lack of privacy and complained that Young got on his nerves. On March 31, 2013, defendant spent the day and evening with Kent and her boyfriend, Trayvon Matthews. The trio had intended to attend a barbeque at the home of Kent’s friend, Marquita, but the event had been canceled. At close to midnight, Kent and Matthews drove defendant back to Young’s apartment complex. While defendant sat in the back seat, Kent sat in the front passenger seat. They were talking while Matthews reclined in the driver’s seat with a jacket over his face. Kent insisted defendant needed to leave the car and enter the apartment but defendant continued “talking and talking.” Defendant was mad about Marquita canceling the barbeque because he had wanted to have sex with her. Defendant became agitated and mentioned smoking “crack” the day before. Defendant called Young a “bitch” and commented that he wanted to kill her. Kent became angry with defendant. Defendant also called Kent a “bitch” and used a racial epithet. Because Matthews did not respond, Kent believed Matthews must have thought defendant was not serious. When Kent told defendant he was acting “psycho” and asked him again to leave the car, he grabbed her by the neck and began choking her. Kent struggled and felt like she was about to die. When Matthews finally noticed what was happening, he grabbed defendant and told him to “get off” Kent. Defendant said about Kent, “‘I’ll kill that bitch. I’ll kill that bitch.’” Kent believed defendant was serious because he “used to brag about” being in jail for “murder, attempted murder” all the time. Kent’s uncle had also told her that defendant had been 3 released from jail “for some type of attempted murder.” Defendant left the car and continued to yell, “‘I’m going to go kill your fucking mom.’” Young, Miracle, and the three children were all inside the apartment. Defendant started pounding on the apartment door. Young ignored the pounding because she was trying to sleep and it was late. Defendant stopped pounding on the door and started to leave the premises. Meanwhile, Kent left the car, intending to warn her mother. When Young cracked open the front door, Kent ran into the house. Kent was “hysterical” and told her mother not to let defendant inside. Kent warned, “He said he was going to kill you and the kids.” Defendant came back to the front door and asked to come in and to collect his belongings. Young blocked the entry and told defendant to wait. Defendant forced open the door and entered the apartment. He grabbed a bag from his room, which he put outside before returning. Young yelled that defendant was going to jail. Defendant “took a swing” at Young but Miracle pulled Young inside the bedroom. Kent and the others “barricaded” themselves in the bedroom and called the police while defendant kicked at the bedroom door, shouting he was going to kill the “bitch.” Kent was “so scared.” Young thought defendant would hurt her and she felt sustained fear throughout defendant’s kicking and yelling. When Kent saw a patrol car arrive, she climbed out the bedroom window to flag down the officer. A deputy sheriff, Brian Lovasco, responded in about five minutes. Kent told the deputy that defendant was inside and had threatened her mother. Deputy Lovasco found Young walking down the hallway. Defendant emerged, holding trash bags. He appeared 4 “'upset” and set down the bags at the deputy’s direction. In interviews with the deputy, Kent and Young gave accounts similar to their testimony although Kent did not mention thinking she would die while being choked and neither Kent nor Young mentioned that, while inside the apartment, defendant had threatened to kill Young. Matthews confirmed that defendant put Kent in a chokehold and that he had pushed defendant off. Matthews also heard Kent screaming but he did not hear any threats. The deputy arrested defendant. Young had a juvenile conviction for arson and a 1997 felony driving under the influence conviction. Kent had prior theft convictions in 2005, 2008, 2011, and 2012; a 2010 conviction for domestic battery when she slapped her “baby daddy” after he spit in her face; and a 2010 conviction for using force to resist an officer. III EVIDENCE CODE SECTION 352 Kent testified that defendant had bragged about serving time for murder or attempted murder although she had never taken his boast seriously.3 Kent’s uncle had also spoken to her about defendant’s criminal past. Defense counsel objected on hearsay grounds and the trial court overruled the objection, instructing the jury: “When the truth of the matter doesn’t count, for instance in this case, whether or not whatever she was told by her uncle was true or false, it doesn’t matter if she was told 3 According to the probation report, defendant was sentenced to two years in prison for causing great bodily injury to an elder (§ 368, subd. (b)(1)), after an unprovoked attack in 2010 on his landlord. 5 that and that affected how she felt. In other words, if something that the uncle told her caused her to have concern about what might or might not have been said by [defendant], then the point is that we are concerned with the effect on the listener. “And this listener can be cross-examined about whether she really heard that, whether it was really something she believed to be true or not. So that’s the difference between hearsay used in a court of law, and hearsay used in general parlance. . . . “So now you’ve had that special definition for what we mean by hearsay in a court of law. It doesn’t matter. It’s not hearsay objectionable unless it’s something that is offered for the truth of the matter asserted.” On appeal, defendant contends that defense counsel provided ineffective assistance by failing to make an alternative objection that Kent’s testimony was more prejudicial than probative under Evidence Code section 352. The trial court has the discretion to exclude evidence if its probative value “is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) However, defendant cannot demonstrate IAC under either prong of Strickland v. Washington (1984) 466 U.S. 668. “Prejudicial” is not synonymous with “damaging.” (People v. Bolin (1998) 18 Cal.4th 297, 320.) A defendant claiming IAC has the burden of proving (1) his attorney’s performance fell below an objective standard of reasonableness and (2) there was a reasonable probability the defendant would have obtained a more favorable result absent counsel’s error. (Strickland, at pp. 687, 694.) 6 Prejudice must be established as “‘a “demonstrable reality,” not simply speculation as to the effect of the errors or omissions of counsel.’” (In re Clark (1993) 5 Cal.4th 750, 766; People v. Mayfield (1997) 14 Cal.4th 668, 784.) Here defendant cannot show counsel’s performance was objectively unreasonable. Obviously the court found the challenged testimony was highly probative. Hence, the court carefully instructed the jury about why the evidence was relevant in spite of its truth or falsity. Any other objection would have been overruled. Furthermore, the evidence was also probative on the charge of criminal threat and whether Kent was reasonably in fear for her safety. (§ 422; see People v. Toledo (2001) 26 Cal.4th 221, 227-228.) In other words, the probative value was not substantially outweighed by any prejudicial effect, making an objection futile on those grounds. (See People v.Kipp (1998) 18 Cal.4th 349, 373; People v. Stratton (1988) 205 Cal.App.3d 87, 97.) There is also no prejudice where it is not reasonably probable the court would have sustained an objection based on section 352. (See People v. Williams (1997) 16 Cal.4th 153, 206.) Kent’s testimony about defendant’s bragging was equivocal and ambiguous. The trial court instructed the jury the testimony was not to be considered for the truth of the matter but only for its effect on Kent and that defendant could cross- examine Kent on whether she actually heard the statement and believed it to be true. Nothing in the record indicates the jury did not follow its instructions. Jurors are presumed to be intelligent people “‘“capable of understanding instructions and applying them to the facts of the case”’”].) (People v. Carey (2007) 41 Cal.4th 109, 130.) Furthermore, although there may have been questions about Kent’s credibility, the 7 jury demonstrated that it heeded the court’s instructions when it convicted defendant of a lesser included offense on the assault charge and requested assistance in reconciling two instructions as to the criminal threat charge. If the jurors had believed that Kent was a murderer, they would have been much less inclined to find him guilty of the lesser assault. As discussed below, they also gave full consideration to the charge involving criminal threats. Defendant has not established prejudice or the reasonable probability of a more favorable result absent counsel’s alleged shortcomings. We conclude counsel did not render ineffective assistance in failing to make an Evidence Code section 352 objection. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) IV INSTRUCTION ON ATTEMPTED CRIMINAL THREAT Defendant next contends the trial court had a duty to instruct sua sponte on the lesser included offense of attempted criminal threat. A trial court has an independent duty to instruct the jury on lesser included offenses when there is substantial evidence about whether all the elements of a charged offense are present and that defendant committed the lesser included offense, which would exculpate the defendant from guilt of the greater offense. (People v. Cole (2004) 33 Cal.4th 1158, 1218; People v. Cunningham, supra, 25 Cal.4th at p. 1008; People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Webster (1991) 54 Cal.3d 411, 443.) In deciding whether there is substantial evidence of a lesser offense, “courts should not evaluate the credibility of witnesses, a task for the jury.” (Breverman, at p. 162.) 8  The appellate court independently reviews a trial court’s failure to instruct on a lesser included offense. (People v. Breverman, supra, 19 Cal.4th at p. 162.) We hold there was no substantial evidence for the jury to conclude that defendant was guilty of the lesser offense of attempted criminal threat but not guilty of the charged offense of making a criminal threat. (Id. at p. 177.) Attempted criminal threat (§§ 664/422) is a lesser included offense of making a criminal threat: “[A] defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action.” (People v. Toledo, supra, 26 Cal.4th at p. 230; In re Sylvester C. (2006) 137 Cal.App.4th 601, 607, 609.) For example, if a threat does not actually cause the threatened person to be in sustained fear for her safety, although that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat. (Toledo, at p. 231.) Under section 422, the prosecution was required to prove that defendant intentionally made a criminal threat that actually caused Kent “‘to be in sustained fear’” for her own safety or that of her immediate family, and that Kent’s fear was reasonable under the circumstances. (People v. Toledo, supra, 26 Ca1.4th at pp. 227-228.) CALCRIM No. 1300 instructs that sustained fear means fear for “a period of time that is more than momentary, fleeting, or transitory.” Defendant contends that the jury might have concluded Kent’s fear was not “sustained” had it been instructed on the lesser included offense of attempted criminal threat. Defendant claims that less than five 9 minutes passed between when defendant made his first threat and Deputy Lovasco arrived. Although 15 minutes would have been long enough for “sustained fear,” five minutes was not enough. (People v. Allen (1995) 33 Cal.App.4th 1149, 1155-1156; CALCRIM No. 1300; see In re Ricky T. (2001) 87 Cal.App.4th 1132, 1138-1140; People v. Fierro (2010) 180 Cal.App.4th 1342.) In Ricky T., the appellate court found a lack of substantial evidence to support the element of sustained fear where a high school student left class to use the restroom and, upon returning, “found the classroom door locked and pounded on it.” (In re Ricky T., supra, 87 Cal.App.4th at p. 1135.) When the teacher opened the door, the door struck the student, who became angry, cursed at the teacher, and said, “‘I’m going to get you.’” The teacher “felt threatened” and sent the student to the office. The police were not notified until the next day. The appellate court found there was simply no evidence that the teacher “felt fear beyond the time of the angry utterances” and the student’s response was “an emotional response to an accident rather than a death threat that induced sustained fear.” (Id. at pp. 1140-1141.) Thus, nothing indicated any fear was more than fleeting or transitory. (Id. at p. 1141.) The circumstances in this case more closely resembles People v. Fierro, supra, 180 Cal.App.4th 1342, involving an altercation at a gas station during which the defendant lifted his shirt to display a weapon and threatened to kill the victim. The victim drove away shortly after the threat, but called 911 within 15 minutes and ultimately testified he was in fear for his life. (Id. at p. 1346.) Even though the threat occurred during a minute and the victim departed immediately, the court held that 10 defendant’s “actions created a sustained fear, a state of mind that was certainly more than momentary, fleeting, or transitory.” (Id. at p. 1349.) Here, defendant first threatened and choked Kent in the car. The threats continued inside the apartment until she climbed out of the bedroom window when the deputy sheriff arrived. Kent specifically testified she was afraid throughout the episode that defendant might actually kill her or her family. No evidence showed that she did not experience sustained fear. Therefore, defendant is asking this court improperly to reevaluate Kent’s credibility as a witness. (People v. Breverman, supra, 19 Cal.4th at p. 162.) The trial court did not err by failing to instruct on attempted criminal threat as a lesser included offense because there is no substantial evidence that the lesser offense, but not the greater, was committed. (People v. Breverman, supra, 19 Cal.4th at p. 162.) Furthermore, any error was harmless and does not warrant reversal unless an examination of the entire cause, including the evidence, discloses that it was reasonably probable defendant would have achieved a more favorable result had the error not occurred. (Id. at pp. 177-178.) The evidence clearly demonstrated the sustained fear necessary to convict defendant for making a criminal threat. The jury was properly instructed on the definition of “sustained fear” and found beyond a reasonable doubt that Kent experienced such fear. Defendant places great weight on the jury’s question about the interplay between CALCRIM No. 1300 [the six elements of criminal threat] and CALCRIM No. 3500 [unanimity of acts]. The jury asked: “Do all 6 instructions have to apply as #1300 states, 11 or do we have to prove only 1 act as #3500 states.” The court replied: “Only one act must be proved to satisfy 1300 but it must prove all six elements. 3500 just says that you may find more than one such act was proved but you all must agree which act was proved.” The court addressed the jury’s concern about whether it had to find all six elements true for each threat made by defendant and enabled the jury to reach a verdict. The jury’s question did not signify doubt. Given the several distinct threats made by defendant, the jury wanted to reconcile the unanimity instruction with the instruction on making a criminal threat. There is no reasonable probability error affected the outcome of the case. (People v. Breverman, supra, 10 Cal.4th at p. 177.) V DISPOSITION We hold there was no IAC or instructional error and any error was harmless. We affirm the judgment. NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J. We concur: HOLLENHORST Acting P. J. RICHLI J. 12 

539 P.2d 128 (1975) The PEOPLE of the State of Colorado, v. Charles E. WHITING, Attorney-Respondent. No. 26548, 26824. Supreme Court of Colorado, En Banc. August 18, 1975. J. D. MacFarlane, Atty. Gen., Edwin L. Felter, Jr., Deputy Atty. Gen., Denver, for the People. No appearance for attorney-respondent. KELLEY, Justice. Original proceedings in discipline were filed in this court by the attorney general wherein the defendant, Charles E. Whiting, was charged by formal complaint with acts of professional misconduct, alleged to be contrary to the highest standards of honesty, justice and morality. The respondent, it was alleged, had agreed to represent clients in some eight lawsuits pending in the courts of Garfield and Eagle Counties, Colorado. Notwithstanding his obligations to his clients, the respondent, on or about April 18, 1974, closed his office in Glenwood Springs and left the state of Colorado without advising his clients or the courts of his intention to do so, essentially abandoning all matters. A formal hearing was held before the Grievance Committee of the Supreme Court on March 19, 1975. The respondent did not appear in person or by counsel. Based primarily upon the testimony of Charles F. Stewart, Chief Judge, Ninth Judicial District, the Grievance Committee made findings of fact which support the allegations of the complaint. We agree. More specifically, the Grievance Committee found that the respondent was admitted to the practice of law by this court on or about October 6, 1970. He was practicing law in Glenwood Springs, Garfield County, Colorado, when on or about April 18, 1974, he closed his office and left that community without advising his clients, any of the judges in that district, court personnel or opposing counsel in pending cases. He left no forwarding address when he closed his office, and "up to the date of this hearing before the Grievance Committee his whereabouts are unknown, even though Chief District Judge, Charles F. Stewart of Glenwood Springs, tried to determine his whereabouts, and every effort has been made by the office of the Attorney General to find Respondent in the City of Glenwood Springs, Colorado, in the County of Garfield, State of Colorado, *129 and leads have been followed that Respondent was in the State of California and also in New York State." Further, respondent did not leave a new address in the office of the clerk of this court, as required by Rule 227(4) within thirty days of his change of address. Correspondence, service of process, and finally a certified letter addressed to Charles E. Whiting, 812 Grand Avenue, P.O. Box 1041, Glenwood Springs, Colorado 81601, postmarked February 26, 1975, which contained a notice of the hearing of the Grievance Committee, was returned by the United States Post Office marked "not deliverable as addressed—unable to forward," together with another notation on the envelope marked "box closed—no order Glenwood Springs, Colo. 81601." Respondent did not appear at the hearing and was found to be in default. The committee further found: "On April 24, 1974, a Mr. Spalding, one of the Defendants in a criminal case, `People of the State of Colorado vs. Donald and Martha Spalding' appeared in his chambers and told the Judge that he had a hearing coming up on May 8, 1974, had tried to find his attorney, Charles E. Whiting, and been informed that he had left town. At Respondent's office, which he shared with a real estate firm and a C.P.A., he was informed that no one there knew the whereabouts of the Respondent. Judge Stewart then told Mr. Spalding he would have to employ other counsel and then Judge Stewart and Judge Litwiller went to the office of Charles E. Whiting and obtained the file from that office receiving a receipt dated May 1, 1974. "There were other examples where Respondent failed to appear, and it necessitated the client in obtaining the services of another attorney. This happened in `People vs. Hauschel', `People vs. Meier', and `Hagan vs. Sutherland'. In each instance, Respondent had not notified his client of leaving, and there was a complete abandonment of the clients by the Respondent." The committee concluded that the foregoing action of the respondent constituted unprofessional conduct and gross negligence in that respondent has conducted himself contrary to the highest standards of the legal profession by abandoning his clients, by violating his obligations to his clients in not proceeding with the case assignments that he had been employed to pursue. The committee recommended to the court that the respondent be disbarred and that the costs of these proceedings be assessed against him. The committee further recommended that the Chief Judge, Charles F. Stewart, take possession of the files of the respondent and arrange for any reassignment of the cases still pending. We adopt the findings of the committee and concur in its recommendations. The findings of the Grievance Committee that the conduct of the respondent is contrary to the highest standards of honesty, justice and morality is based upon a flagrant violation of his oath as an attorney. This is a case of mass abandonment of the interests of his entire clientele which indicates a complete lack of responsibility on the part of the respondent. We are in complete accord with the recommendation of the committee and accordingly, it is ordered that the respondent be disbarred. Costs in the amount of $46.76 are taxed to the respondent and he is ordered to pay that amount to the Clerk of the Supreme Court within 90 days. GROVES and ERICKSON, JJ., do not participate.

366 F.Supp. 582 (1973) Murray ANDERSON et al., on behalf of themselves and others similarly situated, Plaintiffs, v. John T. DUNLOP et al., Defendants. Civ. A. No. 1621-73. United States District Court, District of Columbia. August 24, 1973. *583 Jerry S. Cohen, Herbert E. Milstein, Michael D. Hausfeld, Washington, D. C., Harold E. Kohn, Philadelphia, Pa., for plaintiffs. Irving Jaffe, Acting Asst. Atty. Gen., William E. Nelson, William C. White, Allen W. Hausman, Dept. of Justice, Washington, D. C., for defendants. FINDINGS OF FACT AND CONCLUSIONS OF LAW PARKER, District Judge. This cause came before the Court on August 22, 1973 on Plaintiffs' Motion for Preliminary Injunction. The Court, having considered plaintiffs' and defendants' memoranda, the affidavits and statements submitted and having heard argument of counsel, makes the following Findings of Fact and enters the following Conclusions of Law: Findings of Fact 1. Plaintiffs are service station dealers selling retail gasoline under the brand name of a major gasoline supplier pursuant to agreements with said suppliers. They bring this action on behalf of themselves and a class composed of all other dealers similarly situated. 2. Pursuant to Section 203 of the Economic Stabilization Act of 1970, as amended (Public Law 91-379, 84 Stat. 799, August 15, 1970; Public Law 92-210, 85 Stat. 743, December 22, 1971; Public Law 93-28, April 30, 1973) (Act), the President, on August 15, 1971, established a freeze on prices, rents, wages and salaries for a limited period and established the Cost of Living Council (Council). 3. Defendants are members of the Council and were appointed by the President pursuant to Executive Order 11695. 4. Among the objectives of the Act and Cost of Living Council Regulations which are pertinent to this case are to moderate the rate of inflation which has existed in the United States during the first six months of 1973; to continue expansion of the United States economy to fulfill its potential with further increases in employment; and to reduce long run inflationary forces. 5. In response to sharply rising domestic crude oil and wholesale and retail gasoline prices in April 1973, the Director of the Council ordered his staff to study the subject and to make policy recommendations designed to alleviate these problems. 6. On July 18, 1973, the President declared that among the general policy considerations to be applied in promulgating the current Phase IV price control regulations are the following: That prices be permitted to rise as much as costs rise, in dollars per unit of output without any profit margin on the additional costs; and that Phase II exemptions for firms with sixty employees or fewer be repeated in Phase IV. 7. A study was made and recommendations for regulations were submitted to the Director and reviewed and approved by the President's Oil Policy Committee and subjected to staff review within the Executive Branch. *584 These proposed regulations were published in the Federal Register, for comment on July 20, 1973. On August 17, 1973 the Council issued Phase IV Oil Regulations. 8. Plaintiffs and the class are the only class of retailers employing sixty or fewer individuals who are not exempt from the regulations. 9. There is no factual or statistical information or material justifying the failure to make the small business exemption under the regulations applicable to plaintiffs and the class. 10. There is no rational relationship between the objectives of the regulations and the denial to plaintiffs and the class of their small business exemption. 11. All segments of the economy and all other classes of retailers are allowed under the regulations to pass through increased costs on a dollar for dollar basis with the exception of plaintiffs and the class. 12. Plaintiffs and the class have been singled out from among all other classes in that they must absorb all their non-product cost increases since January 10, 1973. 13. Plaintiffs and the class have been singled out from all other classes and in particular, all petroleum firms, in that they must absorb all product cost increases after August 1, 1973. 14. Plaintiffs and the class are the only class whose principal supplier is allowed to pass on his costs both in product and otherwise to Plaintiffs and the class while they, in turn, may not pass on such costs in their sales to the general public. 15. The Phase IV January 10, 1973, date for the establishment of price margins for plaintiffs and the class is an arbitrary date, bearing no reasonable relationship to the ends sought to be achieved under the Regulations. 16. The application of Subpart L of the August, 1973 Oil Regulations to plaintiffs and the class would require plaintiffs and substantial members of the class to go out of business or otherwise sustain substantial and severe economic injury. 17. The establishment of a refiner-retailer class within Subpart L, with separate and distinct regulations applicable thereto, has no rational foundation and confers a competitive advantage upon said class not available to plaintiffs and the class. 18. Establishment of a refiner-retailer class within Subpart L is inconsistent with the objective of the Act and the Regulations. 19. Requiring plaintiffs to exhaust their administrative remedies would result in irreparable harm, in that in this case, time is crucial to protect the rights of plaintiffs and the class. Conclusions of Law 1. This Court has jurisdiction over this action pursuant to Section 211 of the Economic Stabilization Act, as last amended by P.L. 93-28 (April 30, 1973). 2. Venue is proper. 3. Subpart L of the Phase IV Oil Regulations as applied to plaintiffs and the class is arbitrary and capricious within the meaning of the Act. 4. Subpart L as applied to plaintiffs and the class discriminates against plaintiffs and the class and violates the due process clause of the Fifth Amendment. 5. The provisions and regulations of Subpart L as applied to plaintiffs and the class are arbitrary and discriminatory and bear no rational relationship to the ends sought to be achieved by the Act or of Phase IV regulations in general and, therefore, violate the due process clause of the Fifth Amendment. 6. Plaintiffs have made a sufficiently strong showing that they are likely to prevail on the merits of this suit. 7. The preliminary injunction should be granted.

396 Mass. 711 (1986) 488 N.E.2d 410 COMMONWEALTH vs. JOSEPH D'ONOFRIO (and companion cases[1]). Supreme Judicial Court of Massachusetts, Suffolk. October 9, 1985. February 11, 1986. Present: HENNESSEY, C.J., WILKINS, LIACOS, LYNCH, & O'Connor, JJ. Michael J. Traft, Assistant District Attorney, for the Commonwealth. Edward J. Sweeney, III (William R. Marino with him) for the defendants. O'CONNOR, J. The defendants are charged in numerous complaints with exposing and keeping alcoholic beverages for sale without authority, retailing soft drinks without a license, operating a place of assembly which exceeds the occupancy limit, *712 and managing unlicensed Sunday dances.[2] This is an interlocutory appeal by the Commonwealth from an order of a judge of the Boston Municipal Court Department suppressing evidence obtained as a result of the execution of two search warrants. Mass. R. Crim. P. 15 (a) (2), 378 Mass. 882 (1979). We transferred the appeal to this court on our own motion and now vacate the suppression order and remand the cases for further proceedings. The judge ordered the evidence suppressed after conducting an evidentiary hearing on the defendants' motion to suppress. In a written memorandum of findings and rulings, the judge stated that the search warrants were based on two affidavits, each of which contained the following introductory recitation: "As a result of a complaint received by the Vice Control Section relative to illegal activities being conducted at the `Loft' which is located at 21 Stanhope St., Boston, Mass., an investigation was ordered by Lieutenant Edward J. McNelley of the Vice Control Section relative to these alleged activities, which investigation commenced on March 19, 1983, with an undercover police operation." The judge's memorandum then states that following that introductory recitation the affidavits set forth detailed observations made at The Loft by two undercover police officers on four different occasions.[3] The judge reasoned that affidavits in support of search warrants "must stand or fall solely on their contents," and that the two affidavits in this case were insufficient to support the issuance of search warrants because they failed to provide sufficient information about the complaint or the source of the complaint to which reference was made in the introductory recitation, and which prompted Lieutenant McNelley's decision to conduct an undercover investigation at The Loft. The *713 judge "analogize[d] the single `complaint' to an anonymous informant's tip which on its face is conclusional," and concluded that the complaint did "not provide the officers with a sufficient basis with which to enter the `Loft' under the so-called `exigent circumstances' exception." The officer's observations, the judge ruled, "[did] not save the warrants." We interpret the judge's rationale to have been that, in the absence of material in the affidavits demonstrating the reliability of the complainant and the complaint, the police officers were not shown to have been rightfully at The Loft when they made the observations set forth in the affidavits, and that the lack of that showing was fatal to the affidavits and the resulting search warrants. However, neither this court, nor any other appellate court of which we are aware, has ever required an affidavit that sets forth a police officer's personal observations in support of a search warrant to contain information showing that the officer made those observations without violating the defendant's rights guaranteed by the Fourth Amendment. We are unwilling to impose such a requirement. Our determination that the judge was in error in ruling that the affidavits were defective because they did not demonstrate that the officer's observations were made lawfully does not end our inquiry. Even though there is no requirement that the affidavits themselves demonstrate that Officer Dovidio's observations were lawful, if, as a matter of fact, the observations resulted from a violation of the defendants' Fourth Amendment rights, the observations cannot support the issuance of search warrants, and any evidence traceable to those observations must be suppressed. See Maryland v. Macon, 472 U.S. 463, 467-468 (1985); Commonwealth v. Hall, 366 Mass. 790, 792 (1975); Commonwealth v. Dinnall, 366 Mass. 165, 167 (1974); Commonwealth v. Laudate, 345 Mass. 169, 171 (1962). Therefore, the question whether the officer's observations, which are critical to the affidavits, resulted from an intrusion on the defendants' Fourth Amendment rights must be answered.[4] *714 The judge did not make detailed findings concerning the circumstances of the police observations at The Loft. This ordinarily would require our remanding the case to the trial court for further proceedings. In this case, however, remand is unnecessary because the evidence introduced at the suppression hearing would not have warranted a conclusion that the officer's observations set forth in the affidavits supporting the search warrants were unlawfully made. It is undisputed that when Dovidio made the relevant observations he was inside The Loft without the benefit of a search warrant. The Commonwealth does not contend that Dovidio's presence there was justified by probable cause and exigent circumstances. Instead, the Commonwealth's position is that when Dovidio entered The Loft the defendants had no reasonable expectation of privacy there, and that while Dovidio was located where he had a right to be he observed the items in plain view described in the affidavits. Whether or not Dovidio's observations resulted from a violation of the defendants' Fourth Amendment rights depends on whether Dovidio intruded on the defendants' reasonable expectation of privacy. Commonwealth v. Cadoret, 388 Mass. 148, 150 (1983). Commonwealth v. Simmons, 383 Mass. 46, 54 (1981). The inquiry is twofold: (1) Did the defendants subjectively expect privacy at The Loft? (2) If so, was their expectation objectively reasonable? Oliver v. United States, 466 U.S. 170, 177 (1984). Commonwealth v. Simmons, 392 Mass. 45, 48 (1984). Commonwealth v. Podgurski, 386 Mass. 385, 388 (1982). Unless the defendants had a reasonable expectation of privacy at The Loft when the officer made observations there, there was no "search" within the meaning of the Fourth Amendment, Maryland v. Macon, supra at 470-471; Sullivan v. District Court of Hampshire, 384 Mass. 736, 741 (1981), and therefore there was no violation of the defendants' Fourth Amendment rights. Although the burden of establishing that a warrantless search is reasonable, and therefore lawful, is on the Commonwealth, Commonwealth v. Antobenedetto, 366 Mass. 51, 57 (1974), the burden with respect to the threshold question whether a *715 search in the Fourth Amendment sense occurred at all is on a defendant. To establish a violation of rights secured by the Fourth Amendment, the defendants must prove that the officer obtained the information central to the affidavits by invading their reasonable expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 104-105 (1980). United States v. Hershenow, 680 F.2d 847, 855 (1st Cir.1982).[5] Because the defendants have that burden, they are entitled to an order remanding this case for findings on the Fourth Amendment issue only if the evidence before the motion judge would have warranted a conclusion favorable to them. Accordingly, we set forth the evidence at the suppression hearing that was most favorable to the defendants. The Loft Twenty-One Association, Inc., is a fraternal organization, structured as a nonprofit corporation, that operates an after-hours club, called The Loft, in a building at 21 Stanhope Street in Boston. The defendants are officers of the corporation and central figures in the management of the club. Individuals seeking membership are required to complete applications and to pay a membership fee. In addition, members are required to pay a cover charge of $5 and sign a sign-in sheet on each occasion they enter the premises. The sign-in sheets contain the following statements: "By signing this sheet of the Loft Twenty-One Association I represent that I am a member ... or a guest of a member, I hereby acknowledge truthfully and honestly that I am not a member of nor working for the police department or any other law enforcement agency. I have no objection to observing or being asked to participate in same sex dancing or other private expressions of same sex affection or eroticism; I endorse private consensual adult homosexual activity. Only members or guests who have signed the above *716 statement will be permitted to enter the club facilities." The Loft's policy is to admit members and guests of members. Guests of members, like members, are required to pay cover charges and to sign the sign-in sheets. Club personnel, stationed near the entrance to the premises, are instructed to check membership cards and to check whether nonmembers are actually guests of members. On March 20, 1983, in the early morning, the defendant D'Onofrio was checking persons entering the premises. He allowed a group of four people to enter the club. One of the four was a member. Officer Dovidio was the last person in that group and he told D'Onofrio that he was a guest of Robert Sterling, who was a member known to D'Onofrio. Dovidio, attired in casual clothes, paid the $5 cover charge and signed a false name to the sign-in sheet. On March 27, 1983, Dovidio, again in civilian attire, paid the cover charge, told D'Onofrio that he was a guest of a member, signed the sign-in sheet, and entered. On this occasion, according to D'Onofrio's testimony, "there were other people lined up, and there wasn't time to adequately ask everybody who they were with. [D'Onofrio] just asked them to sign their names. If they were recognized by [him, he] didn't ask any further questions.... Mr. Dovidio, having been in the prior week, [D'Onofrio] knew to be a guest of a member." According to the testimony, Dovidio entered the premises early in the morning on April 3 and April 10, 1983, under conditions similar to those of his earlier visits. On April 10, 1983, Dovidio was evicted from The Loft on the ground that he was neither a member nor a guest of a member. Within a few minutes thereafter, several members of the Boston police department entered the premises to execute the search warrants which are the subject of this dispute. To establish a reasonable expectation of privacy, it is not enough for the defendants to show that they had an unenforced "policy" of restricting access to The Loft to members and guests of members. In Commonwealth v. Simmons, 392 Mass. 45, 50 (1984), we noted the relevancy to "the expectation of privacy calculus" of "whether the defendant `took normal precautions to maintain his privacy — that is, precautions customarily *717 taken by those seeking privacy.' Rakas v. Illinois, [439 U.S. 128, 152 (1978) (Powell, J., concurring)]." We said in Commonwealth v. Cadoret, 388 Mass. at 151, that "[f]ailure to enforce limitations on admittance would warrant the conclusion that the persons operating the club had no reasonable expectation of privacy." That conclusion is required in the absence of reasonable enforcement efforts. See Commonwealth v. Weimer, 262 Pa. Super. 69, 72, 75-76 (1978) (Police officers gained entrance to a private club in which admission was theoretically restricted to members. There was one entrance and it was through a locked door activated by a buzzer system. The door contained a one-way mirror. The officers, not in uniform, gained entrance simply by pressing the doorbell. The court held that the "lax enforcement of purported security measures indicate[d] that appellees' expectation of privacy was hardly reasonable or justifiable"). We have set forth all the evidence at the suppression hearing having a tendency to show enforcement of the admissions policy at The Loft. In the absence of evidence that the defendants made reasonable efforts to corroborate the claims of guest statutes made by persons seeking admission to the club, the evidence fails to show that the public was not freely admitted there. If the public was freely admitted, the defendants did not have a reasonable expectation of privacy, and Officer Dovidio's entrance into the club and observations of things in plain view did not violate the defendants' Fourth Amendment rights. As we have said before, "police officers may accept a general public invitation to enter commercial premises, and while there ... they may take note of anything in plain view." Commonwealth v. Cadoret, 388 Mass. at 150-151. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351 (1967). Even if the evidence would have warranted a finding that a policy of excluding police officers, but not the public, was enforced, that would not have established an expectation of privacy that is reasonable, and therefore protected, under the Fourth Amendment. "The test of [reasonableness] is not whether *718 the individual chooses to conceal assertedly `private' activity. Rather, the correct inquiry is whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment." Oliver v. United States, supra at 182-183. The Fourth Amendment was not designed to protect persons from police presence in areas open to the general public, and the fact, which could be found on the evidence, that Officer Dovidio falsely denied that he was a police officer is of no consequence. "[T]he Government is entitled to use decoys and to conceal the identity of its agents." Lewis v. United States, 385 U.S. 206, 209 (1966). Commonwealth v. Miller, 361 Mass. 644, 655 (1972). The evidence also would have warranted a finding that Dovidio misrepresented that he was a guest of a member of the club. That misrepresentation, too, is without consequence in view of the insufficiency of the evidence to show reasonable enforcement of a policy to exclude persons other than members and their guests. The defendants' position is not advanced by viewing Dovidio as a trespasser by reason of having gained entrance to the club by misrepresentation. "The fact that the [officer] may have committed a technical trespass does not create a Fourth Amendment violation when no expectation of privacy exists. As the United States Supreme Court has noted on several occasions, `the Fourth Amendment protects people, not places.... [t]he premise that property interests control the right of the Government to search and seize has been discredited.' Katz v. United States, 389 U.S. 347, 351-353 (1967), and cases cited." Commonwealth v. Simmons, 392 Mass. 45, 49 (1984). In summary, there is no requirement that search warrant affidavits containing the observations of police officers establish that the observations were made without infringement on Fourth Amendment rights. However, evidence obtained by the execution of search warrants issued on the basis of affidavits setting forth observations made as a result of an unlawful search must be suppressed on a proper motion. The burden of proving that a search was made, in the Fourth Amendment sense, is on the defendant. The evidence at the suppression *719 hearing in these cases was insufficient to warrant a finding that a search was made. Therefore, the judge erred in allowing the motion to suppress. Accordingly, the order allowing the motion to suppress is vacated and the cases are remanded for further proceedings, including the entry of an order denying the motion to suppress. So ordered. NOTES [1] The other defendant is Paul Cadoret. [2] This court and the Appeals Court have previously considered the lawfulness of earlier searches conducted at the same premises. See Commonwealth v. Cadoret, 388 Mass. 148 (1983); Commonwealth v. Cadoret, 15 Mass. App. Ct. 654 (1983). [3] The evidence at the suppression hearing indicated that two officers made observations at The Loft, but the affidavits referred only to observations made by Officer Daniel Dovidio. [4] The defendants' argument is limited to the Fourth Amendment to the United States Constitution. No separate State constitutional argument has been advanced. [5] In Commonwealth v. Cadoret, 388 Mass. at 150, we said: "The Commonwealth argues that it met its burden (see Commonwealth v. Antobenedetto, 366 Mass. 51, 57 [1974]) of showing the absence of any reasonable expectation of privacy because The Loft was a public place." In Cadoret the posture of the burden of proof was not in issue, and our statement was not intended to be an endorsement of the Commonwealth's conclusion regarding the burden of proof being on the Commonwealth.

660 F.3d 695 (2011) UNITED STATES of America v. Santiago SALINAS-CORTEZ, Appellant. No. 11-1580. United States Court of Appeals, Third Circuit. Submitted Pursuant to Third Circuit L.A.R. 3.1(a) October 4, 2011. Filed: November 8, 2011. David L. McColgin, Esq., Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for Appellant. *696 Kevin R. Brenner, Esq., Bernadette A. McKeon, Esq., Office of United States Attorney, Philadelphia, PA, for Appellee. Before: McKEE, Chief Judge, FUENTES and COWEN, Circuit Judges. OPINION McKEE, Chief Judge. In Pepper v. United States, 562 U.S. ___, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), the Supreme Court held that, once the original sentence is set aside on appeal, a district court could consider postsentencing rehabilitation in determining an appropriate sentence on remand, unless the court ordering the remand explicitly precludes consideration of such evidence. Here, we vacated Salinas-Cortez's original sentence because the district court did not address his request for a "minor role adjustment," and we remanded for the district court to consider that claim in calculating the applicable range under the advisory Sentencing Guidelines. During the sentencing hearing that followed, Salinas-Cortez also asked the district court to consider the efforts he had made toward rehabilitation since he was sentenced. The district court refused to do so because the court believed that its authority on remand was limited to addressing the request for a minor role adjustment. After rejecting Salinas-Cortez's request to consider his postsentencing rehabilitation, the court reimposed the original sentence. Approximately one week later, the Supreme Court decided Pepper. We are now asked to decide if the district court erred in rejecting evidence of postsentencing rehabilitation as permitted in Pepper. For the reasons that follow, we hold that the district court did err and we will therefore vacate the sentence once again and remand for resentencing. I. The district court initially sentenced Salinas-Cortez after accepting his guilty plea to one count of conspiracy to possess more than five kilograms of cocaine with intent to distribute in violation of 21 U.S.C. § 846, and one count of possession of five kilograms or more of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2 (aiding and abetting). At that sentencing, Salinas-Cortez requested a sentence reduction of four levels (or in the alternative, two levels) pursuant to U.S.S.G. § 3B1.2. The request was based on his claim that he was a minimal and/or minor participant in the distribution conspiracy, that he did not have a decision-making role, and was not entitled to a significant portion of the proceeds from the drug sales.[1] The Presentence Report concluded that Salinas-Cortez had been more than a minimal or minor participant and that he was therefore not entitled to any reduction under U.S.S.G. § 3B1.2. The district court adopted the Presentence Report, but did not expressly rule on Salinas-Cortez's request for a reduction as a minor participant. The court then imposed a sentence of 156 months of incarceration, and Salinas-Cortez appealed. *697 As we noted at the outset, on appeal, Salinas-Cortez argued that the district court had committed procedural error by not expressly ruling on his colorable request for a two-level reduction. We agreed and vacated the sentence. In doing so, we reaffirmed that a sentencing judge is free to adopt the proposed findings in a Presentence Report. See United States v. Sevilla, 541 F.3d 226, 229 (3d Cir.2008). However, we were concerned that "the record [did] not clearly establish that the District Court [independently] decided the two-level issue and intended the presentence report to serve as an explanation of [the court's] ruling on that issue[.]" Salinas-Cortez does not now challenge the district court's rejection of his request for a reduction for being a minor participant. Rather, his sole argument here is that the district court erred in refusing to consider any evidence of his postsentencing rehabilitation on remand as permitted by Pepper. II. In Pepper, Jason Pepper pled guilty to conspiracy to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 846. 131 S.Ct. at 1236. The district court sentenced him to a 24-month prison term, which was approximately a 75 percent downward departure from the low end of the Guidelines range.[2]Id. The Government appealed the sentence and the Court of Appeals for the Eighth Circuit reversed and remanded for resentencing pursuant to United States. v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Id. However, Pepper served his sentence and had been released prior to resentencing. Id. At the subsequent resentencing hearing, Pepper presented substantial evidence of postsentencing rehabilitation, and the district court then reimposed the original sentence of 24 months of imprisonment based on its conclusion that no federal sentencing policy would be advanced by returning Pepper to prison. Id. at 1237. The Government again appealed arguing that the sentence was too lenient, and the Court of Appeals again reversed after concluding that the district court erred in considering Pepper's postsentencing rehabilitation on remand. Id.[3] Pepper appealed, and the Supreme Court granted certiorari to decide two questions. The Court defined the first of the two issues as: "whether a district court, after a defendant's sentence has been set aside on appeal, may consider evidence of a defendant's postsentencing rehabilitation to support a downward variance when resentencing the defendant." Id. at 1239. In resolving that issue, the Supreme Court emphasized that it "has long recognized that" "the fullest information possible concerning the defendant's life and characteristics" "is `highly relevant—if not essential—to the selection of an appropriate *698 sentence.'" Id. at 1240 (quoting Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)). Indeed, as the Pepper Court explained, Congress codified this principle at 18 U.S.C. § 3661, which provides that "no limitation shall be placed on the [sentencing court's consideration of] information concerning the background, character, and conduct" of a defendant.' Id. The Court also noted that § 3553(a) requires consideration of a defendant's history and characteristics. Id. at 1242. The reason for such consideration is readily apparent. Appropriate sentences can only be imposed when sentencing courts "consider the widest possible breadth of information about a defendant." Id. at 1240. It is only then that we can "ensure[] that the punishment will suit not merely the offense but the individual defendant." Id. As we have previously explained, the now advisory Guideline range is but one of many factors that must be considered if a court is to properly impose a sentence that is tailored to the offender rather than one that focuses only on the offense. See United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (When sentencing, "it is essential that district courts make an `individualized assessment based on facts presented.'") (quoting Gall v. U.S., 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). It is only by ensuring that the individual circumstances of the defendant are not obliterated by the offense that an individual's potential to successfully rejoin society is maximized and the interest of public safety advanced. Thus, "[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue." Koon v. United States, 518 U.S. 81, 113, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). This bedrock principle predates enactment of the Guidelines. It should therefore not be surprising that a defendant's postsentencing rehabilitation may illuminate a defendant's character and assist the sentencing court in assessing who the defendant is as well as who s/he may become. Such information may, in some cases, be as significant in ascertaining the defendant's character and likelihood of recidivism as the defendant's conduct before s/he was forced to account for his/her antisocial behavior. See Pepper, 131 S.Ct. at 1242 (citing with approval United States v. McMannus, 496 F.3d 846, 853 (8th Cir.2007) (Melloy, J., concurring) ("In assessing at least three of the Section 3553(a) factors, deterrence, protection of the public and rehabilitation, 18 U.S.C. § 3553(a)(2)(B), (C) & (D), there would seem to be no better evidence than a defendant's post-incarceration conduct.")). Consequently, the Court concluded that postsentencing rehabilitation was a critical part of a defendant's history that can be relevant in assessing the likelihood of future criminal behavior. Pepper, 131 S.Ct. at 1242; see also, 18 U.S.C. § 3553 ("A district court to which a case is remanded. . . shall resentence a defendant in accordance with section 3553."). Nevertheless, the Court in Pepper was also careful to note that, where appropriate, a reviewing court retains the authority to limit the scope of the sentencing hearing that will occur on remand. Id. at 1249 n. 17. However, given the Court's analysis, it is clear that such a limitation is the exception and not the rule, and district courts should not infer any such limitation on remand. Rather, a limitation precluding the consideration of postsentencing rehabilitation must clearly appear on the *699 face of the opinion or judgment vacating the original sentence and remanding for resentencing. In explaining our decision and ordering the remand here, we stated: [W]e believe there was procedural error and on remand the court should address Salinas-Cortez's request for a two-level reduction as a minor participant in the offense. Of course, we express no opinion on the proper determination. . . . For the foregoing reasons, we will affirm the judgment of conviction, vacate the sentence and remand for the District Court to consider whether Salinas-Cortez was a "minor" participant under U.S.S.G. § 3B1.2(b). United States v. Salinas-Cortez, 403 Fed. Appx. 686, 689 (3d Cir.2010). Despite the Government's argument to the contrary, this rather generic language is simply not sufficient to limit the district court's ability to consider evidence of postsentencing rehabilitation in fashioning an appropriate sentence on remand. Accordingly, we will once again vacate the sentence that was imposed and remand for resentencing. NOTES [1] See U.S.S.G. § 3B1.2(a) and (b) (A defendant is a "minimal participant" entitled to a four-level reduction in sentencing if he is plainly among the least culpable of those involved in the conduct because he lacked sufficient knowledge or understanding of the scope and structure of the criminal enterprise. Alternatively, a defendant is a "minor participant" entitled to a two-level reduction in sentencing if he is less culpable than most other participants but he can not be considered a "minimal participant" in the criminal enterprise.). [2] "Pepper's sentencing range under the Guidelines was 97 to 121 months. The Government moved for a downward departure pursuant to USSG § 5K1.1 based on Pepper's substantial assistance and recommended a 15 percent downward departure." See Pepper, 131 S.Ct. at 1236. [3] The Supreme Court explained: "the Court of Appeals rejected Pepper's argument that the District Court erred in refusing to consider his postsentencing rehabilitation. The court acknowledged that Pepper made significant progress during and following his initial period of imprisonment and commended Pepper on the positive changes he has made in his life, but concluded that Pepper's argument was foreclosed by Circuit precedent [precluding reliance upon] post-sentencing rehabilitation [as] a permissible factor to consider in granting a downward variance." Id. At 1239 (internal citations omitted).

435 F.Supp. 472 (1977) In re COED SHOP, INC., Bankrupt. No. TBK 75-69. United States District Court, N. D. Florida, Tallahassee Division. May 20, 1977. *473 William M. Smith, Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, Fla., for plaintiff. C. Edwin Rude, Jr., Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, Fla., for trustee. STAFFORD, District Judge. On December 20, 1974 the Coed Shop, Inc., a Florida corporation, borrowed $35,000 from Capital City First National Bank for the purpose of opening a nightclub business. As collateral for the loan Coed gave Capital City an assignment and a first lien on its liquor license which was filed with the State of Florida Department of Business Regulations, Division of Beverage, pursuant to Fla.Stat. § 561.65 (1975). Coed opened for business on January 17, 1975 and on August 18, 1975 filed a voluntary petition for reorganization under Chapter X of the Bankruptcy Act. The Chapter X proceeding failed and Coed was subsequently adjudicated a bankrupt. Capital City filed a proof of claim in the bankruptcy proceedings asserting its status as a secured creditor and alleging that it was owed $29,861.90 of the original $35,000 loan. The Trustee does not contest the amount of the claim, but objects to the fact that Capital City claims to have a perfected security interest in the liquor license. After a hearing on the matter the Special Master found that Capital City had a perfected security interest in the liquor license as of the date the petition for bankruptcy was filed and denied the Trustee's objections to the claim. This ruling was based upon a finding that Fla.Stat. § 561.65 (1975) is a central filing statute within the meaning of Fla.Stat. § 679.302(3)(b) (1975), or in the alternative that under the provisions of Fla.Stat. § 679.401(2) (1975) the interest of the Trustee would still be inferior to that of Capital City. The Trustee seeks to have that order vacated. It is settled law in Florida that although a liquor license is a "privilege" there is a recognized property interest acquired by the license holder and the license may be the subject of a collateral assignment for purposes of securing an obligation of the license holder. Yarbrough v. Villeneuve, 160 So.2d 747 (Fla. 1st Dist.Ct.App.1964). Since the adoption of the Uniform Commercial Code in Florida the perfection of a security interest in personal property has been controlled by Chapter 679 of the Florida Statutes. In order for Capital City's interest to be superior to that of the Trustee it must have been perfected at the date the petition for bankruptcy was filed. This is true because of the status of the Trustee under section 70(c) of the Bankruptcy Act, which provides in part that: The trustee shall have as of the date of bankruptcy the rights and powers of: (1) a creditor who obtained a judgment against the bankrupt upon the date of bankruptcy, whether or not such a creditor exists, (2) a creditor who upon the date of bankruptcy obtained an execution returned unsatisfied against the bankrupt, whether or not such a creditor exists, and (3) a creditor who upon the date of bankruptcy obtained a lien by legal or equitable proceedings upon all property . . .. 11 U.S.C. § 110(c). In Florida a liquor license is a general intangible. 29 Fla.Jur., Secured Transactions, § 101 (1967). Pursuant to Fla.Stat. § 679.302 (1975), filing of a financing statement is required to perfect a security interest in a general intangible. Filing is accomplished by: *474 Presentation for filing of a financing statement and tender of the filing fee or acceptance of the statement by the filing officer and recording in compliance with section 679.4011, where required . . .. Fla.Stat. § 679.403(1) (1975). Where filing is required, the place of filing is generally covered by Fla.Stat. § 679.401 (1975). In the case of a general intangible filing of the financing statement must normally be in the office of the Secretary of State. There is an exception to the filing provisions set forth above contained in the U.C.C. Section 679.302(3)(b) of the Florida Statutes provides: (3) The filing provisions of this chapter do not apply to a security interest in property subject to a statute: (b) of this state which provides for central filing of [a] security interest in such property . . . for which a certificate of title is required under the statutes of this state if a notation of such security interest can be indicated by a public official on a certificate or duplicate thereof. Capital City takes the position that Fla. Stat. § 561.65(3) (1975) is a central filing statute within the meaning of section 679.302(3)(b), and therefore its interest is perfected. Section 561.65(3) provides: (3) If any such bona fide mortgagee or lienholder shall serve notice in writing on the division of the extension of such lien and accompany said notice with a fee of five dollars to the division, . . . then such lienholder shall be notified in writing of the filing of an order to show cause as to why said license should not be suspended and revoked, and also said lienholder shall be furnished a copy of any order of suspension or revocation. The Court is of the view that this section does no more than provide a mechanism to enable a lienholder to receive notice from the Division of Beverage in the event action is taken which may affect the continued existence of the beverage license. The clear purpose of the statute is to allow a lienholder to insure that he is notified of any action which may adversely affect his interest. It does not necessarily provide notice to the world. Indeed, filing with the Division of Beverage is optional and not required in order to perfect a security interest; consequently checking the records of the Division of Beverage gives no assurance that there is no valid lien on a beverage license. In light of these deficiencies it becomes obvious that Fla.Stat. § 561.65 (1975) does not provide a substitute central filing system and Capital City's interest is not perfected on that basis alone. This finding does not, however, end the inquiry. The Special Master found that even if the Division of Beverage was not a central filing place Capital City still had a perfected security interest. This finding was based upon Fla.Stat. § 679.401(2) (1975), which provides that: A filing which is made in good faith in an improper place or not in all the places required by this section is nevertheless effective with regard to any collateral as to which the filing complied with the requirements of this chapter and is also effective with regard to collateral covered by the financing statement against any person who has knowledge of the contents of such financing statement. The Trustee takes the position that the above quoted section is not applicable to the situation presented in this case. The Court finds this argument to be well taken. The first part of section 679.401(2) serves to protect a creditor who, in good faith, has filed one financing statement to perfect interests in more than one type of collateral where the filing is correct for some but not all of the collateral covered by the statement. If, for example, a creditor made only a central filing which purported to perfect an interest in equipment and consumer goods, section 679.401(2) makes it clear that such a filing would perfect the equipment interest, which requires central filing, but not the consumer goods interest, which requires local filing. It does not protect a creditor who makes a totally improper filing, as is the situation in this case, even though the filing may have been done in good faith. *475 Likewise, the second part of section 679.401(2) making an improper filing effective against persons with knowledge of the contents of the financing statement lends no support to the position of Capital City. The status of the Trustee under section 70(c) (11 U.S.C. § 110(c)) of the Bankruptcy Act is that of a perfect or ideal creditor. He is deemed to have complied with all applicable requirements of state law for a lien of legal or equitable process and he is without notice. Because the Trustee derives his status from the Bankruptcy Act, and not from the creditors he represents, it is inconsequential whether such creditors actually exist.[1] For the foregoing reasons the Court must hold that the security interest of Capital City First National Bank in the beverage license of the debtor was unperfected at the date of bankruptcy and therefore inferior to the rights of the Trustee. The order of the Special Master is therefore vacated and the Trustee will receive the proceeds of the sale of the license free and clear of all liens. IT IS SO ORDERED. NOTES [1] The Court is, of course, aware that contrary authority exists. For example, one commentator has stated that: The fact that the trustee in bankruptcy individually has actual knowledge of the unperfected interest does not bar him as trustee in bankruptcy from claiming priority over the unperfected interest, because he has the right of an ideal creditor and would only be barred if all the creditors had knowledge of the unperfected interest. 4 Anderson, Uniform Commercial Code § 9-401:35 (1971). See also 4A Collier on Bankruptcy ¶ 70.53 (14th ed. 1976). This view that the trustee is entitled to prevail only if he represents at least one creditor without notice unduly restricts the powers of the trustee under section 70(c) and disregards his status as a hypothetical creditor without notice. The better reasoned cases have so held, 4A Collier on Bankruptcy ¶ 70:53 fn. 10 (14th ed. 1976), and this is the view adopted by the Court in this case.

12 So.3d 176 (2007) EX PARTE JOSEPH DZWONKOWSKI, SR. (IN RE: JOSEPH DZWONKOWSKI, SR. v. SONITROL OF MOBILE, INC., JOSEPH DZWONKOWSKI, JR., AND ROBERT DZWONKOWSKI). No. 2060535. Court of Civil Appeals of Alabama. April 17, 2007. Decision of the Alabama Court of Civil Appeal Without Published Opinion. Transferred to Sup. Ct. for lack of subject-matter jurisdiction.

202 Ga. App. 18 (1991) 413 S.E.2d 468 WADE et al. v. POLYTECH INDUSTRIES, INC. POLYTECH INDUSTRIES, INC. v. WADE. A91A1919, A91A1920. Court of Appeals of Georgia. Decided November 5, 1991. Reconsideration Denied November 21, 1991. Awtrey & Parker, A. Sidney Parker, J. Lynn Rainey, for appellants. Jones, Cork & Miller, Hubert C. Lovein, Jr., for appellee. BIRDSONG, Presiding Judge. Appellants/plaintiffs, Malvin R. Wade and Pamela J. Wade, husband and wife, appeal the order of the superior court granting directed verdict in favor of appellee/defendant, Polytech Industries, Inc. (Polytech). Polytech cross-appeals the ruling of the trial court granting directed verdict in favor of Malvin R. Wade as to Polytech's counterclaim against him. Appellants were seriously injured in an airplane crash during a sales demonstration flight. Appellant, Malvin Wade, who was a Delta airline pilot with about 17 years service and over 11,000 logged flying hours of which 600 were obtained flying small airplanes, was piloting the airplane when it crashed. The airplane was owned by appellee Polytech whose vice-president, Gerald (Jerry) Cook, apparently had arranged the demonstration flight in anticipation that appellants would buy the craft. Both appellants were looking at appellee's craft, as they did not own a plane and were thinking about buying one. Pamela Wade, however, was going to let her husband make the decision whether to buy the plane, and it was her husband who, with Jerry Cook's knowledge, invited her (in the literal sense of the word) on the flight. Pamela Wade admitted in court she was relying on her husband's judgment "as to whether [she] should fly in [the] plane and not relying upon anything that anybody at Polytech said or didn't say." A friend, Dr. Leonard Pace, who also was a pilot was invited by and did accompany appellants on the flight. Dr. Pace has an air transport license and a private pilot's license with instrument rating. He had flown 250-300 hours at the time of the incident; and he had more recent experience in flying small airplanes than Malvin Wade. Jerry Cook flew the plane to the Greensboro airport where appellants and Pace were waiting. It landed without incident. The four people climbed into the plane with Dr. Pace and Pamela Wade sitting in the back seat, with Malvin Wade and Jerry Cook in the front left and right seats, respectively. At this point, a "four star" and "taxi" checklists were performed. Although the plane was equipped with dual controls so that either Malvin Wade or Jerry Cook could fly it from their seats inside the craft, Malvin Wade actually taxied the plane to the end of the runway and thereafter piloted it. But Jerry Cook, at various intervals, "helped fly [the] airplane" by setting the flaps and helping Malvin Wade watch the instruments. At this point, Pamela Wade was checking out the upholstery and windows of the plane while Malvin Wade was conducting certain pre-flight checks. Before takeoff, a total engine run-up was performed, and takeoff was accomplished uneventfully. Prior to landing, Wade informed Cook *19 since he had not previously landed this plane to "stay with me and if anything at all goes wrong, you take the airplane." Wade and Dr. Pace testified that Cook never disclosed prior to the accident the plane was past its annual inspection (the fact it was past its annual inspection was not disputed) and that they would not have flown in the aircraft had they known this fact. Appellee contends they told Wade the plane was out of annual. Wade denied being told this fact. The type of airplane being flown has a carburetor heat knob, which opens and closes a baffle to a hood around the carburetor thereby causing an increase or decrease in engine heat. This knob needs to be depressed or closed on takeoff in order to prevent a significant loss of engine power — approximated at 15-20 percent or more. When landing, a plane usually has flaps down and carburetor heat on. Upon preparing for the second takeoff, Malvin Wade was unable to close the carburetor heat knob which he had opened on landing. Jerry Cook assumed the task of depressing the knob into proper closing position, and in the process shoved it shut with enough force to cause his hand to slip from the knob and break a glass gauge on the instrument panel. The movement indicated that the cable was stuck and gave way suddenly. Malvin Wade testified that at this point Jerry Cook declared, "the carburetor heat knob is back in. It's okay." (Emphasis supplied.) Everyone was satisfied the plane was ready for a second takeoff, and without benefit of a second run-up, which neither Jerry Cook nor Dr. Pace suggested, Malvin Wade attempted a second takeoff. The plane obtained "normal lift-off speed," normal RPMs, and no absence of power was detected as the plane went down the runway for takeoff; and as it started to climb everything was "normal" for the first few seconds. Nothing on the instrument panel would indicate a malfunction of the carburetor heat assembly. Suddenly it became apparent something was wrong, although the throttle, mixture control, and carburetor heat cable all appeared to be properly set. Malvin Wade testified he then shouted: "Jerry, what the hell is wrong with this thing ... you know it better than I do. Do you want it." Cook, however, did not assume the controls or do anything to assist Wade who had no choice but to continue to fly the plane. Wade instinctively nosed the plane down to keep the engine from stalling, but the plane lost air speed and could not maintain altitude, hit a tree, and crashed to the ground. At trial, the Wades called as an expert witness, Mr. Clarence Wise, who in addition to practical experience and education as an aircraft mechanic, flight engineer, an aircraft sheet metal repairman, an airframe and power plant mechanic, and an FAA inspector, is licensed as a commercial pilot and has investigated over 350 aircraft accidents. The trial court duly recognized Mr. Wise as an expert in the field of airplane crash investigation and in the field of avionics generally, including *20 pilot. Wise opined, inter alia, and without objection that the crash was caused by a carburetor air temperature rod which allowed the quick disconnect coupling to ride up and pop off and the rod went in without moving the baffle in the air box assembly, and that malfunction of the carburetor air box was due to lack of proper maintenance. He also testified that the problem would have been discovered had a timely annual inspection been performed; and annual inspection would have revealed the rubbing or "[t]he hanging up of the carburetor air door; and lack of an annual inspection and proper maintenance was a cause of the airplane crash." In addition, Wise testified that once the carburetor air temperature rod assembly broke and carburetor heat remained on it was not "pilot error" for Wade to fail to recognize that condition. And, while an engine run-up would reveal if carburetor heat was not working properly, a run-up is not conducted before every takeoff. Dr. Pace testified, inter alia, that he had been taught that you do not have to do a full engine run-up if you do not shut the engine off, but he would assume that such a run-up should be conducted if something out of the ordinary occurs. Nevertheless, Dr. Pace would have done nothing different that Malvin Wade did on this flight. Although Wade admitted that a run-up should be conducted if any problems are encountered or anything unusual occurs, he immediately clarified this answer to reflect that a run-up would be required if you have a problem "big enough or seemingly big enough" to warrant such action. Wade did not believe such a problem existed as Jerry Cook, "a qualified pilot" who had maybe 600 hours in that airplane and was the most experienced of the three pilots flying that plane, told him he would take care of the knob. Thereafter, Cook told Wade the heat knob was back in okay; Wade had no reason whatsoever to doubt this statement, as Cook knew the plane better than he did and the knob was back in proper off position. If Wade had doubted Cook's statement, he would have run-up the engine. Wade conceded that in hindsight, although not normally done, if a run-up had been conducted before the second takeoff the crash might have been avoided. Nevertheless, he repeatedly opined that a second run-up was not required and unequivocally stated that Jerry Cook never told him to conduct another run-up. Held: 1. A directed verdict is appropriate if there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a); All Risk Ins. Agency v. Southern Bell Tel. &c. Co., 182 Ga. App. 190, 191 (1) (355 SE2d 465). A trial court cannot direct a verdict merely because he believes the strength or weight of the evidence lies on one side, or because he might grant a new trial if a verdict should be returned which he thinks is contrary to a preponderance *21 of the evidence. Findley v. McDaniel, 158 Ga. App. 445 (280 SE2d 858). And a motion for directed verdict cannot be granted if there is any evidence creating a material issue of fact. Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 831 (2) (386 SE2d 709). In determining whether the granting of a motion for directed verdict is supported adequately by the record, we will not consider statements of witness elicited in an out-of-court hearing that were not subsequently elicited and, thus, not "introduced" in the presence of the jury. OCGA § 9-11-50 (a). 2. During the trial court's consideration of the motion for directed verdict, a discussion ensued as to the theory or theories of liability upon which appellants/plaintiffs had proceeded at trial. At the onset we note that no pretrial order was entered in this case. Moreover, under the Civil Practice Act notice pleading was substituted for issue pleading. See generally OCGA § 9-11-8. While a complaint must give notice sufficient to allow responsive pleading, it need only state a claim and does not have to allege facts sufficient to set forth a cause of action. Bazemore v. Burnet, 117 Ga. App. 849, 852 (161 SE2d 924). Thusly, construing the complaint on its four corners and also in the light most favorable to plaintiffs, we find the complaint put appellee/ defendant Polytech on notice of a claim grounded on at least three separate legal theories: first, that Polytech was liable because it had failed to have the aircraft properly maintained for safe operations; secondly, that the crash was due to the negligent operation of the aircraft (which would per force include the negligent operation of any of the aircraft's controls, including a carburetor heat control knob) by Jerry Cook, an officer and shareholder of defendant Polytech; and, thirdly, that the crash was due to the negligence of Jerry Cook as pilot in command in directing and assisting the operation of or in operating the aircraft. In this regard, we also note that a proposed pretrial order does reflect that one of appellant/plaintiff's contentions was asserted as being that "prior to takeoff, the carburetor heat knob stuck and was negligently forced into the dashboard by [Jerry] Cook." Further, pleadings may be amended to conform with the evidence at trial. "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." OCGA § 9-11-15 (b). "[T]he parties may, by express consent, or by the introduction of evidence without objection, amend the pleadings at will.... Implied consent usually is found where one party raises an issue material to the other party's case, or where [as here] evidence is introduced without objection." McDonough Constr. Co. v. McLendon Elec. Co., 242 Ga. 510, 514 (250 SE2d 424); Mortgage Savings Co. v. KKFB Investment Co., 196 Ga. App. 283, 284 (1) (396 SE2d 16). The evidence admitted without objection in this case reveals that one of the several *22 claims litigated by appellants was that their injuries resulted from the airplane crash caused by the negligent act of Jerry Cook, an officer, stockholder, and agent of appellee, in depressing the carburetor heat knob with such force as to break it in a heat-on position but causing the knob to appear to be closed. 3. The testimony is in conflict whether a run-up was required before the second takeoff when the engine of the plane had not been shut off and restarted. In arriving at this conclusion, we have not considered the concession of appellee in its response to request for admissions that: "(Technically, because the engine was not shut off between the Greensboro takeoffs, some might consider the two takeoffs as part of a single flight)." Except in cases where the evidence is plain, palpable and undisputed, issues of negligence, contributory negligence, comparative negligence, proximate cause, assumption of risk, lack of ordinary care for one's own safety, lack of ordinary care in avoiding the consequences of another's negligence and comparative negligence are questions for the jury and are not susceptible of summary adjudication. Thompson v. Crownover, 259 Ga. 126, 129 (5) (381 SE2d 283); Hercules, Inc. v. Lewis, 168 Ga. App. 688, 689 (309 SE2d 865); Callaway v. Pickard, 68 Ga. App. 637, 641 (1) (23 SE2d 564); see generally Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569, 571-574 (398 SE2d 16) (Weltner, J., concurring specially). Moreover, evidence also was conflicting regarding whether the breaking of the instrument panel glass by Jerry Cook when he pushed in the heat control knob was of such an unusual or unique character as to place appellant Malvin Wade on notice that another run-up was required. "It is the jury's function to draw an inference from the evidence when [as here] more than one inference can be drawn." Thompson v. Crownover, supra at 130 (6). Assuming arguendo, that the evidence in this case had established plainly, palpably, and undisputedly that the failure to conduct a run-up was an "intervening act" on the part of Malvin Wade, nevertheless an issue of foreseeability would remain. In Williams v. Grier, 196 Ga. 327, 328 (2a) (26 SE2d 698), it was held that "[a] causal connection between an original act of negligence and injury to another is not broken by the `intervening' act of a third person, if the nature of such intervening act was such that it could reasonably have been anticipated or foreseen by the original wrong-doer." (Emphasis supplied.) Accord Coleman v. Atlanta Obstetrics &c., 194 Ga. App. 508 (1) (390 SE2d 856), aff'd 260 Ga. 569, supra; Charles Seago &c. Co. v. Mobile Homes &c., 128 Ga. App. 261, 264 (2) (196 SE2d 346); see Evans-Watson v. Reese, 188 Ga. App. 292, 294 (372 SE2d 675); Union Carbide Corp. v. Holton, 136 Ga. App. 726, 728 (1) (222 SE2d 105); Western &c. R. Co. v. Davis, 116 Ga. App. 831, 836-837 (1 b) (159 SE2d 134). Thus, "[i]f the intervening cause is one which in ordinary *23 human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, the defendant may be negligent, among other reasons, because of failing to guard against it; or the defendant may be negligent only for that reason." (Emphasis supplied.) Prosser & Keeton On Torts (5th ed.), Proximate Cause, p. 303, § 44. And the risk created by the defendant may include the intervention of the foreseeable negligence of others. Id. at 44, p. 304. In this case, there is evidence in the record that the pilot most familiar with the plane was Jerry Cook, appellant's agent for the sale of the plane, that it was Jerry Cook who depressed the heat control knob, and that his actions caused the carburetor heat assembly to break as above discussed. There is also evidence that after depressing the heat knob, Jerry Cook announced that it was back in place and that "it's okay." Testimony was also given to the effect that second and subsequent engine run-ups are not automatically required between landings when the plane's engine has not been shut off, absent some unusual event or problem placing the pilot on notice that such action should be undertaken. Whether an incident constitutes such an unusual event or problem is a matter which, as here, is subject to debate among pilots. Under these circumstances, particularly including the evidence that Jerry Cook stated after depressing the carburetor heat knob that it was okay, even if Malvin Wade was required to conduct a run-up and his failure to do so was an "intervening" act, genuine issues of material fact exist from which a jury could find that such failure reasonably could have been anticipated and foreseen, within the meaning of Williams v. Grier, supra. Charles Seago &c. Co., supra at 264; see DeKalb County Hosp. Auth. v. Theofanidis, 157 Ga. App. 811, 812 (278 SE2d 712). In view of the above, we find that the trial court erred in granting directed judgment to appellee. King v. Avtech Aviation, 655 F2d 77 (5th Cir.). 4. It cannot be concluded as a matter of law that the negligence, if any, of Malvin Wade in operating the plane so as to cause the crash to be totally or partially attributable to him would be imputed to his wife. Where a wife is merely accompanying her husband as a guest in a plane being flown by him, and a crash occurs, which might in part be attributable to the negligence of the husband as pilot of the plane, any such negligence on his part is not attributable to the wife. Compare Randall Bros. v. Duckett, 53 Ga. App. 250, 254 (1) (185 SE 394). However, the wife, as a passenger and guest in the plane, cannot close her eyes to known and obvious dangers arising from the acts of the pilot or others therein (Randall Bros., supra) and when negligence on the part of the pilot or others in the plane appears she "`must act as an ordinarily prudent person would act, under the same or similar circumstances'" (Freeman v. Martin, 116 Ga. App. 237, 242 (2) (156 *24 SE2d 511)). Nevertheless, an airplane, unlike an automobile, is not the type of vehicle which an untrained person normally would be expected to possess a degree of familiarity regarding either its operation or normal mechanical function. And, whether Malvin Wade's negligence, if any be found, should be imputed to his wife is a question for jury resolution. Randall Bros., supra. The question arises whether Pamela Wade, as a passenger in the plane, was an implied invitee of appellee to whom was owed the duty of ordinary care in keeping the plane safe. See generally Lowe v. Atlanta Masonic Temple Co., 79 Ga. App. 575 (1c) (54 SE2d 677). "`An implied invitation is one which is held to be extended by reason of the owner doing something or permitting something to be done which fairly indicates to the person entering that his entry and use of the property is consistent with the intents and purposes of the owner.... An invitation is implied where the entry on the premises is for a purpose which is or is supposed to be beneficial to the owner.' ... `To come under an implied invitation as distinguished from a mere license, the [wife must have entered the plane] for the benefit, real or supposed, of the owner or occupant, or in a matter of mutual interest, or in the usual course of business, or for the performance of some duty.'" (Emphasis supplied.) Anderson v. Cooper, 214 Ga. 164, 168-169 (104 SE2d 90); see Scarborough v. Murray, 124 Ga. App. 30 (1) (183 SE2d 216). The record contains some evidence that appellee's officer, Jerry Cook, permitted Pamela Wade to enter the plane as a passenger during the demonstration flight, an act which arguably was for the mutual benefit of the Wades and appellee who was trying to sell the aircraft. Consistent with the above authority and these facts, we find that a jury issue exists whether Pamela Wade became an implied invitee of appellee to whom the duty of ordinary care was owed. Compare Davis v. Garden Svcs., 155 Ga. App. 34, 35 (270 SE2d 228). And the question of whether appellee exercised ordinary care as required is a question for the jury. Lowe, supra at 575 (2a), 582. Additionally and contrary to the views of the trial court, we do not find as controlling, as to any of the above issues, the testimony of Pamela Wade that she was relying on her husband's judgment "as to whether [she] should fly in [the] plane and not relying upon anything that anybody at Polytech said or didn't say." This evidence does not give rise to the imputation of her husband's negligence if any upon her, absent the showing that she closed her eyes to obvious dangers, as above discussed. Neither does the evidence negate the implied invitation extended by appellees when their agent permitted Pamela Wade to enter the aircraft for the mutual benefit of both the Wades and appellee. Further, this evidence is inadequate to give rise to equitable estoppel or waiver, as a matter of law. In regard to equitable estoppel, the record reflects that Pamela *25 Wade neither by her statements nor conduct at the time engaged in any intentional deception or gross negligence amounting to constructive fraud, or misled or prejudiced appellee or its officer or otherwise lulled them to their detriment into believing they were released from their duty to exercise the requisite degree of due care for her safety aboard their plane. Thus, equitable estoppel has not been established, as a matter of law, and cannot provide the basis for a directed verdict against Pamela Wade. See generally 11 EGL Estoppel, §§ 46-53; 28 AmJur2d, Estoppel and Waiver, § 27. And if upon retrial additional evidence should raise an issue of equitable estoppel, that issue should be resolved by the trier of fact. Armstrong v. California Fed. &c. Assn., 192 Ga. App. 508, 510 (3) (385 SE2d 113). In regard to waiver, neither did Pamela Wade by her statement at trial intentionally relinquish any known right, claim, or privilege against appellee or its officer, or in any manner expressly waive the duty of ordinary care owed by appellee to her for her safety aboard the aircraft. Accordingly, a waiver has not been shown to exist as a matter of law which would support a grant of directed verdict against her (see generally 28 AmJur2d, supra at §§ 154-158), and thus any issue of waiver would at best have raised a question for the jury. We have examined the authority relied upon by appellee and find it not to be controlling in the disposition of appellants' enumerations of errors. We conclude that the trial court erred in granting motion for directed verdict in favor of appellee and against appellants Malvin and Pamela Wade in Case No. A91A1919. 5. Cross-appellant/appellee asserts the trial court erred in granting directed verdict against it and in favor of cross-appellee/appellant, Malvin Wade, as to the counterclaim for damage to the airplane. After granting Polytech a directed verdict as to the claims of the Wades against it, the trial court sua sponte and without objection granted directed verdict against Polytech as to its counterclaim against Malvin Wade. Under these circumstances, cross-appellant had no opportunity to object to the ruling before it was made. The question then arises whether by failing to take exception immediately after directed verdict was granted, cross-appellant waived his right to have the issue considered on appeal. We conclude that when the trial court sua sponte grants a directed verdict, the party against whom the verdict was directed may challenge the grant by timely appeal notwithstanding the lack of either an objection or exception to the trial court's ruling. OCGA § 9-11-46 (a); Davis & Shulman, Ga. Prac. & Proc. (5th ed.), § 14-4 and n. 1 (the language in OCGA § 9-11-46 (a) "[f]or all purposes for which an exception has heretofore been necessary" has no actual application to any preexisting Georgia law). Jackson v. Easters, 190 Ga. App. 713, *26 715 (3) (379 SE2d 610) is distinguishable from the facts of this case. The dictum found in State Farm &c. v. Wendler, 120 Ga. App. 839, 842 (2) (172 SE2d 360) is not deemed controlling in this case, particularly in view of the express statutory provisions of OCGA § 9-11-46 (a). Moreover, in Kelly v. Chrysler Corp., 129 Ga. App. 447 (199 SE2d 856), the trial court granted a motion for directed verdict and there appears to have been no objection or exception taken thereto at trial although, unlike the case at bar, the trial court did announce in advance its intention to entertain a motion for directed verdict if plaintiff's testimony proved to be along the lines indicated by defense counsel. On motion for reconsideration appellant argued inter alia that the trial court failed to comply with Code Ann. § 81A-150 (a) (OCGA § 9-11-50 (a)) in that it directed a verdict before plaintiff had closed his case. The court declined to consider the issue on appeal on the basis that "[n]either of these contentions was made in the motion for new trial nor as an enumeration of error. Accordingly, they cannot be considered upon appeal." Id. at 452 (1). Inherent within this holding is the proposition that if the contentions had been raised, as in the case at bar, in an enumeration of error, the propriety of the ultimate judgment could have been considered upon appeal. We find this to be a fundamentally fair result, under the circumstances before us, and will apply it in resolution of the appeal of Case No. A91A1920. See also Ford v. State, 200 Ga. App. 376 (408 SE2d 166). We conclude the trial court erred in ruling on the motion for directed verdict before Polytech had an opportunity to present its evidence (OCGA § 9-11-50 (a); Mallard v. Mallard, 221 Ga. 480, 481 (145 SE2d 533)), particularly as the issue of contributory negligence of Jerry Cook, the ground primarily announced by the trial court in support of its directed verdict, was a matter for the jury (Soto v. Roswell Townhomes, 183 Ga. App. 286, 288 (358 SE2d 670)). Judgments reversed. Pope and Cooper, JJ., concur.

273 So.2d 360 (1973) Leon BIALY, Plaintiff-Appellant, v. Harold KATZ, Defendant-Appellee. No. 4070. Court of Appeal of Louisiana, Third Circuit. January 29, 1973. Rehearing Denied March 7, 1973. Writ Refused April 19, 1973. David A. Sheffield, Alexandria, for plaintiff-appellant. Gus Voltz, Jr., Alexandria, for defendant-appellee. Before FRUGE, HOOD, and DOMENGEAUX, JJ. *361 FRUGE, Judge. Plaintiff-appellant-lessee, Leon Bialy, seeks to cancel a lease with defendant-appellee-lessor, Harold Katz, on a commercial building in Alexandria, Louisiana. Assigning written reasons for judgment, the trial court rejected plaintiff's demands at his cost. From this judgment, the plaintiff has appealed. We affirm. THE FACTS The building was originally owned by the three O'Neal heirs who had leased the property to Mr. Leon Bialy in 1959. The lease was renewed in 1963 for a period of twelve years ending in 1975, for $150.00 per month. Plaintiff occupied the building under the lease agreement from 1959 until February, 1972. Mr. Fred Moore, husband of one of the three original owners, managed the property for the owners. He testified that about three years prior to defendant's purchase of the premises, he had considered a new roof for the building; that during the last few years, Mr. Bialy had complained about some small roof leaks; and that he had authorized and paid Mr. Wesley Moore to put a new roof on the building in 1968. However, the record leaves doubt as to whether or not a new roof was actually installed by Mr. Wesley Moore. Suffice it to say, Mr. Fred Moore was under the impression that a new roof had been put on the building. The owners of the building considered selling the property and under a prior agreement with plaintiff, he was offered the first option to purchase the property. However, plaintiff related to Mr. Fred Moore that "he had decided not to buy it". Subsequently thereto, an agreement was entered into between defendant and the owners, whereby the defendant agreed to purchase the premises. A confused situation developed when plaintiff later changed his mind, called Mr. Fred Moore, and asked if he could now purchase the building. Mr. Fred Moore testified that he explained to plaintiff that the owners had entered into a contract to sell the property, therefore, it was no longer available for sale. On May 29, 1971, the property was sold to defendant who continued the lease then in effect with plaintiff. Approximately one month after the sale transaction was consummated, defendant received a formal letter from plaintiff stating that the roof was leaking. On July 1, 1971, defendant was informed of broken glass in the building and electrical wiring problems. After receiving this information, defendant contacted Mr. Fred Moore in order to determine who had heretofore done the roof work on the building. Defendant learned from his vendor that the roofer was Mr. Wesley Moore. Defendant then contacted the roofer and requested that he inspect the roof and make all necessary repairs. Mr. Wesley Moore testified that he repaired the roof during the month of July, 1971, but on July 30, 1971, defendant received a letter from plaintiff which stated that "the roof repair did not help at all and the roof is still leaking very badly". Plaintiff's testimony reveals that at approximately the same time his demand letter of July 30th was being delivered to defendant, plaintiff was negotiating for another lease; that he filed his "Petition for Cancellation of Lease" on August 10, 1971; and that he entered into a second lease on August 15, 1971. Defendant, in an attempt to alleviate the problems complained of, contacted several roofing contractors. The record shows that he experienced difficulty in securing an immediate contract for repair of the roof, but he eventually installed a new roof at a cost of $3,732.00. From June to September of 1971, the roof leak grew progressively worse. The problem was complicated when water reached the electric meter box, electric junction box, and electric conduit lines. *362 Two city electricians were summoned to the building, and they in turn summoned the chief electrical inspector for the City of Alexandria, Mr. Lonnie Duncan. Mr. Duncan testified that "water was getting into the lighting service equipment, that is the single phase service supplying the lighting." Mr. Duncan did not ascertain where the water was coming from. On September 16, 1971, a heavy rain again created electrical problems and Mr. Duncan notified defendant that electrical service would have to be terminated in order to allow installation of temporary wiring. Mr. Duncan explained that it is not out of the ordinary to put in temporary wiring where a new roof is being put on a commercial building such as the one in question. Defendant contacted an electrical contractor the same day that he was informed by Mr. Duncan that temporary electrical work was required. The contractor installed temporary wiring in the building. Defendant also told the contractor to "go back and put the electrical work in good condition or—you know like it was before, or if it needed any other repairs, to do it". Work on repairing the roof commenced October, 1971. Subsequent to the completion of these extensive repairs, plaintiff encountered no other problems with the roof and occupied the building until February, 1972, at which time he physically moved the major inventory and fixtures to the premises of the second lease entered into in August, 1971. THE LAW The question before the court is whether the plaintiff was justified in cancelling the lease due to the alleged unsuitable condition of the property. In view of LSA-C.C. Articles 2692, 2693, 2695, 2696, and 2698-2700, the lessor must maintain property in such condition as to serve the purpose for which it is leased. If he fails to do so, the lessee may ask for termination of the lease, or may himself cause the repairs to be made and deduct the cost thereof from the rent due on proving that the repairs were indispensable and that the price which he has paid was just and reasonable. Greco v. Live Oak Properties, 1 So.2d 841 (La.App.2nd Cir., 1941). However, it is the settled jurisprudence of this state that the dissolution of a lease for such causes is not favorable under our law and is granted only in extreme cases. Lirette v. Sharp, et al., 44 So.2d 221 (La. App. 1st Cir., 1950); Guillot v. Morgan, 165 So.2d 330 (La.App.2nd Cir., 1964), and Discount City of Oakdale, Inc. v. Fournet, 251 So.2d 828 (La.App.3rd Cir., 1971). In a well-written opinion, the trial court judge found for defendant; a particularly germane exerpt from that opinion follows: "Most of the difficulty of which Bialy complains initiated well before Katz bought this property. The roof leaks did not originate during the period of time that Katz owned the property. These leaks had their inception years before Katz bought the property. The final stages of this decay or failure evidenced itself during Katz owner-ship and the question then simply becomes whether or not Katz made a bonafide effort to comply with the terms and conditions of the lease and the provisions of Article 2692 of the Civil Code with particular reference to Subsection 2 thereof which says `to maintain the thing in a condition such as to serve for the use for which it is hired.' "It is the finding of this Court that Katz did make a reasonable effort to correct the deficiencies which unknown to him began a rather long period of time before he acquired the property. The fact that he was unable to completely and immediately have the roof re-built which it required cannot serve as a basis for ordering cancellation of the lease. *363 In regard to the windows and decorative glass in front of the building, this Court can only remark that this is a situation which was either in existence at the time that the lessee leased the property or which occurred during his occupancy and of which he did not complain until after Katz bought the property and in the approximate time period that Bialy decided to lease other properties. "The cases cited by plaintiff do not fit the facts of the instant case. The general rule in regard to this type situation is enunciated in Guillot v. Morgan, 165 So. 2d 330 which in essence states that the dissolution of a lease on grounds of deteriorating condition of the property is not favored and is granted only in extreme cases. This is not an extreme case and the relief plaintiff prays for is denied at his costs." THE HOLDING Plaintiff contended: the lease should be cancelled "upon Katz's failure, neglect and refusal to maintain said premises, particularly the roof and glass of the building in good repair as required under the terms of the lease and the codal provisions of our law." The trial court judge disagreed with this contention. No doubt the plaintiff was irritated when he went to his place of business after the rains in question and found water in the building, but that in itself does not justify cancellation of the lease. The issues herein are purely factual. There is ample evidence to support the trial court's findings and conclusions. Finding no manifest error, we affirm the judgment of the trial court. All costs to be assessed against plaintiff-appellant. Affirmed. HOOD, J., dissents being of the opinion that plaintiff is entitled to the relief sought on the ground that the defendant lessor failed to maintain the leased premises as required by LSA-C.C. Arts. 2692, 2693 and 2695.

239 A.2d 626 (1968) In re the Termination of the Parental Rights of E[*]. Supreme Court of Delaware. February 28, 1968. Peter Warren Green, of Booker, Leshem, Green & Shaffer, Wilmington, for appellant. Daniel B. Ferry, Wilmington, for appellees. WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting. *627 WOLCOTT, Chief Justice: This is an appeal from an order of the Orphans' Court terminating the parental rights of the mother of a minor child. We will refer to the mother of the child as E, and to the foster parents of the child as B and B. By 13 Del.C. § 1103(2), it is provided that parental rights in a child may be terminated if the "child has been abandoned." By 13 Del.C. § 1101, an "abandoned" child is one "who, for a period of one year, has not received any regular and reasonable financial help from or any substantial visits from his parent or parents." We have read the record in this case and are of the opinion that there is substantial evidence to support the trial judge's finding that there has been an "abandonment" by E within the meaning of the statute.[1] In reaching this conclusion, he accepted and relied on the testimony of B and B with whom the minor child has been living for all of her eight years, except for a few weeks' stay with E when she was under the age of six months. The trial judge reached the conclusion that there had been a statutory abandonment by E despite one short visit by her to the child and a gift to her in December of 1965. He held, and we think properly, that an annual formal visit did not satisfy the statute's requirement of "substantial visits." Furthermore, we note, as did the trial judge, that E lived relatively close to the child, had a readily available means of travel, passed within a few miles of the child on recurrent trips from New Jersey to Baltimore, and failed to stop to see her daughter. We think it clear that the necessary statutory abandonment has been established. E argues, however, upon the basis of Cline v. Hartzler, 227 A.2d 210, a decision of this Court, that in addition to proof of statutory abandonment it is necessary to prove that she intended to forsake the child entirely when she voluntarily placed the child with B and B. The trial judge found that when E delivered the child to B and B for the second and final time, she intended to forego parental duties and to relinquish all parental claim to the child. This finding is supported by competent evidence accepted by the trial judge. In doing so, he obviously rejected the testimony of E to the contrary. We think this finding complies with the requirement of Cline v. Hartzler, and that, accordingly, E must be held to have abandoned her child. *628 Finally, the trial judge held that it clearly was in the best interest of the child that E's parental rights be terminated to clear the way for the adoption of the child by B and B. In so concluding, he relied on the facts that the child has known no parents other than B and B; that she is known by their name; that she has an excellent school record; that she is being brought up in a healthy home environment, and that the child is a normal one with a secure sense of belonging. As we pointed out in Cline v. Hartzler, when the question before the court is the termination of parental rights, the prime and overriding matter to be taken into consideration is what result will best serve the interests of the child. We have no doubt but that this child's interests will be best served by clearing the way for her ultimate adoption by B and B. The judgment below is affirmed. NOTES [*] We preserve the anonymity of the parties in deference to Orphans' Court Rule 179 which so requires. [1] The father of the child has consented to the termination of his parental rights.

FILED United States Court of Appeals Tenth Circuit March 3, 2010 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court FOR THE TENTH CIRCUIT KEITH V. MENEFEE, DUSTIN S. BLEVINS, Plaintiffs-Appellants, No. 09-3186 v. (D.C. No. 5:08-CV-03314-SAC) (D. Kan.) ROGER WERHOLTZ, Secretary of Corrections, Kansas Department of Corrections; ELIZABETH RICE, Interstate Compact Coordinator, Kansas Department of Corrections; JOHNNIE GODDARD, Warden, Ellsworth Correctional Facility; SHARON COX, Unit Team Manager, Ellsworth Correctional Facility; MARK RADENBERG, Unit Team Counselor, Ellsworth Correctional Facility; MARTY SAUERS, Classification Administrator, Ellsworth Correctional Facility, Defendants-Appellees. DUSTIN S. BLEVINS, Plaintiff-Appellant, v. No. 09-3202 (D.C. No. 5:09-CV-03033-SAC) ROGER WERHOLTZ, Secretary of (D. Kan.) Corrections, Kansas Department of Corrections; ELIZABETH RICE, Interstate Compact Coordinator, Kansas Department of Corrections; JOHNNIE GODDARD, Warden,  Ellsworth Correctional Facility; SHARON COX, Unit Team Manager, Ellsworth Correctional Facility; MARK RADENBERG, Unit Team Counselor, Ellsworth Correctional Facility; MARTY SAUERS, Classification Administrator, Ellsworth Correctional Facility, Defendants-Appellees. ORDER AND JUDGMENT * Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges. No. 09-3186, a pro se civil rights appeal, was filed by plaintiffs Menefee (an Idaho state prisoner) and Blevins (an Oklahoma state prisoner), who are both currently confined by the Kansas Department of Corrections at Ellsworth Correctional Facility. No. 09-3202, also a pro se civil rights appeal, was filed by Blevins. We have jurisdiction over both appeals under 28 U.S.C. § 1291. We dismiss Blevins from No. 09-3186 and waive the filing fee for that appeal as to him. We further conclude that both appeals are frivolous on the merits and that * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). These cases are 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. -2- the severance issue plaintiffs raise in their respective appeals is moot. No. 09-3186 is dismissed in part as frivolous and in part as moot. No. 09-3202 is dismissed in part as frivolous and in part as moot, and is otherwise affirmed. We assess two strikes under 28 U.S.C. § 1915(g) against both Menefee and Blevins. See Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780-81 (10th Cir. 1999) (explaining what counts as a strike). Blevins’ motion to proceed in forma pauperis (ifp) on appeal in No. 09-3202 is denied. Menefee’s motion to proceed ifp on appeal in No. 09-3186 was granted by the district court, but it is vacated. The filing fee in both appeals is due immediately. I. Procedural History Menefee and Blevins, together, filed their pro se complaint in federal district court against various prison officials, asserting that defendants violated their rights under the Interstate Corrections Compact (ICC), 1 Kan. Stat. Ann. §§ 76-3001 to 76-3003, and seeking declaratory, injunctive, and monetary relief. They each also filed an “application to proceed without prepayment of fees and affidavit by a prisoner” under 28 U.S.C. § 1915. R., D.C. No. 08-CV-03314, at 63, 66 (Docs. 2, 3). Upon screening the complaint prior to service under 28 U.S.C. § 1915A, the district court entered a preliminary order for three 1 They asserted that defendants violated their rights under the “Interstate Compact Agreement (I.C.A.)” and cited “KSA-76-3001/3002[.]” See R., D.C. No. 08-CV-03314, at 10-11 (Doc. 1, at 3-3A). -3- purposes. See R., D.C. No. 08-CV-03314, at 132 (Doc. 8). First, the court severed Blevins and his claims and directed that the clerk copy all of the pleadings and initiate a separate case for him. Id. at 133. The court reasoned that the attachments to the complaint showed that Menefee and Blevins were complaining about different problems, that their allegations would require different proof, and that the parties and their claims were misjoined. Id. 2 Second, without granting or denying Menefee’s motion for leave to proceed ifp, the district court assessed an initial partial filing fee against Menefee of $10.50 under 28 U.S.C.§ 1915(b)(1). R., D.C. No. 08-CV-03314, at 134. Third, the court advised Menefee that his complaint was deficient. Id. at 135-49. In particular, the court pointed out that Menefee had failed to allege the personal participation of each of the defendants in any alleged wrongdoing, as he was required to do. See id. at 136 & n.4 (citing Bennett v. Passic, 545 F.2d 1260, 1262 (10th Cir. 1976), and Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996)). In addition, the court pointed out that alleged violations of the ICC involve “no federal interest absent some constitutional violation in the treatment of these prisoners[,]” and such claims cannot be brought under 42 U.S.C. § 1983. See R., D.C. No. 08-CV-03314, at 138-39 (quoting Garcia v. Lemaster, 439 F.3d 1215, 1219 n.7 (10th Cir. 2006) (further quotation omitted)). 2 We dismissed plaintiffs’ interlocutory appeal from the order of severance. -4-  A separate district court case was initiated for Blevins with a copy of the complaint he had filed with Menefee. The district court entered a substantially similar preliminary order in Blevins’ case. Without granting or denying Blevins’ motion for leave to proceed ifp, the court assessed an initial partial filing fee against Blevins of $10.50 and advised him of the same deficiencies in his complaint. See R., D.C. No. 09-CV-03033, at 126-27, 127-42 (Doc. 6, at 2-3, 3-18). Both Menefee and Blevins responded to the district court’s preliminary orders, but the court determined that neither plaintiff had corrected the deficiencies in his complaint. In D.C. No. 08-CV-03314, the district court noted that Menefee had made the assessed partial fee payment and granted his motion for leave to proceed ifp. R., D.C. No. 08-CV-03314, at 210 (Doc. 16, at 3). The court then dismissed Menefee’s complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), see R., D.C. No. 08-CV-03314, at 216 (Doc. 19, at 2), and it was never served on the defendants. The court entered judgment, id. at 218 (Doc. 20), and granted Menefee’s subsequent motion for leave to proceed ifp on appeal, noting that Menefee had paid the assessed initial partial filing fee and declining to certify that the appeal was not taken in good faith. Id. at 243-44 & n.2 (Doc. 25, at 1-2 & n.2). In D.C. No. 09-CV-03033, the district court stated that Blevins had neither made the assessed partial fee payment nor objected to the assessment and denied -5- his motion for leave to proceed ifp for failure to comply with the court’s assessment order. See R., D.C. No. 09-CV-03033, at 162-63 (Doc. 9, at 1-2), 197 (Doc. 16, at 1). The court then dismissed Blevins’ complaint for nonpayment of the initial filing fee and, in the alternative, for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). See R., D.C. No. 09-CV-03033, at 163-64 (Doc. 9, at 2-3). The complaint was never served on the defendants. The court denied Blevins’ subsequent motion for leave to proceed ifp on appeal, finding that his financial information was incomplete and he had not acted in good faith. Id. at 198 (Doc. 16). II. Discussion We note at the outset that Menefee and Blevins purported to file a class action suit in D.C. No. 08-CV-03314 and persisted in filing pleadings carrying both of their names in both D.C. No. 08-CV-03314 and D.C. No. 09-CV-03033, as if both cases were class actions. We emphasize, however, that neither Menefee nor Blevins may represent each other or a class without counsel “because the competence of a layman is clearly too limited to allow him to risk the rights of others.” Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000) (internal quotation marks omitted). We dismiss Blevins from appeal No. 09-3186. He was not a party to D.C. No. 08-CV-03314 when the final judgment was entered or the second notice -6- of appeal was filed, and he may not appeal from the judgment in that case. We waive the filing fee in No. 09-3186 as to Blevins and vacate our September 24, 2009, order assessing fees for this appeal against Blevins. With regard to the merits in both appeals, we review de novo the district court’s dismissal of a prisoner’s complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). As with a motion to dismiss under Fed. R. Civ. P. 12(b)(6), we accept the plaintiff’s allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to the plaintiff. See Kay, 500 F.3d at 1217. “[W]e look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Id. at 1218 (quotation omitted). “‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). Since Menefee and Blevins are proceeding pro se, their complaints must be construed liberally. See Kay, 500 F.3d at 1218. We have carefully reviewed the record for both district court cases, and conclude that Menefee’s and Blevins’ claims, which were in all material respects identical, were frivolous and were properly dismissed. See Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997) (holding that claim is frivolous if it is “based -7- on an indisputably meritless legal theory” or “founded on clearly baseless factual contentions” (quotations omitted)). In light of the clear authority from this court cited by the district court to both Menefee and Blevins, their reiteration of the same arguments on appeal to challenge the dismissals is also frivolous. We therefore dismiss both appeals as frivolous on the merits and assess a strike against both Menefee and Blevins under 28 U.S.C. § 1915(g). See Jennings, 175 F.3d at 780. The district court’s dismissal for failure to state a claim in each district court case also counts as a strike under § 1915(g) against both Menefee and Blevins. See Jennings, 175 F.3d at 780. Thus, a total of two strikes is assessed against each plaintiff. Because we uphold the dismissal of both complaints, the issue of the severance of the two cases is moot, as raised by Menefee in No. 09-3186 and Blevins in No. 09-3202. In No. 09-3202, Blevins also challenges the district court’s denial of his motion for leave to proceed ifp in the district court, and he has renewed his motion for leave to proceed ifp on appeal in this court. We conclude that the court denied Blevins’ motions to proceed ifp on an improper ground—his failure to pay the assessed initial partial filing fee. “The PLRA does not prohibit a prisoner from bringing a civil action or appealing a civil judgment when he has no assets or means to pay an initial partial filing fee.” Cosby v. Meadors, 351 F.3d 1324, 1327 (10th Cir. 2003) (citing 28 U.S.C. § 1915(b)(4)). -8-  When a district court receives an application for leave to proceed in forma pauperis, it should examine the papers and determine if the requirements of [28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter, if the court finds that the allegations of poverty are untrue or that the action is frivolous or malicious, it may dismiss the case[.] Ragan v. Cox, 305 F.2d 58, 60 (10th Cir. 1962); see also Coppedge v. United States, 369 U.S. 438, 444-45 (1962). “Thus, in order to succeed on a motion to proceed IFP, the movant must show a financial inability to pay the required filing fees, as well as the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised in the action.” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). The district court acknowledged that Blevins filed the supporting paperwork required for prisoners by 28 U.S.C. § 1915(a)(2). See R., D.C. No. 09-CV-03033, at 126 (Doc. 6, at 2). The trust fund account statement Blevins filed with his initial motion to proceed ifp in the district court showed that he was unable to pay the district court filing fee. See id. at 64 (Doc. 2, at 3) (showing available cash balance of $0.00 and available forced savings balance of $137.53). Therefore, Blevins made the required financial showing to proceed ifp. Nevertheless, because we conclude that Blevins’ claims were already foreclosed by Tenth Circuit law before he brought suit and were therefore frivolous, we affirm the denial of ifp on the alternate ground that he failed to satisfy both of the -9- requirements for ifp. We deny his motion to proceed ifp on appeal in No. 09-3202 for the same reason. The district court noted that Menefee had paid the assessed initial partial filing fee and declined to certify that his appeal was brought in bad faith. The Supreme Court, however, has held that an appeal is taken under 28 U.S.C. § 1915 in objective good faith when it presents “any issue not frivolous.” Coppedge, 369 U.S. at 444-45; see Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th Cir. 2007) (citing 28 U.S.C. § 1915(a)(3), (e)(2)). We conclude that Menefee has failed to present a nonfrivolous issue on appeal, his appeal was not taken in good faith, and his motion to proceed ifp on appeal in No. 09-3186 should have been denied. We vacate the district court’s order granting Menefee’s motion to proceed ifp on appeal. See R., D.C. No. 08-CV-03314, at 243 (Doc. 25). All other outstanding motions in both appeals are denied. No. 09-3186 is DISMISSED in part as frivolous and in part as moot, and our September 24, 2009, order assessing fees for this appeal against Blevins is VACATED. No. 09-3202 is DISMISSED in part as frivolous and in part as moot and AFFIRMED in part. Both Menefee and Blevins are assessed two strikes under 28 U.S.C. § 1915(g). We deny ifp on appeal and direct both Menefee and -10- Blevins to make full and immediate payment of the outstanding balance of the appellate filing fees. Entered for the Court Paul J. Kelly, Jr. Circuit Judge -11- 

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 17 2004 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk PAMELA MOSS, Plaintiff-Appellant, No. 03-3128 v. (D.C. No. 01-CV-2393-DJW) (D. Kan.) JO ANNE B. BARNHART, Commissioner of Social Security, Defendant-Appellee. ORDER AND JUDGMENT * Before BRISCOE and McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 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. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.  Claimant Pamela E. Moss appeals the denial of her applications for Social Security disability insurance and supplemental income benefits. After her initial applications, filed in 1996, were denied administratively and upon reconsideration, claimant requested a hearing before an administrative law judge (ALJ). The ALJ concluded that claimant was not disabled, and she brought suit in federal district court in 1999. The Commissioner moved to have the case remanded to the agency for further consideration, which motion was granted. Claimant then filed new applications for benefits in 2000, which were also denied administratively and upon reconsideration. The claims were consolidated and, after a second hearing before the ALJ, the ALJ again concluded that claimant was not disabled. She filed suit in district court for the second time in 2001. The district court affirmed the Commissioner’s denial of benefits. We have jurisdiction over this appeal by virtue of 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). Our review, however, is limited to evaluating whether the ALJ’s factual findings are supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. Castellano v. Sec’y of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales , 402 U.S. 389, 401 (1971) (quotation omitted). In determining whether substantial evidence exists to -2- support the ALJ’s decision, we will not reweigh the evidence. Castellano , 26 F.3d at 1028. On appeal, claimant raises three arguments challenging the ALJ’s decision. First, as she did before the ALJ, claimant contends that her coronary artery disease meets a listed impairment. “At step three, the ALJ determines whether the claimant’s impairment is equivalent to one of a number of listed impairments that the [Commissioner] acknowledges as so severe as to preclude substantial gainful activity.” Drapeau v. Massanari , 255 F.3d 1211, 1212 (10th Cir. 2001) (quotation omitted). The listing that claimant contends she meets requires her to have: Coronary artery disease, demonstrated by angiography . . . and an evaluating program physician . . . has concluded that performance of exercise testing would present a significant risk to the individual, with both . . . [a]ngiographic evidence revealing . . . 50 percent or more narrowing of at least 2 nonbypassed coronary arteries . . . and [r]esulting in marked limitation of physical activity, as demonstrated by fatigue, palpitation, dyspnea, or anginal discomfort on ordinary physical activity, even though the individual is comfortable at rest. 20 C.F.R. Part 404, Subpt. P, App. 1, listing 4.04(C)(1)(d)(2). The ALJ concluded from the medical evidence in the record that claimant’s condition did not meet this listing because she “does not have the severe fatigue or shortness of breath required by listing 4.04 C (2).” Admin. Tr., Vol. I at 17. Nonetheless, claimant does not argue that the medical evidence demonstrates she has fatigue or shortness of breath. She notes that she was admitted to the hospital in 1998 with -3- shortness of breath and, after an angiography was performed, was advised to avoid strenuous exercise or activity for six weeks. She states that no treadmill testing has been recommended by her physicians since that time. But these facts do not demonstrate that she meets the listing requirements of “fatigue, palpitation, dyspnea, or anginal discomfort on ordinary physical activity, even though the individual is comfortable at rest.” 20 C.F.R. Part 404, Subpt. P, App. 1, listing 4.04(C)(1)(d)(2). The regulations are clear that all of the findings related in a listing must be met. 20 C.F.R. § 404.1525(d). Further, our review of the record demonstrates several instances where claimant’s physicians subsequently advised her to exercise, clearly precluding a requirement of the listing. See, e.g., Admin. Tr., Vol. II at 618, 650, 708. Therefore, this argument lacks merit. In her second argument, claimant takes issue with the ALJ’s conclusion that her testimony regarding her subjective complaints of pain and other limitations was not fully credible. Claimant restates some of the medical record of her coronary artery disease and other conditions and her treatment for them and argues that she has established the “loose nexus” required under Luna v. Bowen , 834 F.2d 161, 164 (10th Cir. 1987), between her conditions and her allegations of pain and other limitations. But the ALJ did not dispute the presence of impairments which might produce pain or other disabling limitations. Instead, after reviewing the medical evidence, the ALJ concluded that claimant’s -4- complaints were inconsistent with the medical record and her own statements to her treating physicians. The ALJ acknowledged that claimant is limited by several medical conditions, but stated that they are largely controlled by medication. He also noted that her daily activities were inconsistent with total disability. In other words, at the final step of the Luna analysis, the ALJ determined that claimant’s pain and limitations were not as severe as she alleged. Claimant contends that because she sought medical treatment for her coronary artery disease and currently takes medication, her efforts somehow demonstrate that her testimony is consistent with the medical record. Claimant conclusorily contends that the ALJ applied the wrong legal standards in determining her credibility. But these arguments fail to address the reasoning behind the ALJ’s credibility determination. Claimant does not demonstrate how the ALJ erred in relying on the identified inconsistencies or her daily activities, or in what way the ALJ applied the wrong standard. We reject claimant’s contention that the ALJ’s credibility determination either lacks support in the record or did not apply the correct legal standards. Finally, claimant contends that the ALJ erred in concluding that she can perform work existing in the national economy. She argues that the ALJ improperly relied on responses by vocational experts at the hearings because the ALJ’s hypothetical questions to these experts were incomplete. Claimant appears -5- to contend that the ALJ should have 1) included as a limitation in the hypothetical her alleged needs to lie down for an hour daily and elevate her feet twice per week, and 2) acknowledged episodes of chest pain lasting ten minutes or longer. However, in his decision, the ALJ pointed to medical evidence that her chest pains are relieved by medication and may be noncardiac in origin. The ALJ also noted that her alleged needs to lie down and elevate her feet are “not based upon any determination by a treating or examining physician that this was medically necessary,” and that the allegations are “contrary to the recommendation that [claimant] exercise.” Admin. Tr., Vol. I at 21. Because claimant does not address these points in her argument, her challenges to the ALJ’s hypothetical are conclusory and unsupported. Based on our independent review of the record as a whole, we conclude that the ALJ applied the correct legal standards and that substantial evidence supports his findings. The district court’s judgment is AFFIRMED. Entered for the Court Monroe G. McKay Circuit Judge -6- 

354 P.2d 774 (1960) PARKHILL TRUCK CO., a corporation, Plaintiff in Error, v. Dave BREWER, Fred Burns, and Cecil Flippo, Defendants in Error. No. 38335. Supreme Court of Oklahoma. August 9, 1960. Doerner, Rinehart & Stuart, Harry D. Moreland, Tulsa, for plaintiff in error. Gable, Gotwals & Hays, Tulsa, for defendants in error. *775 JOHNSON, Justice. This appeal stems from the following facts. The plaintiffs, Dave Brewer, Fred Burns and Cecil Flippo, brought an action against the Parkhill Truck Company to recover certain sums of money allegedly due them as wages earned as employees of the trucking company, but which sums the said trucking company withheld for workmen's compensation coverage that said company allegedly paid for them. The trucking company denied that plaintiffs were employees and alleged that they were independent contractors; that under the independent contractual arrangements between the plaintiffs and defendant that the defendant offered and agreed, and the plaintiffs accepted and agreed, that the drivers of the plaintiffs' equipment, whether it be the plaintiffs or employees of plaintiffs, could be covered by defendant's general workmen's compensation insurance policy, and that defendant would pay the premium therefor, and that plaintiffs would repay the same to the defendant along with the other items of expense of operating the leased equipment. That under the general usages and customs of the business, with which defendant and plaintiffs were fully familiar, and by which they conducted their business when not specifically governed by statute or specifically otherwise provided, defendant advanced its money and extended its credit and performed other incidentals for the benefit of plaintiffs from time to time and charged the same against the earnings of the plaintiffs' equipment under the written agreements and deducted the same from such earnings. That the *776 defendant and plaintiffs considered and agreed that such insurance premium payments should be likewise deducted, and in this manner the defendant collected from the plaintiffs said sums so paid. Plaintiffs replied and denied generally all of defendant's allegations and specifically denied that the sole relationship between them and the defendant was that of an independent contractor, or that such relationship between the parties was defined by the written contract; or that there was any agreement between the defendant and plaintiffs authorizing or providing for any deduction from pay due plaintiffs as drivers for workmen's compensation premiums; asserting that if any such agreement, if made, which they denied, would be void and against the public policy of the State of Oklahoma. A jury was waived and the trial judge heard the case on the issues thus joined and found that the plaintiffs had sustained their allegations and rendered judgment in their favor, resulting in this appeal. For reversal the trucking company (plaintiff in error) relies solely on its allegation and contention that the plaintiffs were independent contractors and agreed to allow the company to deduct from the gross earnings of plaintiffs' leased equipment workmen's compensation premiums covering the drivers of the leased equipment. On the other hand, the plaintiffs deny that they agreed to such deductions and contend that they were employees of the trucking company, and being such it was a violation of the Oklahoma (law) Statutes to charge them with workmen's compensation premiums, citing 85 O.S. 1951 § 46; or in the alternative, that if they were not employees but independent contractors as contended by the defendant trucking company, then they had no workmen's compensation coverage by estoppel or otherwise and should not have been charged a premium. Admittedly, plaintiffs entered into contracts to lease their motor equipment to the defendant. Each was to maintain the equipment and bear all expenses. Each was to furnish drivers for his leased equipment. However, in each instance, each lessor, under the direction and control of the defendant, drove his own motor equipment. Each, under the contract, was to receive 80% of the gross earnings of his particular motor equipment. Prior to this contractual relationship each of the plaintiffs had been employed as drivers for the defendants operating identical motor equipment and receiving 20% of the gross earnings of the equipment operated as wages. The defendant, at that time, owned and maintained the equipment and regarded these drivers as employees and paid the workmen's compensation premiums on them. But, the defendant argues that when plaintiffs bought, owned and operated their own equipment as aforesaid, notwithstanding the fact that the defendant under the contract of employment with the plaintiffs retained the right to direct and control plaintiffs as employees, that they became independent contractors and were no longer employees. That is not necessarily so. The rule of law that governs under such circumstances is that the right of the employer to direct or control the work is the decisive test and not the mode of payment of the wages. Chicago R.I. & P. Ry. Co. v. Bennett, 36 Okl. 358, 128 P. 705, 20 A.L.R. 678; Yellow Cab Co. v. Wills, 199 Okl. 272, 185 P.2d 689. There was evidence reasonably tending to show that plaintiffs were in fact employees. They operated their own trucks under the direction and control of the defendant under long-term leases for a percentage of the gross earnings of their equipment, which they themselves operated. The defendant listed them as employees for purposes of income tax, social security and unemployment compensation, as well as workmen's compensation. The written contracts which defendant contends constituted plaintiffs independent contractors provided that "Lessor shall surrender full control, possession and management of said equipment *777 to the Lessee during the term of this lease," and gave the trucking company the right to cancel the contract if operation was not satisfactory. This clearly established, in our opinion, the relationship of master and servant which constituted plaintiffs employees and not independent contractors. The right of an employer to control and direct details of work is a factor in determining whether employee is a "servant" or an "independent contractor," and when there is evidence, though conflicting, the issue of whether one is a servant or independent contractor is for the trier of fact, and where a jury is waived the judgment or decision of the trial court is conclusive if there is any competent evidence reasonably tending to support the judgment. See Modern Motors v. Elkins, 189 Okl. 134, 113 P.2d 969; Yellow Cab Co. v. Wills, supra, and Chicago R.I. & P. Ry. Co. v. Bennett, supra. Therefore, since we hold that plaintiffs were employees of the defendant and not independent contractors, the defendant's contentions that the company in accord with the contract between it and the employees deducted from the gross earnings of the plaintiffs' leased equipment workmen's compensation premiums become immaterial, as under 85 O.S. 1951 § 46, such agreement, if in fact there was one, was invalid. That section provides: "§ 46. Employee's agreements to pay premiums invalid — Penalty. — No agreement by any employee to pay any portion of the premium paid by his employer to the cost of mutual insurance or other insurance, maintained for or carried for the purpose of providing compensation as herein required, shall be valid, and any employer who makes a deduction for such purpose from the wages or salary of any employee entitled to the benefits of this act shall be guilty of a misdemeanor. Laws 1915, ch. 246, art. 2, § 20." The judgment is sustained by the evidence and is not contrary to the law. The judgment should be and is affirmed. WILLIAMS, V.C.J., and WELCH, JACKSON and BERRY JJ., concur. BLACKBIRD and IRWIN, JJ., concur in result. DAVISON, C.J., dissents.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 00-1757 K. MORGAN KENYON, Plaintiff - Appellant, versus RONALD R. WOOD, Individually and in his offi- cial capacity as Sheriff of Nelson County, 1996; MICHAEL R. MCCARTHY, Badge No. 308, individually and in his official capacity as Nelson County Deputy Sheriff, 1996; MALCOLM E. BRIDGEWATER, Badge 309, individually and in his official capacity as Sheriff's Deputy, 1997; PHILLIP D. PAYNE, IV, individually and in his official capacity as Nelson County Commonwealth Attorney, 1996; JAMES S. MASSIE, III, Individually and in his official capacity as plaintiff's court-appointed "counsel", 1996; TERESA A. EIMUTUS, Individually and in her respective conspiratorial role acting, thereby with law enforcement, to effect delib- erate violation of plaintiff's Civil Rights, under collateral color of state law; JEFFREY T. EIMUTUS, Defendants - Appellees, and NELSON COUNTY SHERIFF'S DEPARTMENT; JASPER FLETCHER, Individually and in his official ca- pacity as Magistrate, 1996; JOSEPH M. SERKES, Individually and in his official capacity as Nelson County district court "judge", 1996; LAWRENCE JANOW, "judge", individual and offi- cial capacity; MICHAEL GAMBLE, "judge", indi- vidual and official capacity; JAMES UPDIKE, substitute "judge" for recused "judge", defen- dant Serkes, individually and in his official capacity; NELSON T. OVERTON, "judge", individ- ual and official capacity; JAMES S. GILMORE, III, Attorney General, 1996 and Governor, 1999, individual and official capacity; GEORGE W. ALLEN, Governor, 1996, individual and offi- cial capacity, Defendants. No. 00-1758 K. MORGAN KENYON, Plaintiff - Appellant, versus CENTRAL STATE HOSPITAL; ANN MINTOR, RN, indi- vidually and in her official capacity as Cen- tral State nurse, 1996, who admitted plaintiff by a telephone "consultation," in violation of Title 37.154; AMENRA FORMOSA TUASON, MD, individually and in his official capacity as "treatment team" psychiatrist, 1996, who admitted plaintiff by a phone "consultation" in violation of 37.154; USHA HARINDARIN, MD, individually and in her official capacity as "treatment team" psychiatrist, 1996; STEVEN HERRICK, Ph.D., individually and in his offi- cial capacity as "treatment team" member 1996; LAC LE, individually and in his professional capacity as defendant Central State Hospital physician, 1996; JEAN TURNER, CNS, individ- ually and in her official capacity as "treat- ment team" member, 1996; EVE SUGAR, LCW, in- dividually and in her official capacity as "treatment team" member, 1996; HADLEY OSRAN, MD, individually and in his official capacity as Director of CSH Forensic Unit, 1996; N. POWELL, individually and in her official capacity as Central State Hospital Ward 7 2 employee, 1996; MS. LOGAN, individually and in her official capacity as Central State Hospital Ward 7 employee, 1996; UNKNOWN AGENT, John Doe, individually and in his official capacity as Central State Hospital Ward 7 employee, 1996; JAMES T. BUMPAS, individually and in his official capacity as Director of Central State Hospital, 1996; J. LOGAN, FMHT, individually and in her official capacity, Defendants - Appellees, and THOMAS DEMPSEY, individually and in his offi- cial capacity as an alleged attorney employed by Central State Hospital, 1996; SAMUEL T. PATTERSON, individually and in his official capacity as an alleged "judge" employed by Central State Hospital, 1996; RICHARD KELLY, individually and in his official capacity as Director of the Department of Mental Health, Mental Retardation and Substance Abuse, in 1996; THE DEPARTMENT OF MENTAL HEALTH, MENTAL RETARDATION AND SUBSTANCE ABUSE SERVICES BOARD; RICHARD KELLOGG, individually and in his official capacity as assistant to the Commissioner of DMHMRSAS, 1996; JAMES G. LUMPKIN, individually and in his official capacity as current chair of DMHMRSAS; VIRGINIA DIFFLEMYER, individually and in her official capacity as current Vice-Chair of DMHMRSAS; JOSEPH ALLEN, individually and in his official capacity as current DMHMRSAS Board member; MICHAEL JOSEPH FLYNN, individ- ually and in his official capacity as current DMHMRSAS Board member; CHARLES A. GUNN, indi- vidually and in his official capacity as current DMHMRSAS Board member; MARTHA M. JALLIN, individually and in her official capacity as current DMHMRSAS Board member; BARBARA B. SMITH, individually and in her official capacity as current DMHMRSAS Board member; A. LATEX, FMHT, individual and official capacity; J. SUTTLE, individual and official capacity; VIOLET HITE, Patient Advocate, individually and in her official 3 capacity; FOUR UNKNOWN FMHT EMPLOYEES, individually and official capacities; MR. BLAIR, Investigator, CSH "Security" Depart- ment, individually and in his official capac- ity; FOUR UNKNOWN AGENTS, CSH "Security" Department, individually and official capaci- ties; JAMES GILMORE, Attorney General, 1996, individually and in his official capacity; GEORGE ALLEN, Governor of Virginia, 1996, individually and in his official capacity, Defendants. No. 00-1759 K. MORGAN KENYON, Plaintiff - Appellant, versus LEWIS BARLOW, Superintendent, Piedmont Regi- onal Jail, Farmville, Virginia, 1996, indi- vidually and in his official capacity; GENE SOUTHALL, Sheriff of Amelia County, 1996, individually and in his official capacity; CAPTAIN MARSHALL, deputized Piedmont Regional Jail official, 1996, individually and in his official capacity; JOHN DOE, Sergeant, depu- tized Piedmont Regional Jail official, 1996, individually and in his official capacity; MS. PRITCHITT, Deputy, Piedmont Regional Jail, 1996, individually and in her official capac- ity; MS. WHITEHEAD, Deputy, Piedmont Regional Jail, 1996, individually and in her official capacity; JOHN DOE, Unknown Agent/Official, Piedmont Regional Jail, 1996; JANE DOE, Lieu- tenant, Nurse, Piedmont Regional Jail, 1996, individually and in her official capacity; TEN UNKNOWN AGENTS/DEPUTIES/OFFICIALS, Piedmont Regional Jail, 1996, individually and in their official capacities; RONALD R. WOOD, Sheriff of Nelson County, 1996, individually and in 4 his official capacity; MALCOLM M. BRIDGEWATER, Badge No. 312, Nelson County Sheriff's Deputy, 1996, individually and in his official capac- ity; GEORGE ALLEN, Governor of Virginia, 1996, individually and in his official capacity, Defendants - Appellees. No. 00-1760 K. MORGAN KENYON, Plaintiff - Appellant, versus GEORGE MCMILLAN, Sheriff of City of Roanoke, for W. Alvin Hudson, former Sheriff, (re- tired), individually and in his official ca- pacity; RICHARD HULL, Sergeant, Roanoke City Jail, 1996, individually and in his official capacity; SHONDRA DUNCAN, Deputy, Roanoke City Jail, 1996, individually and in her official capacity; BOBBY W. RATLIFF, Sergeant, Roanoke City Jail, 1996, individually and in his official capacity; NORMAN E. HUDSON, Sergeant, Roanoke City Jail, 1996, individually and in his official capacity; DAVID BLEVINS, Captain, Roanoke City Jail, 1996, individually and in his official capacity; RICHARD LAWSON, Ser- geant, Roanoke City Jail, 1996, individually and in his official capacity; BRUCE PALMER, Sergeant, 1996, individually and in his offi- cial capacity; UNKNOWN AGENT, JANE DOE, jail medical employee, 1996, individually and in her official capacity, for collective battery of plaintiff directed by defendant Hull; TWO UNKNOWN AGENTS, responsible for the directed battery of plaintiff by defendant Sergeant Hull, are sued individually and in their official capacities; TWENTY UNKNOWN AGENTS, responsible for the directed battery of plain- 5 tiff by defendant Sergeant Hull, are sued individually and in their official capacities; GEORGE ALLEN, Governor of Virginia, 1996, individually and in his official capacity, Defendants - Appellees. Appeals from the United States District Court for the Western Dis- trict of Virginia, at Lynchburg. Norman K. Moon, District Judge. (CA-98-81-6, CA-98-83-6, CA-98-93-6, CA-99-1-6) Submitted: August 30, 2000 Decided: January 24, 2001 Before WIDENER, NIEMEYER, and WILLIAMS, Circuit Judges. Affirmed by unpublished per curiam opinion. K. Morgan Kenyon, Appellant Pro Se. Carlene Booth Johnson, PERRY & WINDELS, Dillwyn, Virginia; Teresa A. Eimutus, Jeffrey T. Eimutus, Roseland, Virginia; Jane D. Hickey, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). 6 PER CURIAM: K. Morgan Kenyon appeals the district court’s orders denying relief on her several 42 U.S.C.A. § 1983 (West Supp. 2000) com- plaints. We have reviewed the record and the district court’s opinions and find no reversible error. Accordingly, we affirm on the reasoning of the district court. Kenyon v. Nelson County Sher- iff, No. CA-98-81-6; Kenyon v. Central State Hosp., No. CA-98-83-6; Kenyon v. Barlow, No. CA-98-93-6; Kenyon v. McMillan, No. CA-99-1-6 (W.D. Va. May 9 & 18, 2000). The Appellees in Nos. 00-1757, 00- 1759, and 00-1760 have moved this Court to award attorneys fees and costs. Although we deny the Appellees’ motion for fees and costs, we warn Kenyon that her continued pursuit of frivolous claims in this Court may result in the award of damages and costs or other sanctions against her. See Fed. R. App. P. 38. We dispense with oral argument because the facts and legal contentions are adequate- ly presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7 

33 F.2d 563 (1929) PHŒNIX BLDG. & HOMESTEAD ASS'N v. E. A. CARRERE'S SONS. No. 5266. Circuit Court of Appeals, Fifth Circuit. July 13, 1929. Rehearing Denied August 19, 1929. Delvaille H. Theard, of New Orleans, La., for appellant. Jas. G. Schillin, of New Orleans, La., for appellee. Before WALKER, BRYAN, and FOSTER, Circuit Judges. BRYAN, Circuit Judge. This is an appeal from a decree in bankruptcy which disallowed a claim of the appellant homestead association to an attorney's fee according to the terms of a mortgage which it held against the bankrupt. Appellant's mortgage was dated May 15, 1926, and was a first lien upon a lot in the city of New Orleans, which was taken possession of by the trustee in bankruptcy on June 30, 1926, upon the mortgagor being adjudged a bankrupt, and was afterwards sold free of liens. There were a second mortgage and other claims, which were asserted as liens, that accrued subsequently to the lien of appellant. The bankrupt's mortgage to appellant provided for the payment of an attorney's fee of 10 per cent. of the amount sued for "in case it should become necessary to institute suit for the recovery of the amount of said [mortgage] note or any part thereof," and also provided that, in the event the mortgagor became bankrupt, his indebtedness should immediately mature. That mortgage was not in default at the date the petition in bankruptcy was filed, and no suit was brought by appellant to enforce any of its provisions. After the sale of the property in the bankruptcy court free of liens, appellant filed a petition by which it sought to have the proceeds of sale applied first to the satisfaction of its lien. The property did not sell for enough to satisfy the liens of both the first and second mortgages, and in its petition appellant prayed that the holder of the second mortgage and the claimants of other inferior liens be cited to show cause why the first mortgage should not be paid in full. A hearing *564 was held, and appellant was allowed the principal and interest upon its mortgage to date of payment, but its claim for an attorney's fee was disallowed, in an opinion by the District Court. 21 F.(2d) 434. The provision of the mortgage accelerating its due date in the event of bankruptcy did not have the effect of creating a liability for an attorney's fee, since the payment of such fee was dependent upon the necessity for the institution of suit. It does not appear that the necessity for suit arose merely because the bankruptcy court took possession of the property, sold it free of liens, and was under a duty to apply the proceeds in satisfaction of appellant's lien. It is not open to serious question that the first mortgage should have been paid in full before any proceeds were available for payment on the second mortgage. It was doubtless an act of prudence on the part of the first mortgagee to have counsel apply to the bankruptcy court for the allowance of its debt as a first lien; but that act was not the equivalent of a suit, and it is unreasonable to suppose that the District Court would in any event have given preference to the second mortgage, or to any other subsequent and inferior lien. In People's Homestead Association v. Bartlette, 33 F.(2d) 561, this day decided, we upheld a claim for an attorney's fee on certain interest, that was disallowed by the District Court, on the ground that the mortgage creditor was obliged to come into court to collect it; but that does not appear to have been necessary in this case. In other respects the claims for attorney's fees in the two cases are practically the same, and it follows, from our opinion in the case just above referred to, that it was not error to refuse to allow an attorney's fee in this case. The order appealed from is affirmed.

Order Michigan Supreme Court Lansing, Michigan November 26, 2014 Robert P. Young, Jr., Chief Justice 150292 & (12) Michael F. Cavanagh Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack PEOPLE OF THE STATE OF MICHIGAN, David F. Viviano, Plaintiff-Appellee, Justices v SC: 150292 COA: 322542 Saginaw CC: 12-036998-FH BRET FRANCIS PREECE, Defendant-Appellant. _________________________________________/ On order of the Court, the motion to expedite is GRANTED. The application for leave to appeal the August 27, 2014 order of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of granting leave to appeal, we VACATE the sentence of the Saginaw Circuit Court, and we REMAND this case to the trial court for resentencing. The trial court’s disagreement with the guidelines range for the defendant’s offense is not a substantial and compelling reason for an upward departure. On remand, the trial court shall sentence the defendant within the appropriate sentencing guidelines range, or articulate on the record a substantial and compelling reason for departing from the sentencing guidelines range in accordance with People v Babcock, 469 Mich 247 (2003). I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. November 26, 2014 t1125 Clerk 

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00782-CR Robert TORRES, Appellant v. The The STATE of Texas, Appellee From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2013CR1875 Honorable Lorina I. Rummel, Judge Presiding PER CURIAM Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice Delivered and Filed: February 4, 2015 DISMISSED Pursuant to a plea-bargain agreement, Appellant Robert Torres pled nolo contendere to aggravated sexual assault of a child and was sentenced to eighteen years of imprisonment and a fine of $1,000 in accordance with the terms of his plea-bargain agreement. On October 16, 2014, the trial court signed a certification of defendant’s right to appeal stating that this “is a plea-bargain case, and the defendant has NO right of appeal.” See TEX. R. APP. P. 25.2(a)(2). After Torres filed a notice of appeal, the trial court clerk sent copies of the certification and notice of appeal to this  04-14-00782-CR court. See id. 25.2(e). The clerk’s record, which includes the trial court’s Rule 25.2(a)(2) certification, has been filed. See id. 25.2(d). “In a plea bargain case ... a defendant may appeal only: (A) those matters that were raised by written motion filed and ruled on before trial, or (B) after getting the trial court’s permission to appeal.” Id. 25.2(a)(2). The clerk’s record, which contains a written plea bargain, establishes the punishment assessed by the court does not exceed the punishment recommended by the prosecutor and agreed to by the defendant. See id. The clerk’s record does not include a written motion filed and ruled upon before trial; nor does it indicate that the trial court gave its permission to appeal. See id. The trial court’s certification, therefore, appears to accurately reflect that this is a plea- bargain case and that Torres does not have a right to appeal. We must dismiss an appeal “if a certification that shows the defendant has the right of appeal has not been made part of the record.” Id. 25.2(d). We, therefore, warned Torres that this appeal would be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that he had the right to appeal was made part of the appellate record. See TEX. R. APP. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order). No such amended trial court certification has been filed. This appeal is, therefore, dismissed pursuant to Rule 25.2(d). PER CURIAM Do not publish -2- 

919 F.2d 134 Crum & Forster Commercial Insurancev.Farnese (Andrew) NO. 90-1245 United States Court of Appeals,Third Circuit. OCT 17, 1990 1 Appeal From: E.D.Pa. 2 AFFIRMED.

700 F.Supp. 865 (1988) KOCH INDUSTRIES, INC. v. UNITED GAS PIPE LINE COMPANY. Civ. A. No. 86-274-B. United States District Court, M.D. Louisiana. November 22, 1988. James L. Ellis, Taylor, Porter Brooks & Phillips, Baton Rouge, La., William E. Shull, Wichita, Kan., Alan D. Hallock, for plaintiff. *866 DeVier Pierson, James M. Costan, Pierson, Semmes U Finley, H. Bruce Golden, Adrian L. Steel, Jr., Mayer, Brown & Platt, Ernest L. Edwards, B. Richard Moore, Jr., Lemle, Kelleher, Kohlmeyer, Dennery, Hunley, Moss & Frilot, New Orleans, La., for defendant. RULING ON PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT POLOZOLA, District Judge. Koch Industries, Inc. ("Koch") filed this suit against United Gas Pipeline Company ("United") seeking a declaratory judgment and enforcement of the parties' take-or-pay agreements. Defendant filed an answer to the complaint which asserted several defenses. Plaintiff has now moved for partial summary judgment as to the fourth and fifth defenses. For the reasons which follow, plaintiff's motion for partial summary judgment is GRANTED. Defendant entered into two contracts with plaintiff to purchase natural gas. Each contract obligates the defendant to either take delivery of and pay for certain specified quantities of gas annually, or, alternatively, to pay for such quantity of gas even if it is not taken. The defendant has asserted the following defenses which the plaintiff seeks to strike: FOURTH DEFENSE * * * * * * If United were required to pay for gas it could not or did not take possession of or use, then such payment would result in the receipt by Koch of a price in excess of the lawful ceiling price for natural gas imposed by the NGPA [Natural Gas Policy Act of 1978]. * * * * * * FIFTH DEFENSE * * * * * * Koch's claims raise issues which are subject to the primary or exclusive jurisdiction of the FERC [Federal Energy Regulatory Commission]. * * * * * * Plaintiff contends that these two defenses are invalid as a matter of law and should be disposed of by summary judgment. This Court agrees. In its fourth defense, the defendant claims take-or-pay contracts violate the provisions of the Natural Gas Policy Act of 1978 ("NGPA"). A number of federal district courts and at least one appellate court have explicitly rejected the argument that take-or-pay agreements violate NGPA price ceilings.[1] In Associated Gas Distributors v. FERC,[2] the D.C. Court of Appeals stated: In enacting the NGPA ceilings, Congress must have been aware that producers and pipelines would incorporate these ceilings into long-term contracts, and that the contracts would include remedies for producers. Obviously the remedial rights would constitute value. If any such value put into breach of the NGPA a contract nominally at the NGPA ceiling, the NGPA would provide a most uncertain guide.[3] This Court agrees with the above interpretation of the NGPA. Therefore, the Court finds that defendant's fourth defense is invalid as a matter of law. The defendant has also asserted that the plaintiff's claim should be dismissed because the claim is within the exclusive or primary jurisdiction of the FERC. However, in Wagner & Brown v. *867 ANR Pipeline Co.[4] the Fifth Circuit Court of Appeals held that the FERC did not have "exclusive jurisdiction over the construction of take-or-pay contracts."[5] While the FERC does have primary jurisdiction, the decision of whether to defer on that ground is "at the discretion of the district court."[6] This Court chooses not to dismiss this action in deference to the FERC. Finally, defendant asserts that plaintiff's motion for summary judgment should be considered as a motion to strike affirmative defenses, in which case the motion would not have been timely filed. Defendant cites district court opinions which have held that a partial summary judgment cannot be employed with respect to an affirmative defense.[7] However, several opinions have held to the contrary,[8] and have allowed the utilization of summary judgment to dispose of affirmative defenses. This Court believes the latter view is the correct procedure to follow. Therefore, the Court shall permit the plaintiff to file a partial summary judgment and for reasons set forth previously, hereby grants plaintiff's motion for partial summary judgment. Defendant's fourth and fifth defenses are hereby stricken. The Court reserves to the plaintiff the right to seek Rule 11 sanctions against the defendant at the conclusion of this case for asserting the fourth and fifth defenses and for opposing plaintiff's motion for partial summary judgment. NOTES [1] See, e.g., Sid Richardson Carbon & Gasoline Co. v. Internorth, Inc., 595 F.Supp. 497 (N.D.Tex. 1984); Koch Industries, Inc. v. Columbia Gas Transmission Corp., No. 83-990-A (M.D.La. filed Nov. 18, 1983), aff'd sub nom., In re Columbia Gas Transmission Corp., No. 84-3282 (5th Cir. July 30, 1984); Southport Exploration, Inc. v. Producer's Gas Co., No. 83-C-550-BT (N.D.Okla. filed March 13, 1984); Challenger Minerals, Inc. v. Southern Natural Gas Co., No. 84-C-357-E (N.D.Okla.1986). [2] 824 F.2d 981 (D.C.Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1468, 1469, 99 L.Ed.2d 698 (1988). [3] Id. at 1022 n. 26. [4] 837 F.2d 199 (5th Cir.1988). [5] Id. at 202. [6] Id. at 201. [7] See, e.g., Bernstein v. Universal Pictures, Inc., 379 F.Supp. 933 (S.D.N.Y.1974), rev'd on other grounds, 517 F.2d 976 (2d Cir.1975); Uniroyal, Inc. v. Heller, 65 F.R.D. 83, 86 (S.D.N.Y.1974); Goodrich v. Gonzalez, 451 F.Supp. 747, 750 (E.D. N.Y.1978). [8] See, e.g., Leasing Serv. Corp. v. Graham, 646 F.Supp. 1410, 1414-15 (S.D.N.Y.1986); First Nat'l City Bank v. Kline, 439 F.Supp. 726, 728 (S.D.N.Y.1977); Krauss v. Keibler-Thompson Corp., 72 F.R.D. 615, 616 n. 7 (D.Del.1976); Looney v. Great Am. Ins. Co., 71 F.R.D. 211, 212 n. 2 (E.D.N.Y.1976). See also Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2737.

Case: 12-10920 Document: 00512334613 Page: 1 Date Filed: 08/07/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 7, 2013 No. 12-10920 Lyle W. Cayce Clerk PAMELA RICHARDSON, Plaintiff–Appellant v. WELLS FARGO BANK, N.A.; FEDERAL HOME LOAN MORTGAGE CORPORATION, Defendants–Appellees Appeal from the United States District Court for the Northern District of Texas USDC No. 4:11-cv-00359-A Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges. PER CURIAM:* Plaintiff–Appellant Pamela Richardson appeals the summary judgment dismissal of all her claims against Defendants–Appellants Wells Fargo Bank, N.A. (“Wells Fargo”) and Federal Home Loan Mortgage Corporation (“Freddie Mac”). As the facts are undisputed and Wells Fargo had the contractual right to foreclose on her house, we affirm. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.  Case: 12-10920 Document: 00512334613 Page: 2 Date Filed: 08/07/2013 No. 12-10920 Richardson owned a house in Grapevine, Texas, that was encumbered by a promissory note and deed of trust held by Wells Fargo. After she fell behind on payments, Wells Fargo notified her of its intention to accelerate the note and foreclose. Even though Richardson never became current on her payments, Wells Fargo tried to work with her to avoid foreclosure and, to that end, offered her a Trial Period Plan and later offered her a Forbearance Plan. Richardson made several reduced payments under the Trial Period Plan while Wells Fargo refrained from foreclosure and assessed her eligibility for a permanent loan modification through the federal Home Affordable Modification Program (“HAMP”) program. On June 3, 2010, Wells Fargo informed Richardson that she did not qualify for a loan modification under the HAMP program. The Trial Period Plan therefore expired, and Richardson never received a permanent loan modification. The Forbearance Plan was then offered by Wells Fargo on August 4, 2010. Under it, Richardson could avoid foreclosure by making a series of scheduled payments. The Forbearance Plan required Richardson to “indicate [her] understanding and acceptance of the terms of the forbearance agreement by immediately signing and returning this agreement.” Richardson made the first scheduled payment, but she does not dispute that she never accepted Wells Fargo’s offer of the Forbearance Plan by signing and returning it to Wells Fargo. On September 8, 2010, Wells Fargo notified Richardson that it was accelerating her note and scheduling a foreclosure sale for October 5, 2010. The home was sold to Freddie Mac on that date. Richardson filed suit against Wells Fargo and Freddie Mac, avoiding eviction until May 2012. After extensive proceedings, the district court granted summary judgment to Wells Fargo and Freddie Mac and dismissed all of Richardson’s claims. Richardson asserts over a dozen points of error in this appeal, but all are predicated on the mistaken premise that either the Trial Period Plan or the 2  Case: 12-10920 Document: 00512334613 Page: 3 Date Filed: 08/07/2013 No. 12-10920 Forbearance Plan prohibited Wells Fargo from foreclosing. On these undisputed facts, they did not. First, Wells Fargo foreclosed after the Trial Period Plan had expired and Richardson had failed to qualify for a permanent loan modification. Richardson attempts to read one term of the Trial Period Plan out of context to suggest that, having made the trial payments, she was automatically entitled to a loan modification. But her reading conflicts with the plain language of the Trial Period Plan, which unambiguously makes loan modification contingent on both her making the required payments and her eligibility under the federal HAMP program. Richardson does not dispute that she was not eligible under HAMP, so that, after the Trial Period Plan expired, the terms of the note and deed of trust permitted Wells Fargo to foreclose. Second, the offer contained in the Forbearance Plan never resulted in an agreement not to foreclose because Richardson never accepted that offer pursuant to its plain terms. Although Richardson contends that Wells Fargo waived the signature requirement by accepting the first payment pursuant to the Forbearance Agreement, we perceive no “intentional relinquishment” of the requirement that she actually accept Wells Fargo’s terms in writing, especially because Richardson already owed delinquent payments on the note. Cf. Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008) (setting forth elements of waiver under Texas law). Thus, the Forbearance Plan was never binding, Wells Fargo’s notice of the foreclosure sale was timely, and the transfer to Freddie Mac was proper. Richardson insists that there are genuine issues of material fact which precluded summary judgment on her claims for breach of contract, waiver, anticipatory breach of contract, wrongful foreclosure and eviction, suit to quiet title, negligent misrepresentation, and a host of violations of the Texas Debt Collection Act. We need not recite the elements of these causes of action at 3  Case: 12-10920 Document: 00512334613 Page: 4 Date Filed: 08/07/2013 No. 12-10920 length because, as a matter of law, neither the Trial Period Plan nor the Forbearance Plan contractually prevented Wells Fargo from foreclosing on her house, regardless of how many different ways Richardson attempts to dress up her claims. Accordingly, the foreclosure was proper in all respects, so the district court’s judgment in favor of Wells Fargo and Freddie Mac dismissing Richardson’s action is AFFIRMED. 4 

56 F.3d 74NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee,v.Leo Clarence LAWSON, Defendant-Appellant. No. 93-50701. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 3, 1995.Decided May 24, 1995. Before: FLETCHER, BRUNETTI, and T.G. NELSON, Circuit Judges. 1 MEMORANDUM* 2 Leo Clarence Lawson appeals his convictions for making false claims to a Government agency and forging endorsements on Treasury checks. We affirm. A. The Prior Convictions 3 To impeach Lawson's credibility, the district court permitted the government to introduce evidence of Lawson's 1973 and 1979 felony convictions. Rule 609(b) of the Federal Rules of Evidence provides that evidence of a conviction that occurred more than ten years ago is not admissible to impeach a witness's credibility unless the district court determines that the probative value of the conviction substantially outweighs it prejudicial effect. The district court must support its determination by "specific facts and circumstances." Fed. R. Evid. 609(b); see also United States v. Portillo, 699 F.2d 461, 464 (9th Cir. 1982). 4 However, even if we assume the district court did not comply with Rule 609(b), evidentiary errors do not require reversal unless they more probably than not tainted the verdict. United States v. Bradley, 5 F.3d 1317, 1322 (9th Cir. 1993). In this case, the Government mentioned only the fact, not the details, of Lawson's prior convictions only once, at the end of its examination of Lawson. The Government did not belabor the prior convictions. Lawson offered no explanation for failing to show himself as the tax preparer on the returns or for using his own address on the W-2 forms. Given the direct testimony of the taxpayers, it is improbable the assumed evidentiary error tainted the verdict. B. Sufficiency of the Evidence 5 Lawson argues that the evidence was insufficient to support his conviction on Count One of the indictment. He claims that, because Brumfield, the taxpayer in Count One, never spoke directly to him and had her boyfriend communicate with him on her behalf, her testimony was insufficient to demonstrate that Lawson lacked authority to sign her name on her tax return. "[C]ircumstantial evidence and inferences drawn from it may be sufficient to sustain a conviction." United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir.), cert. denied, 113 S. Ct. 258 (1992). In this case, the testimony of the other six taxpayers established a pattern identical to that alleged in count one. Even though Brumfield's boyfriend did not testify that he did not give Lawson authority to sign Brumfield's name, the clear pattern of evidence supports an inference that Lawson lacked authority. 6 AFFIRMED. * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

Supreme Court of Louisiana FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #036 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 29th day of June, 2017, are as follows: BY HUGHES, J.: 2016-CC-2078 JAMES E. BOREN v. EARL B. TAYLOR (Parish of St. Landry) Retired Judge Freddie Pitcher, Jr. participated in this decision as Justice Ad Hoc, sitting for Genovese, J., recused in this case. For the reasons stated, we reverse the appellate court decision, upholding the district court’s denial of the plaintiff’s petition for writ of mandamus, and we remand this matter to the district court with instructions to issue a writ of mandamus to the St. Landry Parish District Attorney, ordering compliance with La. R.S. 44:31 and La. R.S. 44:32, without regard to the provisions of La. R.S. 44:31.1, as to the public records request of plaintiff James E. Boren. We further instruct the district court to assess and award to plaintiff James E. Boren attorney fees, costs, and damages, as appropriate under La. R.S. 44:35. REVERSED; REMANDED TO DISTRICT COURT WITH INSTRUCTIONS. Page 1 of 1 06/29/2017 SUPREME COURT OF LOUISIANA No. 2016-CC-2078 JAMES E. BOREN VERSUS EARL B. TAYLOR ON SUPERVISORY WRITS TO THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT FOR THE PARISH OF ST. LANDRY HUGHES, J.* This case presents the res nova issue of whether an attorney, representing an incarcerated felon, is subject to the provisions of La. R.S. 44:31.1, when making a public records request to obtain information relative to a potential post-conviction relief application. Both the district court and the appellate court ruled in the affirmative. For the following reasons, we reverse and remand with instructions. FACTS AND PROCEDURAL HISTORY Attorney James E. Boren was retained by Stephan M. Bergeron to review his 2013 rape convictions to determine if there were any valid bases for post- conviction relief.1 Mr. Boren forwarded a written request on June 30, 2015 to the St. Landry District Attorney’s office, seeking to review and copy records related to Mr. Bergeron’s conviction under the Louisiana Public Records Law, La. R.S. 44:1 et seq. Assistant District Attorney Donald J. Richard replied to the request, in a July 14, 2015 letter, requesting Mr. Boren disclose the nature of his relationship 1 See State v. Bergeron, 14-608 (La. App. 3 Cir. 11/5/14), 150 So.3d 523, 526 (wherein the defendant’s four convictions for rape of his former wife during their four-year marriage were affirmed). * Retired Judge Freddie Pitcher, Jr. participated in this decision as Justice Ad Hoc, sitting for Genovese, J., recused in this case. with Mr. Bergeron, i.e., whether Mr. Boren was “acting in any capacity in representing him in any post-conviction proceedings” and, if so, asking Mr. Boren to “set forth the grounds for post-conviction relief,” along with his “personal representation that none of those grounds were raised on appeal.” Mr. Boren responded by letter dated July 21, 2015, disclosing that he was retained by Mr. Bergeron to investigate his 2013 rape convictions to determine if there were any valid claims for post-conviction relief and that he was seeking access to files of the St. Landry Parish District Attorney’s Office regarding that prosecution. Mr. Boren was thereafter notified by Mr. Richard’s July 24, 2015 letter that his “response does not meet the requirements previously cited in our response letter dated July 14, 2015. Therefore, your request is DENIED.” (Emphasis original.) Mr. Boren then filed a “Petition for Writ of Mandamus and Review” on August 10, 2015, in the Twenty-Seventh Judicial District Court, pursuant to La. Const. Art. XII, § 3, La. C.C.P. arts. 3862-63, and La. R.S. 44:35. Mr. Boren also sought to collect from the defendant/custodian attorney fees, costs, and damages, under La. R.S. 44:35, for their failure to comply with his public records request. Following an August 31, 2015 hearing, the district court denied Mr. Boren’s petition for a writ of mandamus. A subsequent writ application to the appellate court was denied. Boren v. Taylor, 15-0911 (La. App. 3 Cir. 11/18/15) (unpublished). On Mr. Boren’s application to this court, we granted the writ and remanded to the appellate court for briefing, argument, and full opinion. Boren v. Taylor, 15-2322 (La. 3/14/16) (unpublished writ action). On remand, the appellate court affirmed the district court ruling. Boren v. Taylor, 15-0911 (La. App. 3 Cir. 10/26/16), 206 So.3d 892. Thereafter, this court granted the plaintiff’s writ application. Boren v. Taylor, 16-2078 (La. 1/23/17), 215 So.3d 262. Mr. Boren asks this court to reverse the appellate court decision, contending, in essence: that the provisions of La. R.S. 44:31.1 apply only to an incarcerated 2 individual, not to an attorney; that La. R.S. 44:31.1 should be strictly construed so as not to diminish his right of access to public records because of his attorney- client relationship with an incarcerated individual; that the public records custodian (here, the district attorney) exceeded his authority to question a person seeking public records access beyond that allowed by La. R.S. 44:32(A); and that he is entitled to an award of attorney fees, costs, and damages, pursuant to La. R.S. 44:35. LAW AND ANALYSIS The public’s right to access public records is granted by Louisiana Constitution, Article XII, Section 3, which provides: “No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.” The legislature, by enacting the Public Records Law, La. R.S. 44:1 et seq., sought to guarantee, in the most expansive and unrestricted way possible, the right of the public to inspect and reproduce those records that the law deems public. See Landis v. Moreau, 00-1157, p. 4 (La. 2/21/01), 779 So.2d 691, 694-95; Title Research Corporation v. Rausch, 450 So.2d 933, 937 (La. 1984). In implementation of this right, La. R.S. 44:31(A) states, “Providing access to public records is a responsibility and duty of the appointive or elective office of a custodian and his employees.” Further, “any person of the age of majority may inspect, copy, or reproduce any public record,” except “as otherwise specifically provided by law.” La. R.S. 44:31(B). A public records custodian must “present any public record to any person of the age of majority who so requests,” and the custodian “shall make no inquiry of any person who applies for a public record, except an inquiry as to the age and identification of the person . . . .” La. R.S. 44:32(A). The legislature has further recognized that “it is essential to the operation of 3 a democratic government that the people be made aware of all exceptions, exemptions, and limitations to the laws pertaining to public records.” La. R.S. 44:4.1(A). In order to foster the people’s awareness, the legislature declared that “all exceptions, exemptions, and limitations to the laws pertaining to public records shall be provided for in [the Public Records Law] or the Constitution of Louisiana.” Id. Any exception, exemption, and limitation to the laws pertaining to public records not provided for in the Public Records Law or in the Constitution of Louisiana has no effect. Id. Thus, the Public Records Law must be construed liberally in favor of free and unrestricted access to public documents, and access to public records can be denied only when a law specifically and unequivocally provides otherwise. Title Research Corporation v. Rausch, 450 So.2d at 937. See also DeSalvo v. State, 624 So.2d 897, 902 (La. 1993), cert. denied, 510 U.S. 1117, 114 S.Ct. 1067, 127 L.Ed.2d 386 (1994); Landis v. Moreau, 779 So.2d at 695. Whenever there is doubt as to whether the public has the right of access to certain records, the doubt must be resolved in favor of the public’s right to see; to allow otherwise would be an improper and arbitrary restriction on the public’s constitutional rights. In re Matter Under Investigation, 07-1853, p. 25 (La. 7/1/09), 15 So.3d 972, 989; Capital City Press v. East Baton Rouge Parish Metropolitan Council, 96-1979, p. 4 (La. 7/1/97), 696 So.2d 562, 564; Title Research Corporation v. Rausch, 450 So.2d at 936. In this case, Mr. Boren’s public records request was denied by the defendant/custodian on the basis of the exception set forth in La. R.S. 44:31.1, which provides: For the purposes of this Chapter, person does not include an individual in custody after sentence following a felony conviction who has exhausted his appellate remedies when the request for public records is not limited to grounds upon which the individual could file for post conviction relief under Code of Criminal Procedure Article 4  930.3. Notwithstanding the provisions contained in R.S. 44:32, the custodian may make an inquiry of any individual who applies for a public record to determine if such individual is in custody after sentence following a felony conviction who has exhausted his appellate remedies and the custodian may make any inquiry necessary to determine if the request of any such individual in custody for a felony conviction is limited to grounds upon which such individual may file for post conviction relief under Code of Criminal Procedure Article 930.3. [Emphasis added.] Both the district court and the appellate court in this case held that the provisions of La. R.S. 44:31.1 were applicable to the public records request of Mr. Boren, reasoning, in essence, that Mr. Boren stood in the shoes of his client, Stephan Bergeron, an incarcerated felon who had exhausted his appellate remedies. Therefore, the lower courts ruled that Mr. Boren was required to satisfy the necessary inquiries of the custodian (here, the St. Landry Parish District Attorney) to ascertain “if the request of any such individual in custody for a felony conviction is limited to grounds upon which such individual may file for post conviction relief under Code of Criminal Procedure Article 930.3,” as provided by La. R.S. 44:31.1. As we noted hereinabove, however, La. Const. Art. XII, § 3 establishes a fundamental right in a “person” to “examine public documents,” and this right may only be denied “in cases established by law.” The plain language of La. R.S. 44:31.1 only restricts the right of “an individual in custody after sentence following a felony conviction” to examine public documents. Mr. Boren is not an individual in custody after sentence following a felony conviction. Neither La. R.S. 44:31.1 nor any other law cited to, or discoverable by, this court restricts the right of a “person” on the basis of that person’s status as an attorney representing a client.2 Having found that La. R.S. 44:31.1 clearly and unambiguously applies only to “an individual in custody after sentence following a felony conviction,” we find it 2 When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. La. C.C. art. 9; La. R.S. 1:4. 5 unnecessary to delve further into the intent of the legislature in enacting this statute.3 Mr. Boren’s rights under the Public Records Law have not been “specifically and unequivocally” limited by any law. 4 See Title Research Corporation v. Rausch, 450 So.2d at 937. Therefore, his public records request to the defendant/custodian should have been evaluated under La. R.S. 44:31 and La. R.S. 44:32, allowing the custodian to inquire only as to the “identification of the person” seeking access to public records and whether he or she is “of the age of majority.” We note the defendant/custodian’s argument in favor of the application of La. R.S. 44:31.1 to Mr. Boren’s public records request, asserting that Mr. Boren was not acting as an “ordinary citizen” in making the request since he was “operating in a legally representative capacity” and that to allow Mr. Boren, under these circumstances, to avoid the application of La. R.S. 44:31.1 would give Mr. Boren’s incarcerated client, Stephan Bergeron, “greater rights than he would have had without an attorney” and “more rights than all those other defendants incarcerated without attorneys.” The plaintiff and amicus curiae5 counter that applying the restrictions contained in La. R.S. 44:31.1 to an attorney representing 3 “The text of a law is the best evidence of legislative intent.” La. R.S. 24:177(B)(1). It is only “[w]hen the meaning of a law cannot be ascertained by the application of the provisions of Chapter 2 of the Preliminary Title of the Louisiana Civil Code and Chapter 1 of Title 1 of the Louisiana Revised Statutes of 1950,” that “the court shall consider the intent of the legislature.” La. R.S. 24:177(A) (footnotes omitted). 4 The extensive exceptions to the Public Records Law promulgated by the legislature demonstrate the recognition of the legislature of the need to expressly provide for such exceptions by a specific and express law when it deems appropriate. See, e.g., La. R.S. 44:1(A)(2)(b), (B); La. R.S. 44:2; La. R.S. 44:3; La. R.S. 44:3.1; La. R.S. 44:3.2; La. R.S. 44:3.3; La. R.S. 44:3.4; La. R.S. 44:4; La. R.S. 44:4.1(B), (C); La. R.S. 44:5; La. R.S. 44:10; La. R.S. 44:11; La. R.S. 44:12; La. R.S. 44:13; La. R.S. 44:14; La. R.S. 44:15; La. R.S. 44:16; La. R.S. 44:17; La. R.S. 44:18; La. R.S. 44:19; La. R.S. 44:20; La. R.S. 44:21; La. R.S. 44:21.1; La. R.S. 44:22; La. R.S. 44:23; La. R.S. 44:23.1. 5 This court granted the motions of The Louisiana Press Association and the Innocence Project of New Orleans to file amicus curiae briefs in this case, in opposition to the position of the defendant/custodian. 6 an incarcerated felon would produce an absurd result, in that any other non- incarcerated person (such as other attorneys, court personnel, journalists, friends or relatives of the incarcerated felon, etc.) would have unfettered access (excepting the custodian’s inquiry as to age and identity) to the public records sought while the rights of Mr. Boren would be diminished simply because he is representing Mr. Bergeron. The Innocence Project of New Orleans also asserts, in its brief to this court, that in most cases grounds for post-conviction relief6 are not knowable, citing La. C.Cr.P. art. 930.8(A)(1),7 until public records are reviewed for error by an attorney, 8 such as when a prosecutor has impermissibly excluded jurors on the basis of racial bias, as discussed in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1985),9 or when a prosecutor has failed to turn over 6 See La. C.Cr.P. art. 930.3 (“If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds: (1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana; (2) The court exceeded its jurisdiction; (3) The conviction or sentence subjected him to double jeopardy; (4) The limitations on the institution of prosecution had expired; (5) The statute creating the offense for which he was convicted and sentenced is unconstitutional; . . . (6) The conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States or the state of Louisiana[;] (7) The results of DNA testing performed pursuant to an application granted under Article 926.1 proves by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted.”). 7 Article 930.8(A)(1) provides: “No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922, unless any of the following apply: (1) The application alleges, and the petitioner proves or the state admits, that the facts upon which the claim is predicated were not known to the petitioner or his prior attorneys.” (Emphasis added.) The Innocence Project asserts that the provisions of Article 930.8(A)(1) illustrate the necessity of access to a prosecutor’s file prior to the formulation of potential grounds for post-conviction relief, i.e., since the defendant and his attorney(s) only have knowledge, post-trial, of the contents of the trial record and trial attorney’s file, new facts can only come from the prosecutor’s file. 8 See also La. C.Cr.P. art. 926(B)(5) (requiring that, in an application for post conviction relief, the plaintiff is required to allege, in his written petition, “[a]ll errors known or discoverable by the exercise of due diligence”). 9 In the lone dissent to the appellate court decision in this case, the dissenting judge cites as a compelling reason not to “blindly embrace the District Attorney’s position” the circumstances underlying the decision in Foster v. Chatman, ___ U.S. ___, 136 S.Ct. 1737, 195 L.Ed.2d 1 (2016). Boren v. Taylor, 206 So.3d at 901 (dissenting opinion). In Foster v. Chatman, the defendant had been convicted of capital murder and sentenced to death. However, by means of his attorney’s post-trial efforts, evidence obtained under the state’s public records law from the prosecutor’s records revealed pervasive racial bias in the jury selection process and “demonstrate[d] a concerted effort to keep black prospective jurors off the jury.” See Foster v. Chatman, 136 S.Ct. at 1755. 7 exculpatory material to the defense, as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Because the defendant/custodian denied Mr. Boren’s public records request in this case on the basis of La. R.S. 44:31.1, for his failure to answer an inquiry as to “the grounds for post-conviction relief” to be put forth on behalf of Mr. Boren’s client, Stephan Bergeron, the denial was improper. Therefore, Mr. Boren was entitled to the relief he sought in the district court, pursuant to La. R.S. 44:35, which authorizes “proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief” when a person has been denied the right to inspect public records, stating: A. Any person who has been denied the right to inspect, copy, reproduce, or obtain a copy or reproduction of a record under the provisions of this Chapter, either by a determination of the custodian or by the passage of five days, exclusive of Saturdays, Sundays, and legal public holidays, from the date of his in-person, written, or electronic request without receiving a determination in writing by the custodian or an estimate of the time reasonably necessary for collection, segregation, redaction, examination, or review of a records request, may institute proceedings for the issuance of a writ of mandamus, injunctive or declaratory relief, together with attorney fees, costs and damages as provided for by this Section, in the district court for the parish in which the office of the custodian is located. B. In any suit filed under Subsection A above, the court has jurisdiction to enjoin the custodian from withholding records or to issue a writ of mandamus ordering the production of any records improperly withheld from the person seeking disclosure. The court shall determine the matter de novo and the burden is on the custodian to sustain his action. The court may view the documents in controversy in camera before reaching a decision. Any noncompliance with the order of the court may be punished as contempt of court. C. Any suit brought in any court of original jurisdiction to enforce the provisions of this Chapter shall be tried by preference and in a summary manner. Any appellate courts to which the suit is brought shall place it on its preferential docket and shall hear it without delay, rendering a decision as soon as practicable. D. If a person seeking the right to inspect, copy, or reproduce a record or to receive or obtain a copy or reproduction of a public record prevails in such suit, he shall be awarded reasonable attorney fees and other costs of litigation. If such person prevails in part, the court may in its discretion award him reasonable attorney fees or an appropriate portion thereof. E. (1) If the court finds that the custodian arbitrarily or capriciously withheld the requested record or unreasonably or 8  arbitrarily failed to respond to the request as required by R.S. 44:32, it may award the requester any actual damages proven by him to have resulted from the actions of the custodian except as hereinafter provided. In addition, if the court finds that the custodian unreasonably or arbitrarily failed to respond to the request as required by R.S. 44:32 it may award the requester civil penalties not to exceed one hundred dollars per day, exclusive of Saturdays, Sundays, and legal public holidays for each such day of such failure to give notification. (2) The custodian shall be personally liable for the payment of any such damages, and shall be liable in solido with the public body for the payment of the requester’s attorney fees and other costs of litigation, except where the custodian has withheld or denied production of the requested record or records on advice of the legal counsel representing the public body in which the office of such custodian is located, and in the event the custodian retains private legal counsel for his defense or for bringing suit against the requester in connection with the request for records, the court may award attorney fees to the custodian. F. An award for attorney fees in any suit brought under the provisions of this Chapter shall not exceed the amounts approved by the attorney general for the employment of outside counsel. Additionally, a plaintiff who prevails in a suit to enforce the right to view public records is entitled to collect attorney fees, costs, and damages, as set forth in La. R.S. 44:35. Accordingly, the district court erred in denying Mr. Boren’s claim for attorney fees, costs, and damages under La. R.S. 44:35. DECREE For the reasons stated, we reverse the appellate court decision, upholding the district court’s denial of the plaintiff’s petition for writ of mandamus, and we remand this matter to the district court with instructions to issue a writ of mandamus to the St. Landry Parish District Attorney, ordering compliance with La. R.S. 44:31 and La. R.S. 44:32, without regard to the provisions of La. R.S. 44:31.1, as to the public records request of plaintiff James E. Boren. We further instruct the district court to assess and award to plaintiff James E. Boren attorney fees, costs, and damages, as appropriate under La. R.S. 44:35. REVERSED; REMANDED TO DISTRICT COURT WITH INSTRUCTIONS. 9 

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670 So.2d 848 (1995) Robert W. FRANKLIN v. The CITY OF HUNTSVILLE, a municipal corporation, and Joe Citrano, an individual. 1921463. Supreme Court of Alabama. August 4, 1995. As Modified on Overruling of Application for Rehearing November 22, 1995. Opinions Dissenting from Denial of Rehearing November 22, 1995. J. Zach Higgs, Jr. of Higgs, Emerson, & Dezenberg, Huntsville, for appellant. *849 Mary Ena J. Heath, Asst. City Atty., Huntsville, for appellees. COOK, Justice. Robert W. Franklin sued the City of Huntsville and Joe Citrano, a Huntsville police officer, alleging false arrest and/or false imprisonment (count I), malicious prosecution (count II), and assault and battery (count III). The court granted the city's motion to dismiss pursuant to Rule 12(b)(6), Ala.R.Civ.P., as to counts I and II, and it entered a summary judgment for the city as to count III. The court entered a summary judgment for Joe Citrano as to all three counts. Franklin appeals. We affirm in part and reverse in part. The standard of review applicable to a Rule 12(b)(6) dismissal is set forth in Ex parte City of Birmingham, 624 So.2d 1018, 1020 (Ala.1993), quoting Seals v. City of Columbia, 575 So.2d 1061, 1063 (Ala.1991): "`It is a well-established principle of law in this state that a complaint, like all other pleadings, should be liberally construed, Rule 8(f), Ala.R.Civ.P., and that a dismissal for failure to state a claim is properly granted only when it appears beyond a doubt that the plaintiff can prove no set of facts entitling him to relief. Winn-Dixie Montgomery, Inc. v. Henderson, 371 So.2d 899 (Ala.1979). Stated another way, if under a provable set of facts, upon any cognizable theory of law, a complaint states a claim upon which relief could be granted, the complaint should not be dismissed. Childs v. Mississippi Valley Title Insurance Co., 359 So.2d 1146 (Ala.1978). "`Where a [Rule] 12(b)(6) motion has been granted and this Court is called upon to review the dismissal of the complaint, we must examine the allegations contained therein and construe them so as to resolve all doubts concerning the sufficiency of the complaint in favor of the plaintiff. First National Bank v. Gilbert Imported Hardwoods, Inc., 398 So.2d 258 (Ala.1981). In so doing, this Court does not consider whether the plaintiff will ultimately prevail, only whether he has stated a claim under which he may possibly prevail. Karagan v. City of Mobile, 420 So.2d 57 (Ala.1982).'" (Emphasis original.) On review of a summary judgment, the evidence is to be construed in the manner most favorable to the nonmovant, and all doubts are to be resolved against the movant. Motes v. Matthews, 497 So.2d 1121, 1123 (Ala.1986). Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. In order to enter a summary judgment, the trial court must determine: 1) that there is no genuine issue of material fact, and 2) that the moving party is entitled to a judgment as a matter of law. In determining whether a summary judgment was properly entered, the reviewing court must view the motion in a light most favorable to the nonmovant. See Turner v. Systems Fuel, Inc., 475 So.2d 539, 541 (Ala.1985); Ryan v. Charles Townsend Ford, Inc., 409 So.2d 784 (Ala.1981). Rule 56 is read in conjunction with the "substantial evidence rule" (§ 12-21-12, Ala.Code 1975), for actions filed on or after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Under the substantial evidence rule, the party opposing a properly supported summary judgment motion must present "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co., 547 So.2d 870, 871 (Ala.1989). More simply stated, "[a]n issue is genuine if reasonable persons could disagree." Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1982). Franklin's claims are based on an incident that occurred at Milton Frank Stadium in Huntsville on the night of a high school football game. The record, viewed in the light most favorable to Franklin, indicates the following facts: Franklin arrived at the stadium approximately 15 minutes before the kick-off. After entering the stadium, he stood in front of the bleachers, near the south gate. Officer Citrano instructed Franklin to "Get in the bleachers." Franklin responded by saying that he was waiting on *850 his girlfriend. The officer ignored Franklin's response and again instructed him to get into the bleachers. Apparently this exchange continued a while, and Franklin asked the officer why he needed to get into the bleachers; Citrano answered, "Because I said so." Franklin then asked Citrano, "Who do you think you are?" Citrano grabbed Franklin's arm, twisted it behind his back and pushed him toward the bleachers, then handcuffed him and placed him under arrest. Franklin asked another officer what was going on, and the officer said that he was being arrested for cursing a police officer. Franklin was charged with disorderly conduct. The charge was dismissed after a hearing in the municipal court. During football games at Milton Frank Stadium, the area in front of the stands is chained off and the area is kept clear in order to minimize the potential for fights. Franklin was aware of this procedure, but said that the area was not yet chained off when he arrived and that he did not realize that the chain had been put up after he arrived, until he was arrested. The Claims Against the City of Huntsville The City of Huntsville's Rule 12(b)(6) motion to dismiss the malicious prosecution claim for failure to state a claim upon which relief may be granted was properly granted. This Court determined in Neighbors v. City of Birmingham, 384 So.2d 113 (Ala.1980), that a malicious prosecution action cannot lie against a municipality, because a municipality cannot be deemed to act with malice. In Boyette v. City of Mobile, 442 So.2d 61 (Ala.1983), this court held that notwithstanding Ala.Code 1975, § 11-47-190, which imposes municipal liability for injuries suffered through "neglect, carelessness or unskillfulness of some agent, officer or employee of the municipality engaged in work therefor and while acting in the line of his duty," a municipality has immunity from actions alleging unlawful arrest and imprisonment based on negligence on the part of city employees acting within the scope of their employment. Although Franklin concedes that the malicious prosecution claim must fail as a matter of law, he contends, relying on Gore v. City of Hoover, 559 So.2d 163 (Ala. 1990), that his false arrest claim is premised on negligence and was not subject to the motion to dismiss. Franklin's contention has merit. In Gore the plaintiff was mistakenly arrested under a warrant for presenting a worthless check drawn on insufficient funds. This court determined that the City could not be liable under the doctrine of respondeat superior for the alleged negligence of the magistrate in issuing an arrest warrant, where the magistrate was protected by judicial immunity while engaging in a judicial function of issuing warrants. This court recognizes that some confusion may exist because of some language contained in Brooks v. City of Birmingham, 584 So.2d 451 (Ala.1991). Specifically in Brooks this court stated: "In Boyette v. City of Mobile, 442 So.2d 61 (Ala.1983), we held that, pursuant to § 11-47-190, a municipality has immunity from actions alleging unlawful arrest and false imprisonment based on negligence on the part of city employees while acting within the scope of their employment. Id. Thus, an individual may not maintain an action for unlawful arrest and false imprisonment against a municipality based upon the alleged negligence of city employees acting within the scope of their employment. Id. "We have also held that a municipality cannot be held liable under § 11-47-190 for malicious prosecution because of the conduct of its police officers or employees or members of its legal department in a wrongful arrest and prosecution undertaken in their official capacity, because a corporate entity, a municipality, cannot entertain a malicious intent. Neighbors v. City of Birmingham, 384 So.2d 113 (Ala.1980). See, also, Gore v. City of Hoover, 559 So.2d 163 (Ala.1990); Boyette v. City of Mobile, supra; Bahakel v. City of Birmingham, 427 So.2d 143 (Ala.1983); and McCarter v. City of Florence, 216 Ala. 72, 112 So. 335 (1927). Section 11-47-190 provides for an action against a municipality for the `neglect, carelessness or unskillfulness' of its agents, not for their intentional torts. Gore v. City of Hoover, supra. Thus, based on this rationale, the summary judgment *851 on the false imprisonment and malicious prosecution claims was proper. "As to the false arrest claim, we acknowledge that the above-stated rationale does not strictly apply to an action for false arrest that is premised upon a negligence claim. Id. However, under the facts of the instant case, an action does not lie for false arrest...." 584 So.2d at 453-54 (emphasis added).[1] Brooks suggests that a cause of action against a municipality for false arrest predicated on negligence is proper, even though Brooks was not decided on this issue. The Brooks Court held that because there was probable cause for the arrest, there was no "neglect, carelessness or unskillfulness." Likewise, as noted above, Gore is distinguishable. This Court held in Gore that under principles of vicarious responsibility, where the employee (the magistrate) had immunity, the municipality likewise had immunity. While this court in Gore did not address circumstances where the employee may not have immunity, the majority in Gore specifically recognized that the holding of Neighbors may have been extended, without this Court's explicitly saying so, to provide municipalities immunity from actions premised on neglect, carelessness, or unskillfulness, by Bahakel v. City of Birmingham, 427 So.2d 143 (Ala.1983). The majority in Gore stated: "Bahakel v. City of Birmingham, 427 So.2d 143 (Ala.1983), involved a very similar action for unlawful arrest against a municipality, a municipal magistrate, and the affiant who procured the plaintiff's arrest warrant (the claim against the affiant was not at issue on the appeal). The lead opinion began, `This appeal involves an action for an unlawful arrest,' 427 So.2d at 144, but then disposed of the claim against the city with the following rationale: "`Whether plaintiff can maintain a negligence-based action for an unlawful arrest and thereby circumvent the principle that a municipality is not liable for false arrests or malicious prosecutions is a question we need not answer. Plaintiff's argument, in effect, asserts a claim for recovery under a theory that can only be called "negligent prosecution." That theory does not present a cognizable tort claim.' ". . . . ". . . . "The rationale of Neighbors appears to have been that an action will not lie against a municipality for malicious prosecution because such an action requires proof of malice, and § 11-47-90 provides for an action against a municipality for the `neglect, carelessness, or unskillfulness' of its agents, not for their intentional torts: `To construe that language to include an action for malicious prosecution would be to expand the words beyond their normal meaning. This we decline to do.' 384 So.2d at 114. "That rationale does not strictly apply to an action for false arrest, at least not one premised on negligence. Thus, Bahakel v. City of Birmingham may have extended the holding of Neighbors without doing so explicitly. Nevertheless, an action for false arrest does not lie under the facts of this case...." 559 So.2d at 164-65 (emphasis added). In order to resolve this conflict, it is necessary to examine the language in Neighbors and its discussion of Jackson v. City of Florence. "The issue of a city's liability for malicious prosecution was discussed and settled in the 1927 case of McCarter v. City of Florence, 216 Ala. 72, 112 So. 335, which held that a municipality is not responsible for the acts of its officers, agents, or servants in making false arrests or for instituting a malicious prosecution.... ". . . . "Appellant insists that McCarter v. City of Florence, supra, was overruled by this Court's decision in Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), a decision which he contends absolutely abolished governmental immunity in Alabama. *852 We do not agree. Jackson abolished the judicial doctrine of municipal immunity, but recognized `... the authority of the legislature to enter the entire field, and further [recognized] its superior position to provide with proper legislation any limitations or protections it deems necessary....' 294 Ala. 592, at 600, 320 So.2d 68, at 75. "In so holding, Jackson gave effect to former Tit. 37, § 502 [1940 Code of Alabama], now Code 1975, § 11-47-190, a legislative effort to impose liability on municipalities for the negligence of their employees, which had been thwarted by the interpretation placed on it by the courts.... "... Section 11-47-190 remains the pertinent legislative enactment. It limits the liability of municipalities to injuries suffered through `neglect, carelessness or unskillfulness.' To construe that language to include an action for malicious prosecution would be to expand the words beyond their normal meaning. This we decline to do." Neighbors, 384 So.2d at 113-14. This court therefore affirms the holding of Neighbors v. City of Birmingham, 384 So.2d 113 (Ala.1980)—that a municipality is immune from a malicious prosecution claim— but rejects an extension of Neighbors to provide immunity to claims of false arrest and imprisonment brought under Ala.Code 1975, § 11-47-190. Any language to the contrary contained in Bahakel v. City of Birmingham, 427 So.2d 143 (Ala.1983); Boyette v. City of Mobile, 442 So.2d 61 (Ala.1983); Gore v. City of Hoover, 559 So.2d 163 (Ala.1990); and Brooks v. City of Birmingham, 584 So.2d 451 (Ala.1991), is overruled. In reaching this result, we are not altering or modifying any existing cause of action. We merely state that where a plaintiff alleges a factual pattern that demonstrates "neglect, carelessness, or unskillfulness" the plaintiff has stated a cause of action under Ala.Code 1975, § 11-47-190. Whether the plaintiff's allegations state a cause of action and whether the plaintiff has presented substantial evidence creating a genuine issue of material fact can be evaluated by the trial court upon proper motion. Therefore, we conclude that the trial court properly dismissed the malicious prosecution claim against the city; however, the Rule 12(b)(6) dismissal of the claims alleging false arrest and false imprisonment is reversed. Franklin also contends that the trial court erred in entering summary judgment for the city on count III, alleging assault and battery. This Court, in City of Birmingham v. Thompson, 404 So.2d 589, 592 (Ala.1981), said: "This case was submitted to the jury on the theory that an agent of the City of Birmingham had used `excessive force' upon the plaintiff.... That is the equivalent of asserting an assault and battery not measured or patterned for the circumstances, or an unskilled response.... In either case a lack of response measured by the circumstances could have been due to his `unskillfulness' as an officer confronted by either of those circumstances. As `unskillful' is used in § 11-47-190, it means `lacking in skill or proficiency.' [Citations omitted.] An assault and battery committed under either circumstance, because `unskilled,' would be a negligent assault and battery because it would fall below that response which a skilled or proficient officer would exercise in similar circumstances." Therefore, the motion for summary judgment should have been granted only if Franklin presented no substantial evidence to create a genuine issue of material fact as to whether probable cause existed to make a lawful arrest or as to whether the force used was excessive. Ala.Code 1975, § 15-10-3(a)(1), provides in pertinent part that an officer may arrest a person, without a warrant, for "[a]ny public offense committed or breach of the peace threatened in his presence." In making the arrest, a police officer may use reasonable force and may be held liable only if more force is used than is necessary to effectuate the arrest. See Ala. Code 1975, § 13A-3-27; and Livingston v. Browder, 51 Ala.App. 366, 285 So.2d 923 (1973). However before any force can be used in making an arrest, probable cause must exist to make a lawful arrest. *853 There are disputed facts as to whether Franklin's conduct constituted probable cause for him to be arrested for disorderly conduct. Officer Citrano testified that Franklin cursed him and was speaking in a loud voice and was attracting the attention of the other spectators in the stands. Franklin denies cursing the officer or otherwise acting in a manner constituting disorderly conduct. This unresolved dispute presents a jury question. The summary judgment for the city on the assault and battery claim was therefore improper. It is undisputed that Franklin did not comply with the officer's request to go into the bleachers. By Franklin's own account he was asked three to four times (C.R. II-26) to go into the bleachers. However, the evidence is in conflict as to whether Franklin was in an area that was restricted and subject to a lawful order to move. Franklin testified that for previous games this area had been chained off, but that it was not restricted when he arrived. The burden of establishing that Franklin was in an area in which he was subject to a lawful order to move was on the city. Therefore, there is a disputed issue of fact as to whether Franklin was standing in a restricted area and therefore was subject to a lawful order to move. The Claims Against Officer Citrano Citrano argues that he cannot be held liable for false imprisonment or malicious prosecution, because, he says, he had probable cause to arrest Franklin for disorderly conduct. Because we have concluded that disputed issues of fact exist relating to probable cause to arrest for disorderly conduct and failure to obey the police officer's order to move into the bleachers, the summary judgment entered in favor of Officer Citrano is due to be reversed. The judgment of dismissal in favor of the City of Huntsville on the claim of malicious prosecution is affirmed; the dismissal of the claims of false arrest and false imprisonment against the city is reversed. The summary judgment in favor of the City of Huntsville on the assault and battery claim is reversed. The summary judgment in favor of Officer Citrano is reversed as to all claims. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. SHORES, HOUSTON, INGRAM, and BUTTS, JJ., concur. MADDOX, J., dissents. On Application for Rehearing COOK, Justice. APPLICATION OVERRULED. OPINION MODIFIED. SHORES, HOUSTON, INGRAM, and BUTTS, JJ., concur. HOOPER, C.J., and MADDOX, J., dissent. HOOPER, Chief Justice (dissenting). I would grant the application for rehearing. I was not a member of this Court when it first considered this case. I consider this an important case because law enforcement personnel must be able to give orders to the public in regard to matters affecting public safety and to expect prompt compliance with their orders. A police officer's duty is to maintain peace and tranquility. An officer cannot do this if he or she lacks the authority to instruct members of the public. An officer should not fear being haled into court to defend his or her actions related to an arrest based on someone's not complying with the officer's instructions. That is the purpose of immunity. The facts indicate that Franklin arrived at the Milton Frank Stadium in Huntsville on the night of a high school football game, only 15 minutes before the kickoff. After entering the stadium, he stood in front of the bleachers, near the south gate. Officer Citrano directed Franklin to "Get in the bleachers." Franklin did not comply; he gave no explanation for his failure to comply, except that he was waiting for his girlfriend. It is undisputed that Franklin did not comply with Officer Citrano's request. Franklin testified that Officer Citrano asked him three or four times to move. The only conflict in the evidence is whether Franklin knew initially that he was in a restricted area. This state of mind on Franklin's part is irrelevant. *854 It is clear that after the officer's orders he knew that an officer of the peace had directed him to get into the bleachers. Officer Citrano's instruction was given not only for the safety of others, but also for the safety of Franklin himself. In today's world of gang violence and other random violence, a public place can sometimes be very dangerous. Recent events show that a high school sporting event in Alabama can be particularly dangerous. Police officers must be allowed to use their authority to protect the public from danger. The majority opinion states that "disputed issues of fact exist relating to probable cause to arrest for disorderly conduct and failure to obey the police officer's order to move into the bleachers." 670 So.2d at 853. I disagree. If the police officer had ordered Franklin to pick up trash in the bleachers, I would understand Franklin's hesitation to obey the officer's repeated orders. That was not the case here. The officer ordered Franklin several times to move from a restricted area—a fact that is without dispute. As the Alabama Court of Criminal Appeals has stated: "Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." C.M.B. v. State, 594 So.2d 695, 698 (Ala.Cr.App.1991), quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969). Did Officer Citrano act "in good faith on the appearance of things"? Lynch v. Green Tree Acceptance, Inc., 575 So.2d 1068, 1070 (Ala.1991), quoting Eidson v. Olin Corp., 527 So.2d 1283, 1285 (Ala.1988). Viewing the evidence in the light most favorable to Franklin, I think it clear that Officer Citrano acted upon what he perceived to be a threatened breach of the peace. See Ala. Code 1975, § 15-10-3(a)(1). "Malicious prosecution actions are not favored." Skinner v. Etheridge, 564 So.2d 902, 903 (Ala.1990). One reason for not favoring them is that a police officer should be able to act without fear of being sued when he or she is acting to protect the public peace, and thereby to protect the officer's own life as well as the lives of others. There was probable cause to arrest Franklin. If, before the first order, he did not know what to do, he should have been completely aware after the first, second, and third orders to move to the bleachers. The law as enacted by the legislature is clear: "(a) Any officer may arrest any person without a warrant, on any day and at any time for: "(1) Any public offense committed or breach of the peace threatened in his presence;...." Ala.Code 1975, § 15-10-3. There is no dispute that after Officer Citrano had repeatedly instructed him to sit in the bleachers, Franklin knew he was in a restricted area and that he was not complying with a lawful instruction from a police officer. Therefore, I would grant the City's application for rehearing. I think the Court should withdraw its opinion reversing the judgment and enter an opinion affirming the summary judgment in favor of the City of Huntsville. MADDOX, Justice (dissenting). Having dissented on original deliverance, I obviously would grant rehearing. Although I did not write on original deliverance, I concur in Chief Justice Hooper's dissenting opinion on application for rehearing. NOTES [1] This court held that the officers had had probable cause to arrest Brooks and that there was no evidence of "neglect, carelessness or unskillfulness."

484 F.Supp. 641 (1978) Leland N. MELLOR, Plaintiff, v. UNITED STATES of America, Defendant. No. C 77-0351. United States District Court, D. Utah, C. D. March 7, 1978. W. Eugene Hansen, Salt Lake City, Utah, for plaintiff. Ronald L. Rencher, U.S. Atty., Salt Lake City, Utah, for defendant. ORDER DENYING DEFENDANT'S MOTION TO STRIKE ALDON J. ANDERSON, District Judge. On October 28, 1977, plaintiff filed a complaint containing two causes of action. The *642 first cause of action is based upon the alleged negligence of the staff physicians and employees of the Long Beach Veterans Administration Hospital in the administering of medical treatment to the plaintiff. The second cause is founded upon the theory of informed consent and it is alleged that "defendant's staff physicians, agents and employees negligently failed to inform plaintiff of the material hazards and risks associated with the said medical care and treatment." Prior to the institution of this action, plaintiff properly presented an administrative claim to the United States Veterans Administration pursuant to 28 U.S.C. § 2675(a) which requires a claimant to present his "claim" to the appropriate federal agency so that that agency is able to choose whether to act upon the claim and provide the relief requested. Plaintiff submitted his administrative claim on the Standard Form 95 and notified the agency of the "incident" allegedly giving rise to plaintiff's injury as required by the appropriate regulation. See 28 C.F.R. § 14.2(a) (1976). The pertinent instructions of Standard Form 95 require the claimant to state "in detail, all known facts and circumstances attending the damage, injury, or death identifying persons and property involved and the cause thereof." In response to these instructions plaintiff stated that he "was negligently placed on Kamamycin." Elsewhere in the form and in response to the instruction to state the "nature and extent of injury which forms the basis of this claim," plaintiff stated that he had received "[n]egligent care and treatment by medical and hospital personnel resulting in damage to [plaintiff]." On January 5, 1978, defendant filed a motion to strike from the complaint the second count based upon lack of informed consent. The ground urged in support of the motion is that although plaintiff has exhausted his administrative remedies with respect to the first count based on negligence, he has not done so with regard to the second count based upon lack of informed consent. Thus, it is defendant's position that the second cause of action is an additional "claim" never presented to the appropriate federal agency and therefore is not properly before this court. The court disagrees. The position taken by defendant does not appear to be consistent with the requirements and purpose of the above statute and regulation, and is overly technical. Plaintiff has put defendant on notice of the "incident" out of which this action arises, has informed defendant of the "facts and circumstances" underlying the claim and has presented a "claim" for a sum certain to the appropriate federal agency. This is all that is required by the applicable law. The purpose of the administrative claim procedure is to allow the agency to expedite the claims procedure and avoid unnecessary litigation by providing a relatively informal nonjudicial resolution of the claim. See, e. g., Executive Jet Aviation, Inc. v. United States, 507 F.2d 508 (6th Cir. 1974). There is no reason to believe that requiring claimants to present all legal theories and causes of action which might possibly arise out of the incident forming the basis of the claim would serve to further this purpose. To the contrary, such a requirement may well have the effect of frustrating this purpose. Moreover, such a requirement would make little sense in view of the fact that a substantial portion of administrative claims are filed by the claimants themselves without the assistance of legal counsel. Even if counsel becomes involved later on in the process, no useful purpose or interest would usually be served by dismissing or remanding a particular theory or cause of action. In sum, the "claim" which must be presented pursuant to 28 U.S.C. § 2675(a) is not equivalent to a "legal cause of action" that may eventually be articulated by counsel in the course of a subsequent lawsuit after the "claim" has been effectively denied by the relevant federal agency. Defendant cites the case of Franz v. United States, 414 F.Supp. 57 (D.Ariz.1976), for the proposition that "a suit brought under the Federal Tort Claims Act cannot include additional claims never presented to *643 the appropriate agency and finally denied by such agency, as required by Title 28, United States Code, Section 2675(a)." Id. at 59. As stated in the immediately preceding paragraph, however, the court is of the opinion that the term "claim" is not synonymous with the term "cause of action." Furthermore, the facts in Franz are clearly distinguishable from those presented in the instant action. There, the plaintiff's complaint was based on two distinct sets of negligent acts occurring at two different time periods, while the plaintiff's administrative claim was based on the acts of only one of the periods. The court held that the action as to the other set of acts in the different time period was barred for failure to exhaust administrative remedies. Here, this action is, and the administrative claim was, based upon a single incident; that is, the alleged injury and resulting damages stem from the same set of negligent acts and the same time period. Plaintiff has sufficiently exhausted his administrative remedies. Wherefore, IT IS HEREBY ORDERED that defendant's motion to strike the second count of plaintiff's complaint is denied.

Fourth Court of Appeals San Antonio, Texas November 17, 2017 No. 04-17-00051-CV Bertha Ines TORRES, Individually for the Wrongful Death of Benjamin Torres, as Representative of the Estate of Benjamin Torres, Deceased, and as Next Friend of Michael Rene Torres, Rose Marie Torres, and Joaquin Gael Torres, Minor Children; et. al, Appellants v. UPPER VALLEY HELPSOURCE, INC. and TIBH Industries, Inc., Appellees From the 79th Judicial District Court, Jim Wells County, Texas Trial Court No. 17-02-56845-CV Honorable Richard C. Terrell, Judge Presiding ORDER Appellant’s unopposed motion for extension of time to file reply brief is granted. Time is extended to November 30, 2017. _________________________________ Irene Rios, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 17th day of November, 2017. ___________________________________ KEITH E. HOTTLE, Clerk of Court 

135 F.3d 435 UNITED STATES of America, Plaintiff-Appellee,v.Mark Eric HAYES, Defendant-Appellant. No. 96-6018. United States Court of Appeals,Sixth Circuit. Argued Oct. 27, 1997.Decided Feb. 4, 1998. Paul W. Laymon, Jr. (argued and briefed), Office of the U.S. Attorney, Chattanooga, Tennessee, for Plaintiff-Appellee. Deirdra J. Brown (argued and briefed), Federal Defender Services of Eastern Tennessee, Inc., Chattanooga, Tennessee, for Defendant-Appellant. Before: MARTIN, Chief Judge; KENNEDY and BATCHELDER, Circuit Judges. OPINION KENNEDY, Circuit Judge. 1 Defendant, Mark Eric Hayes, pleaded guilty to two counts of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841, and pleaded no contest to knowingly and forcibly assaulting a law enforcement officer while in the pursuit of his official duties, in violation of 18 U.S.C. § 111. On appeal, defendant claims the District Court committed improper double counting when it applied a two-level enhancement under U.S.S.G. § 3C1.2 for reckless endangerment during flight after applying a three-level enhancement under § 3A1.2(b) for knowingly assaulting a law enforcement officer during flight. Defendant also claims the District Court erred in finding that he knew or should have known that the individual he assaulted was a police officer, thereby rendering the sentence enhancements under U.S.S.G. § 3C1.2 and § 3A1.2(b) inappropriate. For the following reasons, we VACATE defendant's sentence and REMAND the case to the District Court for resentencing on the double counting issue only. I. 2 On December 6, 1995, the Tennessee Narcotics Division and the Drug Enforcement Administration Task Force had defendant under surveillance. Sometime between 4 p.m. and 6 p.m. that day, defendant was parked in a Nissan Maxima on East 12th Street in Chattanooga, Tennessee. The street is a two-lane street in a residential neighborhood. Officer McPherson of the Chattanooga Police Department and Agent Hinton of the DEA Task Force were watching defendant from an unmarked police car, also a Nissan Maxima, facing defendant on the opposite side of East 12th Street. Agent Hinton was in the driver's seat, and Officer McPherson was in the passenger's seat. Their car was approximately 100 yards away from defendant's. 3 Officer McPherson gave a signal to arrest defendant. Agent Hinton drove the unmarked Maxima toward defendant and stopped two to three car lengths ahead of defendant's vehicle, on the opposite side of the street. At the same time, Detective Dunn, driving a second unmarked police car that was to the rear of defendant's vehicle, activated the blue strobe light on the dashboard and pulled the car parallel to defendant's vehicle. As Detective Dunn was getting out of this second car, Agent Hinton exited the Maxima, drew his weapon, and, standing behind the car door, yelled, "Get out of your vehicle. Police." Hinton, who was dressed in plain clothes, yelled this several times. 4 At this point, defendant "punched" the accelerator and the car accelerated at a high speed, aimed directly at Agent Hinton. Hinton screamed, "Stop" and jumped back into the unmarked Maxima. Defendant's vehicle hit Hinton's car door, and the door struck Hinton on the shoulder and leg as he jumped into his car. The impact shook the car, and Officer McPherson was knocked out of the car. After sideswiping the Maxima, defendant continued to drive ahead. Two or three car lengths later, he crashed head-on into a third unmarked police car, a white Lincoln Continental. Defendant was promptly arrested. Officer McPherson then heard a child crying from defendant's vehicle; when he looked into the car, he found a five- or six-year old boy lying on the floor of the car with his nose and mouth bleeding. Officer McPherson immediately called for an ambulance. A police search revealed a quantity of crack cocaine and cocaine hydrochloride on defendant's person and in his car. 5 Defendant pleaded guilty to two counts of possession with intent to distribute cocaine, 21 U.S.C. § 841, and pleaded no contest to forcible assault on a law enforcement officer while engaged in his official duties, 18 U.S.C. § 111. On the two drug counts, the probation officer set defendant's base offense level at 28 and added a three-level enhancement under U.S.S.G. § 3A1.2(b) for knowingly assaulting a police officer during flight in a manner creating a substantial risk of serious bodily injury. The probation officer also added a two-level enhancement under § 3C1.2 for reckless endangerment during flight, creating an adjusted offense level of 33 on the two drug counts (Counts I and II). On the assault count (Count III), the probation officer set a base offense level of 15 and added the three-level adjustment under § 3A1.2(b) and the two-level adjustment under § 3C1.2. The probation officer additionally gave a four-level enhancement under § 2A2.2(b)(2)(B) for use of a dangerous weapon (an automobile) during the assault, creating an adjusted offense level of 24 on Count III. The District Court denied objections to the recommended enhancements and sentenced defendant to a term of 151 months on Counts 1 and 2, and to 120 months on Count 3, to be served concurrently. II. 6 We review de novo a district court's application of the Sentencing Guidelines when that application involves mixed questions of law and fact. See United States v. Mills, 1 F.3d 414, 421 (6th Cir.1993). We review for clear error a district court's findings of fact in connection with sentencing. Id. III. A. Double Counting 7 Defendant claims that the District Court erred in imposing the two-level enhancement under U.S.S.G. § 3C1.2 on Counts 1-3. Defendant contends that the imposition of this enhancement amounts to "double counting" because his sentence was also increased by three levels under U.S.S.G. § 3A1.2(b) for what he claims was the same conduct. We agree. 8 Section 3C1.2 of the Sentencing Guidelines provides for a two-level increase "[i]f defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." U.S.S.G. § 3C1.2. The District Court imposed this adjustment because defendant created a substantial risk of death or serious bodily injury to the young boy riding in his car when he accelerated in an attempt to flee the police. Viewed in isolation, there is no question that the enhancement was appropriate. Defendant undoubtedly endangered the safety of the child when he punched the accelerator, sideswiped Agent Hinton's vehicle, and then crashed into the white Lincoln Continental. 9 The question, though, is whether the enhancement was proper given that the District Court also imposed a three-level enhancement under U.S.S.G. § 3A1.2(b), which provides for such an enhancement if "during the course of the offense or immediate flight therefrom, the defendant ..., knowing or having reasonable cause to believe that a person was a law enforcement or corrections officer, assaulted such officer in a manner creating a substantial risk of serious bodily injury." U.S.S.G. § 3A1.2(b). The District Court imposed this enhancement because defendant assaulted Agent Hinton when his vehicle hit Hinton's car door, thereby injuring Hinton's shoulder and leg. Defendant does not challenge the propriety of this enhancement, but claims that its imposition precludes an additional enhancement under § 3C1.2. To impose both, defendant claims, constitutes double counting. 10 Application Note 1 to § 3C1.2 indicates that the reckless endangerment adjustment should not be applied "where the offense guideline in Chapter Two, or another adjustment in Chapter Three, results in an equivalent or greater increase in offense level solely on the basis of the same conduct." U.S.S.G. § 3C1.2, comment. (n.1). The three-level enhancement under § 3A1.2(b) was a chapter three enhancement that resulted in a greater increase in offense level than the two-level increase under § 3C1.2. The question we must decide, therefore, is whether "the same conduct" was the sole basis for enhancing defendant's sentence under both § 3C1.2 and § 3A1.2(b). 11 We see no sensible way to distinguish the conduct that formed the basis for the two enhancements. Defendant sought to escape from the police by punching his car's accelerator. This single, uninterrupted act resulted in injury to a law enforcement officer and put a young child in danger. Defendant's conduct risked harm to two different individuals, but the underlying conduct was the same, namely the rapid acceleration of defendant's car in the direction of other occupied vehicles. To suggest that the conduct that caused the assault of Hinton was different from that which placed the young child in danger would be "an artificial and unrealistic division of a single uninterrupted course of conduct into separate events." United States v. Beckner, 983 F.2d 1380, 1384 (6th Cir.1993). We, therefore, hold that the District Court erred in applying a two-level enhancement under § 3C1.2.1 Cf. United States v. Miner, 108 F.3d 967, 970 (8th Cir.) (without discussion of double counting issue, court held that sentence was properly enhanced under § 3A1.2(b) for assaulting a police officer while slamming into a police roadblock and under § 3C1.2 for endangering others vehicles while engaged in a chase), cert. denied, --- U.S. ----, 118 S.Ct. 259, 139 L.Ed.2d 186 (1997); United States v. Alexander, 48 F.3d 1477, 1493 (9th Cir.1995)(no double counting under § 3A1.2(b) and § 3C1.2 where defendants fled in a van following a bank robbery, shot at police officers in pursuit, and engaged in a chase at speeds up to 110 miles per hour endangering other motorists), cert. denied, 516 U.S. 878, 116 S.Ct. 210, 133 L.Ed.2d 142 (1995); United States v. Swoape, 31 F.3d 482, 483 (7th Cir.1994)(no double counting where defendant, following bank robbery, shot at an officer, engaged the police in a high speed chase through a populated area, and instigated a shootout in a McDonald's parking lot). 12 B. Defendant's Knowledge of Agent Hinton's Law Enforcement Status 13 Defendant also claims the District Court erred in applying enhancements under U.S.S.G. §§ 3A1.2(b) and 3C1.2 because he did not know that Agent Hinton and the other undercover officers were law enforcement officers. In order for these enhancements to apply, defendant must know or have reason to know that he is fleeing from a law enforcement officer. See Mills, 1 F.3d at 423 (§ 3A1.2(b)); United States v. Hayes, 49 F.3d 178, 183-84 (§ 3C1.2). 14 The District Court expressly found that defendant knew or should have known that the individuals in the automobiles were police officers. We cannot say that the District Court clearly erred in making this factual finding. Officer McPherson testified that he was wearing a police jersey with "Police" written across the front in big white letters and a police hat. Officer Hinton testified that when he exited his vehicle and raised his revolver at the defendant he yelled a couple of times, "Get out of your vehicle. Police" from only two to three car lengths away from defendant. Although Officer Dunn was in an unmarked police vehicle, a blue light placed on his dashboard was activated and flickering according to the testimony of McPherson and Hinton. Officer Dunn's vehicle, with the flickering blue light, was parallel to the defendant's vehicle and only an arm's length away from defendant's vehicle. Similarly, the white unmarked Lincoln driven by Ellis, and crashed into by defendant, displayed a strobe light. Furthermore, Horace Jenkins, a witness at the scene, testified that it was obvious to him that the vehicles on the scene, with the exception of defendant's vehicle, were police cars. While defendant insisted before the District Court that he was unaware the individuals were police officers, the District Court did not clearly err in determining otherwise in light of the evidence presented. IV. 15 For the foregoing reasons, defendant's sentence is VACATED and the case is REMANDED to the District Court for resentencing. 1 In its supplemental brief, the government contends that our Circuit rejected a similar double counting argument in United States v. Mills, 1 F.3d 414, 420-23 (6th Cir.1993). The government, however, somewhat overstates the holding of Mills. In Mills, the defendants burglarized a pharmacy and, during a pursuit by police officers, Mills drove his car at speeds of up to 100 miles per hour on a two-lane mountain road. Mills eventually lost control of his car and hit an officer's vehicle which resulted in serious injuries to the officer. Id. at 416-17. While Mills pleaded guilty, Mills' accomplice, Naftzger, proceeded to trial and was convicted of pharmacy burglary in violation of 18 U.S.C. § 2118. At sentencing, the district court applied, inter alia, the official victim enhancement of U.S.S.G. § 3A1.2 and the reckless endangerment enhancement of U.S.S.G. § 3C1.2 On appeal, our Court remanded the case to the district court to conduct further findings of fact as to the official victim enhancement applied to Naftzger (the only defendant to challenge the § 3A1.2 enhancement) because the court did not have sufficient findings before it to determine whether Naftzger or Mills were aware that the injured victim was a police officer. Id. at 423. The court upheld the reckless endangerment enhancement because Mills "evinced a 'wanton disregard for the safety of other motorists.' " Id. Thus, while the government asserts the opinion approves of applying the enhancements when an officer is injured and other motorists are endangered, the court did not decide that question for two reasons: the § 3A1.1 enhancement was remanded to the district court for further factfinding and the issue of double counting was not presented to the court for its consideration. Furthermore, the facts in the two cases are quite different. In Mills, the pursuit lasted several miles and the police car was not involved in the chase but was attempting to set up a road block. Id. at 417.

135 N.W.2d 749 (1965) COUNTY OF BELTRAMI, Appellant, v. James C. MARSHALL, Commissioner of Highways of Minnesota, and Val Bjornson, Treasurer of State of Minnesota, Respondents. No. 39537. Supreme Court of Minnesota. April 30, 1965. Rehearing Denied May 28, 1965. *750 Douglas W. Cann, County Atty., Alfred C. Schmidt, Asst. County Atty., Bemidji, for appellant. Robert W. Mattson, Atty. Gen., Perry Voldness, Deputy Atty. Gen., John R. Murphy, Sp. Asst. Atty. Gen., St. Paul, for respondents. NELSON, Justice. The action involved on this appeal was brought by Beltrami County to obtain a declaratory judgment construing Minn.St. 161.47, subd. 5; 488.10, subd. 6(e); and 488.13, subd. 6(b). The parties stipulated to the facts by and through their respective *751 counsel, the stipulation to stand in place of and be substituted for pleadings both for the purpose of submitting the issues involved to the district court and for the purpose of inserting the same into the record for the purpose of appeal to the supreme court. Said stipulation may here be briefly summarized as follows: Pursuant to Minn.St. c. 488, the Municipal Court Act, the municipal court of the city of Bemidji has, in cases involving arrests by highway patrol officers in Beltrami County for traffic and motor vehicle law violations, deducted from the total of fines and forfeited bail money received by the court costs and fees payable to the city. The balance has been remitted to the treasurer of Beltrami County who has remitted 5/8 of the amount received to the state treasurer. From January 1960 to May 1962 the county received $13,409.06 from the municipal court and remitted $8,380.71 to the state treasurer. However, the defendants, the commissioner of highways and the state treasurer, contend that in addition the county should absorb all of the costs and fees taxed and incurred in, and deducted by, the municipal court, and that the state should not bear any part thereof. To enforce this position, the defendants, in remitting county-state highway aid to Beltrami County in July 1962, deducted $3,107.46, which was 5/8 of the total of costs and fees and which sum the municipal court had deducted before remittance to the county treasurer. The defendants contend that the state cannot pay its proportionate share of the costs of prosecution because the legislature has not appropriated any money for payment thereof. The county contends that it cannot pay its proportionate share of said costs of prosecution because the county has not appropriated any money for payment thereof. It takes the position that it is not necessary for either the county or the state to appropriate money for the payment of fees and court costs in the prosecution of arrests pursuant to traffic and motor vehicle law violations by reason of the fact that all such fees and court costs are deducted by the municipal court of the city of Bemidji prior to the time said sums of money are forwarded to the county for distribution to the county and the state on a 3/8 to 5/8 basis pursuant to § 161.47, subd. 5. The county further contends that if it is required to pay the total amount of the costs and fees in prosecution of said cases in the municipal court the 3/8 which it receives may not be sufficient to cover the cost of prosecutions as charged by the municipal court. The question is whether the county is obligated to pay the total amount of fees and costs incurred by the municipal court of the city of Bemidji in prosecuting violations of the traffic and motor vehicle law of this state notwithstanding the fact that said county receives only 3/8 of the receipts from fines and forfeited bail money and whether or not the state can offset against county-state aid highway payments to the county its share of the costs of said prosecutions. This is an issue for judicial determination involving the rights of the parties to this action and is properly an action for declaratory judgment under the laws of the state. It will be observed from the facts stipulated to herein that the county and the state in effect shared the costs of prosecution since the fees and costs were deducted from sums collected before the net amount was paid over to the county treasurer. This brought objections to this procedure by the defendants, asserting that the city was commanded by § 161.47, subd. 5, to remit all fines and forfeited bail money from traffic and motor vehicle law violations to the county, the county to satisfy the costs incurred by the city of Bemidji out of its 3/8 share. The trial court rendered a declaratory judgment on the pleadings in favor of the defendants from which the plaintiff appeals to this court. *752 The state asserts that § 161.47, subd. 5, is controlling. It reads in part as follows: "All fines and forfeited bail money, from traffic and motor vehicle law violations, collected from persons apprehended or arrested by such employees, shall be paid by the justice of the peace, or such other person or officer collecting such fines, forfeited bail money or installments thereof, within 15 days after the last day of the month in which such moneys were collected, to the county treasurer of the county where the violation occurred. Three-eighths of such receipts shall be credited to the general revenue fund of the county. The other five-eighths of such receipts shall be transmitted by that officer to the state treasurer and shall be credited to a separate account." This statute makes no provision for deduction by the municipality of costs prior to the time for transmitting collected fines and forfeited bail money to the county treasurer. If § 161.47, subd. 5, is to be considered exclusively, then we are bound to conclude that the municipality must bear the entire financial burden incurred in prosecuting highway complaints on behalf of the state. Following the enactment of § 161.47, subd. 5, the legislature enacted Minn.St. c. 488, the Municipal Court Act. Two provisions of c. 488 must be referred to in analyzing the facts herein. We will first consider § 488.13, subd. 6(b), which reads as follows: "In the event the municipal court takes jurisdiction of a prosecution for the violation of a statute or ordinance by the state or a governmental subdivision other than the city, village, or borough in which the court is situated, all fines, penalties, and forfeitures collected shall be paid over to the treasurer of the governmental subdivision which submitted a case for prosecution under ordinance violation and to the county treasurer in all other cases except where a different disposition is provided by law, in which case, payment shall be made to the public official entitled thereto. The following fees shall be taxed to the county or to the state or governmental subdivision which would be entitled to payment of the fines, forfeiture or penalties in any case, and shall be paid to the clerk of the court for disposing of the matter: "(1) In all cases where the defendant is brought into court and pleads guilty and is sentenced, or the matter is otherwise disposed of without trial. . . $5 "(2) In arraignments where the defendant waives a preliminary examination. . . $10 "(3) In all other cases where the defendant stands trial or has a preliminary examination by the court. . . $15." 1. Under § 488.13, subd. 6(b), where the municipal court of Bemidji takes jurisdiction of highway violations and their prosecution on behalf of the state, all fines, penalties, and forfeitures collected shall be paid to the county treasurer because the portion of the statute requiring that they "be paid over to the treasurer of the governmental subdivision which submitted a case for prosecution under ordinance violation" is not applicable since it was not a governmental subdivision submitting the case for prosecution but rather the state itself.[1] The provisions of subd. 6(b) present a somewhat insurmountable problem by providing for the taxing of fees to the county or state or governmental subdivision which would be entitled to payment of the fines, penalties, or forfeitures since that provision remains ineffectual as applied to the state because the legislature has not appropriated the necessary money for payment by the *753 state of the fees.[2] A legislative appropriation is always a prerequisite to state liability. Minn.Const. art. 9, § 9; Minn.St. 6.23; and State ex rel. Chase v. Preus, 147 Minn. 125, 127, 179 N.W. 725, 726, wherein this court said: "* * * The mere creation of the liability on the part of the state, or promise of the state to pay, if the statute may thus be construed, is of no force, in the absence of an appropriation of funds from which the liability may be discharged." The only other available argument for charging the costs against the state's 5/8 interest is that an appropriation by the state is unnecessary since the costs can be offset against the state's share of monies collected. Section 488.13, subd. 6(b), states that the costs will be taxed to the state, not set off against the states share. If the latter was intended the legislature would have so provided. Thus as matters stand at present, the state may not be taxed and therefore its 5/8 interest is not amenable to a statutory offset. The second provision of c. 488 which must be referred to is § 488.10, subd. 6(e), which in so far as pertinent, reads as follows: "The clerk shall pay such fees and mileage to witnesses as may be ordered by the judge in any action or proceeding involving a charged violation of a criminal law or municipal ordinance. The clerk shall obtain receipts therefor as vouchers for the sums paid and shall deduct these payments from the amounts otherwise due the officers to whom the clerk is required to pay fees, costs, and fines." (Italics supplied.) In construing § 488.10, subd. 6(e), the attorney general in Opinion Attorney General, No. 306b-3, July 9, 1964, concluded that jurors' and witnesses' fees paid could not be deducted from that portion of the fees collected which was due to the state. The attorney general's conclusion appears to rest on Minn.St. 645.27, which reads: "The state is not bound by the passage of a law unless named therein, or unless the words of the act are so plain, clear, and unmistakable as to leave no doubt as to the intention of the legislature." The county makes no reference to this attorney general's opinion or to § 645.27. It simply argues that if the legislature had intended that only the county should be charged with the expenses of prosecution it would have said so. We are inclined to conclude, on the overall statutory pattern, that the attorney general reached the correct conclusion. Were we to construe § 488.10, subd. 6(e), as the county suggests, the county and the state would actually be sharing the costs of the prosecutions by the municipality. No reason for such payments by the state to the county has been advanced by plaintiff's counsel, nor is authority therefor to be found in the statutes. If the legislature should desire to cast the entire financial burden of prosecuting for violation of the traffic and motor vehicle laws upon the municipality or the county it would be free to do so since the power of the legislature to require such a governmental agency to perform, at its own expense, duties of state concern is manifest. State ex rel. City of Waseca v. Babcock, 151 Minn. 321, 186 N.W. 688; State ex rel. Chase v. Preus, supra; and 5 Dunnell, Dig. (3 ed.) § 2242. Appellant argues with some merit as follows: "The respondents stipulated, and the court found, that the county treasurer acts as agent for the state for transmission of funds under § 161.47, Subd. 5. If this is the case, then the quarrel *754 of the state should be with the municipal court, not with the county or its treasurer. If the state is entitled to further funds, as it claims, it is the [municipal] court, not the county, which has wrongfully retained them, and the court, not the county, which should be required to pay them. The treasurer of the county has done what the statute requires: he has paid five-eighths of his receipts from the municipal court to the state." The municipality of Bemidji is not a party to this action. Since, however, its function in this matter is of a mechanical nature its absence as a party is not of great import. We assume that the municipality will abide by the construction which this court places on the statutes in question and that it would act accordingly. For that reason it would serve no useful purpose to remand so as to make the city a party and we will refrain from doing so. The county contends that § 161.47, subd. 5, should not be so simply applied and argues that in view of the language of § 488.13, subd. 6(b), the fees therein made payable to the municipal court should be deducted, that is, at least 5/8 of said fees should be deducted from the state's 5/8 of the fine money. While this deduction or any partial deduction is nowhere spelled out in any of the statutes involved, it is clear that the county can only justify this contention in pursuit of the goal which it contends is one of fairness and justice to the governmental entities involved and that it ought to be presumed that the legislature so intended. The defendants contend that the issue must be resolved by the application of well-known rules of law rather than by attempting to spell out a conjectural concept of fairness; that the rules of law applicable are that the state can pay no money without an appropriation, and that the practical construction of a statute must be given effect. 2. Since the state can pay no money without an appropriation it seems clear that to allow the fees due the municipal court to come out of the state's 5/8 of the fine money is the same as requiring the state to pay the fees. This cannot be done for the simple reason that the legislature has made no appropriation for that purpose. In State ex rel. Chase v. Preus, 147 Minn. 125, 179 N.W. 725, 726, this court said, "A statute creating a liability on the part of the state is not in itself, standing alone, an appropriation act." It would not serve as an answer to the county's contentions for this court to say that because § 488.13, subd. 6(b), refers to the state's liability to pay similar fees or any portion thereof incurred in prosecuting traffic and motor vehicle violations here involved it ought presently in fairness to be harmonized with § 161.47, subd. 5. This court has heretofore answered that argument in State ex rel. Chase v. Preus, supra. If the conclusion reached by the court below was impelled through an omission on the part of the legislature to make necessary appropriations, the fact that the legislature has not corrected the situation, if it is incumbent upon it to do so, does not justify this court in overruling the trial court and in effect legislating so as to harmonize the sections of the statutes. As was said by the defendants in concluding their brief: "The issue is the proper disposition of patrol fines. Whatever this Court decides will be reported to the legislature. Minn.Stat. 482.09(9). * * * if the legislature then favors a different disposition of the fines, it can so provide." Judgment affirmed. *755 ON PETITION FOR REHEARING PER CURIAM. We construe Minn.St. 488.13, subd. 6(b), and 161.47, subd. 5, to mean that upon receipt by the city of Bemidji of fines, penalties, and forfeitures the city shall divide such moneys in 3/8 and 5/8 shares. From the 3/8 shares the city will deduct costs as provided in § 488.13, subd. 6(b) and expenses as indicated in § 488.10, subd. 6(e). Within 15 days after the last day of the month in which such moneys were collected the city of Bemidji will pay to the County of Beltrami the full 5/8 share and that which remains from the 3/8 share. The county will then remit the full 5/8 share to the state treasurer as provided in § 161.47, subd. 5. If the city's statutory expenses and costs exceed the 3/8 share, then such expense must be born by the county. Under this construction the state receives 5/8 of the total moneys collected and the county must satisfy all expenses and costs; hopefully, such expenses and costs will not exceed 3/8 of the total moneys collected by the city, but if they do, it is the county's responsibility. Petition for rehearing denied. NOTES [1] See, 13A Dunnell, Dig. (3 ed.) § 6517. [2] The attorney general reached this same conclusion in Opinion Attorney General, No. 306b-4, March 16, 1960.

367 F.2d 148 Douglas STILTNER, Appellant,v.B. J. RHAY, Superintendent of Washington State Penitentiaryat Walla Walla, Washington, et al., Appellees. No. 20484. United States Court of Appeals Ninth Circuit. July 7, 1966, Rehearing Denied July 29, 1966. William A. Franke, Spokane, Wash., for appellant. John J. O'Connell, Atty. Gen. of Washington, Olympia, Wash., for appellees. Before CHAMBERS, BARNES and BROWNING, Circuit Judges. PER CURIAM: 1 We affirm the order of the district court, 258 F.Supp. 487, dismissing appellant's application for writ of habeas corpus upon the grounds stated in the district court's opinion of June 28, 1965. With respect to the allegation that appeallant's plea of guilty was coerced, we add that we have examined the record of the state evidentiary hearing, upon which the parties stipulated the present petitions might be decided (as noted in the district court's order of November 23, 1964), and we are satisfied that the district court's conclusion that appellant's plea was voluntary is fully supported.

573 F.2d 1304 Chapmanv.McCroskey No. 77-2286 United States Court of Appeals, Fourth Circuit 4/3/78 1 W.D.Va. AFFIRMED

STATE OF MICHIGAN COURT OF APPEALS SAVOY ENERGY LP, UNPUBLISHED May 10, 2018 Plaintiff/Counter-Defendant- Appellant, v No. 336392 Otsego Circuit Court LEON BEASINGER, DIANE BRUSCA, LC No. 14-015609-CH VINCENZO BRUSCA, CHARLES L. CHEWNING, JANET DANE, LELAND DANE, EDWARD GERRICK, MARY GERRICK, STANLEY H. LAMBERT, PAUL LUOTONEN, MANDON LAKE COMMUNITY CHURCH, JULIE MURPHY, PERRY MURPHY, JUDITH SIMMS, LLOYD SIMMS, CATHY SMITH, KIM A. SMITH, GARY VERMETTE, and NANCY VERMETTE, Defendants/Counter- Plaintiffs/Third-Party Plaintiffs- Appellees, and LESTER J. HOWARD, MABLE I. HOWARD, JEFFREY D. HOWARD, and BAUMANN RESOURCES INC., Third-Party Defendants-Appellants. Before: STEPHENS, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ. PER CURIAM. Plaintiff Savoy Energy LP appeals by right the trial court’s order, following a bench trial, that defined restrictions upon Savoy’s use of an express easement, known as Birch Valley Trail, that burdens property owned by defendants. Savoy leases property owned by the Howards that is landlocked other than through the easement, and most of defendants’ properties are also landlocked other than through the easement Savoy also appeals the trial court’s prior partial -1- denial of a motion for summary disposition. Generally, Savoy contends that the easement permits essentially unrestricted use of the easement, whereas defendants contend that Savoy’s use of the easement with heavy industrial equipment in the pursuit of opening an oil well overburdened their servient estates. We find the trial court’s resolution of this matter proper in spirit but excessive in implementation; we therefore affirm in part, vacate in part, and remand for further proceedings. At one time, Henry Axford, Jr., and his wife owned most of Section 35 of Corwith Township and, to the immediate south, all of Section 2 of Dover Township, both in Otsego County. Axford never lived on Section 35, but used it as a cattle pasture, cut some timber, did some hunting, and eventually began subdividing it and selling off parcels. Axford created Birch Valley Trail by cutting some trees and running a road grader over it. It runs from Old Vanderbilt Road at the north, to the southern half of Section 35 at the south, which is presently owned by the Howards and leased by Savoy. The road remained an unpaved dirt two-track, perhaps twelve to sixteen feet wide, for almost all of its history. However, the easement, which Axford included with all of the parcels he sold in Section 35, was 66 feet wide. Axford included “oil and gas interests” in some of the deeds, although he indicated that there were no oil or gas wells in Section 35 at the time. In 1988, Axford sold the southern half of Section 35 to Lester and Jeffrey Howard. Relevant to this appeal, the property description in the land contract was: The South ½ of Section 35, Town 32 North, Range 2 West, Otsego County, Michigan; together with an easement for purposes of ingress, egress, and public utilities over and across a strip of land described as lying 33 feet either side of a line [metes and bounds details omitted]. At the end of the land contract, in a section labelled “Additional Clauses,” it stated, inter alia, “Sale includes all oil, gas & mineral rights owned by Sellers.” Axford further testified that he had not really been sure what mineral rights he even owned on his property, but when he sold the southern half of Section 35 to the Howards, his intention was that the Howards would use the easement to explore the property for oil and gas. Lester Howard testified that he “hadn’t thought about” developing any oil or gas or mineral extraction at the time, but he acquired the rights to do so because “it was just available, and so [he] grabbed it.” Jeffrey Dean Howard testified that he believed that the oil, gas, and mineral rights were also important because they greatly enhanced the value of the property. A considerable amount of testimony was presented from other property owners with little overall narrative. However, there was uniform agreement that Birch Valley Trail was, until Savoy began installing an oil well in 2014, a narrow dirt road that mostly was not even graveled, traffic was extremely minimal, and the appeal of the area had been its quiet and isolated nature. Some parties noted that there were a scattered assortment of gas wells (“Antrim” wells) on some parcels, but that the installation thereof had been brief and their operation was unobtrusive or even completely unnoticeable. It was also readily apparent that much of the displeasure held by the property owners stemmed from the noise of Savoy’s oil well in operation, which, we note, has nothing to do with the easement and thus is outside the scope of this matter. Savoy’s construction of the oil well, they agreed, radically altered the character of the area with noise and -2- vibration and odors, severely damaged the road, and caused a great deal of inconvenience for owners attempting to access their own property even aside from the assaultive nuisance. However, they also generally agreed that other than several months of uninterrupted heavy industrial traffic, Savoy appeared to have done nothing objectionable on the easement after construction had ceased. Other testimony from various oil well experts explained that construction of an oil well was by its very nature a “24/7 operation” that simply could not be interrupted until complete. Representatives from Savoy explained that due to their awareness that the property owners were unhappy, Savoy acquired an easement across other property and constructed a pipeline, so that the raw pumpage from the oil well could be pumped to a processing station offsite rather than hauled away in trucks. Consequently, although Savoy required 24-hour access to the well in the event of an emergency, and the well would need to be checked on, it would be uncommon for anyone to need to be on-site “unless there was something going on.” Representatives stated that it was possible that another oil well could be constructed on the Howard property, but that it was highly unlikely to be profitable and thus highly unlikely to occur. Nevertheless, the property owners expressed a fear of another extended disruption of their lives. The trial court entered a written opinion and order fairly summarizing the essential facts, finding that the purpose of the easement included developing oil and gas interests but that purpose would not necessarily have been obvious to anyone else, that Savoy’s use of the easement was necessary to its enjoyment thereof, but that the two periods of intense traffic during well and pipeline construction overburdened the easement. The trial court found that actual damages suffered by defendants would be impossible to calculate, and likewise it would be impossible to define with precision what conduct was unreasonable and what was not. The trial court found that it would be proper to require Savoy to pay to repair the road, and it enjoined Savoy “from using commercial vehicles [defined by 49 CFR 390.5 and MCL 480.11a(1)(b)] on Birch Valley Trail” and restricted any traffic to the hours of 10:00 a.m. and 4:00 p.m. except in emergencies. This appeal followed. Savoy first argues that the trial court should have granted its motion for summary disposition in its entirety, and thus the matter should not have gone to trial at all. Specifically, it argues that the easement unambiguously grants Savoy a right of ingress and egress to explore and develop oil and gas, without any limitation, and everything Savoy did on or to the easement was necessary to permit its use. We disagree. A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. Id. at 120. “We review the trial court’s findings of fact in a bench trial for clear error and conduct a review de novo of the court’s conclusions of law.” Chapdelaine v Sochocki, 247 Mich App 167, 169; 635 NW2d 339 (2001). “The extent of a party’s rights under an easement is a question of fact, and a trial court’s determination of those facts is reviewed for clear error,” but its ultimate “dispositional ruling on equitable matters,” such as whether -3- equitable relief is proper under the facts as found, is reviewed de novo. Blackhawk Development Corp v Village of Dexter, 473 Mich 33, 40; 700 NW2d 364 (2005). At one time, it was only possible to obtain easements by express grants. Coolidge v Learned, 25 Mass 504; 8 Pick (Mass) 504 (1829); Frandorson Properties v Northwestern Mut Life Ins Co, 744 F Supp 154, 156 (WD Mich, 1990). Plaintiff correctly points out that an express easement is, for all practical purposes, a contract and interpreted as such: the intent and understanding of the parties at the time the easement was created controls, and unambiguous language is enforced as written. Wiggins v City of Burton, 291 Mich App 532, 551-552; 805 NW2d 517 (2011). “The scope of an easement encompasses only those burdens on the servient estate that were contemplated by the parties at the time the easement was created.” Id. The language of the easement at issue here is undisputed: “for purposes of ingress, egress, and public utilities.” None of those words appear to be unusual, difficult to define, or used in any seemingly odd context. Plaintiff reasonably cites a recent unpublished opinion of this Court addressing similar language. Although unpublished cases are not binding and reliance thereon is disfavored, we agree that in context the reference is entirely appropriate: In this case, the deed grants [the plaintiff] an easement for “ingress and egress.” The deed does not define ingress and egress, so this Court may consult a dictionary to determine what these words commonly mean. See Griffith v State Farm Mut Auto Ins Co, 472 Mich 521, 526; 697 NW2d 895 (2005). “Ingress” is defined as “[t]he right or ability to enter; access,” and “egress” is defined as “[t]he right or ability to leave; a way of exit.” Black’s Law Dictionary (10th ed). An “ingress-and-egress easement” is an easement that grants “[t]he right to use land to enter and leave another's property.” Black’s Law Dictionary (10th ed). Thus, the deed expressly granted [the plaintiff] the rights to enter and leave her 59–acre property, and her right to do so is paramount to [the defendant’s] rights in the same property. [Marilyn A Dzingle Trust v Platt, unpublished opinion per curiam of the Court of Appeals, Docket No. 330614 (decided February 14, 2017).] However, critically, no party actually disputes the right to enter and leave the property, making the above analysis accurate but largely tangential. Rather, the true dispute is, in practical effect, how obnoxiously one may go about entering and leaving the property, the extent to which one may physically alter the land under the easement in the process of doing so, and the extent to which entering and leaving the property may incidentally entail bringing anything else in or out of the property. Notwithstanding what appears to be plain and unambiguous contractual language, it appears equally clear that considerable evidence demonstrates a latent ambiguity within the contract. See Shay v Aldrich, 487 Mich 648, 667-669; 790 NW2d 629 (2010). There was largely unanimous testimony to the general effect that a discrepancy existed between the historical makeup of Birch Valley Trail and its compatibility with continuous heavy industrial vehicle traffic, and Savoy’s proposed use thereof. Furthermore, Howard was not the only party to the easement, and the neighbors who were also parties to the easement consistently testified that the area had historically been a quiet and isolated one. An easement holder generally may conduct repairs to an easement, but performing improvements is much less generously permitted, -4- requiring balancing between the necessity of such improvements for the easement holder with any additional burden placed on the servient estate. See Blackhawk Dev, 473 Mich at 41-42. There was ample testimony that Savoy’s proposed use of Birch Valley Trail would require significant improvement thereof, and radically increased vehicular traffic would significantly degrade the value of the servient estates. Savoy finally argues that the easement should be construed as “for the purpose of oil and gas exploration and exploitation” simply because elsewhere in the land contract “all oil, gas & mineral rights owned by Sellers” was included. This is a logical implication, but it suffers from the same problem of putting into conflict the extent to which one could do so without overburdening the servient estates. Consequently, the plain language of the easement does not settle the matter, and further factual development was necessary. The trial court properly denied in part Savoy’s motion for summary disposition. Savoy next argues that the trial court erred in finding that Savoy had overburdened the easement, the gravamen of its argument being that because its use thereof was entirely within the scope of the parties’ original intent, it per se could not constitute overburdening of the servient estates. Savoy also notes that its heavy and objected-to use of the easement only occurred for a few months when the well was drilled and another few months when the pipeline was installed. We think Savoy makes fair points, but that they are too simple for the context at issue. We first observe that the real problem in this matter is a common one that has never lent itself to simple and satisfactory resolutions: how to establish a “bright line” demarking the point at which a vague, nebulous understanding among what is effectively a semi-cohesive group has been exceeded by a newcomer. This is often of particular concern in rural areas where for many years “everyone knows” what is and is not acceptable, a stability and peace maintained less by the force of law than by the force of what the neighbors will think, only to one day have an outsider come in and force a need for an explicit rule. All too often, the only demarcation articulable by the local residents is some variation on “I know it when I see it,” which is precisely the opposite of an objectively applicable rule. We think it a huge overstatement that Savoy could contend that it has the right to do literally anything it wants with the easement so long as it can be justified as involving ingress, egress, or oil and gas exploration. We think it equally absurd that one easement holder should be subject to rules not applied to all of them. Equity demands fairness to all parties. The trial court was therefore faced with an essentially impossible task of crafting an objective rule governing subjective expectations. As noted, no party actually disputes Savoy’s right to enter and exit the Howard property, and defendants’ objections to the existence of the oil well is definitionally outside the scope of any arguments they could make about the easement. Furthermore, the testimony overwhelmingly shows that there are plenty of gas wells on various properties only accessible by the easement, as well as water wells, modular houses presumably delivered by heavy trucks, and a known history of Howard using some manner of heavy equipment to transport cattle. There was no dispute that drilling a gas well is a much less involved operation than drilling an oil well, but only in degree rather than in kind. Clearly, therefore, defendants cannot possibly object to the easement being used for heavy industrial vehicles per se. Likewise, defendants cannot possibly object per se to the easement being used to transport chattel of some sort. Analyzing parties’ course of dealing (or course of performance, course of conduct, or similar terms for the -5- parties’ historical conduct pertaining to each other and their execution of a contract) may be an appropriate way to resolve an ambiguity, at least under some circumstances. See Schroeder v Terra Energy Ltd, 223 Mich App 176, 191; 565 NW2d 887 (1997); see also Detroit Police Officers Ass’n v City of Detroit, 452 Mich 339, 345; 551 NW2d 349 (1996); Restatement Contracts 2d, § 209. Savoy is therefore clearly within its rights under the easement to drive heavy industrial trucks and equipment upon it. The trial court erred to the extent it found otherwise. The issue remains, however, whether there is a limit to the extent of Savoy’s use in such a manner.1 The historical conduct of all parties on the easement clearly shows that temporary uses thereof by heavy industrial equipment for drilling wells is understood to be within its scope. It was also entirely undisputed that when the easement was created, there was no other way to get to the Howard property from a public road. The trial court unambiguously erred in concluding that using heavy commercial vehicles on Birch Valley Trail per se overburdened the easement. Furthermore, there is no unambiguous way to conclude that any particular temporal limit can be specified for the use of such vehicles. As a matter of equity, any restrictions placed on Savoy’s use of the easement must be likewise placed on the other property owners whose properties are served by the easement. In other words, Savoy certainly cannot be held to have fewer rights to use the easement than anyone else. Equity will also not ignore context, nor the practical effect a radical change in use of an easement will have on servient estates. The holder of an easement may perform “improvements” on the easement if they are reasonably necessary to the reasonable enjoyment of the easement and if they do not unreasonably burden the servient estate. Blackhawk Dev, 473 Mich at 41-42. Thus, the easement holder may simply not be able to fully exploit everything they wish to do with the easement even if technically permitted by the plain language of the grant, and the servient estate holder may simply have to accept some additional burdens. To resort to an extreme example, flattening the road and paving it to the entire 66-foot width of the easement would obviously effect a radical imposition upon the servient estates and be far more than necessary. To place some additional gravel and fill some potholes would equally obviously be entirely reasonable. We think the only available objective resolution is to evaluate the extent to which the easement holder’s desired use of the easement is intrinsically and necessarily incompatible with the physical road. The historical use of the road shows that it required some regular maintenance and supported some heavy commercial vehicular traffic. The testimony also overwhelmingly established that the road was significantly damaged by Savoy’s prolonged use, Savoy’s 1 We note that Savoy would certainly have overburdened the easement by using it to transport pumpage from the well. So doing would have intrinsically converted Savoy’s use of the easement from ingress and egress into using it as an industrial conveyor belt; in other words, for shipping, and a change in the kind of use put to the easement rather than merely a matter of degree. This would clearly exceed the scope of the easement: “[t]he use of an easement must be confined strictly to the purposes for which it was granted or reserved.” Delaney v Pond, 350 Mich 685, 687; 86 NW2d 816 (1957). “Ingress and egress” does not necessarily include any traffic whatsoever. The testimony makes it clear, however, that Savoy’s pipeline renders this particular concern moot. -6- maintenance of the easement was inadequate, and one particular hill was nearly impassable, at least after the road surface had degraded due to the Savoy’s traffic. The evidence was that it would cost approximately a hundred thousand dollars and the equivalent of major surgery to upgrade the road to support continuous heavy industrial traffic. Furthermore, notwithstanding the testimony that drilling an oil well was a “round-the-clock” operation until its completion, radically increased noise and disruption of access by the other owners clearly imposes a significant burden on the servient estates. Indeed, noise alone can, depending on severity and context, be deemed an enjoinable nuisance. Smith v Western Wayne Co Conservation Ass’n, 380 Mich 526, 536; 158 NW2d 647 (1968). It was widely agreed that much of the appeal of property in the area was its quiet and isolation. The neighbors do not necessarily have a right to strictly maintain the status quo, however, depriving them of sleep for an extended period is essentially assaultive behavior. We therefore reject Savoy’s contention that the trial court erred in finding that Savoy had overburdened the easement, but we agree that the trial court’s remedy went beyond equitably balancing reasonable needs and expectations and into impermissibly rewriting the easement. Notably, the trial court erred in precluding Savoy entirely from placing any heavy commercial traffic on Birch Valley Trail except in emergencies. All, or nearly all, of the owners of parcels served by Birch Valley Trail, or their predecessors, had made some kind of use of heavy commercial vehicles on the easement, and equity simply cannot permit Savoy to be restricted in its use of the easement more than any other easement holder. Similarly, the trial court erred in totally precluding Savoy from any non-emergency access between 4:00 p.m. and 10:00 a.m., for the same reason: no other easement holders are under that restriction. Nevertheless, the error is one of excess narrowness more than intended purpose. The easement does not permit the destruction of the road with loads it is not capable of sustaining, radically upgrading the road to withstand traffic seriously out of historical character for the property, or disrupting neighbors’ sleep or their own access to their properties for extended periods of time. It may not be possible to craft a clear demarcation of “how much is too much,” but it should be clear that the occasional drilling of a gas well on the property is comfortably within what any easement holder may utilize the easement to do. At the other end of the spectrum, the easement may not be used as a commercial shipping corridor or used for the kind of intense traffic that wrecks the road or calls for its complete replacement. The trial court correctly determined that “ingress and egress” was ambiguous in context and that Savoy’s extended imposition of heavy vehicular traffic on Birch Valley Trail overburdened the easement. However, the trial court’s remedy, while sound in broad principle, went too far in the other direction. We therefore vacate in part the trial court’s order as to the specific rules it places on Savoy’s use of the easement, and we remand for the trial court to consider a remedy that more fairly balances the equities as outlined in this opinion, a task we appreciate will be difficult. We affirm the trial court to the extent it concluded that Savoy’s use of the easement in its construction of the well overburdened the easement. In light of testimony that another oil well on the property would not likely be profitable, the trial court may wish to consider imposing requirements with less specificity. The trial court may conduct further proceedings as it deems necessary to resolve the conundrum we are inflicting upon it. -7-  Affirmed in part, vacated in part, and remanded for further proceedings. We retain jurisdiction. We direct that the parties shall bear their own costs, neither having prevailed in full. /s/ Cynthia Diane Stephens /s/ Douglas B. Shapiro /s/ Amy Ronayne Krause -8-  Court of Appeals, State of Michigan ORDER Cynthia Diane Stephens Savoy Energy LP v Leon Beasinger Presiding Judge Docket No. 336392 Douglas B. Shapiro LC No. 14-015609-CH Amy Ronayne Krause Judges Pursuant to the opinion issued concurrently with this order, this case is REMANDED for further proceedings consistent with the opinion of this Court. We retain jurisdiction. Proceedings on remand in this matter shall commence within 28 days of the Clerk’s certification of this order, and they shall be given priority on remand until they are concluded. As stated in the accompanying opinion, the trial court is to consider a remedy that more fairly balances the equities as outlined in the opinion. The proceedings on remand are limited to these issues. The parties shall promptly file with this Court a copy of all papers filed on remand. Within seven days after entry, appellant shall file with this Court copies of all orders entered on remand. The transcript of all proceedings on remand shall be prepared and filed within 21 days after completion of the proceedings. /s/ Cynthia Diane Stephens May 10, 2018 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-1549 WARTHELL B. ILES, Plaintiff - Appellant, and MONROE ROOSEVELT PARKER, JR., Plaintiff, versus NORTH CAROLINA AGRICULTURAL FINANCE AUTHORITY, Defendant - Appellee. No. 06-1550 In Re: WARTHELL B. ILES, Debtor. ----------------------------- WARTHELL B. ILES, Plaintiff - Appellant, versus CENDANT MORTGAGE CORPORATION, d/b/a PHH Mortgage Services; NORTH CAROLINA AGRICULTURAL FINANCE AUTHORITY, Defendants - Appellees. Appeals from the United States District Court for the Eastern District of Virginia, at Newport News. Walter D. Kelley, Jr., District Judge. (4:04-cv-00079-WDK; 4:05-cv-00011-WDK; 03-53401- SCD) Submitted: September 19, 2007 Decided: September 27, 2007 Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Frederick Hope Marsh, HILL, TUCKER & MARSH, Richmond, Virginia, for Appellant. Jennifer Jo West, SPOTTS FAIN, P.C., Richmond, Virginia; Jeffrey L. Marks, KAUFMAN & CANOLES, P.C., Virginia Beach, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. - 2 - PER CURIAM: Warthell B. Iles appeals the district court’s orders denying her motion to set aside a settlement agreement, dismissing as untimely her appeal from the bankruptcy court’s order dismissing her Chapter 13 petition, and awarding attorneys’ fees and costs to the Appellees. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Iles v. N.C. Agric. Fin. Auth., Nos. 4:04-cv- 00079-WDK; 4:05-cv-00011-WDK (E.D. Va. filed Mar. 31, 2006 & entered Apr. 3, 2006; Apr. 14, 2006). 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 - 3 - 

665 So.2d 190 (1995) James R. LIPHAM and Linda L. Lipham v. GENERAL MOTORS CORPORATION and Tiara Motorcoach Corporation. 1931770. Supreme Court of Alabama. June 30, 1995. *191 G. John Dezenberg, Jr. of Higgs, Emerson & Dezenberg, Huntsville, for appellants. Patrick H. Graves, Jr. and Warne S. Heath of Bradley, Arant, Rose & White, Huntsville, for Tiara Motorcoach Corp. Nicholas B. Roth and John R. Baggette, Jr. of Eyster, Key, Tubb, Weaver & Roth, Decatur, for General Motors Corp. KENNEDY, Justice. The plaintiffs, James R. Lipham and Linda L. Lipham, appeal from summary judgments in favor of the defendants, General Motors Corporation ("G.M.") and Tiara Motorcoach Corporation ("Tiara"). The case involves the Liphams' purchase of a new Tiara-customized Chevrolet van, manufactured by G.M., which they allege had numerous defects. In May 1993, the Liphams sued G.M. and Tiara, stating causes of action under Ala.Code 1975, § 8-20A-1 et seq. (the "lemon law"), the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq. ("Magnuson-Moss"), and under theories of breach of express and implied warranties. G.M. and Tiara moved for, and were granted, summary judgments as to all of the Liphams' claims, except the implied warranty claims, which were dismissed by agreement of the parties. Alabama Rule of Civil Procedure 56(c) provides that a summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The burden of establishing that there is no genuine issue of material fact is on the movant. Berner v. Caldwell, 543 So.2d 686, 688 (Ala.1989). Where the movant makes a prima facie showing of the absence of a genuine issue of material fact, then the burden shifts to the nonmovant to rebut the prima facie showing of the movant. Id. In order to rebut such a prima facie showing, the nonmovant must show the existence of a genuine issue of material fact by "substantial evidence." "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). Our review of a summary judgment is de novo. Hightower & Co. v. United States Fidelity & Guar. Co., 527 So.2d 698, 701 (Ala.1988). Also, in reviewing a summary judgment, we must view the evidence in a light most favorable to the nonmovant. Hallmark v. Duke, 624 So.2d 1058 (Ala.1993). On appeal, the Liphams do not dispute that the defendants made a prima facie showing of the absence of a genuine issue of material fact. Rather, the Liphams argue that they produced substantial evidence in rebuttal of that showing. The record indicates the following facts pertinent to our review: In 1992, the Liphams purchased a new Chevrolet van that had been manufactured by G.M. and "customized" by Tiara. The van was purchased from the Landmark Chevrolet dealership ("Landmark") in Huntsville, Alabama, and was covered under express G.M. and Tiara warranties. The Liphams produced evidence that on the day after their purchase, they began experiencing problems with the van, and they produced evidence that in the following four months they returned the van to Landmark on five occasions for repairs. In this regard, the record indicates that the van was at Landmark's place of business a total of 37 days during those four months for the purpose of those requested repairs. Linda Lipham gave detailed affidavit testimony of the specific problems the Liphams *192 had had with the van and for which, she stated, they had requested repairs. Regarding those requested repairs, Linda Lipham stated that some problems associated with G.M.'s manufacturing of the van were never satisfactorily corrected. The problems she so identified included: defects in the suspension system, water leaks at the front and rear of the van, transmission problems, and an excessive amount of engine heat that flowed into the passenger compartment. Linda Lipham stated that she also requested that Landmark correct problems that she said were associated with Tiara's customizing of the van. Some of those problems, she said, were never satisfactorily corrected, and included: the engine starting without warning, improperly functioning interior lights and security alarm system, improperly operating power seats, an inoperable vacuum cleaner, and paint problems.[1] The Liphams sought to negotiate through Landmark to be allowed to return the van. G.M. and Tiara explored alternative solutions to the Liphams' purported problems with the van, and the parties submitted the matter to nonbinding arbitration, but could not agree on a remedy to the situation. The Liphams then sued G.M. and Tiara, stating causes of action against both defendants based on the lemon law, Magnuson-Moss, and an alleged breach of express and implied warranties. As indicated, the trial court entered summary judgments in favor of G.M. and Tiara as to all claims, except the implied warranty claims, which had been dismissed by agreement of the parties. The Liphams appeal from the summary judgment as to their lemon law claims, their express warranty claims, and their Magnuson-Moss claims.[2] As to the Liphams' express warranty claims, G.M. and Tiara argued in the trial court, and they argue here, that the Liphams produced no substantial evidence of the existence of many of the problems they say they complained of and no substantial evidence that the remaining problems were not corrected by Landmark. In short, G.M. and Tiara argue that the Liphams produced no substantial evidence of a breach of the Tiara warranty or of the G.M. warranty.[3] In order to establish a breach of an express warranty, such as the alleged breaches at issue here, the plaintiff must show that "the warranty failed of its essential purpose"; that either the dealer refused to repair or replace the malfunctioning component, or failed to do so "within a reasonable time." Ag-Chem Equip. Co. v. Limestone Farmers Co-op., Inc., 567 So.2d 250 (Ala. 1990). Evidence produced by the Liphams clearly presents a jury question as to whether the G.M. and Tiara warranties failed of their essential purposes. As our discussion of the record in this case indicates, the Liphams produced evidence from which the trier of fact could reasonably infer the existence of the problems complained of and the failure to remedy these problems despite the Liphams' affording the defendants several opportunities, over a four-month period, to do so through Landmark. That G.M. or Tiara disagrees as to whether some of the problems existed or as to whether the remaining problems were ongoing, and that G.M. produced an affidavit from a Landmark employee in support of its contrary position, do not negate, for example, Linda Lipham's detailed affidavit. As we have discussed, in that affidavit, Linda Lipham indicated that the Liphams had experienced numerous specific problems with the van and indicated that numerous specific problems *193 were ongoing, despite several attempts by the Liphams to obtain repairs. Given the foregoing, we hold that the trial court erred in entering summary judgments in toto in favor of G.M. and Tiara as to the Liphams' express warranty claims. However, in the trial court G.M. argued, and it argues here, that even if the express G.M. warranty claim can be maintained by the Liphams, they cannot properly recover mental anguish damages, which they seek, in addition to other damages, for a purported breach of that warranty. G.M. says that the Liphams produced no evidence in the trial court that they suffered mental anguish. On appeal, the Liphams emphasize that they were not required to demonstrate any physical symptoms or that they received a doctor's care in order to support this claim for damages, but they in no way indicate what evidence of mental anguish they did submit in the trial court. Accordingly, we are not persuaded to reverse the summary judgment as it relates to the claim for mental anguish damages under the breach of express warranty claim against G.M. Thus, as to the express warranty claim against G.M., we affirm the trial court's judgment to the extent that it would preclude the recovery of mental anguish damages, but we reverse that judgment in all other respects. As to the express warranty claim against Tiara, we reverse the judgment of the trial court. Tiara did not raise any issue as to mental anguish damages on this claim in the trial court, and therefore, our reversal of the judgment on the Liphams' express warranty claim against Tiara is as to all aspects of that claim. As to the Liphams' lemon law claim, the dispositive issue is whether they are "consumers"; if they are, then the lemon law is applicable to them. Specifically, Alabama's lemon law applies to the "consumer," see Ala.Code 1975, §§ 8-20A-2, -3. "Consumer" is defined, in pertinent part, as "[t]he purchaser, other than for purposes of resale, of a new or previously untitled motor vehicle used in substantial part for personal, family, or household purposes." Ala.Code 1975, § 8-20A-1(1). Whether the Liphams are "consumers" in that the van was "used in substantial part for personal, family, or household purposes" is in issue here, because of testimony elicited from the Liphams indicating that the van was purchased for use primarily in a commercial enterprise, a dog breeding business. The Liphams argue that they presented substantial evidence that the van was purchased for "personal or family use," and therefore, they say, they adequately demonstrated that they are "consumers" within the meaning of the lemon law. However, James Lipham testified by deposition that the Liphams were in the "dog business" and had purchased the van for use in that business. He indicated that showing dogs was a sort of advertising for their dog breeding business, stating that, "you get them out and you get them shown and get them seen," and he stated that the van was purchased "specifically for the purpose of showing the dogs." In response to opposing counsel's question whether it was "correct" that "you are claiming that you lost monetarily from the dog business as a result of not being able to use this van which you purchased for your dog business," James Lipham agreed that that was "a fair statement." Similarly, the Liphams stated, in a sworn response to G.M. interrogatories, that "[t]he van was purchased to allow [them] to travel and enter dogs into dog show competitions." They stated also that they had "lost entry fees and revenues due to their inability to go to dog shows because of the unreliability of [the] van." Additionally, Linda Lipham testified by deposition that she bought the particular van because "I show dogs, and I needed a vehicle that would have air-conditioning for the dogs." However, Mrs. Lipham denied that she bred dogs as a "business," stating that "it is more of a hobby than a business." Later in her deposition, Mrs. Lipham testified, in response to a question as to the "primary purpose for buying" the van, that the vehicle was purchased for "[d]og showing and personal use." However, this statement was followed by Mrs. Lipham's testimony that the van was purchased primarily because it was large enough to "hold the family to go *194 places and everybody would [have] a seat belt." Assuming, as the parties agree, that use in substantial part is properly demonstrated in this case by the van's primary intended purpose at the time of purchase,[4] the conflicting testimony given by the Liphams as to this intended purpose would not rebut the defendants' showing that that purpose was primarily commercial, rather than primarily for personal, family, or household uses. Here, it would be guesswork to infer, from the Liphams' sworn testimony, one use over another as its use "in substantial part." Linda Lipham's testimony conflicted with that of James Lipham and with that of their sworn interrogatory response, and it was, to some extent, self-conflicting. We have held that "a party cannot be allowed to directly contradict his prior sworn testimony just to create an issue of fact in an attempt to avoid a summary judgment." Hanson v. New Technology, Inc., 594 So.2d 96 (Ala.1992). Here, where the contradiction was perhaps innocent, created by an uncertainty rather than by a conscious effort to defeat a summary judgment motion, the contradiction likewise cannot work to defeat a properly supported summary judgment motion. Stated simply, viewing the sworn testimony of the Liphams most favorably to the Liphams—ignoring that the predominant import of that testimony is that the van was purchased for use in their "dog business"— one still must conclude that the Liphams' testimony could, at best, give rise only to speculation. It cannot, therefore, be said to "reasonably" create in the mind of the finder of fact the inference sought to be proved, i.e., that the van was intended to be used for "personal, family or household purposes." Accordingly, we affirm the judgment of the trial court as to the Liphams' lemon law claim. For the same reasons as discussed above, G.M. and Tiara were entitled to judgments on the Liphams' Magnuson-Moss claim. Specifically, as to Magnuson-Moss, the parties agree that this body of law offers consumer protection as to "consumer product[s]." See 15 U.S.C. § 2310(d). Citing Richards v. General Motors Corp., 461 So.2d 825 (Ala.1984), the parties further agree that whether the van is a "consumer product" is determined by its "primary use." Also, the parties agree that the evidence before the trial court as to the intended use of the van at the time of purchase is evidence of "primary use." Based on these arguments and assumptions, the Liphams' Magnuson-Moss claims must fail, for the same reason that their lemon law claims against G.M. and Tiara fail. As indicated, Linda Lipham's testimony to the effect that the van was bought primarily to accommodate the needs of the family, and that the Liphams were involved in dog breeding and related activities only as a "hobby," was uncertain. Given contrary sworn testimony by the Liphams, this testimony was too uncertain to constitute substantial evidence that the van was purchased for "personal, family or household purposes." As to the Liphams' Magnuson-Moss claims against G.M. and Tiara, we affirm the judgments of the trial court in favor of G.M. and Tiara. We also affirm those judgments as to the Liphams' lemon law claims. As to the Liphams' express warranty claims, we reverse the judgment of the trial court in favor of Tiara, and reverse the judgment in favor of G.M. except as to the claim for mental anguish damages; to the limited extent that that judgment of the trial court in favor of G.M. on the express warranty claims would prevent the recovery of mental anguish damages, we affirm. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. MADDOX, ALMON, SHORES, HOUSTON, INGRAM, COOK, and BUTTS, JJ., concur. NOTES [1] The admissibility of this affidavit testimony was evidently not questioned in the trial court. [2] Although the Liphams state in their brief on appeal that they appeal as to "all claims filed in their complaint," in the trial court they stipulated to a dismissal of their implied warranty claims. On appeal they develop no arguments with respect to those claims. [3] Tiara also suggested in the trial court that a 90-day limitation on the Tiara warranty as to "minor items" complained of had expired. Tiara indicates that it had been denied an earlier opportunity to correct any problems. However, the Liphams presented evidence that they did seek repairs for purported "minor items" at Landmark within 90 days of the purchase of the van, and in the absence of any contention on appeal that Landmark is not an authorized agent of Tiara in this regard, we do not address this contention further. [4] Neither the Liphams nor G.M. dispute this assumption. However, we do not necessarily agree with this assumption.

39 Wn. App. 864 (1985) 696 P.2d 41 THE STATE OF WASHINGTON, Appellant, v. JAMES V. CHISHOLM, Respondent. No. 6446-4-II. The Court of Appeals of Washington, Division Two. February 28, 1985. Henry R. Dunn, Prosecuting Attorney, and Bert Paul, Deputy, for appellant. C. Michael McLean, for respondent. REED, A.C.J. A Longview police officer stopped a pickup truck solely for the purpose of informing the driver that his hat was in jeopardy of blowing out of the bed of the vehicle. The trial court concluded that, there being no reasonable suspicion of criminal activity, the stop was improper, and granted defendant's motion to suppress a quantity of marijuana subsequently found on defendant's person. The State appeals from the trial court's dismissal of the charge against defendant. We reverse and remand. On November 15, 1980, at approximately 12:30 a.m., Sergeant Cowan of the Longview Police Department observed a pickup truck moving in traffic with a hat resting on top of the cab. The officer, driving an unmarked police vehicle, watched as the hat blew into the bed. Concerned that the hat was endangered, Sergeant Cowan attempted to stop the truck. Having no success, the officer summoned a marked police vehicle to make the stop. No traffic or criminal violations were observed or suspected at that time. Upon walking up to the cab, Sergeant Cowan saw an *866 open can of beer between the driver and his passenger, James Chisholm, both known by Sergeant Cowan to be minors. The occupants were placed under arrest and a later search of Chisholm's person produced a quantity of marijuana, for which he was charged with possession. Although there is substantial case law concerning the propriety of traffic stops made to enforce penal or regulatory law, we have found virtually no authority passing on the propriety of a stop made solely to assist the occupants of a vehicle.[1] We look for guidance, then, in fundamental Fourth Amendment principles. A review of those principles will provide a framework for a discussion of the specific facts present here. [1] First, we note that a vehicle stop, even for a benign purpose, must be made in harmony with the Fourth Amendment proscription against unreasonable searches and seizures. Delaware v. Prouse, 440 U.S. 648, 59 L.Ed.2d 660, 99 S.Ct. 1391 (1979). Whether a given stop is unreasonable "depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L.Ed.2d 607, 95 S.Ct. 2574 (1975). See also Camara v. Municipal Court, 387 U.S. 523, 18 L.Ed.2d 930, 87 S.Ct. 1727 (1967). Ordinarily, the balance between public and individual interests is accurately measured by the presence or absence of "probable cause." On occasion, the less demanding "reasonable suspicion" standard is employed.[2] Here, the trial court concluded that the absence of reasonable suspicion to believe criminal activity was afoot rendered the stop unlawful. We disagree. Neither "probable cause" nor "reasonable suspicion" is an appropriate yardstick where the stop was made for noncriminal, noninvestigatory purposes. *867 In that context, whether a particular stop is reasonable depends not on the presence or absence of "probable cause" or "reasonable suspicion," but rather on a balancing of the competing interests involved in light of all the surrounding facts and circumstances. See South Dakota v. Opperman, 428 U.S. 364, 49 L.Ed.2d 1000, 96 S.Ct. 3092 (1976). Here, an individual's interest in proceeding about his business unfettered by police interference must be balanced against the public's interest in having police officers perform services[3] in addition to the traditional enforcement of penal and regulatory laws. United States v. Dunbar, 470 F. Supp. 704 (D. Conn.), aff'd, 610 F.2d 807 (2d Cir.1979). This latter interest is sometimes characterized as "community caretaking functions." Cady v. Dombrowski, 413 U.S. 433, 441, 37 L.Ed.2d 706, 93 S.Ct. 2523 (1973). One might argue that permitting police officers to make stops without "probable cause" or at least "reasonable suspicion" is so fraught with the potential for abuse that a blanket proscription is necessary. We believe that such an approach is an unnecessarily harsh remedy in light of the safeguards offered by a suppression hearing. We trust that the trial judge will discern a legitimate stop from one based on subterfuge. Accordingly, we hold that, in appropriate circumstances, a police officer may stop a vehicle momentarily to warn the occupants that an item of their property is endangered. Such a momentary seizure, being "reasonable," does not require the suppression of contraband or other evidence of crime thereafter discovered merely because the officer lacked probable cause or reasonable suspicion to believe the vehicle's occupants were involved in criminal activity. Turning to the case at bench, the balance between the competing interests is not such that the court can resolve *868 the issue as a matter of law. Factual questions remain. For example, is it certain that the hat was of such trivial value that no reasonable person would have bothered to warn the owner that it was endangered? Was the hat in danger of being lost after it blew into the bed of the pickup, or would it present a traffic hazard? Was the stop a subterfuge? These factual inquiries, among others, must be resolved by the trial court and the "balancing test" rather than the "probable cause" or "reasonable suspicion" test employed. Accordingly, this cause is remanded for a suppression hearing consistent with this opinion. It is so ordered. LANGSDORF, J. Pro Tem., concurs. PETRICH, J. (dissenting) The majority states that "the trial court concluded that the absence of reasonable suspicion to believe criminal activity was afoot rendered the stop unlawful." The majority goes on to hold that the reasonable suspicion standard is the inappropriate standard to determine the reasonableness of stops such as here. While I agree with the majority that it is incorrect to apply the reasonable suspicion standard, alone, to this case, I cannot agree with the majority's conclusion that the trial court based its decision to suppress solely upon the reasonable suspicion standard. Instead, I believe the trial court applied the proper "balancing" test when it ruled on the motion to suppress. Stopping a motor vehicle and detaining its occupants for even a brief time constitutes a "seizure" within the Fourth Amendment.[4]Delaware v. Prouse, 440 U.S. 648, 59 L.Ed.2d 660, 99 S.Ct. 1391 (1979); State v. Larson, 93 Wn.2d 638, 611 P.2d 771 (1980). A limited investigatory stop may *869 be justified on less than probable cause if the officer can "point to specific and articulable facts that give rise to a reasonable suspicion that there is criminal activity afoot." (Italics mine.) State v. White, 97 Wn.2d 92, 105, 640 P.2d 1061 (1982); see Delaware v. Prouse, supra; Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968). The majority states that "whether a particular stop is reasonable depends not on the presence or absence of `probable cause' or `reasonable suspicion,' but rather on a balancing of the competing interests involved in light of all the surrounding facts and circumstances." I agree that the reasonableness test includes a balancing of the competing interests. However, the majority ignores the fact that the reasonableness test requires a certain quantum of evidence before the State's interest on balance overrides that of the individual.[5] [T]he key principle of the Fourth Amendment is reasonableness — the balancing of competing interests. But if courts and law enforcement officials are to have workable rules, this balancing must in large part be done on a categorical basis — not in an ad hoc, case-by-case fashion by individual police officers. (Citations omitted.) Dunaway v. New York, 442 U.S. 200, 219-20, 60 L.Ed.2d 824, 99 S.Ct. 2248 (1979) (White, J., concurring). Furthermore, a review of the record indicates that the trial court did not apply the "reasonable suspicion" standard per se to test this stop as held by the majority. The trial court also considered whether an emergency situation existed which would also justify the stop. The elements of the emergency rule are: *870 (1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. (Italics mine.) State v. Nichols, 20 Wn. App. 462, 465-66, 581 P.2d 1371 (1978). I agree with the trial court's implicit finding that the facts in this case do not indicate there was an emergency at hand that necessitated police assistance for the protection of property. Even though not stated in its findings or conclusions, it is readily apparent from the record that the issue of whether an emergency justified the seizure was well briefed to the trial court by both parties and was decided adversely to the State. This is well supported by the State's assignment of error to the court's failure to find that an emergency situation existed which would justify the stop in the absence of a reasonable suspicion of criminal activity. Further, no finding as to a material fact constitutes a negative finding. Lobdell v. Sugar 'N Spice, Inc., 33 Wn. App. 881, 658 P.2d 1267 (1983). Thus, I disagree with the majority that the court applied the "reasonable suspicion" standard per se without balancing the public interest in the stop. From the record, it is obvious that the trial court found neither reasonable suspicion of criminal activity nor existence of an emergency. Therefore, the majority's remand for the trial court to resolve factual questions, such as whether the hat was in danger of being lost or presenting a traffic hazard, is simply asking the trial court to do what it has already done. In my view any exception to the "reasonable suspicion" standard to be applied to noninvestigatory stops should be limited to specific, objective facts which reasonably give rise to an inference that safety or emergency reasons justify the *871 stop.[6] For "[i]t is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior." Camara v. Municipal Court, 387 U.S. 523, 530, 18 L.Ed.2d 930, 87 S.Ct. 1727 (1967). I believe the trial court applied the proper balancing in this case. I would affirm. NOTES [1] Our research reveals only one case that discusses a stop made solely to assist the occupant of a vehicle. See United States v. Dunbar, 470 F. Supp. 704 (D. Conn.), aff'd, 610 F.2d 807 (2d Cir.1979). [2] See, e.g., Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968). [3] Many communities look to their officers to assist citizens or render aid under a variety of circumstances. For example, officers often deliver emergency messages, give directions, search for lost children, assist stranded motorists and render first aid. [4] The "community caretaking functions" referred to by the majority are generally communications between police and citizens involving no coercion or detention amounting to a "seizure," and, therefore, are without the protection of the Fourth Amendment. See United States v. Berry, 670 F.2d 583, 591 (5th Cir.1982). [5] Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against "an objective standard," whether this be probable cause or a less stringent test. "In those situations in which the balance of interests precludes insistence upon `some quantum of individualized suspicion,' other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not `subject to the discretion of the official in the field ...'". Delaware v. Prouse, 440 U.S. at 654-55. [6] This essentially is the holding of United States v. Dunbar, 470 F. Supp. 704 (D. Conn.), aff'd, 610 F.2d 807 (2d Cir.1979), which is cited by the majority. This is not the only case which discusses the validity of noninvestigative stops of motor vehicles to assist their occupants. See People v. Deppert, 83 Ill. App.3d 375, 403 N.E.2d 1279 (1980); People v. Lilly, 38 Ill. App.3d 379, 347 N.E.2d 842 (1976). These cases held that the stopping of a motorist in order to see if the motorist is lost, in need of assistance, or having car problems was unreasonable under the Fourth Amendment.

2004 MT 99 IN RE THE MARRIAGE OF PATSY A. BARTSCH, Petitioner and Respondent, and ALVIN E. BARTSCH, Respondent and Appellant. No. 02-495 Supreme Court of Montana. Submitted on Briefs: May 13, 2003 Decided: April 20, 2004 For Appellant: Steven Potts, Thompson, Potts, & Donovan, P.C., Great Falls, Montana. For Respondent: Marcia Birkenbuel, Attorney at Law, Great Falls, Montana. Justice James C. Nelson delivered the Opinion of the Court. ¶1 Alvin Bartsch (Alvin) appeals the judgment of the Eighth Judicial District Court, Cascade County, dividing equally the marital estate established with his former wife, Patsy Bartsch (Patsy). ¶2 We affirm in part and reverse and remand in part for further proceedings consistent with this Opinion. ¶3 We address the following issues: ¶4 1. Did the District Court err in finding that an equitable distribution of marital property automatically required an equal distribution? ¶5 2. Was the District Court's finding of fact valuing each share of the Bartsch Farms, Inc. stock at $3.62 based on substantial evidence? ¶6 3. Did the District Court err in awarding Patsy the cash surrender value of Alvin's life and annuity policies? ¶7 4. Did the District Court abuse its discretion in awarding Patsy $119,773.50? ¶8 5. Was the District Court's granting of a security interest in Alvin's Bartsch Farms, Inc. shares contrary to the law? FACTUAL AND PROCEDURAL BACKGROUND ¶9 Alvin and Patsy were married for 30 years before their marriage ended in a dissolution. Throughout the years, Alvin worked on his family's farm, known as Bartsch Farms, Inc., while Patsy worked as a homemaker, caring for their two children. ¶10 Before he married Patsy, Alvin acquired 24,502 shares in Bartsch Farms, Inc. by gift from his parents. After he married Patsy, Alvin acquired an additional 83,015 shares by gift from his parents, while Patsy acquired 3,012 shares. The net value of Bartsch Farms, Inc. was $985,643.47. ¶11 At their dissolution bench trial, the District Court received testimony regarding Alvin and Patsy's marital assets. Ultimately, the District Court, in its findings of fact and conclusions of law, awarded Patsy and Alvin each $335,240.50 in value from their $670,481.00 marital estate. In its findings, the District Court stated specifically that: 9. The fair market asset value of the [Bartsch Farms, Inc.] shares is $3.62 per share. 10. Ms. Bartsch contributed to the operation of the farm and her nonmonetary contributions as a homemaker facilitated the maintenance of the farming operation. As such, the Court finds that it is equitable under the provisions of 40-4-202(1), MCA, to award Ms. Bartsch the value of an equitable share of stock of Bartsch Farms. 17. The Court finds that the following [in pertinent part to this appeal] is an equitable division of the marital estate: Reliastar life insurance cash value $4,256.00 Life Investors annuity surrender value $7,582.00 Life investors life insurance cash value $6,764.00 State Farm life insurance cash value $16,411.00 22. The marital estate shall be divided as set out in Finding Number 17 above. Mr. Bartsch shall have the option of paying Ms. Bartsch the $119,773.50 cash settlement in equal monthly installments, with interest at the rate allowed for judgments, over a period of twenty years (240 months), commencing on the first day of the month following entry of this order, and continuing on the first day of each month thereafter until the $119,773.50 plus accrued interest is paid in full. Ms. Bartsch shall retain a security interest in the Bartsch Farm stock until the $119,773.50 plus accrued interest is paid in full. ¶12 Alvin now appeals the above-quoted findings of fact and decree from the District Court. STANDARD OF REVIEW ¶13 We review a district court's findings of fact regarding a division of marital assets to determine whether the findings are clearly erroneous. In re Marriage of Gerhart, 2003 MT 292, ¶ 15, 318 Mont. 94, ¶ 15, 78 P.3d 1219, ¶ 15. Findings are clearly erroneous if: (1) they are not supported by substantial evidence; (2) the district court misapprehended the effect of the evidence; or (3) the district court made a mistake. In re Marriage of Steinbeisser, 2002 MT 309, ¶ 17, 313 Mont. 74, ¶ 17, 60 P.3d 441, ¶ 17. We will affirm a district court's division of property, absent clearly erroneous findings, unless we identify an abuse of discretion. Gerhart, ¶ 16. We review a district court's conclusions of law to determine whether the conclusions are correct. In re Marriage of Pfeifer, 1998 MT 228, ¶ 9, 291 Mont. 23, ¶ 9, 965 P.2d 895, ¶ 9. DISCUSSION ¶14 1. Did the District Court err in finding that an equitable distribution of marital property required an equal distribution? ¶15 Alvin argues that the rule is well settled that equity in a marital distribution case does not necessarily mean equality. Because his shares were gifted to him alone and because Patsy did not substantially increase the value of the farm, Alvin contends that Patsy is not entitled to "one-half of the amount at which the [District] Court valued Alvin's shares in Bartsch Farms, Inc. . . ." As such, he argues that "[t]he testimony and exhibits introduced at trial provide no substantial basis for an equitable share of the stock, let alon[e] an across-the-board 50/50 division of property." ¶16 Patsy argues that because "Alvin is obviously in control of the Bartsch Farms Corporation," "[a]warding him the stock and cash . . . to compensate her for the value of the stock is the only equitable manner to divide the marital estate." As such, Patsy contends that the District Court did not abuse its discretionary authority in dividing the marital estate, as it "obviously" considered the factors delineated under § 40-4-202, MCA, regarding equitable apportionment of a marital estate. ¶17 Section 40-4-202(1)(a)-(b), MCA, states in pertinent part that: (1) . . . . In dividing property acquired prior to the marriage; property acquired by gift, bequest, devise, or descent . . . the increased value of property acquired prior to marriage . . . the court shall consider those contributions of the other spouse to the marriage, including: (a) the nonmonetary contribution of a homemaker; (b) the extent to which such contributions have facilitated the maintenance of this property. . . . ¶18 We noted in In re Marriage of Steinbeisser that the district court erred when it calculated the appreciation in one spouse's premarital assets and awarded the other spouse two-thirds of that appreciated asset value without considering the other spouse's contribution to the value appreciation of those assets. In re Marriage of Steinbeisser, ¶ 54. On that basis, we remanded the case to the district court for a reevaluation and distribution of the parties' marital assets. In re Marriage of Steinbeisser, ¶ 69. ¶19 Here, the District Court found that: Ms. Bartsch contributed to the operation of the farm and her nonmonetary contributions as a homemaker facilitated the maintenance of the farming operation. As such, the Court finds that it is equitable under the provisions of 40-4-202(1), MCA, to award Ms. Bartsch the value of an equitable share of stock of Bartsch Farms. ¶20 Nowhere in its above finding did the District Court discuss its reasoning behind how Patsy, as a homemaker "facilitated the maintenance of the farming operation." Therefore, we reverse the District Court's findings on this issue. We remand this issue to the District Court for findings on whether and to what extent Patsy actually contributed to the preservation or appreciation of the gifted property under § 40-4-202, MCA, and under our holding in In re Marriage of Steinbeisser regarding this similar issue. ¶21 2. Was the District Court's finding of fact valuing each share of the Bartsch Farms, Inc. stock at $3.62 based on substantial evidence? ¶22 Alvin argues: (1) that the District Court had insufficient evidence to arrive at the $3.62 figure for the stock; and (2) that use of a fair market asset value is contrary to law, as "[t]he shares should be valued based upon their `present fair market values.'" ¶23 Patsy argues that the District Court "applied the appropriate valuation technique," in finding the value of the Bartsch Farms Corporation stock, especially given that "Alvin admitted that the values indicated for the corporate assets in his Exhibit . . . were based upon fair market value." We agree. ¶24 We have held that there exist "three essential principles of determining valuation of marital property subject to dissolution." In re Marriage of Pospisil, 2000 MT 132, ¶ 44, 299 Mont. 527, ¶ 44, 1 P.3d 364, ¶ 44. These principles include the fact that: "(1) proper valuation is not tied to a specific event, (2) there may be more than one valuation point, depending upon the kind of property involved, and (3) preferably, valuation should occur at the time of distribution, or, stated another way, present fair market values should be used." In re Marriage of Krause (1982), 200 Mont. 368, 379, 654 P.2d 963, 968. In addition, we noted that "these principles are tempered by the rule that a district court has broad discretion in property distribution." In re Marriage of Pospisil, ¶ 44. Indeed, we have said that "[t]he time for proper valuation cannot be tied to any single event in the dissolution process," as "there can be several valuation points rather than one single point for all of the property." In re Marriage of Krause, 200 Mont. at 378, 654 P.2d at 968. Further, "[a]s long as the valuation of property in a dissolution is reasonable in light of the evidence submitted . . . [this Court] will not disturb the finding on appeal." In re Marriage of Hanni, 2000 MT 59, ¶ 22, 299 Mont. 20, ¶ 22, 997 P.2d 760, ¶ 22. ¶25 Here, regarding the value assigned to the shares of stock, Alvin testified to the following: Q: Now how did you arrive at the figure of $3.00 value per share of stock in Bartsch Farms? A: When it [Bartsch Farms] was incorporated it started as dollar because of inflation was reflected on that paper you had there, the next year it went to $2, then it was increased to $3 to keep up with inflation, so it was a fair value. Q: Was this a calculation that was made each year to determine the fair market value of the stock? A: Yes. ¶26 On cross-examination, Alvin provided the following additional testimony regarding the stock value: Q: So you got a book value for your shares, that's what the $3 a share was. That's what you carried on the books? A: Right. Q: If you were to actually value it as of fair market value of the assets owned by the corporation you determined it would be $3.62 a share? A: Possibly. When we purchased the shares from my nephew and nieces, we paid less than $3. We paid $2.65 a share for that. Q: When was that? A: The year that Patsy got hers. It was `94, was it? Q: This exhibit [Respondent's Exhibit 5 showing number of shares, book values, and asset values for Alvin and Patsy] is based upon current fair market value; is that right? A: Right. Q: You prepared this Respondent's Exhibit 5? A: I believe so. ¶27 As the above-quoted language shows, based on Alvin's testimony, the District Court, in its broad discretion, accepted Alvin's testimony that the value of the shares was based on the current fair market value, finding the same—i.e., "[t]he fair market asset value of the shares is $3.62 per share." Under our holdings in In re Marriage of Krause and In re Marriage of Hanni, such valuation is both preferable and reasonable. Therefore, we hold that the District Court did not err in valuing the Bartsch Farms, Inc. shares of stock at $3.62 per share. ¶28 3. Did the District Court err in awarding Patsy the cash surrender value of Alvin's life and annuity policies? ¶29 Alvin argues that because the life and annuity policies are contracts based upon Alvin's life expectancy, he has no cash or surrender value available to him currently to give to Patsy. In addition, Alvin argues that the insurance and annuity companies are not parties to this lawsuit. Hence, the District Court did not have jurisdiction over them to make findings of fact and conclusions of law regarding the value of their policies. ¶30 Patsy argues that Alvin's contention that there is "no cash value or surrender value available to him" regarding the life and annuity policies is "contrary to Alvin's own testimony . . . and the exhibits he submitted" concerning those values. As such, Patsy argues that the District Court acted within its discretionary authority in awarding to Patsy the cash and surrender value of the policies. In addition, Patsy contends that Alvin's jurisdictional argument "is without merit," as a district court does not need jurisdiction over an insurance or annuity company to enter an order. ¶31 Again, under § 40-4-202, MCA, "[i]n a proceeding for dissolution of a marriage . . . the court . . . shall . . . finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both." ¶32 Here, the District Court awarded Patsy the following cash and surrender values: Reliastar life insurance cash value $4,256.00 Life Investors annuity surrender value $7,582.00 Life investors life insurance cash value $6,764.00 State Farm life insurance cash value $16,411.00 ¶33 Alvin identified the Exhibits from which the above-quoted Reliastar and Life Investors values came as the "current, or as close to current, cash values of investments." These "investments" were in Alvin's name, and were admitted into evidence without objection from Alvin. The District Court found that the State Farm life insurance was a marital asset, valued as quoted above. ¶34 We hold that the District Court did not err in awarding Patsy the cash and surrender values of these life and annuity policies, as evidence existed upon which to support the values awarded to Patsy and the District Court has broad discretion for such awards under § 40-4-202, MCA. ¶35 4. Did the District Court abuse its discretion in awarding Patsy $119,773.50? ¶36 Alvin argues that "[i]t is obvious . . . that Alvin does not have $119,773.50." As such, Alvin contends that "Montana law and the Constitution do not allow a party to be ordered to pay such a large amount of money which he does not have." ¶37 Patsy argues that "[t]he District Court in the present case had substantial evidence to support its finding that Patsy `contributed to the operation of the farm and her nonmonetary contributions as a homemaker facilitated the maintenance of the farming operation.'" ¶38 We reverse the District Court's findings of fact and conclusions of law regarding its distribution of the marital estate. We remand this case to the District Court for specific findings regarding whether Patsy contributed to the preservation or the appreciation of the gifted property, and if so, specifically how she contributed. Hence, because we reverse and remand this case to the District Court, we decline to address Alvin's issue regarding the monetary award, as Patsy may or may not be entitled to such an award depending upon the outcome of this case on remand. ¶39 5. Was the District Court's granting of a security interest in Alvin's Bartsch Farms, Inc. shares contrary to the law? ¶40 Alvin argues that the District Court had no authority to grant to Patsy a security interest in Alvin's stock, as there is no provision in the Montana Code regarding distributions of a marital estate which order such a grant. ¶41 Patsy argues that the District Court did not abuse its discretion in granting Patsy a security interest in Alvin's stock, namely because of a district court's "equitable power to grant a security interest or equitable lien to prevent an inequitable result." Not to grant a district court the authority to enforce its judgment for an equitable division of a marital estate, Patsy contends, is to render meaningless § 40-4-202, MCA, which actually gives a district court broad discretion in equitably dividing a marital estate. ¶42 We reverse the District Court's findings of fact and conclusions of law regarding its distribution of the marital estate. We remand this case to the District Court for specific findings regarding whether Patsy contributed to the preservation or the appreciation of the gifted property, and if so, specifically how she contributed. Hence, because we reverse and remand this case to the District Court, we decline to address Alvin's issue regarding the security interest, as Patsy may or may not be entitled to such a security interest depending upon the outcome of this case on remand. CONCLUSION ¶43 In conclusion, we affirm the District Court regarding its valuation of the Bartsch Farms, Inc. stock at $3.62 per share and the cash value and surrender value awards to Patsy. We reverse the District Court regarding its award of fifty percent of the marital assets. We remand for further proceedings to determine whether and to what extent Patsy contributed to the preservation or appreciation of the gifted property. Because we remand this case to the District Court for such findings, we do not address the issues of whether the District Court erred in awarding Patsy $119,773.50 or whether the District Court's grant of a security interest to Patsy was contrary to law. ¶44 Affirmed in part; Reversed in part; and Remanded in part for proceedings consistent with this Opinion. JUSTICES KARLA M. GRAY, PATRICIA O. COTTER and JIM RICE, concur.

541 U.S. 1081 GIBSON ET AL.v.UNITED STATES. No. 03-10071. Supreme Court of United States. June 1, 2004. 1 C. A. 4th Cir. Certiorari denied. Reported below: 85 Fed. Appx. 905.

United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 08-3835 ___________ United States of America, * * Plaintiff – Appellee, * * v. * * John Bolden, also known as JB, * * Defendant – Appellant. * ___________ Appeals from the United States No. 08-3872 District Court for the ___________ Northern District of Iowa. United States of America, * * Plaintiff – Appellee, * * v. * * Zechariah Benjamin, also known as Boo, * * Defendant – Appellant. * ___________ Submitted: October 22, 2009 Filed: March 8, 2010 ___________ Before BYE, BEAM, and SHEPHERD, Circuit Judges. ___________ BYE, Circuit Judge. John Bolden and Zechariah Benjamin were found guilty on multiple counts by a jury for their role in a conspiracy to distribute and possess with intent to distribute crack cocaine. The district court1 sentenced Bolden and Benjamin each to life imprisonment. Bolden and Benjamin appeal their convictions and sentences. We affirm. I Bolden and Benjamin are two of five individuals charged in a ten-count indictment filed January 29, 2008. Their arrests stemmed from five controlled purchases conducted by a confidential informant for law enforcement officers. Before each transaction, the informant spoke with Bolden over the telephone to arrange the purchase. During the first transaction on November 29, 2007, the informant purchased 2.7 grams of cocaine base (commonly known as crack cocaine) at an apartment in Cedar Rapids, Iowa. Bolden answered the door to let the informant in the apartment, after which the informant obtained a plastic baggie containing the crack cocaine from Wilson Cleaves, while Bolden sat in a chair having his hair done by Clarence Ross. On December 4, 2007, the informant made a second purchase of 6.4 grams of cocaine base at the apartment. Bolden again opened the door for the informant while Ross took the informant's money and Cleaves provided the cocaine. A third purchase occurred at the apartment on December 13, 2007, during which the informant purchased 5.2 grams of crack cocaine and had a conversation with Benjamin about why she was not able to purchase a grater amount. Benjamin 1 The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa. -2- explained their supplies were running low at the time. On December 17, 2007, Cleaves and Benjamin sold 7.28 grams of crack cocaine to the informant at the apartment. Finally, on December 18, 2007, Benjamin sold 10.7 grams of crack cocaine to the confidential informant at the apartment. On December 19, 2007, a DEA Task Force and the Cedar Rapids Police Department executed a search warrant at the apartment. Pursuant to the search, officers seized 38.9 grams of crack cocaine, a digital scale with white residue on it, a safe, a firearm holster, and more than $6,000 in cash. Bolden, Cleaves, and Ross were present at the apartment and were arrested at that time. Benjamin was arrested the same day at a different location. At trial, the government offered several individuals as witnesses, including Pepper Hines, a cooperating defendant who made several purchases from Bolden, and Ross and Cleaves, who had been indicted with Bolden and Benjamin. Approximately midway through the trial, during a break, Bolden's girlfriend approached and spoke with two jurors outside the courtroom for approximately five minutes. After learning of the conversation, the court questioned the first juror, who indicated she spoke with Bolden's girlfriend about the weather and did not know her identity or relation to Bolden. Upon a similar inquiry to the second juror, the court determined the second juror spoke with Bolden's girlfriend for a longer period of time about more personal matters, such as the juror's husband's car accident. The second juror also learned the woman was Bolden's girlfriend. The government was concerned of potential bias resulting from the latter conversation because it argued the personal information could be perceived as a threat or as a means to obtain sympathy for Bolden. Bolden's counsel did not object to excusing the juror, but Benjamin's counsel argued the court should give the juror an instruction not to consider the relationship in her deliberations. The court ultimately allowed the first juror to return to the jury, but excused the second juror due to her knowledge of the identity of Bolden's girlfriend. -3-  The jury found Bolden guilty of all five counts he was charged with, including: (1) distribution of 2.7 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count I); (2) distribution and aiding and abetting the distribution of 5 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), and 18 U.S.C. § 2 (Counts II and VIII); (3) possession with intent to distribute and aiding and abetting the possession with intent to distribute 5 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count IX); and (4) conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count X). The jury also found Benjamin guilty of all three counts he was charged with, including: (1) distributing and aiding and abetting the distribution of 5 grams or more of cocaine base after having been convicted of two felony drug offenses (Counts V and VIII) in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 851, and 18 U.S.C. § 2, and (2) conspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base after two prior felony drug offenses in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846, and 851 (Count X). At sentencing, the district court calculated Bolden's base offense level at 38 pursuant to United States Sentencing Guidelines (U.S.S.G.) §§ 2D1.1(a)(3) and (c)(1) after finding his criminal activity involved more than 4.5 kilograms of crack cocaine or 36,000 kilograms of marijuana-equivalent drugs. The court found Bolden possessed a dangerous weapon in connection with his criminal activity and increased his base offense level by two levels. The court also determined Bolden played a role as an organizer or leader of the criminal activity, which added four levels to his base offense level under U.S.S.G. § 3B1.1(a). While the total offense level after making these adjustments scored a level 44, the district court scored a total offense level of 43 due to a cap on the advisory guideline sentencing table. The district court ultimately sentenced Bolden and Benjamin to life imprisonment. Bolden and Benjamin each filed a timely appeal. -4-  On appeal, Benjamin's sole issue is whether the district court abused its discretion when it dismissed one of the jurors during the trial. Bolden maintains four issues on appeal. He first contends there was insufficient evidence to convict him. Bolden also asserts the district court erred when it found his role in the crimes was a "leader or organizer" instead of a "manager or supervisor" under the Guidelines. Bolden further argues the district court erred in calculating the amount of drugs attributable to him for the purpose of sentencing. Finally, Bolden contends the district court imposed an unreasonable sentence. II We first address Benjamin's challenge to the district court's action in excusing a juror during trial after Bolden's girlfriend had a conversation with the juror while on break. We review a district court's decision to remove a juror for abuse of discretion. United States v. Running Horse, 175 F.3d 635, 638 (8th Cir. 1999). "We will uphold the district court's decision to remove a juror 'if the record reflects a legitimate basis for it.'" United States v. Cannon, 475 F.3d 1013, 1023 (8th Cir. 2007) (quoting United States v. Evans, 455 F.3d 823, 824 (8th Cir. 2006)). Benjamin asserts no legitimate basis existed for the removal of the juror because nothing she learned in the conversation with Bolden's girlfriend would cause her to be impartial. Therefore, Benjamin contends the district court abused its discretion when it removed her from the jury. Moreover, Benjamin asserts he is prejudiced by the juror's removal because it effectively granted the government an additional strike of a juror it preferred not to have on the jury. We disagree. The district court evinced concern the juror might feel threatened or biased because she had shared personal information with a defendant's girlfriend. The district court also noted the possibility the interaction could prejudice the juror. -5- See Georgia v. McCollum, 505 U.S. 42, 57 (1992) (discussing the ultimate goal of selecting a jury is to achieve an impartial jury and a fair trial). Benjamin argues the removal of the juror provided the government with an additional strike, but he does not offer any reason the government would have wanted this particular juror dismissed. Benjamin also does not argue there was any problem with the alternate seated in the dismissed juror's place. Under the circumstances, the district court did not abuse its discretion in erring on the side of caution when the juror in question had contact with an interested third party whose identity was known to the juror. III We next address Bolden's challenge to the sufficiency of the evidence. We review a challenge to the sufficiency of the evidence for a conviction to determine if a reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Birdine, 515 F.3d 842, 844 (8th Cir. 2008). We view the evidence "in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury's verdict." United States v. Espino, 317 F.3d 788, 791 (8th Cir. 2003). Bolden asserts he should not have been convicted on Counts I, II, and VIII because there was insufficient evidence demonstrating he distributed cocaine base. He does not challenge the sufficiency of the evidence on the conspiracy count. In order to convict Bolden on the distribution counts, the government was required to prove beyond a reasonable doubt Bolden knowingly and intentionally distributed cocaine base. United States v. Luster, 896 F.2d 1122, 1126 (8th Cir. 1990). -6-  The evidence produced at trial showed Bolden actively participated in each transaction. One of Bolden's coconspirators testified Bolden was responsible for supplying the drugs sold at the apartment. The informant testified she spoke with Bolden on the phone to set up the controlled purchases. Bolden opened the door for the informant on two occasions and she purchased the drugs from someone other than Bolden. Bolden was present in the room while the transactions took place. More importantly, those individuals who personally handled the drugs testified they did so at Bolden's direction. This Court has held evidence a defendant acted as a source and facilitated a transaction is sufficient for a conviction under the distribution statute. United States v. Anderson, 654 F.2d 1264, 1270 (8th Cir. 1981) ("Where there is sufficient evidence to implicate a defendant as a participant in each transaction, that defendant need not be present on the occasions when controlled substances are actually purchased by an undercover agent, in order to be convicted on charges of distribution."). In this case, the evidence demonstrated Bolden was not only present during the transactions, but he facilitated the transactions by initiating and securing the conditions of the purchases and instructed others to conduct the transactions. This evidence was sufficient to support the jury's verdict. Moreover, Bolden does not challenge the sufficiency of evidence relating to his conspiracy conviction. As a result of the conspiracy, it is clear Bolden may be convicted for substantive crimes, such as distribution, committed by other conspirators during and in furtherance of the conspiracy. United States v. Zackery, 494 F.3d 644, 647 (8th Cir. 2007). Despite Bolden's assertions, the government did not need to show actual possession by Bolden to prove the distribution counts. United States v. Sykes, 977 F.2d 1242, 1247 (8th Cir. 1992) (citing United States v. Resnick, 745 F.2d 1179, 1186 (8th Cir. 1984)). Viewing the evidence in the light most favorable to the government, it is clear a reasonable jury could have found Bolden guilty beyond a reasonable doubt on the distribution counts. -7-  IV We next address Bolden's challenge to the drug amounts attributed to him and the four-level enhancement he received as a result of being a leader or organizer of a criminal activity involving five or more persons. "We review for clear error the district court's findings of fact and apply de novo review to the district court's interpretation and application of the Guidelines." United States v. Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008). With respect to the drug quantity, we will reverse the district court's determination only if the entire record definitely and firmly convinces us a mistake has been committed. United States v. Davidson, 195 F.3d 402, 410 (8th Cir. 1999). "In determining the drug quantity, the district court may consider any relevant information provided that the information has sufficient indicia of reliability to support its probable accuracy." United States v. Palega, 556 F.3d 709, 716 (8th Cir. 2009) (citing U.S.S.G. § 6A1.3(a) (2007)). "Where the amount of drugs seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance." Id. (citing U.S.S.G. § 2D1.1, cmt. n. 12 (2007)). The district court made the finding the government met its burden of proving the drug quantity by a preponderance of the evidence, resulting in a base offense level of 38. In order to justify this offense level under the Guidelines, the district court needed to find Bolden responsible for over 4,500 grams of cocaine base. U.S.S.G. § 2D1.1(c). The court noted the Presentence Investigation Report ("PSIR") attributed a total of 201,280 kilograms of marijuana equivalent drugs to Bolden. Of this amount, the PSIR attributed 10,044 grams of cocaine base to Bolden. Bolden primarily challenges the drug quantities attributed to him as a result of two individuals, Pepper Hines and a confidential source, M.Z. Bolden contends Hines's testimony at trial was nonsensical and inconsistent, in part because she could -8- not have afforded the quantities she claimed. The PSIR attributed 7.99 kilograms of cocaine base from Hines's trial testimony. Bolden concedes he engaged in some transactions with Hines, but he argues the district court erred by not calculating a reasonable amount of drugs attributed to him through Hines's testimony. With respect to M.Z., the PSIR attributed 831 grams of cocaine base as a result of the transactions between her and Bolden. Bolden contends he does not know who M.Z. is, nor did he have an opportunity to cross examine her because she did not testify at trial. Bolden's challenge to Hines's testimony involves a credibility determination by the district court. "Witness credibility is 'quintessentially a judgment call and virtually unassailable on appeal.'" United States v. Sicaros-Quintero, 557 F.3d 579, 582 (8th Cir. 2009) (quoting United States v. Hart, 544 F.3d 911, 916 (8th Cir. 2008)). In this case, Bolden asserts Hines's trial testimony conflicted with her earlier testimony before the grand jury. The PSIR's drug quantity determination was based on Hines's trial testimony, which attributed 7.99 kilograms of cocaine base to Bolden, rather than her grand jury testimony, which attributed 3,971.25 grams of cocaine base to Bolden. However, it is clear even if the PSIR used Hines's grand jury testimony, Bolden would still be accountable for 6,025.25 grams of cocaine base, which well exceeds the 4,500 grams necessary for a base offense level of 38. Similarly, Bolden's challenges to the quantities attributed to him based on M.Z.'s statements are unavailing. As noted above, the PSIR attributed 831 grams of cocaine base to Bolden based on M.Z.'s statements. Removing this amount from the 6025.25 grams calculated above leaves Bolden responsible for 5,194.25 grams of cocaine base, still well over the 4,500 grams required for an offense level of 38. Finally, Bolden contends the district court did not make adequate findings with regard to the amount of drugs attributed to him at sentencing. While Bolden objected to the PSIR, he did not object to the district court's findings at sentencing. We therefore review for plain error. United States v. Mooney, 425 F.3d 1093, 1103-04 -9- (8th Cir. 2005). The district court stated at sentencing it based its determination not on the PSIR alone, but on a careful review of the evidence at trial. The district court noted it had the benefit of being the trial judge in the case, and it heard evidence with regard to Bolden's drug activities and his associations with Darius and Brian Whiting, Benjamin, Cleaves, and Ross, as well as other customers and accomplices. After describing the efforts it took to review the trial transcript and arguments prior to sentencing, the district court stated it had weighed the evidence and made credibility findings in order to determine Bolden was involved with more than 30,000 kilograms of marijuana equivalent drugs. While we are somewhat troubled by the lack of specificity in the district court's findings, given the fact Bolden did not object to the findings at sentencing and the evidence at trial supported amounts close to those in the PSIR upon which the district court relied, the findings were adequate under the circumstances. It is clear Bolden can be held responsible for all contraband "within the scope of criminal activity jointly undertaken by [him] and reasonably foreseeable to [him]." Davidson, 195 F.3d at 410. As a result, the drug quantity determination was supported by the extensive testimony and other evidence produced at trial. Moreover, the drug quantity determination was "consistent with the guidelines commentary and our prior cases." Sicaros-Quintero, 557 F.3d at 582. Therefore, the base level offense of 38 was not clearly erroneous. With respect to the four-level enhancement for role in the offense, Bolden contends the district court erred in finding he exercised a leadership and organizational role pursuant to U.S.S.G. § 3B1.1(a). Bolden asserts his role was not greater than a manager or supervisor, which would result in a three-level increase, and the district court did not take into account the different roles he had at different times, and thus did not properly compute his adjusted offense level. We disagree. -10-  This court interprets the terms "organizer" and "leader" broadly. United States v. Garcia, 512 F.3d 1004, 1005 (8th Cir. 2008). In determining whether to apply the enhancement, a sentencing court should consider the defendant's exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. U.S.S.G. § 3B1.1 cmt n. 4. The enhancement does not apply solely to those who first instigated the criminal activity, and the defendant need not be the only organizer or leader. United States v. Lashley, 251 F.3d 706, 712 (8th Cir. 2001). In this case, the district court found Bolden directed Cleaves and Ross, and it relied on their trial testimony in establishing the role in the offense. We have upheld a district court's finding on this point where evidence showed the defendant "recruited others to join the conspiracy, he received drug orders from customers, and he directed others to package and deliver drugs." Garcia, 512 F.3d at 1006. The evidence at trial showed Bolden recruited members of the conspiracy and directed those members to distribute drugs. There was evidence he supplied drugs for distribution and retained a large portion of profit for himself. He also played a role in setting up transactions. Under these circumstances, we cannot say the district court clearly erred in applying the four-level enhancement under U.S.S.G. § 3B1.1(a). See Razo-Guerra, 534 F.3d at 976-77 (affirming the application of the leadership enhancement where the defendant recruited others and directed them to make drug deliveries, supplied dealer quantities to others, and made the decision to deliver drugs in a specific area); United States v. Noe, 411 F.3d 878, 889-90 (8th Cir. 2005) (affirming four-level enhancement where the evidence at trial showed the defendant controlled others in the conspiracy and supplied drugs to lower level dealers). Moreover, because we affirm -11- the drug quantity determination above, this point is irrelevant because a three-level increase under the manager or supervisor role would yield an offense level of 43, the highest level on the sentencing chart and the level used by the district court. See United States v. Tomac, 567 F.3d 383, 385-86 (8th Cir. 2009) (standard for harmless error in calculating Guidelines offense levels). V Finally, Bolden challenges the reasonableness of the sentence he received. Specifically, Bolden contends the district court did not adequately take into consideration he was twenty-eight years old at the time of sentencing and a life sentence would be projected to be a term of approximately 49.68 years. The district court also did not give appropriate weight to a study by the United States Sentencing Commission, Bolden asserts, which suggests an early offender can reasonably be deterred by a lengthy initial federal sentence. Finally, Bolden contends the district court over-relied on the Guidelines because it presumed the advisory range generated a correct or reasonable sentence. Bolden argues his lack of criminal history was not adequately represented by his life sentence. We review the district court's sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). We presume a sentence within the guidelines range is reasonable and the burden is on a defendant to show his sentence should have been lower considering the factors enumerated in 18 U.S.C. § 3553(a). United States v. Milk, 447 F.3d 593, 603 (8th Cir. 2006). "An abuse of discretion may occur when (1) a court fails to consider a relevant factor that should have received significant weight; (2) a court gives significant weight to an improper or irrelevant factor; or (3) a court considers only the appropriate factors but in weighing those factors commits a clear error of judgment." United States v. Kane, 552 F.3d 748, 752 (8th Cir. 2009). -12-  As an initial matter, Bolden's sentence is within the Guidelines range, and we therefore accord it a presumption of reasonableness. Id.; see also United States v. Turbides-Leonardo, 468 F.3d 34, 41 (1st Cir. 2006) (“It will be the rare case in which a within-the-range sentence can be found to transgress the parsimony principle.”). However, Bolden argues the district court also presumed the sentence calculated under the Guidelines was reasonable. It is impermissible for a district court to rely on the presumption of reasonableness to justify imposing a sentence in the Guidelines range. Nelson v. United States, __ U.S. __, 129 S.Ct. 890, 891 (2009). Bolden bases his argument on the district court's conclusion, "the Court finds no basis to vary downward from the advisory Guideline range." However, this language, taken in context, indicates the district court considered the evidence placed before it in favor of a variance and concluded none was warranted. The statement does not demonstrate the district court presumed the advisory Guidelines range was reasonable. Bolden also argues the district court erred when it failed to take into account a sentencing study he presented, indicating a long sentence would adequately serve the purpose of deterrence and he was unlikely to reoffend after a long prison term. The district court mentioned the study in its sentencing, but it indicated it believed the best predictor of recidivism in this case was its individualized assessment regarding the defendant's conduct. The district court's ultimate rejection of the study, after consideration of Bolden's argument, was not an abuse of discretion because the district court was not required to accept the study's findings. Similarly, Bolden asserts his sentence was in disparity with the sentences of his coconspirators. While the terms of the sentences were similar, Bolden argues he should have received a lower sentence because the two individuals he compares himself with had two prior felony drug convictions each, while Bolden had a limited criminal history. However, the court clearly discussed these factors in its sentencing: -13-  I also have worked hard to make sure that the sentence that I am imposing today avoids unwarranted sentence disparities among defendants with similar records found guilty of similar conduct. And as Mr. Swift talked about, the folks whose names were mentioned or who testified in the Bolden and Benjamin trial, the Court feels that the sentence that will be imposed will not create unwarranted sentence disparities. Mr. Bolden's role in the offense, his drug quantity, the fact that he did not get the three-level decrease for acceptance of responsibility, make me feel that this has been totally consistent and that he's not being punished more severely than anyone who is similarly situated as he is who has been found guilty of similar conduct. Sent. Tr. at 68. The district court also considered Bolden's age and education at the time of sentencing. Moreover, the district court found, based on information not objected to in the PSIR, he had convictions for possession of marijuana, resisting and eluding police, and possession of a controlled substance. The district court also found Bolden had never spent more than three or four days in jail, but it took into account other criminal conduct relating to possession of an assault rifle. Finally, the district court found Bolden was an abuser of alcohol and street drugs and, though he has had legitimate employment, most of Bolden's income came from selling street drugs. After careful review of the record, it is clear the district court considered and weighed the relevant sentencing factors under 18 U.S.C. § 3553(a). United States v. Tobacco, 428 F.3d 1148, 1151 (8th Cir. 2005) (acknowledging a presumptively reasonable sentence within the Guidelines range may still be unreasonable if the district court fails to consider a relevant factor, gives significant weight to an improper factor, or commits a clear error of judgment in weighing the factors). The district court did not abuse its discretion by imposing the sentence calculated under the Guidelines and its sentence was not unreasonable. -14-  VI For the foregoing reasons, we affirm the convictions and sentences in all respects. ______________________________ -15- 

FILED NOT FOR PUBLICATION OCT 03 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GERALD FLEMING, an individual; No. 11-56836 SERGIO MONTENEGRO, an individual; ROBERT MORALES, an individual; D.C. No. 5:10-cv-01487-RGK-OP EDDIE RAMIREZ, an individual, on behalf of themselves and all other similarly situated, MEMORANDUM* Plaintiffs - Appellants, v. COVIDIEN, INC.; TYCO HEALTHCARE GROUP, L.P., Defendants - Appellees. Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding Argued and Submitted August 27, 2013 Pasadena, California Before: GOULD and RAWLINSON, Circuit Judges, and HUCK, District Judge.** * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Paul C. Huck, United States District Judge for the Southern District of Florida, sitting by designation.  Appellants Gerald Fleming and his fellow class members seek reversal of the district court’s attorneys’ fee award. Appellants, the plaintiffs below, moved to certify two classes under California state law against, among others, Appellees Covidien, Inc. and Tyco Healthcare Group, L.P. (collectively, “Covidien”). The first class alleged that Covidien failed to pay “off-the-clock” wages in violation of California law; the second class alleged Covidien’s wage statements were deficient because they did not include information required under Cal. Lab. Code § 226(a). The district court denied class certification of the off-the-clock wages class, but certified the defective wage statement class. Appellants ultimately prevailed in a one-day bench trial on the defective wage statement class. The district court ordered that Covidien pay both $500,000 in penalties and class counsel’s reasonable attorneys’ fees. Class counsel moved for attorneys’ fees, and asked to be compensated for 746.9 attorney hours and 56.7 paralegal hours for the wage statement claims. Class counsel provided time entries that detailed the nature of the work the attorneys performed and their respective billing rates. In total, Appellants sought attorneys’ fees totaling $445,717.50 and paralegal fees totaling $7,087.50. Covidien, for its part, stressed that Appellants prevailed on just a fraction of the original action, which consisted of “such simple issues and proof that 2 [Appellants] presented no witnesses and tried the case in less than a day.” The off- the-clock claims, by contrast, “were the focus of discovery, asserted against two additional defendants, and litigated through class certification.” And yet, Appellants “[sought] to impose on Covidien . . . approximately 85 percent of the total fees documented for the entire case.” Covidien provided specific, detailed examples where Appellants purportedly overbilled on the wage statement claims. The district court sided with Covidien, and awarded class counsel only $58,000 in fees and $2,000 in costs — 88% less than the fees they requested. The district court found it unlikely that class counsel devoted the vast majority of their hours (746.9 of 900 hours) to the wage statement claims, and only a small minority (150 hours) to the more complex unpaid off-the-clock claims. The district court alternatively held that even if class counsel did spend 750 hours litigating the wage statement claims, “the bulk of these hours were duplicative and inefficient,” in light of the fact that “the number and character of the Labor Code violations [were] fairly easy to determine.” Thus, the district court held that class counsel should be compensated for only 210 hours of attorney time and eight hours of paralegal time (a 70% reduction). The district court also reduced the hourly rate class counsel proposed. In the district court’s view, the “case did not present a complicated issue that required particularly specialized expertise” because class counsel was 3 responsible solely for determining “the ways in which the wage statements were non-compliant under § 226 and the number of non-compliant wage statements.” In the end, the district court found that $250 was a reasonable hourly rate, not the average of $512.50 per hour class counsel sought. Class counsel appealed the award, contending that the district court abused its discretion in failing to provide adequate reasons under Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir. 2008) (Kozinski, C.J.), in support of its 88% reduction of the requested fee application. We agree. We recently made clear in Gonzalez v. City of Maywood NRS, -- -- F.3d ----, 2013 WL 4779669, (9th Cir. Sept. 9, 2013), that “when a district court reduces either the number of hours or the lodestar by a certain percentage greater than 10%, it must provide a clear and concise explanation for why it chose the specific percentage to apply,” id. at *1 (emphasis added). The greater the deviation from the 10% threshold, the “more specific articulation of the court’s reasoning is expected.” Moreno, 534 F.3d at 1111. The district court’s reasoning falls short of this standard. While the district court may well be correct that a 70% reduction amounts to a reasonable number of hours worked and that class counsel deserved a $250 hourly rate (not $512.50), the district court’s vague reasoning puts us in a position 4 where we cannot meaningfully pass judgment on whether the court abused its discretion. Moreno established that across-the-board percentage reductions — while useful for trimming the fat of an excessive fee application — will not do where the size of the reduction, as here, is more extensive than a haircut. In order to properly review a percentage-based reduction — especially one that, as here, exceeds the 10% benchmark — a district court must, at the very least, provide a meaningful explanation of and rationale for the reduction. See Gates v. Deukmejian, 987 F.2d 1392, 1400 (9th Cir. 1993) (“the use of percentages, in any case, neither discharges the district court from its responsibility to set forth a ‘concise but clear’ explanation of its reasons for choosing a given percentage reduction nor from its duty to independently review the applicant’s fee request”). To be clear, we do not pass judgment on whether the district court, in fact, abused its discretion in arriving at its attorneys’ fees award. Rather, we remand only to provide the district court with an opportunity to more fully explain its reasoning in accordance with our circuit law. VACATED AND REMANDED. 5 

****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ******************************************************  ARNALDO SAEZ v. COMMISSIONER OF CORRECTION (AC 37451) Beach, Mullins and Mihalakos, Js. Argued May 10—officially released September 13, 2016 (Appeal from Superior Court, judicial district of Tolland, Fuger, J.) James E. Mortimer, with whom, on the brief, was Michael D. Day, for the appellant (petitioner).  Sarah Hanna, assistant state’s attorney, with whom, on the brief, were Gail P. Hardy, state’s attorney, and Lisamaria T. Proscino, special deputy assistant state’s attorney, for the appellee (respondent).  Opinion BEACH, J. Following the habeas court’s denial of his amended petition for a writ of habeas corpus, the petitioner, Arnaldo Saez, appeals from the judgment of the court denying his petition for certification to appeal. On appeal, the petitioner claims that the court abused its discretion by denying his petition for certification to appeal on the following grounds: (1) his trial counsel rendered ineffective assistance in the presentation of the petitioner’s self-defense claim; and (2) the habeas court improperly prohibited the petitioner from testi- fying that he was the victim of attacks prior to commit- ting the homicide of which he was convicted. We conclude that the court did not abuse its discretion in denying the petition for certification to appeal, and, accordingly, we dismiss the appeal. The record reveals the following relevant factual and procedural history. At the petitioner’s criminal trial, the state presented evidence that in the early morning of July 3, 1994, the petitioner had been a passenger in a van traveling on Benton Street in Hartford. Upon seeing the victim, Lazaro Rodriguez, and Janette Reyes, a friend of both the petitioner and the victim, walking along the street, the petitioner yelled out, ‘‘Who own the street?’’ Reyes assumed the petitioner was joking and responded that she did. The petitioner asked the question again, but this time he directed it to the victim. The victim replied, ‘‘What do you mean?’’ The victim approached the van, and according to Reyes, the peti- tioner punched the victim in the face. The victim punched the petitioner back. During the ensuing fight between the victim and the petitioner, the petitioner withdrew a knife from his pocket and stabbed the victim. The victim raised his arm to protect himself and jumped backward to get away from the petitioner. After continuing to stab him in the chest area, the petitioner told the victim, ‘‘You dead man. You dead.’’ The petitioner got back into the van and left the scene. The victim died. The petitioner fled to New York and ultimately was apprehended in California two months later. As he awaited trial, the petitioner informed his cellmate that on the night of the murder he had been at a bar and was ‘‘looking to get out and take someone out.’’ He told the cellmate that he had thought he was losing the fight when he took out his knife and began stabbing the victim. On February 5, 1997, following a trial before a three judge panel, the petitioner was convicted of one count of murder in violation of General Statutes § 53a-54a. He thereafter was sentenced to fifty years incarceration. The petitioner filed an appeal from his conviction, but he did not pursue the appeal and it was dismissed mission to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) (establishing procedure by which appointed counsel may withdraw from criminal appeal on ground of frivo- lousness). On July 18, 2014, the petitioner filed an amended petition for a writ of habeas corpus, alleging ineffective assistance of trial counsel. On October 30, 2014, in an oral decision, the habeas court denied the petition. On November 12, 2014, the court denied the petitioner’s petition for certification to appeal. The pre- sent appeal followed. We begin by setting forth our standard of review following the denial of certification to appeal from the denial of a petition for a writ of habeas corpus. ‘‘Faced with a habeas court’s denial of a petition for certifica- tion to appeal, a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certifica- tion constituted an abuse of discretion. . . . To prove an abuse of discretion, the petitioner must demonstrate that the [resolution of the underlying claim involves issues that] are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encourage- ment to proceed further. . . . Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on the merits. . . . In determining whether there has been an abuse of discretion, every reasonable presump- tion should be given in favor of the correctness of the court’s ruling . . . [and] [r]eversal is required only where an abuse of discretion is manifest or where injus- tice appears to have been done.’’ (Internal quotation marks omitted.) Wilson v. Commissioner of Correc- tion, 150 Conn. App. 53, 56–57, 90 A.3d 328, cert. denied, 312 Conn. 918, 94 A.3d 641 (2014). ‘‘Finally, we note that [t]he conclusions reached by the [habeas] court in its decision to dismiss [a] habeas petition are matters of law, subject to plenary review. . . . [When] the legal conclusions of the court are chal- lenged, [the reviewing court] must determine whether they are legally and logically correct . . . and whether they find support in the facts that appear in the record.’’ (Internal quotation marks omitted.) Misenti v. Com- missioner of Correction, 165 Conn. App. 548, 559, A.3d (2016). I The petitioner argues that the habeas court erred in rejecting his claim that his trial counsel was ineffective in the presentation of the petitioner’s claim of self- defense by advising him not to testify and by failing to offer photographic evidence tending to impeach a key witness for the prosecution. We disagree. ‘‘In order to establish an ineffective assistance of counsel claim a petitioner must meet the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifi- cally, the claim must be supported by evidence estab- lishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . . Because both prongs of Strickland must be demonstrated for the petitioner to prevail, failure to prove either prong is fatal to an ineffective assistance claim. . . . In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erro- neous, but our review of whether the facts as found by the habeas court constituted a violation of the petition- er’s constitutional right to effective assistance of coun- sel is plenary.’’ (Citation omitted; emphasis in original; internal quotation marks omitted.) Atkins v. Commis- sioner of Correction, 158 Conn. App. 669, 675, 120 A.3d 513, cert. denied, 319 Conn. 932, 125 A.3d 206 (2015). Specifically, the petitioner argues that trial counsel was ineffective in the presentation of the petitioner’s self-defense claim because he did not introduce certain evidence, namely, testimony of the petitioner and pho- tographic evidence of lighting conditions at the time of the victim’s murder. ‘‘In order sufficiently to raise self-defense, a defen- dant must introduce evidence that the defendant rea- sonably believed his adversary’s unlawful violence to be ‘imminent’ or ‘immediate.’. . . [A] person can, under appropriate circumstances, justifiably exercise repeated deadly force if he reasonably believes both that his attacker is using or is about to use deadly force against him and that deadly force is necessary to repel such attack.’’ (Citation omitted.) State v. Carter, 232 Conn. 537, 545–46, 656 A.2d 657 (1995). ‘‘A defendant who acts as an initial aggressor is not entitled to the protection of the defense of self-defense. . . . The ini- tial aggressor is the person who first acts in such a manner that creates a reasonable belief in another per- son’s mind that physical force is about to be used based upon that other person.’’ (Citations omitted.) State v. Skelly, 124 Conn. App. 161, 167–68, 3 A.3d 1064, cert. denied, 299 Conn. 909, 10 A.3d 526 (2010). A The petitioner first argues that trial counsel should have advised him to testify because such testimony was the only way to establish that the petitioner: (1) subjectively believed that, during his fight with the vic- tim, the victim was using or about to use deadly force; (2) reasonably believed that deadly force was necessary under the circumstances; and (3) could not have retreated with complete safety from the victim. ‘‘It is axiomatic that [i]t is the right of every criminal defendant to testify on his own behalf . . . and to make that decision after full consideration with trial counsel. . . . [A]lthough the due process clause of the [f]ifth [a]mendment may be understood to grant the accused the right to testify, the if and when of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney.’’ (Internal quotation marks omitted.) Coward v. Com- missioner of Correction, 143 Conn. App. 789, 799, 70 A.3d 1152, cert. denied, 310 Conn. 905, 75 A.3d 32 (2013). ‘‘[T]he presentation of testimonial evidence is a matter of trial strategy. . . . The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.’’ (Internal quotation marks omit- ted.) Adorno v. Commissioner of Correction, 66 Conn. App. 179, 186, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001). ‘‘[T]here is a strong presump- tion that the trial strategy employed by a criminal defen- dant’s counsel is reasonable and is a result of the exercise of professional judgment . . . .’’ (Internal quotation marks omitted.) Dunkley v. Commissioner of Correction, 73 Conn. App. 819, 825, 810 A.2d 281 (2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003). ‘‘[J]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defen- dant to second-guess counsel’s assistance after convic- tion or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omis- sion of counsel was unreasonable. . . . A fair assess- ment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s chal- lenged conduct, and to evaluate the conduct from coun- sel’s perspective at the time.’’ (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn. App. 291, 297, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). The record reveals the following additional facts. During the criminal trial, defense counsel introduced a statement made by the petitioner to the Los Angeles Police Department when he finally was apprehended. The statement contained the petitioner’s account of what had occurred on the morning of the murder, and it generally was consistent with the self-defense theory the petitioner presented at trial and supported the peti- tioner’s proposition that he had not been the initial aggressor in the confrontation with the victim.1 The statement does not include an express reference to the petitioner’s state of mind during the confrontation with the victim.2 The habeas court concluded that the evidence pre- sented by the petitioner was ‘‘woefully lacking in trying to prove any ineffective assistance . . . .’’ It further rejected the petitioner’s claims, noting that ‘‘[t]he only thing that could be potentially considered evidence that wasn’t presented to the three judge panel, was the self- serving testimony presented by [the petitioner].’’ The court expressly found that the petitioner’s testimony was ‘‘less than fully believable’’ and that he ‘‘demon- strated evasiveness.’’ These credibility determinations as well as other evidence in the record overcome the petitioner’s assertion on appeal that his testimony at trial ‘‘would have strongly supported his defense.’’ At the habeas trial, the petitioner’s trial counsel testi- fied that he had had several tactical reasons for advising the petitioner not to testify on his own behalf: (1) the petitioner would have come ‘‘across as a street hustler’’ to the jury, (2) the petitioner’s statement to the Los Angeles Police Department had been admitted into evi- dence, and (3) there would be ‘‘some impeachment as to [the petitioner’s] record’’ regarding the petitioner’s gang involvement. Nevertheless, the petitioner argues that counsel should have advised him to testify. The petitioner claims that he would have testified as to relevant subjects not addressed in the statement he had made to the Los Angeles Police Department. The subjects include his subjective belief that the victim was about to use deadly force, that this belief was objectively reasonable, that he had not been the initial aggressor, and that he had been unable to retreat. See General Statutes § 53a-19 (b) (1) (individual is not enti- tled to use deadly physical force if he can avoid using such force with complete safety by retreating). This testimony, the petitioner reasons, was necessary to establish a viable self-defense claim. On our review of the record, we conclude that the habeas court properly determined that trial counsel’s performance fell within the range of reasonable profes- sional assistance. The petitioner failed to overcome the presumption that counsel’s strategic decision to advise the petitioner not to testify was reasonable and the result of counsel’s professional judgment. Moreover, at his criminal trial, the petitioner was thoroughly can- vassed by the court about his right to testify, and the petitioner does not now claim otherwise or that his waiver was not intelligently or voluntarily made. The circumstances of this case appear to present a classic example of second-guessing trial counsel’s perfor- mance after it has proved unsuccessful. See Boyd v. Commissioner of Correction, supra, 130 Conn. App. 297. Accordingly, counsel’s decision to advise the peti- tioner not to testify constituted reasonable profes- sional judgment. B The petitioner next argues that counsel should have sought to introduce photographic evidence depicting the crime scene with lighting conditions similar to those present in the early morning when the fight began. Such photographs, the petitioner asserts, ‘‘would have impeached the testimony of [Reyes]’’ as it pertained to the petitioner acting as the initial aggressor. At the petitioner’s criminal trial, photographs that depicted the crime scene during daylight hours were introduced into evidence. At the habeas trial, the peti- tioner introduced photographs that depicted the crime scene in dark early morning conditions. He claims that a comparison of the photographs introduced at the criminal trial and the photographs introduced at the habeas trial reveals that the lighting conditions shown in the latter would impair a witness’ ability to ‘‘accurately perceive anything visually.’’ Had trial counsel submitted the photographs depicting the poor lighting conditions, the petitioner argues, Reyes’ testimony about the peti- tioner initiating the altercation with the victim would have been called into question; without any such photo- graphs, the trial judges had to speculate as to Reyes’ ability to perceive events. In its memorandum of decision following the habeas trial, the court described the evidence presented by the petitioner to prove trial counsel’s ineffective assistance as ‘‘woefully lacking.’’ It added that, ‘‘[a]s far as any new evidence that would undermine the confidence [in] the conviction, it is next to nothing,’’ and ‘‘[t]he court hasn’t [seen anything] . . . that would in any way allow [it] to conclude that [trial counsel] did anything other than properly investigate this matter.’’ The record reveals that trial counsel thoroughly cross-examined Reyes with respect to the lighting at the time of the murder, her vantage point, and her general ability to observe the petitioner and the victim as they fought. The petitioner asserted that he had not been able to overcome the presumption that he was the initial aggressor because trial counsel did not impeach Reyes with photographs; yet, it is not clear how the introduction of the early morning photographs would have impeached Reyes’ testimony,3 and the petitioner has made no claim that the cross-examination itself was otherwise deficient. Counsel’s strategic decision to challenge Reyes’ ability to see the altercation through cross-examination—as opposed to introducing photo- graphic evidence of the lighting conditions—was an exercise of sound professional judgment. The petitioner has failed to satisfy the performance prong of Strickland; see Strickland v. Washington, supra, 466 U.S. 687–91; therefore, the habeas court did not err in concluding that trial counsel did not provide the petitioner with ineffective assistance at his crimi- nal trial.4 II We next consider the petitioner’s claim that the habeas court abused its discretion in its evidentiary rulings at the habeas trial. The court precluded the petitioner’s testimony as to certain attacks on him in the period of time prior to his stabbing the victim. He argues that this evidence ‘‘would have been offered to prove that the petitioner had a subjective fear for his life during [the fight with the victim] and that his fear was objectively reasonable. Ultimately, such evidence would have been used to prove that trial counsel was ineffective for failing to elicit such evidence to prove that the petitioner was entitled to a claim of self- defense.’’ We conclude that any error resulting from the exclusion of this evidence was harmless. The standard of review for evidentiary claims is well established. ‘‘Unless an evidentiary ruling involves a clear misconception of the law, the [habeas] court has broad discretion in ruling on the admissibility . . . of evidence. . . . The [habeas] court’s ruling on eviden- tiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of uphold- ing the [habeas] court’s ruling . . . .’’ (Internal quota- tion marks omitted.) Crawford v. Commissioner of Correction, 285 Conn. 585, 602–603, 940 A.2d 789 (2008). ‘‘Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determi- nation of the proceeding more probable or less probable than it would be without the evidence.’’ (Internal quota- tion marks omitted.) Gibson v. Commissioner of Cor- rection, 135 Conn. App. 139, 152, 41 A.3d 700, cert. denied, 305 Conn. 922, 47 A.3d 881 (2012). At the habeas trial, the petitioner attempted to offer testimony that he had been attacked previously within the three months preceding his fight with the victim on July 3, 1994. Members of the Latin Kings, a gang, alleg- edly shot at the petitioner on April 15, 1994, and two of the petitioner’s acquaintances allegedly attacked him with a knife at a bar on June 24, 1994. The court sus- tained two objections made by the respondent, the Commissioner of Correction, on the ground of rele- vancy. The petitioner submitted an offer of proof the following day; the court noted its filing, but it did not comment on it further. The petitioner posits that his testimony about the prior attacks would have been rele- vant to a finding of subjective fear and the reasonable- ness of the fear at the criminal trial, and, thus, the evidence was relevant to his substantive claim at the habeas trial that counsel was ineffective by advising him not to testify. Had he testified about the prior assaults, the petitioner reasoned, the tribunal would have heard additional facts tending to support his claim of self-defense. It is unclear from the record whether the circum- stances of the prior attacks had any similarity to the circumstances of the confrontation between the peti- tioner and the victim; if the circumstances of the prior attacks were entirely different from the circumstances of the fight in this case, it is possible that the prior attacks might not have been relevant to the petitioner’s underlying self-defense claim. If it is assumed, however, that the circumstances were similar enough so that the testimony of the prior attacks was relevant to the self- defense claim, and it is further assumed that trial coun- sel knew or should have known of these prior assaults, then it is conceivable that the petitioner’s testimony about these attacks would have been relevant to the petitioner’s claim that counsel provided ineffective assistance. Nevertheless, the preclusion of this testimony from the habeas trial was harmless in any event because, for the reasons we stated in part I of this opinion, trial counsel’s overall trial strategy—even in light of the peti- tioner’s allegations of the prior attacks—constituted reasonable professional judgment. Counsel testified at the habeas trial that, among other reasons, he had advised the petitioner not to testify because his testi- mony would suggest possible gang involvement. The introduction of any evidence about an attack on the petitioner by a gang, then, would have been inconsistent with that strategy, in that it would at the very least raise the specter of gang involvement. Moreover, the evidence of the prior attacks, though perhaps margin- ally relevant to the self-defense claim, likely would not have changed the outcome of the criminal trial. Beyond having the potential to support the proposition that the petitioner generally may have been fearful, there is no indication that evidence about prior attacks had any correlation to the petitioner’s specific self-defense claim as it pertained to the victim and to the fight in this case. For these reasons, the preclusion of the peti- tioner’s testimony at the habeas trial could not reason- ably have affected the conclusion of the habeas court that counsel provided effective assistance at the peti- tioner’s criminal trial; therefore, the preclusion of the testimony was at most harmless. In light of the foregoing, we conclude that the habeas court properly denied the petition for certification to appeal. The appeal is dismissed. In this opinion the other judges concurred. 1 The petitioner’s statement provided in relevant part: ‘‘Suddenly, [the victim] approached the van and began to strike me in the face with his fists. He hit me several times through the open window. I managed to open the van door and stepped out of the vehicle. [The victim] continued to attack me with his fists. He never let up. I was feeling the [effects] of the blows. I removed a pocket knife from my right jeans pocket. It had a three inch blade. I kept it in . . . my jeans. I managed to open the blade as I crouched alongside the van trying to move away from him. I had the knife in my left hand and struck my left hand out toward [the victim] to stop the attack on me. I don’t know if I struck him or not. I may have. I made repeated attempts to stab him. He beat me until we reached the back of the van. Then he backed away a couple of feet and was bouncing like a boxer. I did not see any blood on him. I had blood on my [shirt] but I thought it was mine. . . . I got into the van and the guy drove off.’’ 2 It is arguable that elements of intent could be inferred from the statement the petitioner made to the Los Angeles Police Department. 3 In fact, the photographs may have supported Reyes’ testimony. Reyes testified that when she observed the fight between the petitioner and the victim, it had been nighttime, and it was very dark. She also testified that the only lighting came from a single streetlight. The photographs, which show the crime scene at nighttime, then, are consistent with Reyes’ testimony. 4 We need not address the petitioner’s claim that prejudice resulted from counsel’s performance. See Atkins v. Commissioner of Correction, supra, 158 Conn. App. 675 (‘‘[b]ecause both prongs of Strickland must be demon- strated for the petitioner to prevail, failure to prove either prong is fatal to an ineffective assistance claim’’ [internal quotation marks omitted]). 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA,  Plaintiff-Appellee, v. BORHAN Y. MUSLEH, a/k/a Burhan  No. 03-4886 Musleh, a/k/a Tony Monstella, a/k/a Tony Musleh, a/k/a Tony Mosleh, a/k/a Burhan Y. Mushel, Defendant-Appellant.  Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Richard L. Williams, Senior District Judge. (CR-03-197) Argued: June 2, 2004 Decided: August 20, 2004 Before WIDENER and WILLIAMS, Circuit Judges, and Robert R. BEEZER, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation. Affirmed in part, vacated in part, and remanded with instructions by unpublished per curiam opinion. COUNSEL ARGUED: Paul Geoffrey Gill, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Vir- 2 UNITED STATES v. MUSLEH ginia, for Appellant. Laura C. Marshall, Assistant United States Attor- ney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Frank W. Dunham, Jr., Federal Public Defender, Richmond, Virginia, for Appellant. Paul J. McNulty, United States Attorney, Michael J. Elston, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alex- andria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION PER CURIAM: When applying for a social security number (SSN) on May 22, 1998, under a different name, Borhan Musleh falsely informed the Commissioner of Social Security that he had not previously been issued a SSN. In fact, Musleh had obtained a SSN thirteen years ear- lier. As a result of Musleh’s misrepresentation, the Commissioner issued Musleh a second SSN. Because the Virginia Division of Child Support Enforcement (DSCE) used Musleh’s original SSN to track his income, and Musleh had his substantial earnings reported under the second SSN, Musleh was able to avoid an increase in his child support obligation. After Musleh’s use of multiple SSNs came to the attention of federal authorities, an investigation ensued and a federal grand jury returned a four-count indictment against Musleh. Follow- ing a one-day bench trial, the district court found Musleh guilty on all counts. At sentencing, the district court, sua sponte, ordered that resti- tution be paid to Musleh’s daughter and ex-wife and, on the Govern- ment’s motion, upwardly departed from the sentencing range prescribed by the U.S. Sentencing Guidelines Manual (2002). Musleh now appeals, challenging the district court’s decisions to admit certain evidence at trial, to impose restitution, and to depart upwardly. For the reasons that follow, we affirm Musleh’s conviction and the district court’s upward departure, but we vacate the district court’s restitution order and remand the case for further proceedings.  UNITED STATES v. MUSLEH 3 I. A. The evidence adduced at trial showed the following. Musleh came to the United States in 1984 with a Jordanian passport, and on April 23, 1985, he applied for his first SSN. In the application for that SSN, he listed his name as "Borhan Yousuf Mosleh" and his mother’s name as "Amineh Mosleh." (J.A. at 42-43.) The Commissioner duly issued SSN xxx-xx-1835 (the 1835 SSN)1 to the defendant as "Borhan Mos- leh." On August 16, 1988, Musleh applied for a replacement social security card, and changed the spelling of his last name to "Musleh." The application included the questions, "Has a Social Security num- ber card ever been requested for the [applicant]?" and "Was a card received for the [applicant]?" (J.A. at 568.) Musleh answered "Yes" to both questions and received a duplicate card bearing the 1835 SSN. (J.A. at 568.) Musleh later used this SSN to obtain a driver’s license from the Virginia Department of Motor Vehicles (DMV). This license had an expiration date of July 31, 2001. On May 22, 1998, Musleh again applied for a SSN. The application included the question, "Has the applicant or anyone acting on his/her behalf ever filed for or received a Social Security Number Card before?" (J.A. at 572.) Musleh responded "No." (J.A. at 572.) On the application, Musleh also changed the spelling of his first and last names to "Burhan" and "Musleh" respectively, and he changed his mother’s maiden name from "Mosleh" to "Monstella." (J.A. at 572.) Because Musleh had altered the spelling of his name and claimed that he never had been issued a SSN, the Commisioner had no reason to deny the application and issued Musleh SSN xxx-xx-2057 (the 2057 SSN). Musleh then used the 2057 SSN to apply for an original driver’s license, notwithstanding the fact that his 1835 SSN driver’s license was still valid. The DMV issued a driver’s license under the name, 1 Consistent with the directive to parties in our Notice of Electronic Availability of Case Information, see http:// www.ca4.uscourts.gov/ pdf/ notice_electroniccaseinfo.pdf, we disclose only the last four numbers of the SSNs that are relevant to this case. 4 UNITED STATES v. MUSLEH "Burhan Musleh," using the 2057 SSN. Musleh did not surrender his 1835 driver’s license. When Musleh renewed the 2057 license on June 29, 2001, as the result of a change in address, he returned the original 2057 license issued to him on June 9, 1998. After receiving the 2057 SSN, Musleh used both the 1835 and 2057 SSNs. For example, Musleh applied for United States citizen- ship in October 1997 using the 1835 SSN. During an interview with an immigration official on June 9, 2000, Musleh not only failed to inform the examiner of the 2057 SSN, he also averred to the examiner and on the application, under penalty of perjury, that the 1835 SSN was accurate and that he had not knowingly committed a crime for which he had not been arrested. Musleh also applied for a U.S. pass- port on January 19, 2001, using the 1835 SSN. (J.A. at 660-62.) Dur- ing the same time period, Musleh used the 2057 SSN in applications for credit and financing and when he created a counterfeit academic transcript from George Mason University. Relevant to this appeal, Musleh used both SSNs for employment purposes. Until March 1999, Musleh worked for a company called Aerotek/Maxim Group and reported his earnings from that company under the 1835 SSN. By April 1999, Musleh had ceased working for Aerotek/Maxim and had begun working for a company called Quan- tum Resources Corp., using his 2057 SSN and earning $42,378.80 from April to December 1999. During early 1999, Musleh’s ex-wife, Melinda Campos, petitioned the Virginia state court to increase Musleh’s child-support payment in support of their daughter, N.M.2 In March 1999, DCSE notified Musleh that his support obligation would increase to approximately $600 per month from $199 based on his earnings from Aerotek/Maxim during 1998 as reported under the 1835 SSN. In con- testing this proposed increase, Musleh lied to DCSE officials, telling them he was no longer employed. Later, at a support review hearing in October 1999, Musleh falsely claimed that he was earning only 2 Consistent with the directive to parties in our Notice of Electronic Availability of Case Information, see http:// www.ca4.uscourts.gov/ pdf/ notice_electroniccaseinfo.pdf, we truncate the name of Musleh’s minor child to her initials, N.M.  UNITED STATES v. MUSLEH 5 $1,781.73 per month, much less than the amount he actually earned each month from Quantum. DCSE verified the claimed assets of a non-custodial parent by checking the income reported under that par- ent’s SSN. Thus, because DCSE was using the 1835 SSN to verify Musleh’s income, DCSE was unaware of Musleh’s income from Quantum that was reported under the 2057 SSN. Therefore, the court only increased Musleh’s support obligation, effective as of August 1999, to roughly $228 per month. B. In January 2003, federal authorities received information that Mus- leh was using multiple SSNs and commenced an investigation. As a result of the investigation, a grand jury sitting in the Eastern District of Virginia returned a four-count indictment against Musleh charging him with furnishing false information to the Commissioner of Social Security with the intent to deceive in violation of 42 U.S.C.A. § 408(a)(6) (West 2003) (Count One); knowingly making a false statement to federal officials in violation of 18 U.S.C.A. § 1001(a) (West 2000) (Count Two); using a falsely obtained SSN with intent to deceive on June 8, 1998, to obtain a driver’s license in violation of 42 U.S.C.A. § 408(a)(7)(A) (West 2003) (Count Three); and using a falsely obtained SSN with intent to deceive on June 30, 2001, to obtain a driver’s license in violation of 42 U.S.C.A. § 408(a)(7)(A) (Count Four). Musleh was found guilty on all counts in a one-day bench trial held on July 25, 2003. Musleh timely filed motions for new trial and for judgment of acquittal, both of which the district court denied. In the pre-sentence investigation report (PSR) prepared for Mus- leh’s sentencing, the probation officer applied § 2B1.1 of the U.S. Sentencing Guidelines, the section governing a broad range of prop- erty and fraud-related offenses, to determine Musleh’s offense level. See U.S. Sentencing Guidelines Manual, § 2B1.1 (2002). Under U.S.S.G. § 2B1.1, Musleh’s base offense level for each offense of conviction was 6 under subsection (a), and he was subject to no increases in his offense level due to specific offense characteristics under subsection (b), or due to victim-related, role, or obstruction adjustments under Chapter 3 of the Guidelines. All of the offenses were grouped pursuant to U.S.S.G. § 3D1.2(b), yielding a combined 6 UNITED STATES v. MUSLEH adjusted offense level of 6, which, when combined with Musleh’s criminal history category of I, resulted in a guideline sentence range of 0-6 months. Importantly, the PSR concluded that "[t]here are no identifiable victims or restitution issues that the Court needs to address in this case." (J.A. at 354.) The PSR also concluded that, based on Musleh’s net worth of $44,768 and lack of liquid assets, "he is capable of paying the minimum fine, but does not appear to be able to pay an additional fine in an amount sufficient to pay the cost of any periods of imprisonment or supervision, or any interest on any fine." (J.A. at 361.) The United States did not object to the probation officer’s calcula- tion of Musleh’s sentence under the Guidelines or to the probation officer’s finding that restitution was not appropriate, but it did move for a six-level upward departure. The Government’s upward departure motion was based on two components. First, the Government noted that, although the probation officer correctly found that U.S.S.G. § 2B1.1(b) did not allow for the attribution of any financial loss related to Musleh’s conduct, the Guidelines did not take into account the fact that Musleh’s acquisition of the second SSN under false pre- tenses facilitated his evasion of child-support in the amount of roughly $18,000. Thus, argued the Government, a four-level upward departure — i.e., an increase to the level that would have applied had the $18,000 been taken into account under U.S.S.G. § 2B1.1(b)(1)(C) — was appropriate. Second, the Government noted that Musleh had lied to federal officials in applying for U.S. citizenship by failing to disclose that he had acquired a second SSN and that he had commit- ted criminal acts (i.e., his false statements to the Commissioner of Social Security in acquiring the 2057 SSN) for which he had not been arrested, and that this uncharged conduct should be taken into consid- eration under U.S.S.G. § 1B1.4, which allows sentencing courts to consider the defendant’s conduct "without limitation" in determining whether departure is appropriate. In order to account for this aspect of Musleh’s conduct, the Government argued, the district court should increase Musleh’s offense level by an additional two levels to a total offense level of 12 — i.e., the level that would apply under U.S.S.G. § 2J1.3 for crimes of perjury. At the sentencing hearing, the district court granted the Govern- ment’s motion for upward departure. After the upward departure,  UNITED STATES v. MUSLEH 7 Musleh’s guideline range was 10-16 months, and the district court sentenced Musleh to 16 months of imprisonment. (J.A. at 334.) In addition, the district court, sua sponte and without objection from Musleh, imposed restitution, explaining as follows: I have considered his net worth and liquid assets and find that he is not capable of paying a fine. Pursuant to section 3663 of Title 18, I find that there are identifiable victims requiring restitution. The court further finds that the defendant’s ex-wife and daughter are victims, as that term is defined in section 3663, and were directly harmed by the defendant’s criminal conduct in the course of this scheme. The court orders restitution to Melinda Campos for [N.M.] in the amount of $18,326. The restitution is due and payable immediately and during the period of incarceration. . . . (J.A. at 336 (emphasis added).) The district court then immediately recessed. Musleh filed a timely notice of appeal, challenging the district court’s admission of certain evidence at trial, the decision to depart upwardly, and the decision to impose restitution. II. A. Musleh first contends that the district court abused its discretion in admitting evidence at his trial. For the reasons stated below, we dis- agree. According to Musleh, the district court should have excluded evi- dence that Musleh used a different name with employers and friends because such evidence was intended to portray Musleh as having a deceitful character, and thus, was improper character evidence under Fed. R. Evid. 404(b). The district court erred further, Musleh argues, 8 UNITED STATES v. MUSLEH in admitting evidence that Musleh used the two different SSNs to keep his child support obligations artificially low because such evi- dence was "irrelevant, unduly prejudicial, and otherwise inadmissible. It was too remote in time and otherwise not so related to the charged conduct as to justify its admission . . . ." (Appellant’s Br. at 20.) Mus- leh also argues that the district court committed plain error in admit- ting evidence of Musleh’s general credit histories under different SSNs.3 Musleh contends that had the erroneously admitted evidence properly been excluded, there would have been insufficient evidence to support his conviction on each of the four counts, thus justifying a judgment of acquittal or the grant of a new trial. We review a district court’s admission of evidence for abuse of dis- cretion. United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997). As a general matter, all relevant evidence is admissible. Fed. R. Evid. 402. Evidence is relevant if it has "any tendency to make the exis- tence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. The evidence about which Musleh now complains satisfies this standard. Intent was an element of each of the four charges — Counts One, Three and Four required a showing of "intent to deceive," and Count Two required a showing that Musleh acted knowingly and willfully — and thus was a "fact that is of conse- quence" to the resolution of the case. Fed. R. Evid. 401. The evidence regarding Musleh’s extensive use of the two SSNs (for reporting earn- ings, in obtaining multiple driver’s licenses, and in obtaining credit) and multiple identities certainly made it more probable that he acted with the requisite intent as opposed to making an innocent mistake. Accordingly, this evidence was relevant. Notwithstanding the relevance of the evidence, Musleh contends that Rules 403 and 404(b) require its exclusion. Under Rule 403 rele- vant evidence "may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Fed. R. Evid. 3 Unlike the other categories of challenged evidence, Musleh did not object to this evidence below.  UNITED STATES v. MUSLEH 9 403. We have held, however, that this rule of exclusion is relaxed sig- nificantly in the context of a bench trial: [I]n the context of a bench trial, evidence should not be excluded under 403 on the ground that it is unfairly prejudi- cial. . . . Rule 403 was designed to keep evidence not ger- mane to any issue outside the purview of the jury’s consideration. For a bench trial, we are confident that the district court can hear relevant evidence, weigh its probative value and reject any improper inferences. Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994). Thus, whatever the prejudicial effect of the evidence here, we are confident that the district rejected any improper inferences and considered the evidence only to the extent it was properly relevant. Musleh also contends that the evidence violated the prohibition against "prior bad act" evidence contained in Rule 404(b). Under Rule 404(b), [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, . . . intent, . . . or absence of mistake or accident, . . . . Thus, "[e]vidence of prior bad actions is admissible under Rule 404(b) if the evidence is (1) relevant to an issue other than the general character of the defendant; (2) necessary to prove an element of the charged offense; and (3) reliable." United States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004). As explained above, the evidence here was relevant to Musleh’s intent, a required element of all of the charged offenses, and Musleh does not contend that the evidence was anything less than reliable. Moreover, as with Rule 403, we accord district courts greater latitude at bench trials in applying Rule 404(b). See United States v. Hassanzadeh, 271 F.3d 574, 578 (4th Cir. 2001) (holding that admission of prior conviction evidence in a bench trial did not violate Rule 404(b) and noting, "Moreover, we have confi- dence that at the bench trial, the experienced district judge was able 10 UNITED STATES v. MUSLEH to separate the emotional impact from the probative value of this potentially prejudicial evidence."). The evidence about which Musleh complains was thus relevant and not subject to exclusion under Rule 403 or Rule 404(b). The district court, therefore, did not abuse its discretion in admitting it. B. We next consider Musleh’s challenge to the district court’s grant of the Government’s motion for a six-level upward departure.4 We review a district court’s factual determinations made in connection with sentencing for clear error, and its ultimate decision to depart de novo. United States v. Stockton, 349 F.3d 755, 764 (4th Cir. 2003). We review the extent of a district court’s departure for abuse of dis- cretion. United States v. Gary, 18 F.3d 1123, 1127 (4th Cir. 1994). A sentencing court may depart from the sentence ranges prescribed by the Sentencing Guidelines whenever it "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." 18 U.S.C.A. § 3553(b)(1) (West 2000). In determining whether a peculiar circumstance in a case is an appropriate basis for departure, a sentencing court must determine whether that factor is encouraged, discouraged, unmentioned or forbidden. United States v. Rybicki, 96 F.3d 754, 757 (4th Cir. 1996) (citing Koon v. United States, 518 U.S. 4 The Supreme Court issued its decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004), shortly after we heard oral argument in this case. We then sua sponte ordered the parties to submit supplemen- tal briefing respecting the effect of Blakely on the Federal Sentencing Guidelines. Shortly thereafter, our court ordered that a separate case, United States v. Hammoud, No. 03-4253, be heard en banc to resolve whether and to what extent Blakely applies to the Guidelines. We heard argument in Hammoud on August 2, 2004, and issued a summary order that same day explaining that Blakely "does not operate to invalidate" sentences imposed under the Guidelines. United States v. Hammoud, No. 03-4253, ___ F.3d ___ (4th Cir. Aug. 2, 2004). In light of our disposition in Hammoud, Musleh’s sentence is not affected by Blakely and will not be disturbed on that ground.  UNITED STATES v. MUSLEH 11 81 (1996)). When the factor in question is "encouraged," departure is "usually appropriate" unless "already adequately taken into account by the applicable guideline." Id. at 757-58. When the factor is "un- mentioned" in the Guidelines, departure is appropriate where the "‘structure and theory of both relevant individual guidelines and the Guidelines taken as a whole’ indicate that [the factor] take[s] a case out of the applicable guideline’s heartland." Id. at 758 (quoting Koon, 518 U.S. at 96). Once a sentencing court determines that departure is appropriate, it can depart only to an extent that is both reasonable under the cir- cumstances, 18 U.S.C.A. § 3742(e)(3)(C), (f)(2) (West Supp. 2004), and derived through principled methods. Gary, 18 F.3d at 1131. As we explained in Gary, "[w]hile the extent of [a] departure may be per- missible, it is not permissible without any analytical reasoning behind the decision." Id. Accordingly, the sentencing court must take into consideration "the rationale and methodology of the Sentencing Guidelines" in determining the extent of any departure. United States v. Terry, 142 F.3d 702, 707 (4th Cir. 1998). To this end, we have explained that "it is often helpful to look to the treatment of analogous conduct in other sections of the Sentencing Guidelines." Id. Relatedly, we have noted that "the reasonableness of a departure may be evalu- ated by ‘treat[ing] the aggravating factor as a separate crime and ask[- ing] how the defendant would be treated if convicted of it.’ " Id. at 709 (quoting United States v. Ferra, 900 F.2d 1057, 1062 (7th Cir. 1990)) (emphasis added) (alterations in original). Importantly, how- ever, "an upward departure should ‘not exceed the sentence that would result under the Guidelines if [the defendant] actually had been convicted of [the conduct underlying the departure].’ " Id. (quoting United States v. Melton, 970 F.2d 1328, 1334 (4th Cir. 1992)) (alter- ations in original). Here, the district court’s upward departure consisted of two compo- nents — a four-level increase to account for evaded child support payments, and a two-level increase to account for false statements that Musleh made in connection with his application for citizenship — uncharged conduct that was a violation of 18 U.S.C.A. § 1015 (West Supp. 2004).5 We consider each component in turn. 5 Section 1015 states in relevant part as follows: (a) Whoever knowingly makes any false statement under oath, in 12 UNITED STATES v. MUSLEH Section 5K2.9 of the Guidelines encourages departure to account for Musleh’s evasion of child support. Section 5K2.9 states, "If the defendant committed the offense in order to facilitate or conceal the commission of another offense, the court may increase the sentence above the guideline range to reflect the actual seriousness of the defendant’s conduct." Here, the evidence adduced at trial showed that, through his use of the fraudulently obtained 2057 SSN, Musleh was able to avoid approximately $374 per month in child support pay- ments. Specifically, by reporting his earnings under the 2057 SSN, he was able to conceal those earnings from the DCSE, which used Mus- leh’s 1835 SSN to verify his income. His offenses of conviction facil- itated and concealed the evasion of his child-support obligation, and the Guidelines did not take this conduct into account. Accordingly, departure was appropriate under § 5K2.9.6 any case, proceeding, or matter relating to, or under, or by virtue of any law of the United States relating to naturalization, citizen- ship, or registry of aliens; or . . . (d) Whoever knowingly makes any false certificate, acknowledg- ment or statement concerning the appearance before him or the taking of an oath or affirmation or the signature, attestation or execution by any person with respect to any application, declara- tion, petition, affidavit, deposition, certificate of naturalization, certificate of citizenship or other paper or writing required or authorized by the laws relating to immigration, naturalization, citizenship, or registry of aliens; . . . Shall be fined under this title or imprisoned not more than five years, or both. 18 U.S.C.A. § 1015 (West Supp. 2004). Neither the Government nor the district court specified whether Musleh violated subsection (a), subsec- tion (d), or both, when making false statements to immigration officials. Nevertheless, the evidence in the record supports the district court’s ulti- mate conclusion that one of these provisions was violated. 6 The district court appears to have relied upon application note 15 to § 2B1.1 in addition to § 5K2.9 in deciding that departure was appropriate in this case. (J.A. at 327-28.) In that application note, the Sentencing Commission recognized that "[t]here may be cases in which the offense level determined under this guideline substantially understates the seri- ousness of the offense[,]" and advised that "[i]n such cases, upward  UNITED STATES v. MUSLEH 13 In determining the extent of the upward departure, the district court performed a rough calculation of the arrearage in child-support pay- ments, determining that it was $18,324, and then increased the offense level in accordance with U.S.S.G. § 2B1.1(b)(1)(C), the guideline that applies for offenses involving the willful failure to pay child support. See U.S.S.G. § 2J1.1, comment. (n.2). Under U.S.S.G. § 2B1.1(b)(1)(C), a loss amount between $10,000 and $30,000 yields an increase of four levels. On appeal, Musleh argues that the $18,324 figure is erroneous because it did not take into account factors that Virginia courts consider when calculating child-support arrearages, such as the income of the custodial parent during the relevant time period or the defendant’s other child support obligations. See Va. Code Ann. § 20-108.2 (Michie 2000 & Supp. 2003). Furthermore, Musleh notes, the district court calculated avoided child support from March 1999, when it should have calculated from August 1999, the time when the court order modifying child support became effective. Even crediting Musleh’s contentions, the district court’s use of a loss figure between $10,000 and $30,000 in applying U.S.S.G. § 2B1.1(b)(1) by analogy was adequately supported by the evidence in the case. The preponderance of the evidence suggested that, what- ever the precise amount, Musleh avoided at least $10,000 in pay- ments. Moreover, Musleh has not identified any mitigating factor that would have applied in his case to reduce the amount of evaded child support obligations below $10,000. Under these circumstances, we cannot conclude that the district court abused its discretion by using the four-level increase under U.S.S.G. § 2B1.1(b)(1) by analogy as its principled method of departure. As to the second component of the upward departure, we have held that, in accordance with U.S.S.G. § 1B1.4, uncharged conduct, although an "unmentioned" factor, may be considered in determining whether to depart. United States v. Barber, 119 F.3d 276, 279-82 (4th Cir. 1997). Such departures are appropriate where the heartland of the departure may be warranted." U.S. Sentencing Guidelines Manual § 2B1.1, comment. (n.15(A)) (2002). Because, in conducting our de novo review, we find that § 5K2.9 independently supports departure, we need not consider whether the guidance in the commentary to § 2B1.1 also supports departure under the circumstances presented here. 14 UNITED STATES v. MUSLEH offense of conviction does not encompass the uncharged conduct. Id. at 282. Here, Musleh’s false statements to the INS in connection with his application for citizenship, a violation of 18 U.S.C.A. § 1015(a), were not accounted for by his offenses of conviction. Although loosely related to his dual SSN scheme, his false statements to the INS constituted a distinct harm that was not taken into consideration by the Guidelines. Accordingly, departure on this basis was appropri- ate. In determining the extent of its departure, the district court analo- gized the uncharged violation of 18 U.S.C.A. § 1015(a) to the crime of perjury, and then referenced U.S.S.G. § 2J1.3, the perjury guide- line, which dictates a base offense level of 12. The district court then increased Musleh’s offense level from 10 (the level that applied after the four-level increase to account for Musleh’s evasion of child sup- port) to 12, a net increase of two levels. Musleh contends that the ref- erence to the perjury guideline was inappropriate because his false statements were not material and therefore did not amount to perjury, and because § 2J1.3 would not have applied had Musleh actually been convicted of violating 18 U.S.C.A. § 1015(a). Implicit in Musleh’s argument is the contention that the extent of the district court’s depar- ture was unreasonable because it was in excess of the sentence that Musleh would have received had he actually been convicted of violat- ing § 1015(a). We find no abuse of discretion in the method by which the district court determined the extent of departure. As a preliminary matter, we note that, by analogizing Musleh’s uncharged criminal conduct to per- jury and referencing the offense level applicable under the perjury guideline, the district court provided a sufficiently principled explana- tion for its decision to depart an additional two levels. See Terry, 142 F.3d at 707 (instructing that a sentencing court "must set forth some form of principled justification for its departure determination.") That is, the district court did not determine the extent of the departure in a manner that was wholly untethered from the Guidelines and thus facially unacceptable. See, e.g., Gary, 18 F.3d at 1131 (reversing upward departure where it appeared that "the district court simply decided to double [the defendant]’s base offense level for the sake of doubling it"); Terry, 142 F.3d at 707 n.6 (rejecting as a method of departure based on the defendant’s reckless driving the district court’s  UNITED STATES v. MUSLEH 15 decision to increase the offense level by one for each mile the defen- dant traveled while driving recklessly). Nor was the extent of the departure unreasonable. Assuming, with- out deciding, that Musleh is correct in his contention that U.S.S.G. § 2J1.3 would not apply to a violation of 18 U.S.C.A. § 1015(a), he does not identify the guideline that would govern a hypothetical con- viction under § 1015(a) and thus fails to offer any theory as to why a two-level increase in offense level is unreasonable. Indeed, applica- tion of the other two guidelines that plausibly could govern such a conviction, U.S.S.G. §§ 2B1.1 and 2L2.2,7 would yield a net increase of two levels — the same result the district court reached. Were U.S.S.G. § 2B1.1 to apply, the base offense level for the § 1015(a) violation would be 6, but because the associated distinct harm would render grouping inappropriate, application of U.S.S.G. § 3D1.4 would dictate an increase of two levels.8 Likewise, were U.S.S.G. § 2L2.2 to apply, the base offense level would be 8 — a two-level increase over the base offense level of 6. Accordingly, a two-level increase in his offense level to account for the culpability associated with the false statements to immigration officials was reasonable and not in excess 7 Appendix A to the Guidelines lists four guidelines that could govern a violation of 18 U.S.C.A. § 1015 — § 2B1.1, § 2J1.3, § 2L2.1, and § 2L2.2. U.S.S.G. app. A. There are no reported cases from any Court of Appeals or from the Supreme Court that state which guideline should apply to a violation of 18 U.S.C.A. § 1015(a). A district court in this cir- cuit has published a decision wherein it concluded that § 2L2.2 was the appropriate guideline for such a violation. See United States v. Biheiri, 299 F. Supp. 2d 590, 603-04 (E.D. Va. 2004). Although the opinion in Biheiri is well-reasoned, we need not decide which guideline is the most appropriate, because even if § 2B1.1, the guideline generating the lowest offense level, were to apply, the end result would be the same for reasons discussed in the text above. 8 Section 3D1.4 provides a formula under which the combined offense level for multiple groups of offenses is determined. Assuming that U.S.S.G. § 2B1.1 would govern a conviction under § 1015, that formula would require assigning one "unit" for the four grouped offenses (i.e., the actual offenses of conviction), and one additional unit for the distinct violation of § 1015. Section 3D1.4 dictates that, with a total of two units, an increase of 2 levels is appropriate. 16 UNITED STATES v. MUSLEH of that which would have applied had Musleh actually been convicted of a § 1015(a) violation. In sum, the district court’s decision to depart upwardly was justi- fied by the peculiar facts of this case, and the extent of the departure was reasonable and consistent with the rationale and methodology of the Guidelines. C. We next consider Musleh’s argument that the district court’s resti- tution order was improper. Before turning to the legal analysis on this issue, we must determine the appropriate standard of review. Nor- mally, when a criminal defendant fails to preserve an issue through a timely objection, we review the issue only for plain error. Fed. R. Crim. P. 52(b). To establish plain error, an appellant must demonstrate that an error occurred, that the error was plain, and that the error affected his substantial rights. Even if [the appellant] can satisfy these requirements, correction of the error remains within our discretion, which we should not exercise unless the error seriously affects the fairness, integrity or public reputation of judicial proceedings. United States v. Promise, 255 F.3d 150, 154 (4th Cir. 2001) (en banc) (citation, alterations, and internal quotation marks omitted). The Gov- ernment argues that we should review the district court’s restitution order for plain error because Musleh did not object to restitution, either at the sentencing hearing or through a timely post-hearing motion under Fed. R. Crim. P. 35(a).9 As Musleh notes, however, the Government’s position fails to account for the fact that the first notice Musleh received that restitution might be imposed came as the district court sua sponte imposed restitution — the Government did not request restitution, the PSR specifically stated that there were no resti- tution issues, and the district court did not inform the parties that it independently was considering restitution. Under such circumstances, 9 Rule 35(a) states, "Within 7 days after sentencing, the court may cor- rect a sentence that resulted from arithmetical, technical, or other clear error."  UNITED STATES v. MUSLEH 17 Musleh argues, the issue should be reviewed under the abuse of dis- cretion standard that normally governs restitution questions. See United States v. Vinyard, 266 F.3d 320, 333 (4th Cir. 2001) (applying abuse of discretion standard to restitution question). Whether a post- hearing motion under Rule 35(a) is necessary to preserve an issue for appeal under these circumstances is an issue we need not resolve, however, because the district court’s imposition of restitution without providing notice to Musleh that it was considering restitution was plain error. The district court committed two serious procedural errors in imposing restitution. First, the district court’s no-notice imposition of restitution contravened the requirements of Federal Rule of Criminal Procedure 32(i)(1)(C), which states that "the court . . . must allow the parties’ attorneys to comment on the probation officer’s determina- tions and other matters relating to an appropriate sentence." In Burns v. United States, 501 U.S. 129, 135-36 (1991), the Supreme Court explained that implicit in the right to comment on "matters relating to [an] appropriate sentence" — in that case, a sua sponte upward departure — is "the right to be notified that the court is contemplating such a ruling." A sua sponte order of restitution is no less a "matter relating to an appropriate sentence" than is a sua sponte upward departure, see United States v. Bruchey, 810 F.2d 456, 461 (4th Cir. 1987) ("Criminal restitution . . . is part of the sentencing process [and thus] is fundamentally ‘penal’ in nature."); see also United States v. Burger, 964 F.2d 1065, 1072-73 (10th Cir. 1992) (vacating sentence as a result of non-compliance with Rule 32 where defendant was not given notice or an opportunity to comment respecting a restitution question), and there is no credible argument that Musleh was on notice that restitution would be considered. Cf. United States v. Bel- lamy, 264 F.3d 448, 455 (4th Cir. 2001) (finding no Burns error where the probation officer informed defendant in the PSR that upward departure may be appropriate based on a certain guideline provision, and the district court, although relying on a different guide- line provision, departed upward citing the same factual basis identi- fied by the probation officer). Accordingly, by imposing restitution without providing notice to the parties, the district court violated the rule in Burns, that error was "plain," because the failure to provide notice was in "clear [and] obvious" contravention of settled law, Promise, 255 F.3d at 160, and that error affected Musleh’s rights 18 UNITED STATES v. MUSLEH because it resulted in a sentence that was significantly more serious, United States v. Spring, 305 F.3d 276, 282 (4th Cir. 2002). Further- more, by imposing its restitution order without giving Musleh a meaningful opportunity to be heard on the question, the district court erred in a manner that "seriously affects the fairness, integrity [and] public reputation of judicial proceedings," Promise, 255 F.3d at 154, and we accordingly exercise our discretion to notice and correct the error. See Spring, 305 F.3d at 282-83 (noticing plain error where dis- trict court upwardly departed sua sponte without providing notice to the defendant in violation of Fed. R. Crim. P. 32). Second, and perhaps as a result of its failure to notify the parties that it was considering discretionary restitution under 18 U.S.C.A. § 3663 (West 2000), the district court failed to make necessary factual findings as required by 18 U.S.C.A. § 3663(a)(1)(B)(i)(II), which requires the district court, when determining whether to impose resti- tution, to consider "the financial resources of the defendant, the finan- cial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate."10 This court has repeatedly held that in order to ensure effec- tive appellate review of restitution orders, sentencing courts must make explicit findings of fact on each of the factors set forth in [§ 3663(a)(1)(B)(i)(II)]. Such findings must tie the amount and type of restitution ordered to the financial resources, financial needs, and earning ability of the defen- dant. Moreover the court must make a specific finding that the defendant feasibly can comply with the order without undue hardship to himself or his dependents. The district court may satisfy this requirement by announcing its find- ings on the record or by adopting adequate proposed find- ings contained within a presentence report. . . . 10 The district court did not impose restitution under 18 U.S.C.A. § 3663A (West 2000 & Supp. 2004), a provision added by amendment in 1996 that makes restitution mandatory for certain offenses. Musleh’s offenses of conviction are not offenses for which mandatory restitution is required under § 3663A.  UNITED STATES v. MUSLEH 19 United States v. Blake, 81 F.3d 498, 505 (4th Cir. 1996) (citations omitted). The district court made none of these findings with respect to the question of restitution, and because the probation officer did not consider restitution an option, no such findings are contained in the PSR. On remand, the district court must make these required findings. In light of these considerations, we vacate Musleh’s sentence inso- far as it orders restitution be paid to Melinda Campos and N.M. and remand the case to allow the district court to consider the restitution question after hearing argument from the parties and making the nec- essary factual findings.11 III. For the foregoing reasons, we affirm Musleh’s conviction and the district court’s upward departure decision. We vacate the judgment insofar as it orders Musleh to pay restitution to Melinda Campos and N.M. and remand that issue for further proceedings consistent with this opinion.12 AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH INSTRUCTIONS 11 We note that Musleh also argues that Melinda Campos and N.M. are not proper "victims" under 18 U.S.C.A. § 3663 (West 2000). We leave the proper resolution of this issue to the district court in further proceed- ings on remand. 12 We note that, notwithstanding our holding here that, except for the restitution order, the sentence as imposed was lawful, the district court may choose on remand to impose an alternative sentence pursuant to 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2004), treating the Guidelines as advisory only, as discussed in this court’s summary order in Ham- moud. See ___ F.3d ___, No. 03-4253 (August 2, 2004) ("In the interest of judicial economy, however, and pending a definitive ruling by the Supreme Court, we recommend that district courts within the Fourth Cir- cuit also announce, at the time of sentencing, a sentence pursuant to 18 U.S.C.A. § 3553(a) (West & Supp. 2004), treating the guidelines as advi- sory only."). 

888 F.2d 1392 Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.PUREX CORPORATION, Plaintiff-Appellant,Dial Corporation, Plaintiff,v.WILLIS DAY PROPERTIES, INC., Able Warehousing andDistributing Company, Inc., Defendants-Appellees. No. 89-3951. United States Court of Appeals, Sixth Circuit. Nov. 13, 1989. Before KENNEDY and RYAN, Circuit Judges; and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge. 1 The plaintiff appeals the opinion and order of the district court granting the defendant's motion to enforce the settlement agreement in this action for damages to personal property and for clean-up expenses caused by a fire. The district court entered its opinion on September 19, 1989. Within ten days, as computed pursuant to Fed.R.Civ.P. 6(a), the defendant filed a motion to clarify the opinion to require the plaintiff to sign the release appended to its motion. The plaintiff filed an opposition to this motion on October 11 and suggested an alternate release. The motion and response are attached. Prior to the disposition of the motion to clarify, the plaintiff filed its notice of appeal. 2 A notice of appeal filed prior to the disposition of a timely motion to alter or amend the judgment is of no effect. Fed.R.App.P. 4(a)(4); Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam); Peake v. First National Bank & Trust Co., 717 F.2d 1016, 1019 (6th Cir.1983). A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion. Id. Although a motion to clarify does not necessarily toll the time for appeal, where such a motion actually seeks an amendment of the judgment and is filed within ten days of the judgment it may be considered to be a time-tolling motion. See e.g. Cosgrove v. Smith, 697 F.2d 1125 (D.C.Cir.1983). 3 It is therefore ORDERED that this appeal is dismissed sua sponte for lack of jurisdiction without prejudice to a timely appeal following disposition of the pending motion and/or entry of final judgment. Rule 9(b), Local Rules.

290 S.W.3d 11 (2008) Dwain OLIVER, Appellant, v. Ronnie PHILLIPS, Calhoun County Election Commission (Hon. Allen G. Watson, Chair; Hon. James Rawls; Hon. Barbara Floss); and Hon. Charlie Daniels, In his Official Capacity as Secretary of State, Arkansas's Chief Election Officer, Appellees. No. 08-1209. Supreme Court of Arkansas. December 19, 2008. *12 Tony Joe "T.J." Huffman, Camden, AR, and Compton, Prewett, Thomas and Hickey, P.A., by: Floyd M. Thomas, Jr., El Dorado, AR, for appellant. Robin J. Carroll, Calhoun County Prosecuting Att'y, El Dorado, AR, for appellee Calhoun County Board of Election Commissioners. James M. Pratt, Jr., P.A., by: James M. Pratt, Jr., Camden, AR, for appellee Ronnie Phillips. JIM GUNTER, Justice. Appellant, Dwain Oliver, appeals his unsuccessful challenge to his opponent's qualifications in a judicial race in Calhoun County. Appellant asserts the trial court erred in holding that: (1) it lacked jurisdiction to grant appellant's petition and (2) the issue presented by appellant's petition was moot. Because this appeal pertains to elections and election procedures, this court has jurisdiction pursuant to Ark. Sup.Ct. R. 1-2(a)(4). We affirm. On March 11, 2008, appellant and appellee Ronnie Phillips were certified by the Calhoun County Board of Election Commissioners as candidates for the position of Calhoun County District Judge. On May 19, 2008, one day before the general election, and sixty-nine days after certification, appellant filed a petition for declaratory relief and motion for writ of mandamus, asserting that Phillips was a resident of Dallas County, not Calhoun County, and was thus ineligible to be a candidate.[1] To support his argument, appellant cited amendment 80, section 16(D) of the Arkansas Constitution, which states: All Justices and Judges shall be qualified electors within the geographical area from which they are chosen, and Circuit and District Judges shall reside within that geographical area at the time *13 of election and during their period of service. A geographical area may include any county contiguous to the county being served when there are no qualified candidates available in the county to be served. Appellant requested that Phillips's name be stricken from the ballot and that any votes cast for Phillips not be counted. Appellant requested an expedited hearing at the court's earliest opportunity and served notice to Phillips and the other appellees on May 19. The general election was held on May 20, with Phillips receiving 151 votes and appellant receiving 126 votes. On May 22, appellant filed a motion for preliminary injunction, asking the court to enjoin the Calhoun County Election Commission (the Commission) and the Secretary of State from certifying the election results. On May 23, the Commission filed a response to appellant's petition for declaratory relief and writ of mandamus. In its response, the Commission argued that because no hearing was held or ruling was made prior to the election, appellant's petition and motion were moot. Phillips filed a separate response on May 28 in which he also asserted appellant's request was moot. A hearing on the matter was held on May 28. At the hearing, the Commission argued that the case should be dismissed for two reasons: (1) because the petition was filed one day prior to the election, it was impossible to have the hearing within two to seven days pursuant to Ark. R. Civ. P. 78(d) (2008),[2] and the issue is now moot; (2) because the court did not have jurisdiction to decide a pre-election challenge post-election. At the conclusion of the hearing, the court agreed with the Commission and found that "a pre-election issue being decided post-election is outside the jurisdiction of the Court." In its order, filed June 23, 2008, the court made the following findings: 3. There are two types of election contests provided for by statute: pre-election eligibility challenges and post-election, election contests. Zolliecoffer v. Post, 371 Ark. 263, 264, 265 S.W.3d 114 (2007). A party wishing to challenge a candidate's eligibility to stand for election must bring the challenge by way of a petition for writ of mandamus and declaratory judgment prior to the election. Id. at 265, 265 S.W.3d 114. 4. Arkansas statutes do not provide for a post-election petition for writ of mandamus and complaint for declaratory relief to challenge a candidate's eligibility. Pederson v. Stracener, 354 Ark. 716, 128 S.W.3d 818 (2003). Although Oliver's petition was filed pre-election, the timing of his petition made it impossible for this issue to be resolved prior to the election. 5. Because the issue was presented but not expedited and ruled on prior to the election, the issue is now moot. Ball v. Phillips County Election Commission, 364 Ark. 574, 222 S.W.3d 205 (2006). Nor does this court have jurisdiction to decide a pre-election eligibility issue in a post-election proceeding. Zolliecoffer, cited above. Appellant then filed a notice of appeal to this court on July 21, 2008. The right to contest an election is purely statutory. Pederson v. Stracener, 354 *14 Ark. 716, 128 S.W.3d 818 (2003). A statutory right to challenge the eligibility of a candidate before the election is provided by Ark.Code Ann. § 7-5-207(b) (Supp. 2007); however, this statute only allows pre-election challenges to a candidate's eligibility. Zolliecoffer v. Post, 371 Ark. 263, 265 S.W.3d 114 (2007).[3] Post-election, the only private right to challenge an election is found under Ark.Code Ann. § 7-5-801 (Repl.2007), which provides for a challenge by a candidate to contest certification by the county board of election commissioners. On appeal, appellant first asserts that the trial court erred in finding that it lacked jurisdiction to consider appellant's petition. In its order, the trial court cited Zolliecoffer, supra, for the proposition that it had no jurisdiction to decide a pre-election eligibility issue in a post-election proceeding. In Zolliecoffer, the losing candidate in a mayoral election filed a petition for writ of mandamus and declaratory judgment two days after the election. This court held that the trial court lacked subject-matter jurisdiction to consider the petition because the petition was filed post-election. Appellant argues that the case at bar is distinguishable because he filed his petition pre-election, not post-election, and therefore the trial court had jurisdiction to decide the case on the merits and prior to the official vote certification. In response, appellees argue that although appellant's petition was filed pre-election, the lateness of the filing made it impossible to conduct a hearing on the merits prior to the election and within the "no sooner than 2 and no longer than 7 days" requirement of Rule 78(d). And because Arkansas election law does not provide for a post-election petition for a writ of mandamus and declaratory relief, the trial court was without jurisdiction to hear the matter post-election. Pederson, supra. Appellant did file his petition pre-election, albeit by only one day. Consequently, the trial court had jurisdiction when appellant's petition was filed, and Arkansas case law has established that "where a court once rightfully acquires jurisdiction of a cause, it has the right to retain and decide." Wasson v. Dodge, 192 Ark. 728, 730, 94 S.W.2d 720, 721 (1936) (citing Estes v. Martin, 34 Ark. 410, 419 (1879)). Zolliecoffer and Pederson are both distinguishable because the appellants in those cases did not file their petitions pre-election. Accordingly, we hold that because the action was filed pre-election, the trial court did have jurisdiction, and that jurisdiction was not subsequently erased by the election. For his second argument on appeal, appellant contends that the trial court erred in finding that the issue presented by appellant was moot. The trial court's order stated that "because the issue was presented but not expedited and ruled on prior to the election, the issue is now moot" and cited Ball v. Phillips County Election Commission, 364 Ark. 574, 222 S.W.3d 205 (2006). In Ball, this court held that a petition challenging the eligibility of a candidate, filed eight days before the election, was untimely and moot. In so holding, we stated: Ball failed to pursue her petition for mandamus and declaratory judgment *15 expeditiously in order to obtain the remedy to remove Jones' name from the ballot before the election or before the election results were certified. In other words, Ball's lawsuit became moot due to her own failure to act timely in the special proceeding. Id. at 579, 222 S.W.3d at 208. We also noted that the candidates' names were certified approximately thirty-eight days previously, and Ball offered no compelling reason for waiting until eight days before the election to file her petition. Appellant attempts to distinguish the holding in Ball by arguing that Ball's appeal was deemed moot but the petition itself was only deemed untimely. However, this is a distinction without a difference, because in Ball it was the untimeliness of the petition that rendered the case moot. See id. at 578, 222 S.W.3d at 207 ("Ball's inability to have Jones' name removed from the ballot ... was due to her decision to wait until eight days before the election to file her petition.... In short, this election case is moot.") As in Ball, appellant failed to pursue his petition expeditiously in order to obtain the remedy of removing Phillips's name from the ballot before the election, and appellant has offered no compelling reason for his delay in filing the petition. In addition, waiting until the day before the election to file the petition rendered it impossible for the trial court to fulfill the requirement under Rule 78(d) that the trial court hold a hearing no sooner than two and no longer than seven days thereafter. We established in Ball that this type of eligibility challenge should be filed in time to resolve all relevant issues prior to the election. See 364 Ark. at 577-78, 222 S.W.3d at 207 ("If Ball had filed her suit within this thirty-eight day period [after certification] ... there would have been ample time in which to resolve all relevant issues raised by Ball prior to the September 21, 2004 election.") Also, this court has clearly stated that "[o]nce the election takes place, the issue of a candidate's eligibility under § 7-5-207(b) becomes moot." Clement v. Daniels, 366 Ark. 352, 355, 235 S.W.3d 521, 523 (2006) (citing State v. Craighead County Bd. of Election Comm'rs, 300 Ark. 405, 779 S.W.2d 169 (1989)). We therefore affirm the trial court's finding that the issue presented in appellant's petition was moot. Appellant also makes the argument that there is a contradiction between amendment 80's "at the time of the election" provision and § 7-5-207(b)'s "qualified and eligible at the time of filing as a candidate" language. Appellant asserts that the case was ripe, not moot, at the time it was filed at the brink of the election because under the clear language of amendment 80, a judicial candidate has until "at the time of election" to bring himself within the qualifying parameters by establishing a residence in the geographical area and becoming a qualified elector. According to appellant, the trial court erred in "elevating the Election Code's statutory provisions and case law enforcement procedures over the Constitution's controlling provisions to dismiss the action below." Though the circuit court ruled on this issue from the bench, the final written order did not address this issue. In a recent case where the judge made a constitutional decision from the bench, we said: "Pursuant to Administrative Order 2(b)(2), an oral order announced from the bench does not become effective until reduced to writing and filed." McGhee v. Ark. State Bd. of Collection Agencies, 368 Ark. 60, 67, 243 S.W.3d 278, 284 (2006). When the circuit court makes no ruling on an issue, the appellate court is precluded from reaching the issue on appeal. Travis v. State, 371 Ark. 621, 269 S.W.3d 341 (2007). *16 Therefore, this issue is not preserved for our review. In conclusion, we hold that the trial court did have jurisdiction to consider appellant's petition, but that the trial court was correct in its finding that the petition was moot. Affirmed. NOTES [1] Appellant named Phillips, the Calhoun County Election Commission, and the Secretary of State, Charlie Daniels, as defendants to the suit. [2] Arkansas Rule of Civil Procedure 78(d) provides: Upon the filing of petitions for writs of mandamus or prohibition in election matters, it shall be the mandatory duty of the circuit court having jurisdiction to fix and announce a day of court to be held no sooner than 2 and no longer than 7 days thereafter to hear and determine the cause. [3] Arkansas Code Annotated section 7-5-207(b) provides in pertinent part: No person's name shall be printed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of filing as a candidate for the office to hold the public office for which he or she is a candidate[.]

334 F.2d 416 Lydle Wayne FITTS, Appellant,v.UNITED STATES of America, Appellee. No. 20973. United States Court of Appeals Fifth Circuit. July 10, 1964. Victor V. Blackwell, Covington, La., for appellant. Thomas G. Lilly, Asst. U.S. Atty., H. M. Ray, U.S. Atty., Oxford, Miss., for appellee. Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges. WISDOM, Circuit Judge. 1 We are asked to review a conviction under the Universal Military Training and Service Act, 50 U.S.C.A. App. 451-470. Lydle Wayne Fitts, one of Jehovah's Witnesses, was charged under Section 462 of the Act with failing to report to his local selection service board at Indianola, Mississippi, for assignment for civilian work as a conscientious objector.1 He contends that as an 'ordained minister of religion'2 he was exempt from selective service. The district court, sitting without a jury, held that the defendant failed to establish his exemption as a minister of religion. We affirm. I. 2 August 10, 1955, Fitts registered in accordance with the Act. His registration card shows that his occupation was farming. August 11, 1956, he became a member of Jehovah's Witnesses. Fitts promptly notified his local board of this fact, obviously because he considered that it affected his draft status, but he did not request a ministerial exemption. September 25, 1956, his board classified him as a Conscientious Objector (Class I-O) and mailed to him a notice of classification (SSS Form No. 110). He took no formal appeal. In the Special Form for Conscientious Objector which Fitts filled out August 20, 1956, he listed 'farming work' as his occupation. In a questionnaire, February 6, 1961, he stated that his occupation then was 'Farmer serving as an ordained minister while undergoing further training in the ministry.' August 23, 1961, the board mailed him another SSS Form No. 110, again classifying him in Class I-O. 3 Major Shed Weeks, Occupational Advisor to the local board, visited Fitts's farm October 31, 1961, to discuss work appropriate to the defendant. Major Weeks had had other interviews with Fitts. According to Major Weeks, the defendant said that he considered farming his primary vocation. Since no understanding was reached as to the nature of the civilian work Fitts was to perform, Major Weeks advised him to appear before his local board. 4 November 1, 1961, the defendant appeared before his board to discuss the obligations of his I-O classification and the kind of civilian work he could perform. At this meeting Fitts affirmed as correct Major Weeks's report that he was not a full-time minister 'and he was not claiming to be one'.3 According to the memorandum of Mr. Hayden Covington, attorney for Watchtower Bible and Tract Society, the governing body of Jehovah's Witnesses, the Society claims ministerial classifications only for Pioneers and Congregational Servants; and only then when the Congregational Servant is doing field work in addition to taking care of his ministerial duties to the congregation. Fitts said that he was not a Congregational Servant or a Pioneer, or an assistant, and he had no evidence to show that he held any official position with the Society. Fitts told the board that he conducted Bible study classes as an Assistant Bible Study Conductor on Wednesday nights and distributed material relating to Jehovah's Witnesses, but he admitted that farming came first with him. When he was informed of the nature of the work he would be required to do as a conscientious objector, he stated that he was unwilling to perform such work because it was contrary to his religious beliefs. After a full discussion of the nature of Fitts's religious activities, the board refused to reconsider his classification. The board advised him of this decision by letter enclosing a blank SSS Form No. 152 to be returned with information on his work qualifications. By letter dated November 13, 1961, the defendant returned the form, still in blank and, for the first time, contended that his primary vocation was that of 'preaching and teaching about the Kingdom of God.' The board acknowledged the defendant's letter returning the blank form sent him and informed him that he could choose any one of three approved types of work. He refused to make a choice. 5 Fitts met with his board again April 5, 1962. Again, he reaffirmed the accuracy of Major Weeks's report to the board, but refused to make himself available for civilian work. He stated that his ministerial work totalled about forty-eight hours a month; Major Weeks had estimated ten hours a week based, in part, on Fitts's admissions. Again the board refused to reopen his classification. 6 April 11, 1962, the defendant's father requested a deferment for his son so that he might be available for the summer farming duties. The local board made no specific reply but in a letter dated May 31, 1962, it ordered the defendant to report for work on June 11, 1962. After he failed to appear for work, the United States brought this criminal action for violation of the Act, 50 U.S.C.A. App. 462. II. 7 Congress exempts from training and service 'regular or duly ordained ministers of religion'. 50 U.S.C.A. App. 456(g). A minister is one who as his regular and customary vocation 'preaches and teaches' the principles of religion, of a church, a religious sect, or organization of which he is a member.4 The term 'minister' does not include a person 'who irregularly or incidentally preaches and teaches * * * or * * * who does not regularly, as a vocation, teach and preach'. 50 U.S.C.A. App. 466(g). 8 This Court has adopted a liberal construction of the ministerial exemption. As Judge Hutcheson has said: 9 '(1) the statute under construction is a statute of religious liberty; (2) the blood of the martyrs is the seed of the church; and (3) liberty and law must go hand in hand, neither must outrun the other'. Olvera v. United States, 5 Cir. 1955, 223 F.2d 880, 883. 10 In Pate v. United States, 5 Cir. 1957, 243 F.2d 99, 103, this Court emphasized that local draft boards must not 'fit the garments of orthodoxy on a pioneer minister of Jehovah's Witnesses'. We held: 11 'Therefore, here, in addition to the non-existence in the record of evidence to rebut the defendant's prima facie case, there are the further undisputed facts that the draft boards employed standards applicable to ministers of orthodox churches instead of those standards fixed in the law and applicable here, and thus erroneously held: that part time secular work, from which defendant earned all his livelihood, defeated the ministerial claim; and that, because he did not earn any part of his livelihood from his ministry, he could not be regarded as a minister. * * * Nowhere in (the Act or Regulations) is there a requirement that a minister earn his livelihood from the ministry or from a particular congregation, or that he have a pulpit before he can claim and receive classification as a minister. All that the act and regulations require in order for one to qualify as a minister and to receive the classification is that the ministry be his vocation, not an incidental thing in his life.' 12 Again, in Wiggins v. United States, 5 Cir. 1957, 261 F.2d 113, 115, this Court pointed out: 13 'Congregation Servants, pioneer Ministers, Bible Study Conductors, and other members of Jehovah's Witnesses who correspond to ministers in a conventional organized religion usually do not receive a salary. They must engage in some secular work in order to earn sufficient funds to carry on their religious work. To a draft board, therefore, a Witness steadily employed and earning fifty dollars a week may seem no different from any other draftee gainfully employed-- although the Witness may sincerely regard the ministry as his vocation and other Witnesses may accept him as a minister. This situation is not adequately covered in the Act and Regulations.' 14 We adhere to these views, notwithstanding expressions to the contrary from some courts. See, for example, United States v. Tettenbaum, D.C.Md.1960, 186 F.Supp. 203, 206 and United States v. Stewart, D.C.Md.1963, 213 F.Supp. 497. Nevertheless, the scope of review is narrow. The 'registrant bears the burden of clearly establishing a right to the exemption' (Dickinson v. United States, 1953, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132) and the Act provides that decisions of the Board are 'final' (50 U.S.C.A. App. 460(b)(3)). The critical question before the reviewing court is whether there are 'insufficient facts to support (the Board's) conclusion.' Estep v. United States, 1945, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567. There must be 'no basis in fact' for the classification before the reviewing court should intervene and set aside a decision of a local board: 15 'If the facts are disputed the board bears the ultimate responsibility for resolving the conflict-- the courts will not interfere. Nor will the courts apply a test of 'substantial evidence.' However, the courts may properly insist that there be some proof that is incompatible with the registrant's proof of exemption.' Dickinson v. United States, 1953, 346 U.S. 389, 396, 74 S.Ct. 152, 157, 98 L.Ed. 132, 138. 16 The record in this case does not bring Fitts under the protective cover of Pate and Wiggins. In Pate the Court held: 17 'The board's conclusion was reached without any evidence to sustain it; the board seemed to base its classification on the fact that the 1200 hours per year which registrant stated he was obligated to give to the ministry was all the time that he gave to it, and that this was not enough; * * * Finally, it appears beyond question from the testimony of the members of the local board, that the board did not consider the defendant's status from the standpoint of the facts of his case as applied to the law and regulations but upon the erroneous conclusion emphasized and acted upon, that, since all of Jehovah's Witnesses claimed to be ministers and all could not be, the claim of the registrant in this case was, on its face, fraudulent and unsound.' 243 F.2d at 102. In Wiggins the Court held: 18 '(The) local board built no record * * * called no witnesses and made no effort whatever to put any evidence in the record (the selective service file) to rebut Wiggins' claim to exemption.' 19 In these cases, therefore, 'there was no basis in fact for the board's decision'. 20 Three basic considerations have guided the courts when reviewing the rights of Jehovah's Witnesses to ministerial exemptions. All serve to distinguish the case before us from Pate and Wiggins. 21 First, the registrant must have the ministry as a vocation rather than as an avocation. As Witmer v. United States, 1955, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428, brings out, conscientious objection must be decided wholly on the subjective state of the registrant's mind. The problem is different in deciding the ministerial exemption, where 'the issue is the nature of his activities' and an objective determination can be made. The manner, however, in which the registrant views his activities, especially as discoverable from outside facts, is of probative importance. In Wiggins the defendant was a full-time crane operator but he put his ministerial activities before his secular labors. On several occasions he changed jobs rather than have his secular work conflict with his religious work. The opposite is true with Fitts. He has always recognized the primacy of farming over his religious activities. As late as November 1, 1961, Fitts admitted that farming was his principal occupation, and there was no apparent change in his actual work pattern before or after November 13, 1961, when he first asserted the ministry to be his vocation. The defendant freely admitted to Major Weeks that he took part in his religious activities only when he had spare time; when the weather was good and there was farm work to be done, his farming took precedence over his ministerial affairs. 22 Second, religious affairs must occupy a substantial part of the registrant's time and they must be carried on with regularity. Pate worked a hundred hours a month. Wiggins showed that he spent about thirty-eight hours a month in his capacity as minister. The estimates of the present defendant's activities are in conflict. Fitts's local board was entitled to credit Major Weeks's estimate of ten hours. In addition, it is clear that the defendant's activities were in no sense regular or predictable; they were fitted to his farming requirements. 23 Finally, and most important, in order to obtain an exemption a registrant must stand in the relation of a minister to a congregation or in an equivalent relation as a recognized leader of a group of lesser members of his faith. One of the basic purposes of the exemption is to guard against a flock being left without its shepherd. Dickinson v. United States, supra. In Wiggins, the defendant was a Book Study Conductor. In addition, he regularly attended assemblies, congregations of ministers, where he had official duties, and he had preached regularly from a pulpit before a congregation at a fixed place. We held that Wiggins had made out a prima facie showing 'that he stood in the relation of a religious leader to other members of his faith, in a capacity comparable with that of an assistant pastor.' 261 F.2d at 119. In the case before us the defendant is an Assistant Book Study Conductor. The few study groups he conducts are small groups in his family setting. He made no showing that he ever conducted any teaching or preaching activities before the Hollandale congregation of which he is a member or of any congregation. His alleged ministerial activities consisted of his own studying, and his occasionally passing out pamphlets, occasionally going from house to house, and occasionally assisting in small bible study classes. 'A position of leadership in the congregation assumes greater significance in determining whether exemption should be given when the time spent in ministry is undetermined, irregular or insignificant.' United States v. Willard, N.D. Ohio E.D.1962, 211 F.Supp. 643, 653, aff'd, 6 Cir. 1963, 312 F.2d 605, cert. den'd, 1963, 372 U.S. 960, 83 S.Ct. 1014, 10 L.Ed.2d 13. 24 In sum, Fitts made no showing of a prima facie case putting him in the position of a religious leader of Jehovah's Witnesses. And his local board, unlike the boards in Pate and Wiggins, built a record. The Court is sympathetic with the position of Jehovah's Witnesses: some allowance must be made for religious leaders who engage in secular work only because they are not paid for their religious ministry. But on the record in this case, it would be a disservice to the ministerial exemption to hold that there was no basis in fact for the board's decision denying Fitts an exemption as a minister. 25 The Court finds it unnecssary to discuss all of the contentions of the parties. The Court has, however, considered these contentions. 26 The judgment is affirmed. 1 50 U.S.C.A. App. '462. Offenses and penalties '(a) Any * * * person charged as herein provided with the duty of carrying out any of the provisions of this title * * * who shall knowingly fail or neglect to perform such duty * * * shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * * *.' 2 32 C.F.R. 1622.43 Class IV-D: 'Minister of religion or divinity student (a) In Class IV-D shall be placed any registrant: (1) Who is a regular minister of religion; (2) Who is a duly ordained minister of religion; (3) Who is a student preparing for the ministry * * *; or (4) Who is a student preparing for the ministry * * *. (b) Section 16 of Title I of the Universal Military Training and Service Act, as amended, contains in part the following provisions: Sec. 16. When used in this title-- * * * (g)(1) the term 'duly ordained minister of religion' means a person who has been ordained, in accordance with the ceremonial, ritual or discipline of a church, religious sect or organization established on the basis of a community of faith and belief, doctrines and practices of a religious character, to preach and to teach the doctrines of such church, sect or organization and to administer the rights and ceremonies in public worship, and who as his regular and customary vocation preaches and teaches the principles of religion and administers the ordinances of public worship as embodied in the creed or principles of such church, sect, or organization. (2) The term 'regular minister of religion' means one who as his customary vocation preaches or teaches the principles of religion of a church, a religious sect, or an organization of which he is a member, without having been formally ordained as a minister of religion, and who is recognized by such church, sect or organization as a regular minister. (3) The term 'regular or duly ordained minister of religion' does not include a person who irregularly or incidentally preaches or teaches the principles of religion of a church, religious sect or organization and does not include any person who may have been duly ordained a minister in accordance with the ceremonial, rite, or discipline of a church, religious sect, or organization, but who does not regularly, as a vocation, teach and preach the principles of religion and administer the ordinances of public worship as embodied in the creed or principles of his church, sect, or organization. 3 The Summary of the Local Board Meeting, November 1, 1961, states: 'The registrant appeared before the Board, and the information presented in Major Weeks' report was discussed with him, to which he fully agreed as being correct. It was explained to him by the Board that they would love to give him a ministerial classification if he qualified under the regulations, but by his own admission and his religious activities, and for lack of sufficient religious activities, he did not in any way qualify for 4-D. Therefore it would be necessary for them to proceed in processing him for civilian work in lieu of induction into the armed forces. The Board then asked Major Weeks if he would explain to him the Civilian Work Program as set up for Class I-O registrants. This Major Weeks did, and the registrant stated that he could see not that he could not accept any such work; that it was against his religious belief. He discussed the scripture in his Bible in an attempt to substantiate his belief as claimed. Then he gave the Board Members a copy of the Watchtower Bible and Tract Society literature for their personal use. 'The Board asked him if he had any additional information that he would like to present to the Board for his file, which he said that he did not, and that he reaffirmed Major Weeks' report that he was not a full-time minister, and that he was not claiming to be one, and was not asking the Board to give him a ministerial classification, but would appreciate it if they saw fit to do so. 'In the discussion of his position and activities with Jehovah Witnesses, and the Memorandum of Mr. Hayden Covington to the Director of Selective Service, Major Weeks explained to Wayne that according to Mr. Covington there were only two positions in the Society that they were claiming ministerial classifications for, and those are the Pioneer and Congregational Servant, and only then when the Congregational Servant was doing field work in addition to taking care of his ministerial duties of the congregation. Major Weeks read and showed this part to Wayne, and he said that he was not a Congregational Servant, an Assistant Congregational Servant, or a Pioneer, and he had no evidence to show any official position he held in the Society. In fact, there is not much evidence of his preaching activities in his file, and as stated above, Mr. Fitts had no additional information to offer. 'The Board then determined in his presence not to reopen his classification, and unanimously voted to continue him in Class I-O.' 4 See footnote 2

Dismissed and Memorandum Opinion filed January 6, 2011.     In The   Fourteenth Court of Appeals ____________   NO. 14-10-00572-CV ____________   AL YAZDCHI, Appellant   V.   CHAU WENG WANG AND MEI LING WANG, Appellees     On Appeal from the County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 951408       MEMORANDUM  OPINION             This is an appeal from a judgment signed May 12, 2010.  The clerk’s record was filed September 2, 2010.  No reporter’s record or brief was filed.             On November 18, 2010, this court issued an order stating that unless appellant submitted a brief, together with a motion reasonably explaining why the brief was late, on or before December 20, 2010, the court would dismiss the appeal for want of prosecution.  See Tex. R. App. P. 42.3(b). Appellant filed no response.  Accordingly, the appeal is ordered dismissed.                                                                           PER CURIAM   Panel consists of Justices Brown, Boyce, and Jamison.

FILED NOT FOR PUBLICATION OCT 25 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT VIOREL ANGHELOIU, Dr., No. 18-35550 Plaintiff-Appellant, D.C. No. 3:17-cv-05891-BHS v. MEMORANDUM* PEACEHEALTH, a Washington corporation, Defendant-Appellee. Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding Submitted October 22, 2019** Seattle, Washington Before: CLIFTON and IKUTA, Circuit Judges, and RAKOFF,*** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation.  Viorel Angheloiu, M.D., appeals from the district court’s order dismissing his case and compelling arbitration, as well as denying his other motions. We have jurisdiction under 28 U.S.C. § 1291 and 9 U.S.C. § 16(a)(3). See Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072, 1074 (9th Cir. 2014). The district court did not err in compelling arbitration because Angheloiu’s Employment Agreement contains a valid agreement to arbitrate that covers the dispute at issue. See Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). The agreement to arbitrate is not procedurally unconscionable. See Zuver v. Airtouch Commc’ns, Inc., 103 P.3d 753, 759 (Wash. 2004). Angheloiu had ample time to review the Employment Agreement and seek legal advice: PeaceHealth gave Angheloiu the Employment Agreement in December 2008, his start date was not until February 2009, and there is no evidence PeaceHealth pressured Angheloiu to sign and return the Employment Agreement quickly. Nor were the arbitration provisions in the Employment Agreement “hidden in a maze of fine print.” Torgerson v. One Lincoln Tower, LLC, 210 P.3d 318, 322 (Wash. 2009). The Employment Agreement does not incorporate the Recruitment Agreement by reference or otherwise. And even if we read the Employment Agreement and Recruitment Agreement together, the Recruitment Agreement’s 2 jurisdictional provision does not override the agreement to arbitrate in the Employment Agreement; rather, we would read that jurisdictional provision as applying, for example, when the parties seek to confirm or contest an arbitration award in a court of law. See 9 U.S.C. §§ 9, 10; Realm, Inc. v. City of Olympia, 277 P.3d 679, 681 (Wash. 2012) (“When contract provisions seem to conflict, we will harmonize them with the goal of giving effect to all provisions.”). Because Angheloiu must pursue his claims in arbitration, we need not decide whether the district court abused its discretion in denying Angheloiu’s motion to compel discovery or for sanctions. See 9 U.S.C. § 4. AFFIRMED. 3 

697 P.2d 516 (1984) Rebecca June BOATSMAN, Appellee, v. James Robert BOATSMAN, Appellant. No. 57778. Supreme Court of Oklahoma. October 16, 1984. As Amended March 11, 1985. Rehearing Denied March 11, 1985. Shears & Shears, by Jack L. Shears, Ponca City, for appellee Rice, West, Vaughn & Stafford, by Barry G. Stafford, Edmond, for appellant. *517 HODGES, Justice. The parties were divorced January 31, 1978, when their son was four and one-half years old. In the decree of divorce, which was approved by both parties, custody of the child was placed with the mother. On May 27, 1981, the father filed his Motion to Modify Custody, alleging that there had been a substantial change in conditions that materially affected the mental, moral, temporal, and spiritual welfare of the child, which made it in the best interest of the child that custody be changed to the father. After hearing, the trial court denied the motion, and the father appealed. I The father first argued that the trial court abused its discretion in denying his motion because the evidence demonstrated that there had been a substantial change of condition and revealed material facts which were either unknown or undiscoverable with reasonable diligence at the time of the initial custody order. While it is true that an initial order determining custody may be modified where that modification is justified by the disclosure of facts which were in existence at the time of the prior order, but unknown and undiscoverable by reasonable efforts, Carpenter v. Carpenter, 645 P.2d 476 (Okla. 1982), the newly disclosed "facts" in this case were not in existence at the time of the decree of divorce. Father's motion was based upon the mother's activities and lifestyle adopted subsequent to that decree, and his entitlement to relief must be judged by the application of the first test repeated in Carpenter, supra, that of change of conditions. The trial court was properly guided by Gibbons v. Gibbons, 442 P.2d 482 (Okla. 1968), in determining that the father had not met his burden of the change of condition. In that case we required that the parent seeking a change of custody show: "(a) that, since the making of the order sought to be modified, there has been a permanent, substantial and material change of conditions which directly affect the best interests of the minor child, and (b) that, as a result of such change in conditions, the minor child would be substantially better off, with respect to its temporal and its mental and moral welfare, if the requested change in custody be ordered." The trial court determined that the father had not shown that the alleged "changed circumstances" were permanent, and that, therefore, Gibbons, supra, prevented a modification. Unless we determine that the trial court's decision is clearly against the weight of the evidence so as to constitute an abuse of discretion, it will not be disturbed. Ness v. Ness, 357 P.2d 973 (Okla. 1960). The father contends that the evidence conclusively shows an adverse impact upon the child from the mother's alleged frequent moves, alleged alcohol abuse, alleged illicit sexual affairs, and generally unstable lifestyle. He contended that the trial court refused to modify based upon this evidence simply because the mother "promised" to do better. The record does not support the father's attempts to paint with such a broad brush. The "frequent" moves were from Oklahoma City, where the mother was living at the time of the divorce, back to Blackwell, where her parents and other relatives live, from Blackwell to Stillwater, where the child's father lives, and back to Blackwell when anticipated financial improvement did not develop. The record supports the mother's contention that the moves were made for legitimate reasons. While they necessarily have some adverse impact on the child, they do not reveal some newly developed character defect in the mother which gives rise to a conclusion that these *518 moves will be recurring. At the time of the hearing, the mother had established a home for herself and the child in Blackwell. The child was involved in both sports and school activities with success. The sole evidence of post-decree alcohol abuse by the mother was the father's testimony concerning her arrest and conviction upon a plea of guilty to public intoxication arising out of an incident occurring approximately a year and one-half prior to the hearing. The mother admitted that she pleaded guilty to such a charge, but denied that she was in fact intoxicated. She explained, without objection, that she was a passenger in a vehicle stopped by the police and impounded when the driver was alleged to be intoxicated. She contended that the police officer placed her in custody only after he discovered she had no identification with her, but conducted no test to determine her sobriety. The plea of guilty, and the payment of a $35.00 fine resulted, she says, from advice of an attorney friend that the cost of contesting the charge would be prohibitive compared with the fine. While there is credible evidence that the mother's judgment with regard to alcohol use is not what it should be, there was also evidence that it has improved considerably from the time of the divorce. The father offered no evidence of the mother's present alcohol habits, although he testified as to abuse occurring before the divorce. If the mother's testimony is to be believed, and it is undisputed, there is adequate support for the trial court's conclusion that the husband had not demonstrated a change for the worse in the conditions affecting the child's welfare in this regard. The father also presented evidence of the mother's having allowed a boyfriend to spend the night at her home in Stillwater on occasions when the child was present. The mother testified without contradiction that the child was always asleep when the boyfriend shared her bedroom, and that the boyfriend was always "on the couch" when the child got up in the morning after these stays. She testified that after the father had told the boy that the boyfriend was in fact sleeping with the mother, she indicated to her son that what had gone on was wrong. The trial court determined that the father had not shown that the conduct was "permanent", and we cannot conclude that such a finding is against the clear weight of the evidence. While the trial court expressed reservations about the actions taken by the mother, and her ability to "live up" to the standards which she had adopted which led him to believe that the "changes" the father described were not permanent, its conclusion that the father had failed to show a permanent, substantial, and material change of conditions which affected the welfare of the child was supported by more than just the mother's promise to "be good." We cannot say that its discretion was abused. II The father also contended that the trial court erred in applying the "change of circumstances" test established in Gibbons, supra, rather than determining the best interest of the child as if there had been no prior custody order. The father says the Gibbons Test was abandoned by this Court in Wells v. Wells, 648 P.2d 1223 (Okla. 1982). Wells did not mark a departure by the Court from that line of precedent, of which Gibbons is a part, which required that modification of custody orders be supported by proof of change of circumstances leading to the conclusion that the best interest of the child would be served by changing custody. Rather than repudiating Gibbons, the majority in Wells cited it as authority for imposing the burden of proof on the moving party. Wells' reference to a "best interest" test reflects only that ultimately all child custody matters must be determined on the best interest of the child. The Court determined only that the father had established a prima facie case under the Gibbons' test, and required the mother to come forward with some evidence in response. *519 In this case, the trial court heard all the evidence both parties presented, concluded the father had not demonstrated sufficient grounds for modification, and denied the motion. In contrast with the present case, the mother in Wells expressed her intention to continue her living arrangement, and there was no question but that the "change of circumstances" was "permanent", at least according to the father's evidence. Our decision in Wells, supra, does not dictate reversal in this case. The father suggests that the "change of circumstances" test is not applicable because custody of the child was not "actually litigated" in the initial divorce proceedings. To be accurate, under this reasoning none of the provisions of the divorce decree were "actually litigated," for the father signed a waiver. The "change of circumstances" requirement is an attempt to accord some degree of finality to factual and legal determinations made in divorce and custody matters, which if absent would lead to constant relitigation of matters already determined. Its application is akin to res judicata. A consent judgment is entitled res judicata treatment and precludes relitigation of the same claim. Miller v. Miller, 664 P.2d 1032 (Okla. 1983). The father has offered no authority for the proposition that it should not be applied in this context. In determining custody, the trial court is required to determine where the best interests of the child lies at the time of the initial decree. We see no reason to introduce further uncertainty into custody litigation by allowing the parties to reopen those determinations based upon their contention that that issue had not been "actually litigated." The ability to modify the decree upon a showing of "change of circumstances" offers adequate opportunity for the parties and the court to protect the interests of the child while giving some finality to litigation that would be destructively never-ending otherwise. The trial court decision is not against the clear weight of the evidence, and we find no abuse of discretion. Its judgment is accordingly affirmed. CERTIORARI GRANTED. OPINION OF COURT OF APPEALS VACATED. JUDGMENT OF TRIAL COURT AFFIRMED. LAVENDER, DOOLIN, HARGRAVE, WILSON and KAUGER, JJ., concur. BARNES, C.J. and SIMMS, V.C.J., concur in result. OPALA, J., dissents.

875 S.W.2d 828 (1994) 316 Ark. 724 Robert B. BROWN, Appellant, v. STATE of Arkansas, Appellee. No. CR 92-304. Supreme Court of Arkansas. May 2, 1994. *830 Diana Maulding, Little Rock, for appellant. Clint Miller, Asst. Atty. Gen., Little Rock, for appellee. DUDLEY, Justice. A jury found appellant guilty of first degree terroristic threatening, attempted first degree murder, and being a felon in possession of a firearm. The trial court sentenced the appellant and ordered his sentences to run consecutively. The court of appeals certified the case to this court. We affirm the judgment of convictions. Appellant makes eleven assignments of error by the trial court. The first three assignments contain a number of sub-points, but the gravamen of each is that the trial court erred in refusing to grant his motion for a directed verdict. We do not address the merits of the arguments. A motion for a directed verdict is a challenge to the sufficiency of the evidence. We have repeatedly written that a challenge to the sufficiency of the evidence requires the moving party to apprise the trial court of the specific basis on which the motion is made. See, e.g., Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994); Middleton v. State, 311 Ark. 307, 842 S.W.2d 434 (1992); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990); and Taylor v. State, 299 Ark. 123, 771 S.W.2d 742 (1989). "A directed verdict motion must be a `specific motion to apprise the trial court of the particular point raised.'" Patrick v. State, 314 Ark. 285, 287, 862 S.W.2d 239, 241 (1993) (quoting Middleton v. State, 311 Ark. 307, 309, 842 S.W.2d 434, 435 (1992)). The reasoning underlying our holdings is that when specific grounds are stated and the absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof. Standridge v. City of Hot Springs, 271 Ark. 754, 610 S.W.2d 574 (1981). Appellant's abstract reflects that at the conclusion of the State's case he "[m]oved for a directed verdict," which was denied, and at the end of the case he "renewed motion for a directed verdict," which was denied. Appellant's record on appeal is limited to that which is abstracted. Porchia v. State, 306 Ark. 443, 815 S.W.2d 926 (1991). Thus, we do not know whether the motion to the trial court applied to one, two, or all three of the charges, and we do not know the specific grounds of the motion or motions. In his arguments to this court, appellant contends that the trial court erred in refusing to grant a directed verdict on the felon in possession of a firearm count because Ark.Code Ann. § 5-73-103 (Repl.1993) does not define "felony" or "felon" when the conviction occurred out of state. He argues that the trial court threatening count because there was no proof that he "filled [the two police officers] with intense fright." He argues that the trial court erred in refusing to grant a directed verdict on the attempted first degree murder count because the State failed to prove the "requisite intent." Not one of these specific arguments was raised at the trial court level, and we will not reach them for the first time on appeal. Prior to trial, the trial court ordered that appellant be committed to the State Hospital for observation and examination. He was examined and the hospital staff's report stated that appellant had the capacity to effectively cooperate with his attorney and to understand the nature of the proceedings. On the first day of trial, appellant moved for a second mental examination. The trial court denied the motion, and appellant assigns *831 the ruling as error. We summarily dispose of the argument. The State is not required to pay for a defendant to shop from doctor to doctor until he finds one who will declare him incompetent to proceed with his trial. See v. State, 296 Ark. 498, 757 S.W.2d 947 (1988); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986); Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979). This is in accord with guidance from the United States Supreme Court. See Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). Appellant argues that the mental examination did not comply with the mandates of Ark.Code Ann. § 5-2-305 (Repl. 1993) because he was examined by a psychologist rather than a psychiatrist. We do not reach the merits of the argument because it was not raised below. In a related vein, appellant argues that the evidence was insufficient to prove that he was sane when he committed the offenses, and that he should have been acquitted by reason of insanity or mental defect. The defense of insanity is an affirmative defense, and the defendant bears the burden of proof by a preponderance of the evidence. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992). Thus, appellant is arguing that the trial court should have granted a directed verdict for him on his affirmative defense. Again, a defendant must specifically preserve such issues by moving for a directed verdict at trial. Appellant did not move for a directed verdict on the basis of insanity or mental disease or defect, and he cannot raise the issue for the first time on appeal. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). Appellant additionally argues that the convictions should be reversed because the trial court did not admonish the jury to disregard a comment made by a witness and did not admonish the jury to disregard a question by a deputy prosecutor. The argument is procedurally barred, as appellant did not ask the trial court for an admonitory instruction on either the comment or the question. See Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985). The failure to give such an instruction is not prejudicial error in the absence of a request. Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). The trial court sustained appellant's objection to both the comment and the question. Appellant acknowledges that he did not ask for admonitions after the objections were sustained, but contends that the trial court had a duty to "deal with the aftermath of an upheld objection" by admonishing the jury on its own motion. The argument is without merit because we do not impose a duty upon a trial court to give an admonitory instruction or limiting instruction in the absence of a request for such instruction. See Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980). One of appellant's theories of defense at trial was justification. The jury was instructed that, as a matter of law, one is not justified in using deadly physical force if he knows he can retreat with complete safety. One of the State's witnesses, over appellant's objection, testified that appellant could have retreated safely from the premises but instead came back to the scene a second time and fired a weapon. Appellant argues that the trial court erred in overruling his objection. Rule 701 of the Arkansas Rules of Evidence allows admission of opinion testimony by lay witnesses if the opinions or inferences are "(1) [r]ationally based upon the opinion of the witness and (2) [h]elpful to a clear understanding of his testimony or the determination of a fact in issue." Id. We have said that the requirements of Rule 701 are satisfied if the opinion or inference is one which a normal person would form on the basis of the observed facts, but if an opinion without the underlying facts would be misleading, then the objection should be sustained. See Carton v. Missouri Pac. R.R., 303 Ark. 568, 571-72, 798 S.W.2d 674, 675 (1990) (quoting 3 Jack B. Weinstein & Margaret M. Berger, Weinstein's Evidence § 701[02], at 701-11, -12, -13 (1987)). Here, the testimony met the criteria of Rule 701. It was helpful to the jury in factually deciding whether appellant acted with justification, and the record shows that the witness had a rational basis for his opinion. The State, in order to prove one of the elements of the charge of felon in possession of a firearm, offered a copy of a judgment *832 of conviction from South Dakota that showed appellant had received a prior sentence of imprisonment. The foreign judgment did not reflect whether the crime was a felony, but it did reflect that the sentence was for four years. This information gave the jury an indication of how serious the violation was in South Dakota. Appellant argues that the trial court committed reversible error in refusing to excise that part of the judgment that showed the length of the sentence. We have said that a jury, in a felon in possession of a firearm case, is entitled to know the nature and the circumstances surrounding the prior conviction in order to appropriately determine the sentence in the pending case. Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1980). If the seriousness of the circumstances surrounding the prior offense were not to be considered in fixing the sentence, the General Assembly easily could have provided a definite term of imprisonment upon conviction of a felon in possession of a firearm rather than leaving it to the jury to fix any sentence not in excess of six years. In this case, since the judgment did not reflect whether offense was a felony, the term given for the prior conviction was the main indicator of the seriousness of the conviction for "burning within a structure where a person was lawfully confined." Consequently, the trial court did not abuse its discretion in refusing to excise the length of the sentence. Appellant argues that the trial court erred in ordering his sentences to run consecutively. It is the province of the trial court to determine whether sentences should be run concurrently or consecutively. Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980). We have remanded for resentencing when it was apparent that the trial judge did not exercise discretion. See Wing v. State, 286 Ark. 494, 696 S.W.2d 311 (1985). In this case the trial court plainly exercised its discretion. In pronouncing the sentence, the trial court stated that the jury had not imposed a harsh enough sentence for the attempted first degree murder, and, as a result, the sentences would be made to run consecutively. For his eleventh and final assignment, appellant contends the trial court erred in overruling his objection to a statement made by the prosecutor in closing argument. The prosecutor said that the only reasons appellant did not kill one of the victims was that he was drunk and shooting at a spinning target and that "[h]e [had] a pretty short barrel on [his] pistol and I would submit to you, the shorter the barrel, the harder it is to hit what you're aiming at." The appellant contends the quoted sentence contained facts not in evidence. A trial court has wide discretion in controlling, supervising, and determining the propriety of counsel's arguments, and we will not reverse absent a showing of manifest abuse. Hoover v. State, 262 Ark. 856, 562 S.W.2d 55 (1978). Further, some leeway must be given in closing arguments, and counsel may argue every plausible inference which could be drawn from the evidence. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). The prosecutor's remarks were not an unreasonable inference from the evidence. Thus, the trial court did not abuse its wide discretion. Affirmed.

18-3594 Wetzel v. Berryhill UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the 5th day of September, two thousand nineteen. Present: ROSEMARY S. POOLER, BARRINGTON D. PARKER, REENA RAGGI, Circuit Judges. _____________________________________________________ DAVID WETZEL, JR., Plaintiff-Appellant, v. 18-3594-cv NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. _____________________________________________________ Appearing for Appellant: Mark Schneider, Schneider & Palcsik, Plattsburgh, N.Y. Appearing for Appellee: Peter W. Jewett, Special Assistant U.S. Attorney (Ellen E. Sovern, Acting Regional Chief Counsel – Region II, Office of the General Counsel, Social Security Administration, on the brief), for Grant C. Jaquith, United States Attorney for the Northern District of New York, Syracuse, N.Y. Appeal from the United States District Court for the Northern District of New York (Hummel, M.J.). ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED. Appellant David Wetzel, Jr. appeals from the November 21, 2018, judgment affirming the Commissioner’s March 30, 2016, denial of Wetzel’s application for supplemental security income after an administrative law judge (ALJ) determined that Wetzel was not disabled. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review. “On appeal, we conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner’s decision and if the correct legal standards have been applied.” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “When deciding an appeal from a denial of disability benefits, we focus on the administrative ruling rather than the district court’s opinion.” McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014) (internal quotation marks omitted). Wetzel’s first argument on appeal is that the ALJ erred by giving substantial weight to the medical opinion of a non-examining consultant while discounting the medical opinions of Wetzel’s treating physicians and an examining consultant. An ALJ generally must give greater weight to the medical opinions of treating and examining sources than to the medical opinions of non-treating and non-examining sources. 20 C.F.R. § 404.1527(c). Nonetheless, Wetzel’s argument is meritless for two reasons. First, Wetzel did not provide medical opinions from his treating physicians. “Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of [a claimant’s] impairments(s), including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant’s] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(1). The record evidence from Wetzel’s treating sources does not contain any such judgments about the nature and severity of Wetzel’s impairments and instead consists entirely of treating notes. Second, the ALJ did not err in concluding that the non-examining consultant’s medical opinion was entitled to greater weight than the examining consultant’s medical opinion. As required by statute, the ALJ properly considered a number of factors in attributing weight to the consultants’ medical opinions, including, significantly in Wetzel’s case, the consistency of the opinion with the record, “the amount of understanding of . . . disability programs and their evidentiary requirements that a medical source has, regardless of the source of that understanding, and the extent to which a medical source is familiar with the other information in [the claimant’s] case record.” Id. § 404.1527(c)(6). Wetzel’s second argument, that the ALJ’s decision that Wetzel could perform light work is not supported by substantial evidence, also fails. Wetzel first argues that the ALJ erred by finding that his impairment was not the equivalent of Listing Impairment 1.04A for spinal disorders. “For a claimant to qualify for benefits by showing that his unlisted impairment, or 2 combination of impairments, is ‘equivalent’ to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990). The ALJ correctly concluded that Wetzel does not suffer from neuro-anatomic motor loss and has not had a positive straight-leg raising test, as required by Listing Impairment 1.04A. Wetzel has not identified any medical findings stating that, despite lacking these symptoms, he has other symptoms “equal in severity to: the criteria for Listing Impairment 1.04A, id. Wetzel next argues that the ALJ failed to consider the effect of his pain and medication side effects in determining that he could perform light work. Where a claimant’s “subjective complaints [are] unsupported by objective medical evidence,” they may not defeat an ALJ’s finding that a claimant’s pain is not debilitating. Poupore v. Astrue, 566 F.3d 303, 307 (2d Cir. 2009). Substantial evidence in the record reveals that Wetzel’s pain is well managed with medication, and the side effects of his medication do not impair his ability to perform light work. Wetzel complained to his treating physicians of medication side effects—nausea—on just one occasion, and his treating physician promptly prescribed a different medication to solve the problem. Moreover, there is no evidence in the record that Wetzel ever complained to any of his treating doctors that his medications made him “very dopey,” as he claimed they did at his disability hearing. Certified Administrative Record at 44. Finally, the ALJ did not err by concluding that Wetzel’s obesity did not interact with his other conditions to cause a disabling impairment. Neither the treatment notes nor the medical opinions of the consultants suggest that Wetzel’s obesity exacerbated his impairments. Third, Wetzel challenges the ALJ’s adverse credibility determination. In evaluating a claimant’s credibility, the ALJ must follow a two-step process. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). First, “the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged.” Id. Second, “the ALJ must consider the extent to which the claimant’s symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record.” Id. (alterations omitted) (internal quotation marks omitted). Here, the ALJ properly identified at least three different bases for finding that Wetzel was not credible, including inconsistency with the objective medical evidence and his testimony about his intact activities of daily living. Wetzel’s objections to the weighing of this evidence and assessment of his credibility are without merit. Wetzel also argues that the ALJ erred by determining that he could perform his previous relevant work experience as a welder because a welder’s position requires at least medium exertion and the ALJ concluded that Wetzel is capable of only light exertion. The Commissioner concedes that, as the district court determined, the ALJ erred in concluding that Wetzel could work as a welder. However, we agree with the Commissioner that, even if the ALJ had not made this error, there is “no reasonable likelihood” that he would have changed his disability decision because the ALJ identified at least three other jobs in the national economy that Wetzel is capable of performing. Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (finding remand unnecessary where the ALJ’s error would not have affected the disability determination). 3  Lastly, Wetzel argues that the ALJ’s determination that he could perform light work as a toll collector, officer helper, or inspector/hand packager was not supported by substantial evidence. Wetzel’s arguments attacking the evidence upon which the ALJ based his decision ask this Court to attribute greater weight to the examining consultant and the credibility of his testimony. Having already rejected these arguments above, we find no basis to conclude that the ALJ did not support his conclusion regarding Wetzel’s ability to perform light work with substantial evidence. We have considered the remainder of Wetzel’s arguments and find them to be without merit. Accordingly, the judgment of the district court hereby is AFFIRMED. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 4 

476 F.2d 427 Fed. Sec. L. Rep. P 93,941John C. MEYERS & Lucy B. Meyers et al., Plaintiffs-Appellants,v.C & M PETROLEUM PRODUCERS, INC., et al., Defendants-Appellees. No. 72-2632. United States Court of Appeals,Fifth Circuit. April 10, 1973.Rehearing and Rehearing En Banc Denied May 24, 1973. H. Lehman Franklin, Jr., Statesboro, Ga., Hull, Towill, Norman, Barrett & Johnson, Wyckliffe A. Knox, Jr., Augusta, Ga., for plaintiffs-appellants. William A. Zorn, Jesup, Ga., for defendants-appellees. Before COLEMAN, MORGAN and RONEY, Circuit Judges. COLEMAN, Circuit Judge: 1 Section 77l, Title 15, United States Code provides as follows: 2 Sec. 77l. Civil liabilities arising in connection with prospectuses and communications. 3 Any person who- 4 (1) offers or sells a security in violation of section 77e of this title, 5 ****** 6 * * * 7 shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security. 8 In this appeal the sole issue is whether, under the pleadings and the facts, plaintiffs-appellants waived the right of recovery provided by the above statute. 9 The District Court submitted the issue to a jury, which found for the defendants, with judgment accordingly. We reverse and remand, with directions that judgment be entered for plaintiffs for the recovery specified by Sec. 77l. 10 C & M Petroleum Producers, Inc., is a Georgia corporation with its principal office and place of business in Jesup, Georgia. The corporation was organized for the purpose of buying and selling mineral leases in gas and oil wells in Ohio. The Company began to offer to sell and deliver these securities to certain residents of Georgia and Florida. The purchasers-appellants paid C & M a total of $23,750 for their interests in the wells. Although no registration statement has been filed with the Securities and Exchange Commission as required by Sec. 5 of the Securities Act of 1933, the mails, telephone, and other means of interstate transportation and communication were employed by C & M in these offers, sales, and deliveries. 11 Being informed of non-compliance with the registration requirements of the Securities Act of 1933 and the Georgia Securities Act of 1957, C & M wrote purchasers-appellants on May 27, 1969, advising them of the status of the matter and offering to repurchase their interests in the wells. The letter stated: 12 "We are advised that as a result of having sold you an interest in the above mentioned gas wells, we are in violation of the Georgia Securities Act of 1957 as amended and the Securities Act of 1933 as amended. These Statutes provide that we should have registered this interest as a security before offering it to you for sale. Consequently, in view of our violation of the Georgia and Federal Statutes, we hereby offer to repurchase from you said interest for the sum of money paid by you for said interest, less any monies received by you therefrom. This offer to repurchase the above described interest from you shall terminate ten days after the date hereof. In other words, you have ten days to decide whether you want to keep your interest or not. Enclosed is a copy of this letter on which you are requested to indicate your preference. You will also find herewith a stamped, self-addressed envelope in order that you may return the enclosed copy to us promptly. Very truly yours, C & M Petroleum Producers, Incorporated. Herman Morris. 13 "1. I desire that my interest be repurchased ( ). 14 "2. I do not desire that my interest be repurchased ( ). 15 "If we have not received a reply within ten days, we will assume that you wish to keep your interest in the referred well or wells." 16 The purchasers did not accept this proposal. Their attorney wrote C & M that he felt it impossible to determine the feasibility of accepting or rejecting the purchase offer unless first given data which would reflect the actual value of the securities. This clearly meant that the purchasers did not wish to surrender the securities if they were worth more than had been paid for them. The letter raised no other impediment to the return of the stock. It indicated an unwillingness to accept the remedy provided by the statute. 17 The purchasers took no further action and the ten day period expired. C & M then revoked the offer to repurchase. 18 Thereafter, the purchasers received and accepted $1,472.91 in income from the wells. 19 On December 23, 1969, the purchasers brought suit to recover the consideration paid for the securities, with interest, less the income received therefrom. 20 As already stated, the District Court allowed into evidence C & M's ten day repurchase offer as bearing on whether the purchasers had waived their rights under Secs. 5 and 12(1) of the Securities Act of 1933 [15 U.S.C., Secs. 77e and 77l]. The jury found that the purchasers-appellants had waived their rights and judgment was entered for C & M. 21 Appellants assert two grounds for reversal: that the defense of waiver is not available in a suit arising under Sec. 12(1) of the Act, and that the repurchase offer itself violated the registration requirements of the Act. 22 Since, except for the self-imposed ten day limitation, the C & M letter was an offer to provide the remedy prescribed by statute, we find no merit in the second argument. 23 This leaves remaining only the contention that by the express provisions of the Securities Act mere waiver was not, and could not be, a defense to this suit. 24 We recognize, of course, that ordinarily one may waive constitutionally guaranteed rights if it is intentionally and voluntarily done, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). 25 As to the sale of unregistered securities, however, Congress has specifically placed waivers in a different context. 15 U.S.C., Sec. 77n, provides that: 26 "Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this sub-chapter or of the rules and regulations of the Commission shall be void." 27 Can-Am Petroleum v. Beck, 10 Cir., 1964, 331 F.2d 331, was a case in which undivided interests in oil and gas leases had been sold in violation of Secs. 77e and 77l of the Act. The Court held that the remedial aspects of the Securities Act cannot be waived, either directly or indirectly, citing Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1953). The appellees here, defendants in the court below, sought to establish a waiver in the manner and form already set forth. Contrary to the general rule applicable to other transactions, this has been expressly prohibited by the Congress for the purpose of making the Act as effective as possible. 28 If C & M had unconditionally tendered the refund of the purchase price together with interest, less income received from the securities, coupled with a demand for the return of the securities, and had the purchasers rejected such an unconditional tender and demand they would have impaled themselves upon such an estoppel as recognized by the Court of Appeals for the Ninth Circuit in the cases of Straley v. Universal Uranium and Milling Corporation, 1961, 289 F.2d 370, and Royal Air Properties, Inc. v. Smith, 1964, 312 F.2d 210. What the appellees did was to make an offer to repay the purchase price and accept return of the securities, but they imposed their own ten day limitation upon the acceptance of the offer. When the offer was not accepted within the prescribed time the sellers cancelled it, restoring the parties to the position they occupied before the offer was made. While, as the jury found, this could be enough to establish a waiver, it was not enough to create an estoppel, lacking, as it did, an unconditional tender and demand. 29 Our opinion in this case is not to be construed as holding that purchasers of unregistered securities may reject the remedy provided by law when unconditionally tendered and thereafter, at their option, dally around while interest is running and increment is occurring, only to bring suit, at their pleasure, sometime within the statutory period. Such a course is on its face a distortion of the remedy provided by Congress. 30 Neither is this opinion to be construed as holding that once a purchaser receives such an unconditional tender and demand he may take the attitude of accepting it only if it is to his pecuniary advantage to do so. Without cavil, he must accept or reject. He cannot eat the cake and keep it, too. 31 Our holding in this case is that while the defendants-appellees established a waiver, the statute permits none. 32 For these reasons, the judgment of the District Court must be reversed and the cause remanded, with directions as hereinabove set forth. 33 Reversed and remanded, with directions. RONEY, Circuit Judge (specially concurring): 34 I concur in the decision that the failure of the purchasers to accept the repurchase offer of the sellers did not constitute an effective waiver of rights under the statute. The matter is completely within the control of Congress, which provided that 35 Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this sub-chapter or of the rules and regulations of the Commission shall be void. (Italics added) 36 Section 14, Securities Act of 1933, 15 U.S.C.A. Sec. 77n. Since apparently an intentional, formal, written waiver executed either before or after the acquisition of securities is void, a fortiori any waiver that might be inferred from less formal acts must also be void. 37 Although I understand the cother comments in the opinion to be only an explanation of the holding, I would not pass on the possibility of an estoppel until confronted with a case to which that doctrine might be applicable.

441 F.3d 119 UNITED STATES of America Appellee,v.Vernon SNYPE, Defendant-Appellant,Marisa Hicks, Defendant. No. 04-3299-cr(L). No. 04-3551-cr(CON). No. 04-4985-cr(CON). United States Court of Appeals, Second Circuit. Argued: June 14, 2005. Decided: March 17, 2006. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Kerry A. Lawrence (Theodore S. Green, on the brief), Briccetti, Calhoun & Lawrence, LLP, White Plains, New York, for Defendant-Appellant. Joshua Klein, Assistant United States Attorney (Karl Metzner, Assistant United States Attorney, on the brief), for David N. Kelley, United States Attorney for the Southern District of New York, New York, New York, for Appellee. Before: CABRANES and RAGGI, Circuit Judges, and SAND, District Judge.1 REENA RAGGI, Circuit Judge. 1 Defendant Vernon Snype appeals from a judgment of conviction entered on June 1, 2004, following a jury trial in the United States District Court for the Southern District of New York (Denny Chin, Judge), at which he was found guilty on one count of conspiracy to commit bank robbery in violation of 18 U.S.C. §§ 371, 2113.2 Presently incarcerated, serving a term of life imprisonment, Snype challenges his conviction on the following grounds: (1) the receipt into evidence of a co-conspirator's plea allocution violated his Sixth Amendment right to confrontation as delineated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); (2) the receipt into evidence of items seized during a warrantless search of the apartment where Snype was arrested violated the Fourth Amendment; (3) the receipt into evidence of Snype's marriage certificate violated due process because the jury inferred a prior felony conviction from the certificate's listing of Snype's home address as "Fishkill CF"; (4) the district court erred in failing to instruct the jury on an alternative unindicted charge of being an accessory after the fact to robbery, see 18 U.S.C. § 3; and (5) the imposition of a lifetime prison sentence pursuant to § 70001(2) of the Violent Crime Control and Law Enforcement Act of 1994 (commonly referred to as the "three-strikes" law), Pub.L. No. 103-322, 108 Stat. 1796, 1982-84, codified as amended at 18 U.S.C. § 3559(c), (a) was not supported by the record evidence, (b) violated his Sixth Amendment right to have findings of fact resulting in a higher maximum sentence made by a jury rather than the trial court, (c) was the result of an unconstitutional shifting of the burden of proof to the defendant, and (d) constituted cruel and unusual punishment in violation of the Eighth Amendment. 2 For the reasons discussed in this opinion, we conclude that the alleged errors are without merit or, in any event, harmless. Accordingly, we affirm the judgment of conviction. I. Factual Background A. The First Union Bank Robbery 3 Shortly after 10:00 a.m. on Saturday, July 6, 2002, two masked men entered the Tuckahoe Road branch of First Union Bank in Yonkers, New York, and, at gun-point, robbed the bank of approximately $20,000. Cornell McCloud, who participated in the robbery as a lookout and who would subsequently testify for the prosecution, identified the armed robbers as William Partlow and the defendant Vernon Snype.3 McCloud would also implicate Snype's wife, Marisa Hicks, and Hicks's cousin, Marlo White, as confederates in the robbery conspiracy.4 4 Inside the bank, Snype and Partlow shouted at customers to get down on the floor and not to "move or else we'll shoot you." Trial Tr. 36. One of the robbers then vaulted the counter and, pointing his gun in turn at each teller, demanded that money be placed into a bag. The robber instructed one teller, who had the money at his station in a box bearing his name and address, to place the entire box in the robbers' bag. B. The Robbers' Shootout with the Police 5 While the robbery was in effect, McCloud saw a police truck, which was in fact responding to a radio alert about the crime, approach the bank. As previously agreed among the confederates, McCloud promptly communicated his observation to Hicks, using a telephone programmed as a walkie-talkie.5 Moments later, McCloud saw Snype and Partlow run out of the bank, climb into the same blue SUV in which the pair had arrived, and speed away.6 The police truck and other police vehicles gave chase as the SUV entered onto the New York State Thruway, traveling at speeds in excess of 85 miles per hour. As police unsuccessfully attempted to force the SUV to the side of the road, shots were fired from that vehicle at the officers. Eventually, the SUV crashed, and the robbers fled on foot in opposite directions. The police cornered Partlow in some bushes and demanded his surrender. As Partlow stood up, he defiantly announced that he intended to "take one of you guys with me," prompting the police to shoot and kill him. Trial Tr. 279. 6 C. Snype Reunites with the Remaining Conspirators 7 After Snype fled the crash scene, he contacted McCloud on the walkie-talkie and arranged to meet him at a location in the Bronx. There, Snype recounted to McCloud, Hicks, and White the events of the chase and shootout. At Snype's direction, McCloud and White drove to the crash site to look for Partlow, but upon seeing only police officers at the scene, they returned to the Bronx meeting place. From there, the four confederates drove to Tuckahoe Road, where Snype retrieved his keys and wallet from a car belonging to Partlow. 8 The following day, July 7, 2002, McCloud was arrested in possession of the walkie-talkie used in the robbery. Also on July 7, Hicks and White traveled to a storage facility in New Jersey, where Hicks leased storage bin number 466 with access code 7074. 9 D. Snype's Arrest and the Seizure of Incriminating Evidence 10 Soon after McCloud's arrest, agents of the Federal Bureau of Investigation ("FBI") obtained an arrest warrant for Snype on charges of armed bank robbery. At approximately 10:15 p.m. on July 11, 2002, federal and local law enforcement officers forcibly entered a Queens apartment belonging to Jennifer Bean and there arrested Snype. On the floor of the bedroom where Snype was found, arresting officers saw, among other things, a knapsack, a red plastic bag, and the box taken from one of the First Union Bank tellers during the robbery. The box was open and, inside, bundles of cash were plainly visible. 11 After removing Snype from the apartment, officers sought Bean's consent to search her residence. At a suppression hearing, Bean testified that, despite the initial forcible entry into her home, she voluntarily gave both an oral and written consent to search, although she knew she was not required to do so. She explained that she had never met Snype, whom she knew only as "Vee," before July 11, 2002, when her boyfriend asked if Snype could spend the night at her apartment. 12 Acting on Bean's consent, officers seized the teller's box that they had first observed at the time of Snype's arrest, finding it to contain $7,761 in cash wrapped in money bands with markings identifying both the Tuckahoe Road branch of First Union Bank and the specific tellers from whom the money had been taken. From the previously observed knapsack, they seized another $13,000, also in bundles with First Union money bands; two loaded firearms; and various documents, including legitimate and fraudulent identifications as well as a business card for a New Jersey storage facility with the number "466" written on both sides of the card. From the red plastic bag on the bedroom floor, agents seized, among other things, a lease for storage bin number 466, access code number 7074, at the New Jersey facility. II. Discussion 13 A. The Admission of Marlo White's Plea Allocution to Prove the Charged Conspiracy Was Harmless Error 14 To prove the charged robbery conspiracy, the government offered, among other evidence, the redacted plea allocution of Marlo White as a statement against penal interest. See Fed.R.Evid. 804(b)(3).7 Snype, who unsuccessfully objected to this evidence, contends that the admission of White's allocution violated his Sixth Amendment right to confrontation. See U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. We agree but conclude that no new trial is warranted because the error was harmless. 1. The Crawford Error 15 Preliminarily, we observe that, at the time of Snype's trial, the law in this circuit permitted an unavailable co-conspirator's plea allocution to be offered to prove the existence of a conspiracy and conduct in furtherance thereof on the rationale that the circumstances of an allocution rendered the statement sufficiently reliable. See United States v. Dolah, 245 F.3d 98, 104-05 (2d Cir.2001); United States v. Moskowitz, 215 F.3d 265, 269 (2d Cir.2000) (per curiam). Consistent with this precedent, the district court carefully instructed the jury that it could consider White's allocution only on two issues: "whether there was a conspiracy to commit bank robbery and what, if anything, Ms. White did to further the objects of that conspiracy, assuming you find that it existed." Trial Tr. 303; see id. at 421-22. The court specifically instructed the jury that White's allocution could not be used to determine Snype's membership in the charged conspiracy: 16 The question of whether Mr. Snype was a member of that conspiracy is an issue that you will have to decide based on other evidence presented at this trial. In other words, the statements of Ms. White do not name Mr. Snype, and you cannot base your verdict as to whether he participated on the statements of Ms. White. 17 Id. at 304; see id. at 421-22. 18 In the interim between the jury's guilty verdict and Snype's sentencing, the Supreme Court ruled that the Confrontation Clause did not permit such out-of-court statements to be received in evidence. In Crawford v. Washington, the Court explained that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." 541 U.S. at 68-69, 124 S.Ct. 1354. Crawford specifically criticized our decisions in Dolah and Moskowitz, as well as similar rulings by our sister circuits and state courts. See id. at 63-65, 124 S.Ct. 1354. Thus, the government concedes, as it now must, that the admission of White's plea allocution was error. See United States v. Bruno, 383 F.3d 65, 78-79 (2d Cir.2004). 2. Harmless Error 19 A Crawford error does not, however, automatically require that a conviction be vacated. The law recognizes that such errors may sometimes be harmless. See United States v. McClain, 377 F.3d 219, 222 (2d Cir.2004). To establish harmlessness in this context, the government must "`show beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'" Id. (quoting United States v. Casamento, 887 F.2d 1141, 1179 (2d Cir.1989) (internal quotation marks omitted)); see United States v. Dhinsa, 243 F.3d 635, 649 (2d Cir.2001). We conclude that the government here carries this burden because, as already noted, White's allocution was admitted only to prove the existence of the charged conspiracy and that element of the crime of conviction was so overwhelmingly established by other trial evidence as to be essentially conceded by the defense. 20 Federal law is clear that a conspiracy is "an agreement among two or more persons, the object of which is an offense against the United States." United States v. Svoboda, 347 F.3d 471, 476 (2d Cir. 2003). Even without White's allocution, the government offered compelling evidence of such an illicit agreement in this case. Specifically, a number of bank customers and employees provided detailed eyewitness testimony that two armed men acted jointly in robbing First Union Bank on the morning of July 6, 2002. Further, an admitted participant in the robbery scheme, Cornell McCloud, identified a total of five co-conspirators, two of whom entered the bank to commit the robbery while three acted as lookouts. A wealth of circumstantial evidence corroborated this direct proof of conspiracy. For example, two hours before the bank robbery, two armed men (Partlow being one of them) stole the SUV that was used as the getaway car from a parking garage. Two men were in that car—one driving and the other firing shots from the passenger window—as police chased it fleeing from the bank. Further, telephone records showed extensive communication among the five conspirators identified by McCloud on the morning of July 6, 2002. In sum, because the totality of this evidence overwhelmingly establishes the charged robbery conspiracy, we can conclude beyond a reasonable doubt that White's allocution did not contribute to the jury's finding on this element of the crime. 21 Indeed, precisely because this other evidence of the existence of the charged conspiracy was so overwhelming, Snype sensibly did not dispute the element at trial. In both his opening and closing arguments, Snype's counsel acknowledged that "two men" jointly robbed the bank, a fact not even mentioned by White in her plea allocution. Trial Tr. 355; see also id. at 30 (referencing "the second person" robbing the bank); id. at 355 (referencing "two bank robbers"). Instead, the defense focused on the sufficiency of the government's proof of Snype's participation in the conspiracy. Counsel argued that the "other robber" joining Partlow inside the bank was not Vernon Snype, but Cornell McCloud: "[I]t was Cornell McCloud that was the second person who was the bank robber that day, not Vernon Snype." Id. at 30 (emphasis added); see also id. at 355 ("[T]here is far more evidence to suggest that Cornell McCloud was the other bank robber." (emphasis added)). The fact that Snype essentially conceded the existence of the charged conspiracy thus reinforces our conclusion that the admission of White's plea allocution to prove this element was harmless error. 22 In urging otherwise, Snype asserts that, "notwithstanding the district court's limiting instruction," the jurors "could" have used White's allocution for a second, impermissible purpose, i.e., to infer his participation in the charged conspiracy. Appellant Br. 22. Snype submits that the jurors might have reasoned that, because White and Hicks were cousins, Hicks must have been the "woman" referred to in White's allocution from whom she learned of the robbery plan. Further, from the fact that Hicks and Snype were married, as well as the telephone records in evidence, the jury might have inferred that Snype was the "man" with whom Hicks was speaking when White was told of the robbery plan. See id. at 22-23. 23 The argument is unconvincing. As the Supreme Court has frequently observed, the law recognizes a strong presumption that juries follow limiting instructions. See Zafiro v. United States, 506 U.S. 534, 540-41, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) ("`[J]uries are presumed to follow their instructions.'" (quoting Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987))); Spencer v. Texas, 385 U.S. 554, 562, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967) ("[T]he jury is expected to follow instructions in limiting . . . evidence to its proper function."); accord United States v. Stewart, 433 F.3d 273, 307 (2d Cir.2006) (noting the "well-settled proposition" that jurors are presumed to follow limiting instructions). While the presumption can "evaporate[] where there is an overwhelming probability that the jury will be unable to follow" a limiting instruction that demands "mental acrobatics" of the jurors, United States v. Jones, 16 F.3d 487, 493 (2d Cir. 1994), that is not this case. Indeed, it is Snype who proposes mental acrobatics in suggesting a multi-step course of deliberations that the jury "could" have pursued from White's allocution without any prompting by counsel and in violation of the court's instructions. Such a hypothesis hardly qualifies as an "overwhelming probability." Id. 24 In sum, although we find that the admission of White's plea allocution was error under Crawford, because we have no reason to conclude that the jury failed to follow the district court's instruction limiting consideration of that evidence to the element of conspiracy, and because the admissible evidence of conspiracy was plainly overwhelming, we conclude that this Crawford error was harmless beyond a reasonable doubt. 25 B. Items Seized During a Warrantless Search of Bean's Apartment Were Admissible 26 Snype contends that evidence seized during the warrantless search of Jennifer Bean's apartment should have been suppressed. He submits that the district court erred in finding that Bean's consent to search her apartment (1) was voluntary, (2) was not tainted by an initial illegal entry onto the premises, and (3) could authorize the search of Snype's belongings.8 The arguments are uniformly without merit. 1. Bean's Consent to Search Was Voluntary 27 a. The Consent Exception to a Warrantless Search 28 "The Fourth Amendment protects the right of private persons to be free from unreasonable government intrusions into areas where they have a legitimate expectation of privacy." United States v. Newton, 369 F.3d 659, 664 (2d Cir.2004); see U.S. Const. amend IV. As an overnight guest in Bean's apartment, Snype shared in his host's legitimate expectation of privacy in the premises. See Minnesota v. Olson, 495 U.S. 91, 98, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); accord United States v. Fields, 113 F.3d 313, 320 (2d Cir.1997). 29 Although warrantless searches of private property are generally presumed to be unreasonable, the law recognizes certain exceptions, for example, when the search is conducted pursuant to the consent of an authorized person. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Lewis, 386 F.3d 475, 481 (2d Cir.2004) (recognizing that where authorized party consents to search "neither a warrant nor probable cause is necessary"). To be sure, "the Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force." Schneckloth v. Bustamonte, 412 U.S. at 228, 93 S.Ct. 2041. Thus, when, as in this case, the government relies on consent to justify a warrantless search, it bears the burden of proving by a preponderance of the evidence that the consent was voluntary. See United States v. Isiofia, 370 F.3d 226, 230 (2d Cir.2004). Voluntariness is determined by reference to the "`totality of all the circumstances.'" Id. at 231 (quoting Schneckloth v. Bustamonte, 412 U.S. at 227, 93 S.Ct. 2041). While more than "mere acquiescence in a show of authority" is necessary to establish the voluntariness of a consent, United States v. Wilson, 11 F.3d 346, 351 (2d Cir.1993), the fact that a person is in custody or has been subjected to a display of force does not automatically preclude a finding of voluntariness, see United States v. Ansaldi, 372 F.3d 118, 129 (2d Cir.2004) (holding that use of guns to effectuate arrest and handcuffing of defendant did not render his consent to search his home involuntary). 30 In considering a challenge to a district court finding of consent, we are obliged to view the evidence in the light most favorable to the government. See United States v. Ansaldi, 372 F.3d at 129. We will not reverse a finding of voluntary consent except for clear error. See United States v. Isiofia, 370 F.3d at 232. We find no such error in this case. 31 b. The Evidence Demonstrating Bean's Voluntary Consent 32 Snype submits that, in light of the forcible entry into Bean's apartment, her subsequent consent to search could not reasonably be deemed voluntary. To be sure, the facts required the district court's careful consideration. On the one hand, Bean's home was forcibly entered by a heavily armed SWAT team that initially secured her and her boyfriend in handcuffs and raised the possibility of taking the couple into custody while placing Bean's young daughter in protective care. On the other hand, Bean testified that she perceived these events as "way, way before" her consent, which she unqualifiedly described as "voluntary." Hearing Tr. 17, 23. Bean's perception finds ample support in the circumstances occurring between the forcible entry and her consent. In that interval, (1) the SWAT team left the premises, (2) Snype was arrested and removed from the apartment, (3) Bean was allowed to call her sister to come help with her daughter, and (4) the remaining officers explained the circumstances to her so that she felt they were treating her "with respect." Id. at 18. 33 These facts are markedly distinguishable from those in United States v. Mapp, a case in which this court refused to find a consent to search voluntary where it followed a 2:00 a.m. forcible entry into a home without any "steps to establish an atmosphere of relative calm . . . conducive to the making of a knowing and intelligent decision." 476 F.2d 67, 78 (2d Cir.1973); see also id. (noting further that officer's statement was fairly construed as a demand for a particular piece of incriminating evidence rather than a solicitation of consent to search for that item). Here, in contrast to Mapp, numerous steps were taken that did restore calm to Bean's home before she consented to any search. Thus, as Bean testified, when she gave her consent, she did not do so because she felt threatened in any way by the law enforcement officers remaining on the premises, nor because she feared the consequences of a refusal for herself or her daughter. Indeed, she knew she was not required to give consent.9 34 On the totality of this evidence, we conclude that the district court did not clearly err in finding Bean's consent to search her apartment voluntary. 35 2. Bean's Consent Was Untainted by Any Illegality in the Initial Apartment Entry 36 a. The Separate Taint Inquiry 37 Snype asserts that, even if Bean's consent to search her apartment was voluntary, it was necessarily tainted by the initial illegal entry into her apartment. When a consent to search follows an illegal entry, this circuit requires the government to show more than the voluntariness of the consent; it must also demonstrate that "the taint of the initial entry has been dissipated" in order to admit evidence seized following the illegal entry. United States v. Oguns, 921 F.2d 442, 447 (2d Cir.1990) (internal quotation marks omitted). Oguns's identification of taint and voluntariness as distinct inquiries in evaluating the validity of certain consents derives from two Supreme Court decisions: Wong Sun v. United States, which held that evidence seized after an illegal search must be suppressed unless the government shows that it, in fact, resulted from "an intervening independent act of free will" sufficient "to purge the primary taint of the unlawful invasion," 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); and Brown v. Illinois, which held that, where an inculpatory statement follows an unlawful arrest, a finding of voluntariness under the Fifth Amendment (based on Miranda warnings) does not obviate the need to make a separate Fourth Amendment determination as to whether the statement was "`sufficiently an act of free will to purge the primary taint.'" 422 U.S. 590, 602, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (quoting Wong Sun, id.). 38 A number of our sister circuits similarly construe Wong Sun and Brown to require a showing of attenuation as well as voluntariness for a consent following an illegal search or seizure to avoid the consequences of the exclusionary rule. See United States v. Washington, 387 F.3d 1060, 1072 n. 12 (9th Cir.2004) ("For purposes of the Fourth Amendment, a determination that a consent was voluntarily made only satisfies a threshold requirement. The mere fact of voluntariness does not mean that a consent is not tainted by a prior Fourth Amendment violation." (internal quotation marks and citations omitted)); United States v. Robeles-Ortega, 348 F.3d 679, 681 (7th Cir.2003) ("Where the search following the illegal entry is justified based on alleged consent, courts must determine whether that consent was voluntary, and in addition the court must determine whether the illegal entry tainted that consent."); United States v. Lopez-Arias, 344 F.3d 623, 629 (6th Cir.2003) ("[N]ot only must the consent be valid, i.e. voluntary . . ., but the causal chain between the illegal seizure and the consent must be broken to avoid the consequences of the exclusionary rule."); United States v. Santa, 236 F.3d 662, 676 (11th Cir.2000) ("[T]he voluntariness of consent is only a threshold requirement; a voluntary consent to search does not remove the taint of an illegal seizure."). But see United States v. Mendoza-Salgado, 964 F.2d 993, 1013 (10th Cir.1992) ("Our circuit does not believe that under Wong Sun or Brown, the Government is required to show attenuation beyond a finding of voluntary, valid consent under Fourth Amendment standards." (internal quotation marks omitted)). 39 Following Oguns, we consider whether the initial entry into Bean's apartment was unlawful so as to require a separate inquiry into taint. 40 b. The Claimed Illegal Entry 41 Snype asserts that the initial entry into Bean's apartment was unlawful under the Fourth Amendment because it was not supported by a search warrant. The government responds that Snype cannot raise this complaint because the entry, at least as it pertained to him, was supported by a warrant for his arrest. See Payton v. New York, 445 U.S. 573, 602-03, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (holding that arrest warrant permits police to enter residence of person named therein to make arrest). Further, the government submits that the entry was supported by exigent circumstances. See, e.g., United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir.1990) (en banc); accord United States v. Fields, 113 F.3d 313, 322-23 (2d Cir.1997). 42 As an initial matter, we note that Snype's search warrant challenge relies on Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), in which the Supreme Court ruled that a search warrant was necessary to protect the privacy interests of a third party whose home was searched for the subject of an arrest warrant. At the same time, however, the Court specified that its ruling applied only to challenges raised by the third-party resident. It left open the question "whether the subject of an arrest warrant can object to the absence of a search warrant when he is apprehended in another person's home." Id. at 219, 101 S.Ct. 1642. 43 Although this court has yet to rule on that issue, a number of our sister circuits have held that Steagald protection does not extend to arrestees in Snype's position. They reason that (a) Fourth Amendment rights are personal and cannot be asserted vicariously, and (b) requiring police who already hold an arrest warrant for a suspect to obtain a search warrant before they can pursue that suspect in a third party's home would grant the suspect broader rights in the third party's home than he would have in his own home under Payton. See United States v. Agnew, 407 F.3d 193, 196-97 (3d Cir.2005); United States v. Kaylor, 877 F.2d 658, 663 n. 5 (8th Cir.1989); United States v. Underwood, 717 F.2d 482, 483-86 (9th Cir.1983) (en banc); United States v. Buckner, 717 F.2d 297, 299-300 (6th Cir.1983). But see United States v. Weems, 322 F.3d 18, 23 n. 3 (1st Cir.2003) (assuming, without deciding, that arrestee may object to police entry into third party's home without a search warrant). We need not here decide whether to adopt this reasoning because, even if we were to do so, Snype might still be entitled to a taint inquiry. 44 This is because an apparent gap in the hearing record does not permit us to conclude that either Payton or exigency supports the initial entry. Both theories require proof of a common fact to support entry into Bean's home without a search warrant: a reasonable basis for believing that Snype was then on the premises. See Payton v. New York, 445 U.S. at 603, 100 S.Ct. 1371 (holding that arrest warrant can support entry into suspect's residence "when there is reason to believe the suspect is within"); see, e.g., United States v. MacDonald, 916 F.2d at 769-70 (identifying such belief as a relevant factor to support exigency entry).10 In its written opposition to Snype's suppression motion, the government proffered that an unidentified cooperating witness had supplied the necessary basis for such belief, but, somehow, it failed to offer any evidence at the suppression hearing to support this claim. The omission may well reflect only the parties' focus on other contested issues. Nevertheless, in the absence of an adequate record to support this reasonable belief requirement of both Payton and exigent circumstances, we cannot determine the lawfulness of the initial entry on this appeal. Instead, like the district court, we assume the contrary and proceed to consider whether Bean's consent was sufficiently attenuated from the entry to be deemed the product of "`an act of free will.'" United States v. Oguns, 921 F.2d at 447 (quoting Brown v. Illinois, 422 U.S. at 603, 95 S.Ct. 2254 (quoting Wong Sun v. United States, 371 U.S. at 486, 83 S.Ct. 407)). 45 c. The Record Convincingly Demonstrates that Any Taint from the Initial Entry Had Dissipated by the Time of Bean's Consent 46 As this court has previously observed, the question of whether a person's statement has been purged of the taint of prior official illegality "does not hinge on a simple `but for' analysis, but rather `must be answered on the facts of each case.'" United States v. Thompson, 35 F.3d 100, 105 (2d Cir.1994) (quoting Brown v. Illinois, 422 U.S. at 603, 95 S.Ct. 2254). The Supreme Court has identified the following factors as relevant to that consideration: (1) the giving of Miranda warnings, (2) the "`temporal proximity'" of the illegal entry and the alleged consent, (3) "`the presence of intervening circumstances,'" and (4) "`the purpose and flagrancy of the official misconduct.'" Kaupp v. Texas, 538 U.S. 626, 633, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) (quoting Brown v. Illinois, 422 U.S. at 603-04, 95 S.Ct. 2254). Obviously, the first factor is most relevant where the person giving consent is in custody, which was not the case with Bean. Accordingly, we here focus on the remaining factors. 47 Only a half hour elapsed between the entry into Bean's apartment and her consent to search. Viewed in isolation, this might appear insufficient time to dissipate any taint from a forced entry. Nevertheless, as Oguns recognized, intervening events, even within a brief time, can sometimes sever the causal connection between an illegal entry and a subsequent consent to search, thereby permitting a court to conclude that the consent fairly reflects an act of free will. See United States v. Oguns, 921 F.2d at 447-48 (upholding consent to search given only minutes after an illegal entry); see also Kaupp v. Texas, 538 U.S. at 633, 123 S.Ct. 1843 (discussing need to show severance of causal connection). Like Oguns, this is such a case. 48 As earlier noted, before Bean's consent to search was sought, the entering SWAT team left her apartment, Snype was arrested and removed from the premises, Bean's own liberty was restored, and she was allowed to call her sister to come help with the care of her young child. Together, these intervening events effectively replaced the fearful atmosphere of the initial forcible entry with relative calm. Cf. United States v. Mapp, 476 F.2d at 78.11 This complete change in circumstances explains Bean's perception of the entry as having occurred "way, way before" her consent to search. Hearing Tr. 23. Indeed, Bean testified that the officers who remained on the premises treated her "with respect" in explaining the situation leading to the entry and in seeking her consent to search. Id. 18. Moreover, she stated that she then knew that she was not required to consent to any search. See United States v. Oguns, 921 F.2d at 447 (considering defendant's awareness of Fourth Amendment right to refuse consent as a factor relevant to exercise of free will). In short, because the intervening circumstances successfully dissipated any taint from the initial entry, we can confidently conclude that Bean's consent represented an independent act of her free will. 49 Nor is the misconduct here at issue so flagrant as to warrant any different conclusion. Certainly, the purpose of the entry—to effect Snype's arrest for a violent robbery—was legitimate. Further, that purpose was supported by, at least, an arrest warrant. Moreover, while the forcible nature of the entry would be the fact of greatest concern to the validity of any subsequent consent, the use of such force found support in the circumstances detailed supra at 134 n. 10. Thus, any illegality in the entry derived not from its force but only from the lack of record support for a fact necessary to a Payton or exigency entry: the government's reasonable belief that Snype was in Bean's apartment at the time of the entry. Although we give the defendant the benefit of this omission in reviewing Bean's consent for taint, because the government's proffer suggests that there may well have been a basis for believing that Snype was present in the apartment, we will not label the presumed misconduct "flagrant." 50 In sum, even if we assume the illegality of the initial entry into Bean's apartment, we conclude that intervening events satisfactorily severed the connection between that entry and Bean's consent, permitting her to act entirely on her own free will. 51 3. The Scope of Bean's Consent Encompassed the Seized Knapsack and Red Plastic Bag 52 Snype submits that the district court erred in concluding that Bean could consent to the search of his belongings, specifically, a knapsack and red plastic bag. He is wrong.12 53 The law in this circuit is well settled that a third party's consent will validate a search of places or items in which another maintains a privacy interest if two conditions are satisfied: the third party had (1) "`access to the area searched,'" and (2) either "`(a) common authority over the area; or (b) a substantial interest in the area; or (c) permission to gain access [to the area].'" Ehrlich v. Town of Glastonbury, 348 F.3d 48, 53 (2d Cir.2003) (quoting United States v. Davis, 967 F.2d 84, 87 (2d Cir.1992)). In this case, there is no question that Bean, as the lessor and resident of the apartment at issue, had the access and authority necessary to consent to a search of the entire premises. Thus, her open-ended consent would permit the search and seizure of any items found in the apartment with the exception of those "obviously" belonging to another person. United States v. Zapata-Tamallo, 833 F.2d 25, 27 (2d Cir.1987) (per curiam) (internal quotation marks omitted). 54 To the extent Snype attempts to fit himself within this exception, we note that it is not enough for him to offer on appeal the conclusory argument that law enforcement officers "had no objectively reasonable basis for concluding" that Bean had access to or any interest in the seized knapsack and red plastic bag. Appellant Br. 35. Rather, Snype was obliged to adduce credible evidence demonstrating that these items were obviously and exclusively his. See United States v. Zapata-Tamallo, 833 F.2d at 27. The burden is not easily satisfied. In Zapata-Tamallo, another case in which an apartment guest challenged the scope of his host's consent to search, an officer seized a blue duffel bag full of cocaine from under a bed. Although the same officer had earlier seen Zapata-Tamallo carry the blue bag into the apartment, this court ruled that the observed fact was insufficient to prove that the bag obviously and exclusively belonged to Zapata-Tamallo. See id. This conclusion compels the same result in this case. No officer ever saw Snype carrying the knapsack or red plastic bag. No marks on the bags linked them to him. To the extent the discovery of these items in the same room where Snype was arrested suggests a connection between him and the bags, such a possibility hardly equates to Snype's obvious, much less exclusive, ownership of the bags. The bedroom was, after all, full of personal belongings, ranging from children's toys to a laptop computer found inside a carrying case. Further, evidence of possible criminal conduct was also seized from elsewhere in the apartment—notably, rounds of ammunition in the living room. These circumstances, together with the fact that the robbery under investigation had been the object of a conspiracy among several persons, necessarily raised the possibility that various persons in the apartment might share possessory interest in the items searched. Under these circumstances, we conclude that Snype has failed to demonstrate that any seized items so obviously belonged exclusively to him that the officers could not reasonably rely on Bean's unrestricted consent to search all items found in her home. 55 Accordingly, we identify no error in the district court's conclusion that Bean's voluntary consent supported a search of her entire apartment and all items found in it, including the seized knapsack and red plastic bag. 56 C. The Admission of Snype's Unredacted Marriage Certificate Does Not Warrant a New Trial 57 Among the evidence offered by the government to prove the relationship between Snype and alleged co-conspirator Marisa Hicks was a New York State Department of Health certificate, dated September 30, 1994, authorizing the marriage of Vernon Snype and Marisa C. Hicks. In the space provided for the groom's street address, the license listed "Fishkill CF," a reference to the New York State Fishkill Correctional Facility where Snype was then incarcerated. In post-verdict conversations with defense counsel, certain unidentified jurors apparently revealed that, in the course of their deliberations, they had inferred from the Fishkill CF reference that Snype likely had a prior felony conviction. Accordingly, Snype now claims that he was denied his due process right to a fair trial, faulting the district court both for admitting the marriage certificate without redacting the Fishkill reference, and for denying his post-verdict motion for a new trial based on this alleged error. These arguments are unconvincing. 58 1. No Extrinsic Evidence of a Prior Conviction Was Considered by the Jury in this Case 59 Preliminarily, we observe that Snype frames his due process challenge as one based on the jury's improper exposure to "extrinsic" information. See United States v. Schwarz, 283 F.3d 76, 97 (2d Cir.2002) (ordering new trial based on jury's exposure to "extrinsic information" in the form of press accounts of co-defendant's admissions at guilty plea); United States v. Moten, 582 F.2d 654, 664 (2d Cir.1978) (holding that defendant has constitutional right to be tried by impartial jury "unprejudiced by extraneous influence"). We reject this characterization. The jury that convicted Snype was not exposed to any information beyond that received in evidence at trial. Snype's real complaint is that the jury, upon reviewing a document in evidence, i.e., his marriage certificate, drew an inference from his stated address that the parties had apparently not anticipated, i.e., that he had a felony conviction.13 This may raise a question about the propriety of receiving the marriage license into evidence without redaction, but it does not present us with a case of jury exposure to extrinsic information. 60 Benjamin v. Fischer, 248 F.Supp.2d 251 (S.D.N.Y.2002), aff'd 87 Fed.Appx. 761 (2d Cir.2004), relied on by Snype, is not to the contrary. In that habeas corpus case, a jury deliberately sought extrinsic information about a defendant's prior criminal record. That information was contained in a police report offered into evidence by the defense. Before submitting the exhibit to the jury, however, counsel used a black marking pen to redact a portion relating his client's prior criminal record.14 Because the redaction was poorly done, the deliberating jury was able to "place[] the police report up to the light, read through the black ink, and discover [the defendant's] prior robbery arrests." Id. at 257. The case is plainly distinguishable from Snype's. The Benjamin jurors had to have known from the black-ink redactions that certain material in the police report was not properly considered by them in their deliberations. Nevertheless, they went to considerable lengths to look behind the redaction to learn this extrinsic information. In short, the concern in Benjamin was not only jury exposure to extrinsic information, but possible jury misconduct. By contrast, in Snype's case, the jury never attempted to go behind any redacted evidence. At most, they drew an inference (of a prior conviction for an unspecified crime) from a fact (a Fishkill CF address) contained in an exhibit (a marriage certificate) that was submitted for their consideration without any indicia of redaction. 61 In these circumstances, Snype's marriage certificate challenge presents us with no due process issue about jury exposure to extrinsic information. Instead, we review only an evidentiary question about admitted evidence, specifically, whether the marriage certificate was properly received without redaction. 62 2. The District Court Did Not Commit Plain Error in Failing Sua Sponte to Redact the Marriage Certificate 63 In the district court, Snype raised no objection to the marriage certificate's reference to Fishkill CF, nor did he seek any redaction of this information. Accordingly, we review the district court's failure sua sponte to redact this reference only for plain error. To demonstrate plain error, a defendant must show (1) error, (2) that is plain, and (3) that affects substantial rights. See United States v. Vaval, 404 F.3d 144, 151 (2d Cir.2005). Where these conditions are met, we have the discretion to notice a forfeited error if (4) it "`seriously affects the fairness, integrity, or public reputation of judicial proceedings.'" Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)); see also Fed. R.Crim.P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."). 64 Applying this analysis to this case, we note that, even if we were to conclude that it was error not to redact the Fishkill reference from the marriage certificate before the document was submitted to the jury, we are loath to identify the error as "plain." See Johnson v. United States, 520 U.S. at 467, 117 S.Ct. 1544 (noting that an error is "plain" if the error is "clear under current law"); United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Snype points us to no rule of law—nor do we identify any—holding that, when a document in a criminal trial is offered in evidence without objection as to content, a trial judge must sua sponte review the exhibit to ensure that no fact contained therein—and no inference that could be drawn from any fact—is possibly prejudicial to the defendant. See generally United States v. Campbell, 223 F.3d 1286, 1288 (11th Cir.2000) (per curiam) (noting unwillingness "to say that a trial court's failure to sua sponte redact a defendant's [post-arrest] statement to remove [agent] hearsay is error"). Even if we were to rule otherwise, however, Snype's challenge would fail on the final two prongs of analysis because the charged redaction error was necessarily harmless in light of other overwhelming evidence of guilt. See United States v. Singh, 390 F.3d 168, 185 (2d Cir.2004) (rejecting plain error challenge "in light of the overwhelming evidence [of guilt] presented on behalf of the government"). 65 An evidentiary error not affecting substantial rights can be deemed harmless if we conclude with "fair assurance" that the jury's "`judgment was not substantially swayed by the error.'" O'Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); accord United States v. Edwards, 342 F.3d 168, 178-79 (2d Cir.2003) (collecting cases). Because this rule applies to the wrongful admission of prior crime evidence, see United States v. Garcia, 291 F.3d 127, 143 (2d Cir.2002); United States v. Germosen, 139 F.3d 120, 127 (2d Cir. 1998), it also reasonably applies to the wrongful admission of evidence from which a jury could infer prior criminal conduct. To conclude that a jury's judgment was not substantially swayed by an evidentiary error, we need not determine that the evidence "could not have had any effect whatever" on the jury. United States v. Rea, 958 F.2d 1206, 1220 (2d Cir.1992). Rather, we need decide only that the evidence at issue was "`unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.'" Id. (quoting Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991)). We easily reach that conclusion in this case. 66 Snype was implicated in the charged robbery conspiracy not only by the direct testimony of co-conspirator McCloud and the corroborating circumstantial web of telephone contacts among himself and other conspirators on the day of the robbery; he was caught red-handed in possession of almost the entirety of the robbery's cash proceeds (much of it still bundled in First Union Bank wrappers). Also in his possession was a teller's box taken at gunpoint in the robbery and likely tools of the crime, specifically, guns and ammunition. 67 Snype submits that this evidence does not overwhelmingly establish his role as one of the gunmen in the robbery, as the government argued at trial. That is beside the point. The law does not require the prosecution to prove that a defendant played any particular role in a conspiracy. It satisfactorily carries its burden on the participation element of conspiracy if it proves beyond a reasonable doubt that the defendant knew the general criminal purpose of the conspiracy and joined the scheme intending to help it succeed. See United States v. Svoboda, 347 F.3d at 477. 68 Because the totality of admissible evidence overwhelmingly proved Snype's participation in the charged conspiracy, as well as all other elements of that crime, we conclude that any error in submitting Snype's marriage certificate to the jury without redaction was clearly harmless. Accordingly, Snype is not entitled to reversal on the ground of plain error. 69 3. The District Court Acted Within Its Discretion in Denying a New Trial 70 Snype asserts that, even if it was not plain error for the district court to admit the unredacted marriage certificate, it was error to deny his motion to vacate based on post-verdict juror reports that they had inferred a prior conviction from the exhibit's reference to Fishkill. Rule 33(a) of the Federal Rules of Criminal Procedure states that a trial court "may vacate any judgment and grant a new trial if the interest of justice so requires." We review a district court's denial of a Rule 33 motion deferentially and will reverse only for abuse of discretion. See United States v. Rivas, 377 F.3d 195, 199 (2d Cir.2004). We identify no such abuse in this case. 71 As this court has explained, on a Rule 33 motion to vacate, "[t]he `ultimate test' is `whether letting a guilty verdict stand would be a manifest injustice.'" United States v. Canova, 412 F.3d 331, 349 (2d Cir.2005) (quoting United States v. Ferguson, 246 F.3d 129, 133 (2d Cir.2001)). In other words, "[t]here must be a real concern that an innocent person may have been convicted." Id. (internal quotation marks omitted). This case presents no such concern. 72 As noted in the immediately preceding section of this opinion, the evidence of Snype's guilt on the charge of conspiracy—the only charge on which he was convicted—was overwhelming without regard to any inference of a prior conviction that might be drawn from the unredacted marriage certificate. Further, because we conclude that such an inference does not constitute extrinsic evidence, we reject Snype's argument that the district court was obliged to examine the jurors further before ruling on his motion to vacate. Courts generally may not question jurors concerning any matter relating to jury deliberations other than the potential exposure of jury members to "extraneous prejudicial information." Fed.R.Evid. 606(b); see also United States v. Thomas, 116 F.3d 606, 618 (2d Cir.1997) (emphasizing that "[t]he secrecy of deliberations is the cornerstone of the modern Anglo-American jury system"); United States v. DiSalvo, 34 F.3d 1204, 1225 (3rd Cir.1994) (precluding post-verdict inquiry of jury into inferences drawn from certain evidence). Indeed, courts go to great lengths to avoid post-verdict inquiries by the parties to the litigation, or even by third parties, into the substance of jury deliberations. See United States v. Thomas, 116 F.3d at 619-20 (discussing prophylactic measures that judges take, including advising jurors against divulging the substance of their deliberations, "imposing strict limitations on what jurors are permitted to disclose," and "subject[ing] post-verdict juror interviews to judicial supervision.").15 73 In sum, because the jury was not exposed to extrinsic evidence, we conclude that the district court acted within its discretion in denying Snype's Rule 33 motion to vacate. 74 D. The District Court Properly Denied Snype's Request to Charge Accessory After the Fact 75 At the close of the evidence, Snype requested that the district court charge the jury on an unindicted crime: accessory after the fact. See 18 U.S.C. § 3. He submits that the court's denial of this request violated his due process right to a fair trial by preventing him from presenting a defense. 76 This constitutional argument merits little discussion. A criminal defendant "has no constitutional right" to be prosecuted under any particular statute. United States v. Batchelder, 442 U.S. 114, 125, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979) (rejecting argument that, where conduct conceivably violated two statutes, defendant had right to be charged under the one providing for lesser penalties). In a government of divided powers, "[w]hether to prosecute and what charge to file or bring before a grand jury" are decisions that generally rest in the sole discretion of the executive branch. Id. at 124, 99 S.Ct. 2198 (collecting cases); see also United States v. Armstrong, 517 U.S. 456, 465, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (collecting cases). Certainly, the Constitution precludes the executive from employing "an unjustifiable standard such as race, religion, or other arbitrary classification" in the exercise of its prosecutorial discretion. Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); accord United States v. Armstrong, 517 U.S. at 464, 116 S.Ct. 1480. But the remedy in such cases is dismissal of charges improperly filed. The judiciary cannot compel the executive to file particular charges against a defendant. See generally United States v. Armstrong, 517 U.S. at 465, 116 S.Ct. 1480 (questioning court's competence to assess factors that necessarily inform prosecutor's charging decisions, for example, "`the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan'" (quoting Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985))). Thus, even though Snype submits on appeal that he would have been willing to waive his right to a grand jury indictment to secure the requested accessory instruction, the district court could not have submitted a § 3 count to the jury unless the United States Attorney agreed to file a felony information charging a violation of that statute. See Fed.R.Crim.P. 7(b). 77 United States v. Ferguson, 758 F.2d 843 (2d Cir.1985), cited by Snype, does not hold otherwise. In that case, we ruled only that defendants who persuaded a district court to charge accessory after the fact to bank robbery, despite "informed opposition" by the government, id. at 851, could not thereafter raise appellate challenges to their accessory convictions on the grounds that the crime was not a lesser included offense of robbery and that they had failed adequately to waive their right to indictment, see id. at 852 ("Having obtained from the court precisely what they affirmatively sought, it ill behooves defendants now to complain that their waiver of indictment to the offense lacked the formality stated in Fed.R.Crim.P. 7."). Nothing in Ferguson suggests a constitutional right to an accessory charge in a robbery case. 78 We recognize, of course, that the Federal Rules of Criminal Procedure do afford a defendant the right to have a lesser included offense charged to a jury. See Fed.R.Crim.P. 31(c) ("A defendant may be found guilty of . . . (1) an offense necessarily included in the offense charged"). The Supreme Court has adopted an elements approach to Rule 31(c). See Schmuck v. United States, 489 U.S. 705, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). Thus, "a defendant is entitled to a lesser-included offense instruction under federal law only if (1) the elements of the lesser offense are a subset of the elements of the charged offense, and (2) the evidence at trial permits a rational jury to find the defendant guilty of the lesser offense and acquit him of the greater." United States v. Diaz, 176 F.3d 52, 101 (2d Cir.1999) (emphasis added) (internal quotation marks and citations omitted). Snype cannot complain of any Rule 31(c) error because the elements of accessory after the fact are not a subset of the elements of any of the charged crimes. 79 The elements of a § 371 conspiracy are clearly established: (1) an agreement between two or more persons to commit a specified federal offense, (2) the defendant's knowing and willful joinder in that common agreement, and (3) some conspirator's commission of an overt act in furtherance of the agreement. See, e.g., United States v. Svoboda, 347 F.3d at 476; see also Leonard B. Sand, et al., 1 Modern Federal Jury Instructions: Criminal, Instruction 19-3 (2003). The elements of accessory after the fact under 18 U.S.C. § 3 are (1) commission of a specified offense by some person, (2) the defendant's knowledge of the crime's commission and the principal's participation in it, and (3) the defendant's assistance to the principal "with the specific purpose or plan to hinder or prevent" the principal's "apprehension, trial, or punishment." Leonard B. Sand, et al., 1 Modern Federal Jury Instructions: Criminal, Instruction 12-2 (2002). As this recitation demonstrates, a defendant need not join in a robbery conspiracy to be guilty as an accessory to that crime. But an accessory's guilt does depend on proof of an element separate and distinct from those required to convict for conspiracy, specifically, the accessory's after-the-fact assistance to a member of the conspiracy with the specific purpose to hinder or prevent that person's apprehension, trial, or punishment.16 80 Accordingly, because we conclude that neither the Constitution nor Rule 31(c) required the district court to give an accessory instruction to the jury in this case, we reject Snype's challenge to the charge as without merit. 81 E. Snype's Challenges to His Sentence Are Without Merit 82 1. The Application of § 3559(c)(1) to Snype's Case 83 Although a § 371 conspiracy conviction generally exposes a defendant to a maximum prison term of five years, see 18 U.S.C. § 371, Snype was sentenced to a mandatory term of life imprisonment pursuant to 18 U.S.C. § 3559(c)(1). 84 Section 3559(c)(1) states in relevant part: 85 Notwithstanding any other provision of law, a person who is convicted in a court of the United States of a serious violent felony shall be sentenced to life imprisonment if — 86 (A) the person has been convicted (and those convictions have become final) on separate prior occasions in a court of the United States or of a State of — 87 (i) 2 or more serious violent felonies. . . .17 88 As this language indicates, the statutory mandate is triggered by proof of two facts: (1) the crime for which a defendant is about to be sentenced must itself be a "serious violent felony," and (2) the defendant must, on at least two separate prior occasions, have been convicted of serious violent felonies. It is this combination of past and present serious violent felony convictions that earns the statute its "three-strikes" appellation. 89 For purposes of § 3559(c)(1), "serious violent felony" is defined to mean: 90 (i) a Federal or State offense, by whatever designation and wherever committed, consisting of murder (as described in section 1111); manslaughter other than involuntary manslaughter (as described in section 1112); assault with intent to commit murder (as described in section 113(a)); assault with intent to commit rape; aggravated sexual abuse and sexual abuse (as described in sections 2241 and 2242); abusive sexual contact (as described in sections 2244(a)(1) and (a)(2)); kidnapping; aircraft piracy (as described in section 46502 of Title 49); robbery (as described in section 2111, 2113, or 2118)18; carjacking (as described in section 2119); extortion; arson; firearms use; firearms possession (as described in section 924(c)); or attempt, conspiracy, or solicitation to commit any of the above offenses; and (ii) any other offense punishable by a maximum term of imprisonment of 10 years or more that has as an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense. 91 18 U.S.C. § 3559(c)(2)(F) (emphasis added) (footnote added). On this appeal, we focus on subpart (i). 92 Because the jury in this case found Snype guilty beyond a reasonable doubt of conspiring to commit robbery in violation of § 2113, his instant crime plainly falls within the definition of serious violent felony articulated in § 3559(c)(2)(F)(i). Although Snype does not seriously dispute that conclusion, he notes that the jury did not make a specific finding as between the dual charged purposes of the conspiracy count of conviction, i.e., simple bank robbery in violation of § 2113(a) and aggravated bank robbery in violation of § 2113(d). The distinction is irrelevant to the statutory definition of a serious violent felony. Even if we were to assume arguendo that the jury found Snype guilty only of a conspiracy to violate § 2113(a), the plain language of § 3559(c)(2)(F)(i) identifies any robbery in violation of § 2113, or an inchoate version of such a robbery — namely, attempt, conspiracy, or solicitation to commit the offense — as a serious violent felony. See generally Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (noting that statutory construction begins and ends with language of the statute if language is unambiguous and statutory scheme is coherent); accord Virgilio v. City of New York, 407 F.3d 105, 112 (2d Cir.2005). 93 As for prior convictions, the government relied on Snype's three prior New York State robbery convictions to satisfy the second requirement of § 3559(c)(1): (1) a 1980 conviction for attempted second degree robbery, see N.Y. Penal Law §§ 110.00, 160.10; (2) a 1981 conviction for attempted first degree robbery, see id. §§ 110.00, 160.15; and (3) a 1983 conviction for two counts of first degree robbery, see id. § 160.15.19 Under New York law, "[r]obbery is forcible stealing," committed when a person "uses or threatens the immediate use of physical force" to take property belonging to another. Id. § 160.00; see also id. § 155.05 (defining larceny). Because these state statutory elements parallel those required to establish robbery under 18 U.S.C. §§ 2111, 2113(a), and 2118(a), there can be no question that New York State convictions for first and second degree robbery by definition qualify as serious violent felonies under § 3559(c)(2)(F)(i). See, e.g., Leonard B. Sand, et al., 3 Modern Federal Jury Instructions: Criminal, Instruction 53-2 (defining robbery in context of § 2113); see also Criminal Jury Instructions (New York), Second Edition, PL 160.00, at 160-1002 (defining robbery). 94 In urging a different conclusion, Snype argues that § 3559(c)(2)(F)(i) does not, by itself, define "serious violent felony." He submits that this section must be read in conjunction with § 3559(c)(3). He misconstrues the statute. Section 3559(c)(3) does not define what constitutes a serious violent felony. Rather, it serves, in effect, as a safety valve, affording defendants convicted of certain serious violent felonies an opportunity to avoid the statutorily mandated life sentence on a clear and convincing showing of circumstances mitigating their commission of any such violent felony. If a defendant makes the required showing, that particular serious violent felony will no longer qualify for consideration in determining the applicability of the § 3559(c)(1) mandate. Thus, with respect to robbery convictions, § 3559(c)(3) states: 95 Robbery, [or] an attempt, conspiracy, or solicitation to commit robbery . . . shall not serve as a basis for sentencing under this subsection if the defendant establishes by clear and convincing evidence that — 96 (i) no firearm or other dangerous weapon was used in the offense and no threat of use of a firearm or other dangerous weapon was involved in the offense, and 97 (ii) the offense did not result in death or serious bodily injury (as defined in section 1365) to any person. 98 18 U.S.C. § 3559(c)(3)(A). 99 Having thus outlined the statutory scheme, we turn to Snype's four particular challenges to his life sentence. First, Snype submits that he, in fact, carried the burden imposed by § 3559(c)(3)(A) and that the district court erred in concluding otherwise. Second, Snype argues that, under the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the district court erred in itself making factual findings relevant to the application of a life sentence under § 3559(c)(1), rather than submitting those issues to the jury. Third, despite the clear language of § 3559(c)(3)(A), assigning the burden of proof to the defendant, Snype asserts that due process required the government to prove that his present federal and prior state robbery convictions do not fall within the § 3559(c)(3)(A) exception. Finally, Snype contends that even if we reject each of these sentencing challenges, a term of life incarceration constitutes cruel and unusual punishment in his case. We reject these arguments on the merits. 100 2. Snype Did Not Carry the Burden Imposed by § 3559(c)(3)(A) 101 If, as Snype contends, he did make the clear and convincing showing required by § 3559(c)(3)(A), that could obviate the need for us to address his various constitutional challenges to sentence. In fact, he did not carry this burden. In reaching this conclusion, we review a district court's findings of fact as they pertain to sentence only for clear error, see United States v. Ayers, 416 F.3d 131, 133 (2d Cir.2005), and we find none in this case. 102 Focusing first on the robbery conspiracy charge for which he was found guilty, Snype argues that this crime necessarily falls within the exception created by § 3559(c)(3)(A) because "the only logical inference" to be drawn from the jury's failure to convict him on the substantive weapons and aggravated robbery counts is that he participated in the conspiracy in some manner other than through the use of weapons. See 18 U.S.C. § 3559(c)(3)(A)(i).20 The argument is flawed in at least two respects. First, a jury's failure to return a verdict tells us nothing about its view of the evidence other than that the jurors were not unanimously convinced beyond a reasonable doubt that the prosecution had proved each of the elements of the crimes under consideration. See generally United States v. Newton, 369 F.3d at 680 (noting that "[a] jury may hang for any number of reasons, including the idiosyncratic views of a single juror"). This hardly constitutes "clear and convincing" proof that the defendant did not use or threaten the use of a firearm or other dangerous weapon in the course of the robbery crime of conviction. Second, the pertinent inquiry under § 3559(c)(3)(A) is not whether Snype can convincingly show that he never used or threatened to use a firearm in the course of the robbery conspiracy; it is whether he can show that no participant in the conspiracy used or threatened the use of a firearm. The record plainly will not support such a finding. 103 At least five eyewitnesses provided direct testimony that firearms were used in furtherance of the bank robbery conspiracy. First, a parking attendant testified that, at approximately 8:00 a.m. on the morning of the robbery, William Partlow — undisputedly one of the robbers — acting together with another unidentified man, brandished a firearm to steal the SUV that would be used as the robbery getaway car, a charged overt act in furtherance of the conspiracy. Second, a customer in the bank at the time of the robbery vividly recounted how one of two masked robbers grabbed his wife, pushed her to the ground, pointed a pistol at her, and ordered him to "Get down [by your wife] or I'll shoot you." Trial Tr. 34. Third, a bank manager confirmed the customer's account and reported that, in fact, both robbers had guns drawn during the robbery. Fourth, a teller testified to seeing one of the masked robbers point a gun at each of his fellow tellers and demand money. According to the teller, this robber then "pointed the gun right at my head" and ordered him to open the cash vault. Id. at 285-86. Fifth, a police officer chasing the robbers as they left in the stolen SUV testified that a man "fired about four to five shots" at the police from out the SUV's passenger window. Id. at 181. 104 On this compelling evidence, whatever the burden of proof and by whomever borne, it is inconceivable that any court could make the requisite § 3559(c)(3)(A) finding that "no firearm" was used in the course of the charged robbery conspiracy.21 105 As for Snype's prior state robbery convictions, he submits that he carried his § 3559(c)(3)(A) burden by pointing to his plea allocutions for these crimes, which admit only that he or his confederates carried firearms during these robberies, not that they ever used the weapons in the course thereof. See generally Bailey v. United States, 516 U.S. 137, 146, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) (drawing distinction between use and carrying of firearm for purposes of 18 U.S.C. § 924(c)(1)). In the district court, Snype appears to have raised no objection to the sentencing judge's observation that the use or threatened use of a dangerous instrument was a necessary element of first degree robbery, the serious violent felony at issue in his 1981 and 1983 convictions. See N.Y. Penal Law § 160.15(3). Only on appeal does he note that first degree robbery can also be committed by a person "armed with a deadly weapon." Id. § 160.15(2). The point is of no significance. The fact that Snype did not specifically allocute to use of the firearms that he and his confederates carried in the course of the state robberies at issue hardly constitutes "clear and convincing" evidence that firearms were not deployed in these crimes. In state court proceedings, the prosecution proffered that Snype had brandished a firearm in both the 1981 and 1983 robberies. Indeed, it represented that in fleeing from the 1983 robbery, Snype had fired a shot at a pursuing customer. Whatever categorical limits might apply to the prosecution in proving that a prior conviction triggers a statutory sentencing enhancement, see Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005) (holding that court could look only to "the statutory definition" of a crime, the "charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented" in determining if prior conviction qualified as a "generic burglary" for purposes of enhanced sentencing under Armed Career Criminal Act), no similar limitations apply to a defendant seeking the benefit of § 3559(c)(3)(A). The relief afforded by that statute does not depend on the elements of the robbery crimes constituting serious violent felonies, nor on the pleadings or allocution. Rather, relief depends on a clear and convincing showing that the circumstances of the crime did not involve the egregious actions or consequences specified in the statute. In this case, we cannot conclude that the district court clearly erred in ruling that Snype's taciturn plea allocutions did not clearly and convincingly make the showing required by § 3559(c)(3)(A)(i). 106 Accordingly, we reject Snype's argument that he satisfactorily established his entitlement to § 3559(c)(3)(A) relief. 107 3. Judicial Factfinding Under § 3559(c)(1) Does Not Violate the Sixth Amendment as Construed in Apprendi v. New Jersey 108 In Apprendi v. New Jersey, the Supreme Court ruled that "`[i]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.'" United States v. Gonzalez, 420 F.3d 111, 123 (2d Cir.2005) (quoting Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. 2348) (internal quotation marks and citations omitted); see also United States v. Holguin, 436 F.3d 111, 117 (2d Cir.2006) (noting that Apprendi construed Sixth Amendment to require "that facts supporting a sentence must be found by a jury when they are either (1) a condition of guilt of the crime, or (2) permit a higher maximum sentence to be imposed"). Relying on this rule, Snype submits that the Sixth Amendment required the prosecution to prove beyond a reasonable doubt to a jury both the fact of his prior convictions and their status as serious violent felonies for purposes of § 3559(c)(1). We disagree with both arguments. 109 Preliminarily, we recognize that § 3559(c)(1) mandates a significant increase in Snype's sentencing range that, after Apprendi, might appear to warrant treating any facts supporting application of the statute as elements of a new offense requiring proof to a jury. In Apprendi itself, however, the Supreme Court created a specific exception to this rule for "the fact of a prior conviction." Apprendi v. New Jersey, 530 U.S. at 490, 120 S.Ct. 2348. This exception preserved the holding in Almendarez-Torres v. United States, 523 U.S. 224, 239-47, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which stated that, where a statute provides for an enhanced penalty based on a defendant's prior convictions, the fact of those convictions is a sentencing factor to be determined by the court rather than a jury. Although the continued viability of Almendarez-Torres has been questioned, see Shepard v. United States, 125 S.Ct. at 1264 (Thomas, J., concurring in part and concurring in judgment) (suggesting that a majority of the Supreme Court now views Almendarez-Torres as inconsistent with Apprendi), the Supreme Court has not reversed its holding, see generally United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (reaffirming Apprendi rule in terms including Almendarez-Torres exception: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt" (emphasis added)); cf. Dretke v. Haley, 541 U.S. 386, 395, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) ("We have not extended [In re] Winship's protections to proof of prior convictions used to support recidivist enhancements."). Thus, Almendarez-Torres continues to bind this court in its application of Apprendi. See United States v. Estrada, 428 F.3d 387, 390 (2d Cir.2005) (applying Almendarez-Torres exception post-Booker); United States v. Santiago, 268 F.3d 151, 155 (2d Cir.2001). With this understanding of the law, we identify no Sixth Amendment error in the district court's findings as to the fact of Snype's prior state robbery convictions. Four of our sister circuits have considered this question and reached the same conclusion. See United States v. Cooper, 375 F.3d 1041, 1053 n. 3 (10th Cir.2004) (rejecting Apprendi challenge to judicial factfinding with respect to prior convictions triggering enhanced sentence under § 3559(c)(1)); United States v. Bradshaw, 281 F.3d 278, 294 (1st Cir.2002) (same); United States v. Weaver, 267 F.3d 231, 251 (3d Cir.2001) (same); United States v. Davis, 260 F.3d 965, 969 (8th Cir.2001) (same). 110 To the extent Snype contends that, nevertheless, a jury had to find that his present and past robbery convictions qualified as serious violent felonies, his argument is similarly unconvincing for the simple reason that, in this case, the district court did not need to look beyond the judicial record and the statutory definitions of the crimes of conviction to find that Snype's convictions fit the definition of serious violent felony stated in § 3559(c)(2)(F)(i). See Shepard v. United States, 125 S.Ct. at 1262 (plurality opinion) (holding that no Sixth Amendment concern arises when fact relating to prior conviction can be ascertained from judicial record and statutory definition). As we have already discussed, in the case of the federal robbery conspiracy crime, the jury specifically found Snype guilty beyond a reasonable doubt of conspiring to violate § 2113, bringing that conviction within the plain language of § 3559(c)(2)(F)'s definition of serious violent felony. As for Snype's state robbery convictions, the state law definitions of the first and second degree robbery crimes referenced in the judgments of conviction plainly comport with the common definition of robbery in §§ 2111, 2113, and 2118, thereby bringing those state convictions within § 3559(c)(2)(F)(i). See supra at 144. 111 Insofar as § 3559(c)(3)(A) afforded Snype an opportunity to avoid imposition of a lifetime sentence on a clear and convincing showing of specified circumstances, we conclude that no Sixth Amendment concern arises because, as previously observed, § 3559(c)(3)(A) can be analogized to a safety valve or an affirmative defense, which is properly considered only after a court determines that the defendant's present and past convictions constitute serious violent felonies under § 3559(c)(2)(F)(i), thereby triggering the sentencing mandate of § 3559(c)(1). See generally Patterson v. New York, 432 U.S. 197, 205-06, 209, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (recognizing Congress's power to place burden of proving affirmative defense on defendant as long as state proves all elements of the crime beyond a reasonable doubt); United States v. Holguin, 436 F.3d at 117 (rejecting argument that eligibility criteria for sentence reduction constitute elements that must be disproved by government to sentence defendant within otherwise applicable increased sentencing range). We discuss this point further in the next section of this opinion, which addresses Snype's claim that § 3559(c)(3)(A) violates due process by placing its burden of proof on the defendant. 112 Because we reject that claim on the merits, and for the other reasons here discussed, we hold that the district court's factfinding in connection with Snype's § 3559(c)(1) sentence did not violate the Sixth Amendment rule as interpreted by Apprendi. 113 4. Section 3559(c)(3)(A) Does Not Violate Due Process by Placing the Burden of Proof on the Defendant 114 In a variation on his Apprendi argument, Snype asserts that due process, as well as the Sixth Amendment, requires the government to prove the aggravating robbery factors detailed in § 3559(c)(3)(A). He submits that this section is unconstitutional to the extent it shifts this burden of proof to the defense. A similar argument has been presented to our sister circuits, which have uniformly concluded, both before and after Apprendi, that § 3559(c)(3)(A)'s assigned burden of proof does not offend due process. See, e.g., United States v. Williams, 308 F.3d 833, 840 (8th Cir.2002); United States v. Bradshaw, 281 F.3d at 295 [1st Cir.]; United States v. Brown, 276 F.3d 930, 932 (7th Cir.2002); United States v. Gray, 260 F.3d 1267, 1278-79 (11th Cir.2001); United States v. Gatewood, 230 F.3d at 190-91 [6th Cir.]; United States v. Ferguson, 211 F.3d 878, 887 (5th Cir.2000); United States v. Smith, 208 F.3d 1187, 1190 (10th Cir. 2000); United States v. Kaluna, 192 F.3d 1188, 1196 (9th Cir.1999) (en banc). We now join in that conclusion. 115 Like our sister circuits, we identify Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281, as instructive in considering a due process challenge to the assignment of a defense burden in § 3559(c)(3)(A). At issue in Patterson was a New York State statute permitting a defendant to raise an affirmative defense mitigating murder to manslaughter on a preponderance showing of "extreme emotional disturbance." 432 U.S. at 198-99, 97 S.Ct. 2319. In considering a due process challenge to the assignment of that burden of proof, the Supreme Court recognized that the sovereign power to criminalize conduct and to prescribe punishment logically includes the power to identify factors that mitigate criminality or punishment. See id. at 209, 97 S.Ct. 2319; see also United States v. Bradshaw, 281 F.3d at 295. The Court expressly rejected, however, the argument that the Constitution necessarily requires the prosecution to disprove any such mitigating factors. It observed that nothing in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), altered the "long-accepted rule . . . that it was constitutionally permissible to provide that various affirmative defenses were to be proved by the defendant." Patterson v. New York, 432 U.S. at 211, 97 S.Ct. 2319; see also United States v. Brown, 276 F.3d at 932 (citing cases indicating that sovereign may even assign heightened burden of proof to affirmative defense). What the Constitution does proscribe are presumptive findings of guilt: "The legislature cannot `validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt.'" Patterson v. New York, 432 U.S. at 210, 97 S.Ct. 2319 (quoting Tot v. United States, 319 U.S. 463, 469, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943)). Thus, Patterson instructs that, as long as the prosecution proves the elements of a charged crime beyond a reasonable doubt, the state is entitled to "assure itself that [a specified mitigating fact] has been established with reasonable certainty," by placing the burden of proof as to that fact on the defendant. Id. at 209, 97 S.Ct. 2319; see also United States v. Johnson, 968 F.2d 208, 213-14 (2d Cir.1992) (observing that "an affirmative defense may not, in operation, negate an element of the crime which the government is required to prove; otherwise, there would be too great a risk that a jury, by placing undue emphasis on the affirmative defense, might presume that the government had already met its burden of proof"). 116 Because the sentencing process, even after Apprendi, is "no more exacting than the process of establishing guilt," Patterson's reasoning applies with full force to Snype's challenge to the burden of proof assignment in § 3559(c)(3)(A). United States v. Bradshaw, 281 F.3d at 295 (relying on Patterson in holding that "a paradigm that allows the defendant to raise an affirmative defense during the sentencing phase of criminal proceedings, but then shifts the burden of proof to him to establish the defense, does not violate due process"); see also United States v. Brown, 276 F.3d at 932 (holding that "Apprendi leaves undisturbed the principle that while the prosecution must indeed prove all the elements of the offense charged beyond a reasonable doubt, the legislation creating the offense can place the burden of proving affirmative defenses on the defendant" (internal citations omitted)); United States v. Wicks, 132 F.3d 383, 389 (7th Cir.1997) ("If Patterson allows such a result even at the stage of the trial where guilt or innocence is decided, it follows that due process does not prohibit the kind of affirmative defense at the sentencing stage found in § 3559(c)(3)(A)."). 117 Applying that reasoning to this case, we conclude that § 3559(c)(1) creates no constitutionally impermissible presumption that any indicted federal defendant should receive a mandatory term of life imprisonment. To trigger that mandate, the government must first prove to a jury beyond a reasonable doubt all elements of the crime charged in the indictment, in this case, conspiracy to commit bank robbery in violation of 18 U.S.C. §§ 371, 2113. If, as occurred here, the jury finds that burden of proof carried, the government must then prove to the satisfaction of the sentencing court that the federal crime of conviction by definition constitutes a serious violent felony as defined in § 3559(c)(2)(F). Further, it must prove to the sentencing court that, on two or more separate prior occasions, the defendant was convicted of crimes that also, by definition, constitute serious violent felonies under § 3559(c)(2)(F). Only because the government fully carried these burdens was the § 3559(c)(1) mandate applicable to Snype's case. See United States v. Brown, 276 F.3d at 933 (observing that federal "three strikes" law "does not involve erosion of the principle that all elements of the offense must be proved beyond a reasonable doubt"). In these circumstances, there was no due process violation in affording Snype an opportunity to avoid a life sentence on his clear and convincing showing of the facts specified in § 3559(c)(3)(A). 118 In urging otherwise, Snype asserts that § 3559(c), read as a whole, reflects Congress's intent to impose life sentences in cases only of aggravated robberies. He submits that the statute creates an impermissible presumption that all robbery convictions are for aggravated robberies unless a defendant proves otherwise. We disagree. In § 3559(c)(2)(F)(i), Congress specifically chose not to draw any distinction between simple and aggravated bank robberies — or between substantive and inchoate versions of these crimes — in defining the offenses that by definition constitute serious violent felonies for purposes of the enhanced sentencing mandate of § 3559(c)(1). This was consistent with its inclusion of § 2111, a robbery offense that does not distinguish between simple and aggravated robberies in its statutory definition of the prescribed conduct. Thus, for a bank robbery to qualify as a serious violent felony under § 3559(c)(2)(F)(i), the government is not required to prove the aggravating element of § 2113(d). Proof of a conviction satisfying the simple robbery elements of § 2113(a) is sufficient. See United States v. Brown, 276 F.3d at 933 (noting that "federal `three strikes' law does not alter the existing statutory definition of bank robbery"). 119 In choosing which crimes would categorically qualify as serious violent felonies, Congress nevertheless concluded that, with respect to certain such crimes, for example, robbery, specific mitigating circumstances such as lack of firearm use or serious injury, would warrant relief from the statute's mandated punishment, even for repeat serious violent felony offenders. Plainly, Congress was not required to create this exception. See United States v. Gray, 260 F.3d at 1279 ("Congress could have enacted the three strikes statute independent of the disqualification provision, including only the statutory language defining all robberies as serious violent felonies."). Having done so, it was thus free to place the burden of proof for the exception where it wished, including on the defendant. See Patterson v. New York, 432 U.S. at 209, 97 S.Ct. 2319; United States v. Williams, 308 F.3d at 840; United States v. Bradshaw, 281 F.3d at 295; United States v. Brown, 276 F.3d at 932; United States v. Gray, 260 F.3d at 1278-79; United States v. Gatewood, 230 F.3d at 190-91; United States v. Ferguson, 211 F.3d at 887; United States v. Smith, 208 F.3d at 1190, United States v. Kaluna, 192 F.3d at 1196. As the Supreme Court observed in Patterson v. New York, "[t]o recognize. . . a mitigating circumstance does not require the State to prove its nonexistence in each case in which the fact is put in issue." 432 U.S. at 209, 97 S.Ct. 2319. "The Due Process Clause . . . does not put [a sovereign] to the choice of abandoning [affirmative] defenses or undertaking to disprove their existence" in order to impose a punishment "which otherwise is within its constitutional powers." Id. at 207-08, 97 S.Ct. 2319. 120 Accordingly, like all other circuit courts to have considered the issue to date, we reject the argument that § 3559(c)(3)(A) violates due process because it imposes on a defendant seeking to avoid an otherwise mandated life sentence the burden of clearly and convincingly proving specified mitigating factors. 121 5. Snype's Sentence Does Not Constitute Cruel and Unusual Punishment 122 Snype argues that his life sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment because it is disproportionate to his crime of conviction. The argument is without merit. 123 "The Eighth Amendment `forbids only extreme sentences that are "grossly disproportionate" to the crime.'" United States v. Yousef, 327 F.3d 56, 163 (2d Cir.2003) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring in part and concurring in the judgment) (quoting Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983))). As the Supreme Court has itself observed, "`outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.'" Ewing v. California, 538 U.S. 11, 21, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (quoting Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980)). The only such case in recent memory is Solem v. Helm, in which the Supreme Court vacated a life sentence without parole for a defendant convicted of passing a bad check for $100. Although the defendant had six prior felony convictions, the Court noted that all were for relatively minor and non-violent offenses. See 463 U.S. at 296-97, 103 S.Ct. 3001. 124 Plainly, this case is not akin to Solem. Snype was convicted of conspiring to participate in an exceptionally violent robbery. Moreover, he committed this crime while on parole from another armed robbery for which he had served more than ten years in prison. As our earlier discussion shows, this last state robbery conviction followed two others for attempted robberies in which Snype, or at least a confederate, was armed. The gravity of Snype's crimes, combined with his stubborn record for recidivism even after long incarceration, supports the severe sentence imposed in this case. Snype presents as great a risk of recidivism and a likely greater risk to the safety of the community than the persistent felon whose Eighth Amendment challenge to a 25-year-to-life prison sentence was rejected by the Supreme Court in Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (rejecting challenge to sentence imposed under state three-strikes law, where crime of conviction was non-violent theft of approximately $1200 worth of golf clubs from pro shop, following a rash of convictions for theft, burglary, possession of drug paraphernalia, robbery, trespassing, and firearm possession). His criminal conduct is as serious and his risk of recidivism demonstrably greater than that of the first-time drug offender whose Eighth Amendment challenge to a life sentence without parole was rejected in Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (upholding life sentence for possession of 672 grams of cocaine). 125 On the totality of circumstances, we reject Snype's claim that his sentence is constitutionally disproportionate to his crime. III. Conclusion To summarize, we conclude that: 126 (1) any Crawford error in the admission of Marlo White's plea allocution was harmless beyond a reasonable doubt; 127 (2) the warrantless search of Jennifer Bean's apartment and the seizure of items therefrom was supported by a valid consent; 128 (3) the district court's failure sua sponte to redact a marriage certificate from which certain jurors inferred Snype's prior felony record neither (a) exposed the jury to extrinsic information nor (b) qualified as plain error given the overwhelming admissible evidence of guilt; 129 (4) Snype was not entitled to an accessory after the fact charge where no violation of 18 U.S.C. § 3 had been filed in his case; and 130 (5) Snype's life sentence comported with 18 U.S.C. § 3559(c) and did not violate the right to trial, due process, or the prohibition against cruel and unusual punishment. 131 AFFIRMED. Notes: 1 The Honorable Leonard B. Sand, of the United States District Court for the Southern District of New York, sitting by designation 2 The jury was unable to reach a verdict on substantive charges of bank robbery,see 18 U.S.C. §§ 2113(a); aggravated bank robbery, see id. §§ 2113(d); and using a firearm in relation to aggravated bank robbery, see id. § 924(c), prompting the district court to declare a mistrial and to sever those counts for retrial following resolution of this appeal. 3 McCloud testified pursuant to a cooperation agreement whereby he pleaded guilty to conspiratorial and substantive charges of aggravated bank robbery. Because Partlow and Snype were masked, no teller or bank customer was able to identify them as the robbers 4 Shortly before Snype's trial, Marisa Hicks pleaded guilty to conspiratorial and substantive charges of aggravated bank robbery, while Marlo White pleaded guilty to a single substantive count of bank robbery 5 Telephone records showed that all five conspirators were in constant contact with one another in the hours during the July 6, 2002 robbery and throughout that day 6 At approximately 8:00 a.m. on July 6, 2002, this blue SUV had been stolen from a Bronx parking garage by two armed men. A garage attendant, who testified that he got a good look at only one of the robbers' faces, subsequently identified that person from a photo spread as William Partlow. The witness was unable to identify Snype from either a photo spread or line-up 7 White's allocution was redacted to substitute the neutral words "woman" and "man" for the names of Marisa Hicks and Snype, thereby ensuring compliance withWilliamson v. United States, 512 U.S. 594, 599-601, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (construing Federal Rule of Evidence 804(b)(3) to permit only self-inculpatory statements to be admitted into evidence). The portions of the allocution read to the jury state: THE COURT: Ms. White, tell me what you did. THE DEFENDANT [Ms. White]: I agreed to ride to New York with another woman. THE COURT: Yes. THE DEFENDANT: To be a lookout. THE COURT: You told me you were going to be a lookout? THE DEFENDANT: Yes. THE COURT: Did you know that you were going to be a lookout for a bank robbery? THE DEFENDANT: Yes. THE COURT: You knew that when you got there? THE DEFENDANT: Yes. THE COURT: From what the woman told you? THE DEFENDANT: Yes, when she was on the phone with a man. THE COURT: Once you learned that there was going to be a bank robbery did you continue to participate as a lookout? THE DEFENDANT: Yes. THE COURT: And was it your intention to assist in the bank robbery to be like a lookout? THE DEFENDANT: Yes. THE COURT: And when you did that, did you know that what you were doing was wrong and illegal? THE DEFENDANT: Yes. THE COURT: Before you got there you knew that it was going to be some kind of a robbery, is that true? THE DEFENDANT: Yes. THE COURT: And then at some point after you got there and as you were sitting in the car, you learned that this was going to be a bank robbery? THE DEFENDANT: Yes. THE COURT: And even after you learned that it was going to be a bank robbery, you continued to participate as a lookout? THE DEFENDANT: Yes. Trial Tr. 302-03. 8 Although Snype's trial was conducted by Judge Chin, these findings were made by Judge John S. Martin 9 Snype urges us to construe this statement to reflect not Bean's recognition of her Fourth Amendment rights, but a belief that law enforcement officers would search her apartment whether or not she gave her consent. We find no support in the record for Snype's proposed construction, which is, in fact, at odds with Bean's overall testimony as to the voluntariness of her consent 10 InMacDonald, this court, sitting en banc, identified the factors generally relevant to determining whether exigent circumstances justify a warrantless search: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause . . . to believe that the suspect committed the crime; (4) strong reason to believe that the suspect is in the premises being entered; (5) a likelihood that the suspect will escape if not swiftly apprehended; and (6) the peaceful circumstances of the entry. 916 F.2d at 769-70 (emphasis added). Because these factors are illustrative rather than exhaustive, the presence or absence of any single factor is not dispositive. See id. at 770. In this case the record, in fact, supports five of the six factors. The offense for which Snype's arrest was sought—armed robbery— qualifies as a crime of violence. The issuance of a warrant for Snype's arrest evidenced probable cause to believe he committed this crime. The circumstances of the shootout with the police provided a reasonable basis for believing Snype was armed. Those same circumstances established a likelihood that Snype would attempt to flee or use deadly force if alerted to the presence of arresting authorities. Further, the totality of these facts combine to excuse the lack of a "peaceful" entry. This does not, however, permit us to ignore the remaining factor. Where authorities forcibly enter the home of a third party in search of a suspect, it will be a rare case in which exigency can support a warrantless entry without some showing of a reasonable belief that the person sought is inside the entered premises. This is not that rare case. 11 AlthoughMapp noted the failure to restore calm in that case as a factor relevant to its conclusion that the ensuing consent to search was not voluntary, and although Oguns instructs that taint and voluntariness are separate inquiries, we recognize that the same facts can sometimes shed light on both issues. 12 It is not clear whether Snype's challenge to the scope of consent extends also to the box full of money bundled in First Union Bank wrappers. No matter. The same conclusion would pertain to that item as to the knapsack and red plastic bag Because consent to the search was sought only after Snype was removed from the apartment, this case does not present the issue of conflicting responses presently pending before the Supreme Court in Georgia v. Randolph, 278 Ga. 614, 604 S.E.2d 835 (2004), cert. granted, ___ U.S. ___, 125 S.Ct. 1840, 161 L.Ed.2d 722 (2005) (addressing whether one occupant's consent to conduct warrantless search of residence is valid in face of another occupant's refusal). 13 At no time during trial did the prosecution highlight the Fishkill reference in the marriage certificate or otherwise suggest to the jury that Snype had a prior criminal conviction 14 Among various curious circumstances inBenjamin is the fact that defense counsel undertook the redactions there at issue without consulting the trial court. See Benjamin v. Fischer, 248 F.Supp.2d at 253. We do not here suggest that any attorney can, by himself, decide to redact a portion of a document received in evidence. We observe only that, in this case, unlike in Benjamin, the document in evidence contained no redactions—however effected—for the jury to look behind. 15 Even when a jury has been exposed to extrinsic evidence, a trial court's task is not to inquire into the jurors' subjective views of the effect of that exposure on their deliberations. Instead, it employs a "hypothetical average juror" to make an objective assessment of the likely prejudicial effect of the extrinsic evidenceSee Manley v. AmBase Corp., 337 F.3d 237, 252 (2d Cir.2003); United States v. Schwarz, 283 F.3d at 99. 16 Indeed, this accessory element is separate and distinct from those required to prove simple or aggravated robbery, counts on which no verdict was returned in Snype's caseSee Leonard B. Sand, et al., 3 Modern Federal Jury Instructions: Criminal, Instruction 53-2 (defining elements of 18 U.S.C. § 2113(a)); id., Instruction 53-9 (defining elements of 18 U.S.C. § 2113(d)). 17 Section 3559(c) does not specifically define "convicted," a term that "can mean either the finding of guilt or the entry of a final judgment on the merits."Deal v. United States, 508 U.S. 129, 131, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). Nevertheless, because the statute first employs "convicted" to refer to the person standing before the court for sentence, we can easily conclude that the term there alludes simply to a guilt determination. In subpart (1)(A), however, Congress employs additional language to clarify its intent for an inquiry into more than guilt determinations when assessing a defendant's prior convictions. It there specifies that the defendant must have "been convicted (and those convictions have become final) on separate prior occasions . . . of—(i) 2 or more serious violent felonies." 18 U.S.C. § 3559(c)(1)(A) (emphasis added). Depending on the statutory context, a conviction might be deemed final at various times, for example, on the date judgment was imposed or on the date an appellate mandate issued. See Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003) (recognizing alternative views of "finality"). Whichever view of finality applies to § 3559(c)(1), there can be no doubt that Snype's prior state convictions here at issue, see infra at 144, were each entered on separate occasions prior to Snype's federal crime and fairly represent separate convictions. See United States v. Powell, 404 F.3d 678, 682 (2d Cir.2005) (holding that, for purposes of imposing a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A), two prior drug convictions should be viewed as separate from one another unless "the conduct underlying both convictions was part of a `single criminal episode'" (quoting United States v. Gray, 152 F.3d 816, 821 (8th Cir.1998))); see also United States v. Martino, 294 F.3d 346, 351 & n. * (2d Cir.2002) (holding that prior final conviction is separate from conviction on which defendant faces sentencing if "defendant had a meaningful opportunity to refrain from criminal activity and instead engaged in criminality anew"). In the district court, Snype argued that the "separate prior occasions" language of § 3559(c)(1)(A) permits successive convictions to be considered only if each reflects criminal conduct occurring after formal entry of a preceding final judgment. Like the district court, we are skeptical that this view accurately reflects Congress's intent in enacting § 3559(c). We need not resolve the issue in this case, however, because the record makes clear that two of Snype's prior state convictions — in 1981 for attempted first degree robbery and in 1983 for first degree robbery — fit even his proposed construction of the statute. 18 These statutes proscribe,inter alia, robberies (1) occurring within the special maritime and territorial jurisdiction of the United States, see 18 U.S.C. § 2111; (2) of federally accredited or insured banks, credit unions, or savings and loan associations, see id. § 2113; and (3) of controlled substances belonging to certain persons registered with the Drug Enforcement Administration, see id. § 2118. All three statutes define robbery as the use of "force . . . violence, or . . . intimidation," to "take[], or attempt to take," from another person a thing of value. See id. §§ 2111, 2113(a), 2118(a). The latter two statutes also proscribe specified aggravated conduct involving the use of a dangerous weapon or the killing of any person in connection with the robbery. See id. §§ 2113(d) & (e), 2118(c)(1) & (2). 19 Snype was sentenced on December 19, 1980, to a zero-to-four year term of incarceration for attempted second degree robbery; on February 3, 1981, to a two-to-six year term for attempted first degree robbery; and on September 23, 1983, to a term of ten years to life on two counts of first degree robbery 20 Snype argues that there is no § 3559(c)(3)(A)(ii) issue with respect to his robbery conspiracy conviction because co-conspirator Partlow's death at the hands of apprehending law enforcement officers "did not result" from the conspiracy offense. Because the government does not contend otherwise, we have no occasion to consider that question on this appeal. We note that Snype's ability to satisfy § 3559(c)(3)(A)(ii) is also not at issue with respect to his prior state robbery convictions. Thus, we focus in this section only on Snype's satisfaction of § 3559(c)(3)(A)(i) 21 In light of this conclusion, we need not address Snype's contention that the imposition of a clear and convincing, as opposed to preponderance, burden of proof to satisfy § 3559(c)(3)(A) violates due process. We note only thatCooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996), cited by Snype, does not support this argument. In Cooper, the Supreme Court ruled unconstitutional a state statute that presumed a defendant's competency to stand trial unless the defendant proved incompetence by clear and convincing evidence. See id. at 363, 369, 116 S.Ct. 1373. As Cooper recognized, see id. at 367-68, 116 S.Ct. 1373, there is a significant distinction between the burden of proof that may fairly be assigned to a defendant with respect to a fundamental right, such as the right there at issue not to be forced to stand trial while incompetent, and the burden that may be assigned with respect to a statutory privilege that Congress is under no obligation to afford, such as a privilege to avoid an enhanced sentence on a showing of specified mitigating circumstances. See id.; see also United States v. Bradshaw, 281 F.3d 278, 296 (1st Cir.2002) (noting distinction in rejecting Cooper challenge to clear and convincing proof burden in § 3559(c)(3)(A)); United States v. Gatewood, 230 F.3d 186, 190-91 (6th Cir.2000) (en banc) (same).

 Examination and provide proof of successful passage prior to reinstatement; (2) complete six hours of additional CLE on the subject of law office management within one year of reinstatement; (3) fully reimburse the state bar for the cost of the reinstatement proceedings and reimburse the client security fund within one year of reinstatement; and (4) obtain a mentor, selected by the state bar, to review his practice and report back to the state bar for one year after Peirce is reinstated. SCR 116(2) requires that an attorney seeking reinstatement must: demonstrate[e] by clear and convincing evidence that he or she has the moral qualifications, competency, and learning in law required for admission to practice law in this state, and that his or her resumption of the practice of lawS will not be detrimental to the integrity and standing of the bar, to the administration of justice, or to the public interest. Additionally, SCR 116(5) provides that for an attorney who has been "continuously suspended for 5 years or more at the time a petition for reinstatement is filed, irrespective of the term of suspension initially imposed, successful completion of the examination for admission to practice shall be a mandatory condition of reinstatement." Having reviewed the record, we conclude that clear and convincing evidence supports the panel's findings and conclusions. We therefore approve the panel's recommendation that the petition be granted subject to the above conditions.' Additionally, we include the condition 'The State Bar filed a notice that Peirce took and passed the February 2014 Nevada State Bar Examination, thus, Peirce has satisfied that condition. SUPREME COURT OF NEVADA 2 10) 1947A eo  that Peirce take the Multistate Professional Responsibility Examination, if he has not done so already, and provide proof of passage to the office of bar counsel within one year of reinstatement. It is so ORDERED. C.J. Gibbons J. Pickering reutita-sp- Parraguirre Cherry Saitta cc: David A. Clark, Bar Counsel Jeffrey R. Albregts, Chair, Southern Nevada Disciplinary Board Kimberly K. Farmer, Executive Director, State Bar of Nevada The Law Office of Dan M. Winder, P.C. Perry Thompson, Admissions Office, United States Supreme Court SUPREME COURT OF NEVADA 3 (0) 1947A 1111r119 

159 F.3d 1220 1999 A.M.C. 729, 29 Envtl. L. Rep. 20,281,98 Daily Journal D.A.R. 11,949 The INTERNATIONAL ASSOCIATION OF INDEPENDENT TANKER OWNERS(INTERTANKO), Plaintiff-Appellant,andUnited States of America, Intervenor-Appellant,v.Gary LOCKE, Governor of the State of Washington; ChristineO. Gregoire, Attorney General of the State of Washington;Barbara J. Herman, Administrator of the State of WashingtonOffice of Marine Safety; David MacEachern, Prosecutor ofWhatcom County; K. Carl Long, Prosecutor of Skagit County;James H. Krider, Prosecutor of Snohomish County; NormanMaleng, Prosecutor of King County, Defendants-Appellees,andNatural Resources Defense Council; Washington EnvironmentalCouncil; Ocean Advocates, Intervenors-Appellees. No. 97-35010. United States Court of Appeals,Ninth Circuit. Nov. 24, 1998. 1 Before: BROWNING and O'SCANNLAIN, Circuit Judges, and MARQUEZ,* District Judge. Prior report: 148 F.3d 1053 ORDER 2 The panel has unanimously voted to deny the petitions for rehearing. Judge Browning and Judge O'Scannlain have voted to reject the suggestions for rehearing en banc, and Judge Marquez so recommends. 3 The full court was advised of the suggestions for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused judges in favor of en banc consideration. Fed. R.App. P. 35. 4 The petitions for rehearing are DENIED and the suggestions for rehearing en banc are REJECTED. GRABER, Circuit Judge, dissenting: 5 I respectfully dissent from the court's decision not to rehear this case en banc. 6 This is the first published appellate decision interpreting the preemptive effect of the Oil Pollution Act of 1990 (OPA 90). The preemptive effect of OPA 90 is an issue of exceptional importance to the coastal states within the Ninth Circuit. See Fed. R.App. P. 35(a)(2) (providing that en banc consideration is appropriate "when the proceeding involves a question of exceptional importance").1 7 Additionally, although I do not suggest that the Washington regulations necessarily are invalid, the opinion's analysis is incorrect in two exceptionally important respects: (1) The opinion places too much weight on two clauses in Title I of OPA 90 that limit OPA 90's preemptive effect. (2) Portions of the opinion that discuss the Coast Guard regulations are inconsistent with Ninth Circuit and Supreme Court precedent. Those issues warrant en banc consideration even if the opinion's ultimate result proves to be correct, a question as to which I express no view. APPLICATION OF OPA 90'S PREEMPTION CLAUSES 8 Congress enacted OPA 90 in response to the Exxon Valdez oil spill. OPA 90 combined numerous bills into one comprehensive Act with nine titles. Title IV contains measures designed, in part, to prevent oil spills, while Title I regulates liability and compensation for oil spills. Congress placed the two pertinent preemption provisions in Title I. Those provisions state: 9 Nothing in this Act or the Act of March 3, 1851 shall-- 10 (1) affect, or be construed or interpreted as preempting, the authority of any State or political subdivision thereof from imposing any additional liability or requirements with respect to-- 11 (A) the discharge of oil or other pollution by oil within such State; or 12 (B) any removal activities in connection with such a discharge; or 13 (2) affect, or be construed or interpreted to affect or modify in any way the obligations or liabilities of any person under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) or State law, including common law. 14 Section 1018(a) of OPA 90 (codified at 33 U.S.C. § 2718(a)). 15 Nothing in this Act, the Act of March 3, 1851 (46 U.S.C. 183 et seq.), or section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509), shall in any way affect, or be construed to affect, the authority of the United States or any State or political subdivision thereof-- 16 (1) to impose additional liability or additional requirements; or 17 (2) to impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature) for any violation of law; 18 relating to the discharge, or substantial threat of a discharge, of oil. 19 Section 1018(c) of OPA 90 (codified at 33 U.S.C. § 2718(c)). 20 The opinion reasons that the "plain language" of those preemption clauses indicates that Congress intended for them to apply to the oil spill prevention measures in Title IV. See The International Assoc. of Indep. Tanker Owners (Intertanko) v. Locke, 148 F.3d 1053, 1060 (9th Cir.1998) ("By its plain language, § 1018 applies not only to Title I but to the other eight Titles of OPA 90 as well."). See also Sloan v. West, 140 F.3d 1255, 1261 (9th Cir.1998) ("If the intent of Congress is clear from the face of the statutory language, we must give effect to the unambiguously expressed Congressional intent."). The opinion bases its "plain language" holding on Congress' use of the term "this Act" in discussing the reach of the clauses. Intertanko, 148 F.3d at 1060. That reasoning is incomplete. 21 The term "this Act" does plainly indicate Congress' intention to embrace all of OPA 90. However, examining the term "this Act" does not end the analysis. Grammatically, because of its placement in the sentences that comprise the preemption clauses, the term says only that "[n]othing in this Act" shall affect certain things--but we still must consider the meaning of those certain things that "[n]othing in this Act" is allowed to affect. At their broadest, the preemption clauses provide that "[n]othing in this Act ... shall in any way affect ... the authority of ... any State ... to impose additional liability or additional requirements ... relating to the discharge, or substantial threat of a discharge, of oil." § 1018(c). 22 That phrase, read as a whole, is ambiguous, because it plausibly can be understood in two ways. One plausible way to read the phrase is that any state regulation designed to prevent an oil spill is a "requirement[ ] ... relating to the discharge, or substantial threat of a discharge, of oil," because in the broadest sense a preventive measure "relates" to the thing being prevented. Another plausible way to read the phrase, however, is to embrace only state regulations that impose "requirements" pertaining specifically "to the discharge, or substantial threat of a discharge, of oil" once it has occurred. That is, if a discharge is being prevented, there never comes into being a "discharge, or substantial threat of a discharge, of oil." Under the latter, narrower reading, a preventive measure does not relate to an oil "discharge, or substantial threat of a discharge," because its very purpose is to avert an oil discharge, or substantial threat of discharge, and the specified condition of the sentence is never met. 23 In summary, Congress could have intended to allow any state regulation that might prevent an oil spill, or Congress could have intended a more limited reach. The opinion acknowledges the ambiguity in this provision, which it resolves by analyzing the objectives of Congress. See Intertanko, 148 F.3d at 1060 n. 6 ("Like the phrase 'relating to' employed in § 1018(c), the phrase 'with respect to' used in § 1018(a) is clearly expansive. However, we decline to read § 1018's language according to its terms ... since, as many a curbstone philosopher has observed, everything is related to everything else. Rather, in determining whether state oil-spill prevention laws 'respect' or 'relate to' the 'discharge of oil,' we must look to the objectives of OPA 90. Because one of the explicit objectives of OPA 90 is oil-spill prevention, § 1018 prevents anything in OPA 90 from preempting state laws in this field.") (citations and internal quotation marks omitted). 24 Contextual clues suggest, however, that Title I's preemption clauses do not apply to Title IV's prevention provisions. See Duffield v. Robertson Stephens & Co., 144 F.3d 1182, 1198 (9th Cir.1998) ("the meaning of statutory language, plain or not, depends on context") (citation and internal quotation marks omitted), cert. denied, 1998 WL 467389 (U.S. Nov.9, 1998) (No. 98-237). First, Congress placed these preemption clauses in a Title that addresses only liability and compensation for oil spills that actually occur. That placement (especially considering the full wording of the clauses) suggests that Congress intended for the clauses to apply only to the provisions in that Title. A second contextual clue strengthens that inference: A separate section in Title IV contains its own preemption clause. See § 4202(c) (Title IV), codified at 33 U.S.C. § 1321(o)(2).2 Moreover, sections in other Titles of OPA 90 include their own preemption provisions as well. See § 5002(n) (Title V), codified at 33 U.S.C. § 2732;3 § 8202 (Title VIII), codified at 43 U.S.C. § 1656(e).4 There would have been little or no need for additional preemption clauses if the clauses in Title I were comprehensive. Indeed, the opinion's broad reading of the preemption clauses in § 1018 would render the other OPA 90 preemption provisions largely superfluous, a result that this court generally avoids. See Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 834 (9th Cir.1996) ("We have long followed the principle that statutes should not be construed to make surplusage of any provision.") (citation and internal quotation marks omitted). 25 Context, however, does not resolve the textual ambiguity definitively. In the face of an ambiguity not resolved by examining text and context, this court generally turns to a statute's legislative history. See Auburn v. United States, 154 F.3d 1025, 1029 (9th Cir.1998), as amended 1998 WL 727476, at * 3 (9th Cir.1998) (in construing a federal statute's preemptive effect, noting the general principle that resort to legislative history is appropriate when Congress' intent is not clear from an examination of the statutory text). See also Moyle v. Director, Office of Workers' Compensation Programs, 147 F.3d 1116, 1120 (9th Cir.1998) ("[I]f the statute is ambiguous, we consult the legislative history, to the extent that it is of value, to aid in our interpretation.") (citation and internal quotation marks omitted). Here, the legislative history is of value. 26 OPA 90's preemption clauses originated in the Senate's Oil Pollution Liability and Compensation Bill of 1989.5 The Senate intended for that bill to "consolidate and improve Federal laws providing compensation and establishing liability for oil spills." S.Rep. No. 101-94, at 1 (1989), reprinted in 1990 U.S.C.C.A.N. 722, 723. That bill did not include Title IV's oil pollution prevention provisions at all. See 135 Cong. Rec. S3241-46 (daily ed. Apr. 4, 1989). 27 The Senate drafted a separate bill, the Oil Tanker Navigation Safety Bill of 1989, that included provisions regarding the prevention of oil spills, including some provisions similar to those that eventually appeared in Title IV. See S.Rep. No. 101-99, 3-4 (1989), reprinted in 1990 U.S.C.C.A.N. 752.6 That bill contained its own preemption clause. See 135 Cong. Rec. S9332 (daily ed. Aug. 2, 1989).7 See also S.Rep. No. 101-99, at 21, reprinted in 1990 U.S.C.C.A.N. at 770. 28 The Senate added some of the preventive provisions from the Oil Tanker Navigation Safety Bill to the Oil Pollution Liability and Compensation Bill. See 135 Cong. Rec. S9678 (daily ed. Aug. 3, 1989); 135 Cong. Rec. S10406-07 (daily ed. Aug. 15, 1989). Specifically, the Senate added the provisions relating to alcohol testing and crew placement, which it put in Title III. See 135 Cong. Rec. S10406. The Senate also added the preemption clause from the Oil Tanker Navigation Safety Bill to that Title (§ 310), and it limited the reach of the preemption clause to the oil spill prevention provisions in that Title. See id. at S10415-S10417.8 That modified bill did not alter the Oil Pollution Liability and Compensation Bill's preexisting preemption clauses found in the oil spill liability and compensation title of the amended bill (Title I, Section 106). Id. at S10412. 29 Although the Senate's final bill contained some oil spill prevention measures, Title IV originated in the House of Representatives in the Oil Pollution, Prevention, Response, Liability and Compensation Bill of 1989. In drafting that bill, the House generally chose to preempt, rather than to allow, state regulation. See Congressional Quarterly Almanac, 102d Cong., 2d Sess., p. 283 (1990) (noting the "House's insistence on a provision to pre-empt strict state laws"). Specifically, the House's preemption provision allowed states only to establish or maintain an oil spill fund and "to impose, or to determine the amount of, any fine or penalty." See Cong. Rec., 101st Cong., Vol. 135, part 20, 27827, 27947 (bound ed. Nov. 8, 1989).9 30 After vigorous debate, the House eventually amended its preemption provisions and adopted wording similar to that found in the Senate's § 106 preemption clauses.10 See 135 Cong. Rec. H8165 (daily ed. Nov. 8, 1989). However, the debate made clear that the House intended for the preemption clauses to apply only to OPA 90's oil spill liability and compensation provisions. Compare id. at H8129 (Nov. 8, 1989) (statement of Rep. Miller) ("The amendment that I am offering on behalf of myself and the gentleman from Massachusetts [Mr. Studds] is an amendment to correct a glaring flaw in H.R. 1465, by preserving the rights of States to set higher standards for oil pollution liability and more complete systems of compensation than are allowed under this bill or under current law.") (emphasis added) with id. (statement of Rep. Hammerschmidt) ("I had thought that the issue of concern centered around whether State liability laws should be preempted. That is not the only issue presented by this amendment. This amendment goes much further. It would remove provisions in the bill addressing the need for a uniform system of financial responsibility. The system of liability and compensation in the bill is intended to be comprehensive and definite.") (emphasis added). 31 In summary, before Congress held its Conference Committee, the Senate had a bill with: (a) a preemption clause in its oil pollution liability and compensation title (Title I, § 106); and (b) some oil spill prevention provisions in Title III, which had their own specific preemption provision (§ 310). The House, where most of Title IV originated, had only one preemption provision (§ 1018), which was similar to the Senate's § 106 and which the House intended to apply only to oil spill liability and compensation. 32 The Conference Committee deleted the Senate's § 310 preemption clause that applied to oil spill prevention measures. Moreover, the Conference Committee relied only on the Senate's § 106 and the House's § 1018 when drafting the final preemption clauses. See H.R. Conf. Rep. No. 101-653, pp. 121-22 (1989), reprinted in 1990 U.S.C.C.A.N. 722, 799-800 ("Section 106 of the Senate amendment and section 1018 of the House bill are generally similar provisions.... The Conference substitute blends the provisions of the House and Senate bills, and adds a new subsection (d) pertaining to the liability of Federal employees.").11 The Conference Committee's deletion of the only preemption clause that applied specifically to oil spill prevention, and its reliance instead on two provisions that never applied to prevention provisions, together suggest that Congress did not intend its final version of § 1018 to apply to OPA 90's oil spill prevention provisions (Title IV). 33 Under all the circumstances, Congress' choice of wording and its decision to place the preemption clauses in Title I suggest that it intended for those clauses to apply only to Title I and its liability and compensation provisions. See, e.g., National Shipping Co. of Saudi Arabia (NSCSA) v. Moran Mid-Atlantic Corp., 924 F.Supp. 1436, 1448 (E.D.Va.1996) ("The purpose behind the savings clause is to allow the states to impose liability upon oil polluters above the liability imposed through OPA. Congress wanted to give the states the power to force polluters to cleanup completely oil spills and to compensate the victims of oil spills, even if their liability for these remediation expenses is limited under OPA."), aff'd, 122 F.3d 1062 (4th Cir.1997) (Table), cert. denied, --- U.S. ----, 118 S.Ct. 1301, 140 L.Ed.2d 467 (1998). The opinion's method of analyzing Congress' intent is incomplete and, thus, the opinion's conclusion fails accurately to identify that intent. PREEMPTIVE EFFECT OF COAST GUARD REGULATIONS 34 Relying on Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986), the Intertanko opinion refuses to give preemptive effect to various Coast Guard regulations, because (1) Congress did not expressly delegate to the Coast Guard the power to preempt state law, and (2) OPA 90's preemption clauses implied the opposite Congressional intent. See Intertanko, 148 F.3d at 1068 ("Congress did not explicitly or impliedly delegate to the Coast Guard the authority to preempt state law. Indeed, § 1018 of OPA 90 establishes that nothing in OPA 90 may be construed as impairing the ability of the states to impose their own oil-spill prevention requirements. In view of Congress's unwillingness to preempt state oil-spill prevention efforts on its own, we find implausible the argument that it intended to delegate power to the Coast Guard to do so.") (citations and footnote omitted) (emphasis added). That analysis is inconsistent with Ninth Circuit and Supreme Court precedent. 35 Generally, an administrative agency's regulations have preemptive effect whenever Congress has authorized the agency to enact such regulations, not merely when Congress expressly has authorized the agency to preempt state law. See City of New York v. FCC, 486 U.S. 57, 64, 108 S.Ct. 1637, 100 L.Ed.2d 48 (1988) ("[A] pre-emptive regulation's force does not depend on express congressional authorization to displace state law. Instead, the correct focus is on the federal agency that seeks to displace state law and on the proper bounds of its lawful authority to undertake such action. The statutorily authorized regulations of an agency will pre-empt any state or local law that conflicts with such regulations or frustrates the purposes thereof.") (citation and internal quotation marks omitted); Fidelity Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 154, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982) (making the same point). 36 Louisiana Pub. Serv. Comm'n is not to the contrary. There, the Supreme Court refused to give preemptive effect to an administrative agency's regulations, because Congress had expressly denied the administrative agency the power to enact the regulations. See 47 U.S.C. § 152(b) ("[N]othing in this chapter shall be construed to apply to or give the Commission [FCC] jurisdiction with respect to ... intrastate communication service."); Louisiana Pub. Serv. Comm'n, 476 U.S. at 360, 106 S.Ct. 1890 ("[T]he Act grants to the FCC the authority to regulate interstate and foreign commerce in wire and radio communication, while expressly denying that agency jurisdiction with respect to ... intrastate communication service.") (citation and internal quotation marks omitted). 37 By contrast, OPA 90 did not deny the Coast Guard power to enact the regulations at issue here. Rather, Congress "required the Coast Guard to implement a wide range of oil-spill prevention rules" when it passed OPA 90. Intertanko, 148 F.3d at 1068 (emphasis added). See 33 U.S.C. §§ 2701-18 (so providing). Because the Coast Guard acted within its authority when it enacted the regulations, those regulations can have preemptive effect, even though Congress did not expressly authorize the Coast Guard to preempt state law. 38 OPA 90's preemption clauses, allowing for some state involvement, do not alter that analysis. In Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483 (9th Cir.1984), this court similarly faced a Congressional statute that allowed state involvement. Id. at 489 ("The above authorities demonstrate a congressional intent that there be joint federal/state regulation of ocean waters within three miles of shore."). Even though Congress had allowed state involvement, this court still analyzed whether the Coast Guard's regulations preempted state law. See id. at 499 ("Although we conclude that the objectives of the Alaska statute do not conflict with those of the Coast Guard regulations ..., we must nevertheless determine whether the facts of this case as alleged or conceded by appellees reveal an irreconcilable conflict when the Alaska statute and Coast Guard regulations are applied concurrently in Alaska territorial waters."). Accord Beveridge v. Lewis, 939 F.2d 859, 864 (9th Cir.1991). In summary, the opinion's treatment of the regulations is inconsistent with precedent. CONCLUSION 39 For the foregoing reasons, I dissent from the court's decision to decline the suggestion for a rehearing en banc. * The Honorable Alfredo C. Marquez, Senior Judge, United States District Court for the District of Arizona, sitting by designation 1 See also Sarah A. Loble, Intertanko v. Lowry: An Assessment of Concurrent State and Federal Regulation Over State Waters, 10 U.S.F. Mar. L.J. 27, 72 (1997) ("The Ninth Circuit has the opportunity to remedy the imbalance created by the district court, which favored Washington state regulation at the expense of federal interests."); Charles L. Coleman, III, Federal Preemption of State "BAP" Laws: Repelling State Borders in the Interest of Uniformity, 9 U.S.F. Mar. L.J. 305, 356 (1997) ("To the extent that the recent decision of the U.S. District Court for the Western District of Washington in Intertanko v. Lowry is inconsistent with the foregoing conclusions, it is wrong in this author's view, and should be overturned in the pending appeal to the Ninth Circuit Court of Appeals.") (footnote omitted); Robert E. Falvey, A Shot Across the Bow: Rhode Island's Oil Spill Pollution Prevention and Control Act, 2 Roger Williams U.L.Rev. 363, 396 (1997) ("The court attempted to counter Intertanko's preemption argument by simply asserting that Intertanko's theory was largely foreclosed by the nonpreemptive language of OPA '90. In light of the preceding discussion this reasoning seems unpersuasive.") (citation, footnote, and internal quotation marks omitted); Matthew P. Harrington, Necessary and Proper, but Still Unconstitutional: The Oil Pollution Act's Delegation of Admiralty Power to the States, 48 Case W. Res. L.Rev. 1, 17 n. 59 (1997) ("Congress seems to have had a somewhat more restrictive view of what was being preempted than did the district court in Intertanko. "); Michael P. Mullahy, States' Rights and the Oil Pollution Act of 1990: A Sea of Confusion?, 25 Hofstra L.Rev. 607, 636-37 (1996) ("The issue of whether Washington state has the power to enact the BAP Standards will most likely be decided by the Supreme Court.... [T]he Washington BAP Standards should survive the constitutional analysis the Court will most likely perform.") (footnote omitted); Laurie L. Crick, The Washington State BAP Standards: A Case Study in Aggressive Tanker Regulation, 27 J. Mar. L. & Com. 641, 646 (1996) ("[I]t is possible that most, if not all, of the BAP Standards will be upheld."); Marva Jo Wyatt, Navigating the Limits of State Spill Regulations: How Far Can They Go?, 8 U.S.F. Mar. L.J. 1, 26 (1995) ("The current controversy over Washington's navigational regulations affecting oil pollution implicates some of the most fundamental principles of our republic and foreshadows an age-old conflict between federalism and states' rights.") 2 In section 4202(c), OPA 90 amended 33 U.S.C. § 1321(o)(2), a preexisting provision of the Federal Water Pollution Control Act. The amendment is emphasized below Nothing in this section shall be construed as preempting any State or political subdivision thereof from imposing any requirement or liability with respect to the discharge of oil or hazardous substance into any waters within such State, or with respect to any removal activities related to such discharge. 3 Section 5002(n) provides in part: Nothing in this section shall be construed as modifying, repealing, superseding, or preempting any municipal, State or Federal law or regulation, or in any way affecting litigation arising from oil spills or the rights and responsibilities of the United States or the State of Alaska, or municipalities thereof, to preserve and protect the environment through regulation of land, air, and water uses, of safety, and of related development. 4 Section 8202(e) provides: (1) Nothing in this section shall be construed or interpreted as preempting any State or political subdivision thereof from imposing any additional liability or requirements with respect to the discharge, or threat of discharge, of oil or other pollution by oil. (2) Nothing in this section shall affect or modify in any way the obligations or liabilities of any person under other Federal or State law, including common law, with respect to discharges of oil. 5 The original draft provided: (a) Nothing in this Act shall be construed or interpreted as preempting any State from imposing any additional liability or requirements with respect to the discharge of oil or other pollution by oil within such State. Nothing in this Act shall affect or modify in any way the obligations or liabilities of any person under other Federal or State law, including common law, with respect to discharges of oil. (b) Nothing in this Act or in section 9507 of the Internal Revenue Code of 1954 shall in any way affect, or be construed to affect, the authority of any State-- (1) to establish, or to continue in effect, a fund any purpose of which is to pay for costs or damages arising out of, or directly resulting from, oil pollution or the substantial threat of oil pollution; or (2) to require any person to contribute to such a fund. (c) A State may enforce, on the navigable waters of such State, the requirements for evidence of financial responsibility applicable under section 104 of this Act. (d) The President shall consult with the affected State or States on the appropriate removal action to be taken. Removal with respect to any discharge or incident shall be considered completed when so determined by the President and the Governor or Governors of the affected State or States. (e) Nothing in this Act, the Act of March 3, 1851, as amended (46 U.S.C. 183 et seq.), or section 9507 of the Internal Revenue Code of 1954, shall in any way affect, or be construed to affect, the authority of the United States or any State or political subdivision thereof-- (1) to impose additional liability or additional requirements; or (2) to impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature) for any violation of law, relating to the discharge, or substantial threat of a discharge, of oil. 135 Cong. Rec. S3245 (daily ed. Apr. 4, 1989) 6 Specifically, Title III of that bill included provisions requiring (a) alcohol testing of tanker personnel and (b) the placement of four crew members on the navigation bridge of a tanker. Id 7 That clause provided: Nothing in this Act shall be construed or interpreted as changing, diminishing, or preempting in any way the authority of a State, or any political subdivision thereof, to regulate oil tankers or to provide for oil spill liability or contingency response planning and activities in State waters. 8 Section 310 provided: Nothing in this title shall be construed or interpreted as changing, diminishing, or preempting in any way the authority of a State, or any political subdivision thereof, to regulate oil tankers in State waters. Id. at S10417. 9 Section 1018 of the House version provided: (a) PREEMPTION (1) ACTIONS PREEMPTED.--Except as provided in this Act and the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.), no action arising out of a discharge of oil, or a substantial threat of a discharge of oil, from a vessel or facility into or upon the navigable waters or adjoining shorelines or the exclusive economic zone (other than an action for personal injury or wrongful death), may be brought in any court of the United States or of any State or political subdivision thereof. (2) STATE FUNDS AND ACCOUNTS.--Nothing in this Act or in sections 4611 and 9509 of the Internal Revenue Code of 1986 shall affect the authority of any State (A) to establish or continue in effect an oil spill fund or account; or (B) to require any person to contribute to that fund or account. (b) NO PREEMPTION OF PENALTIES.--Nothing in this Act or section 9509 of the Internal Revenue Code of 1986 shall affect the authority of the United States or any State or political subdivision thereof to impose, or to determine the amount of, any fine or penalty for any violation of law relating to an incident. (c) LIMITATION OF LIABILITY ACT.--The Act of March 3, 1851, shall not apply to removal costs and damages that directly result from an incident involving the discharge or substantial threat of discharge of oil. 10 The amended House version of § 1018 provides in part: (a) PRESERVATION OF STATE AUTHORITIES.-- (1) Notwithstanding any other provision, nothing in this Act or the Act of March 3, 1851 shall-- (A) be construed or interpreted as preempting any state or political subdivision thereof from imposing any additional liability or requirements with respect to the discharge of oil or other pollution by oil within such state; or (B) affect or modify in any way the obligations or liabilities of any person under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) or state law, including common law. (2) Nothing in this Act or in sections 4611 or 9509 of the Internal Revenue Code of 1986 shall affect or be construed to affect the authority of any state or political subdivision thereof-- (A) to establish or to continue in effect a fund any purpose of which is to pay for costs or damages arising out of, or directly resulting from, oil pollution or the substantial threat of oil pollution; or (B) to require any person to contribute to such a fund. 135 Cong. Rec. 156 H8128-29 (daily ed. Nov. 8, 1989) 11 The Conference Committee also indicated its intent "not to disturb the Supreme Court's decision in Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978)." Id

259 F.Supp. 633 (1966) J. LAURITZEN, Owner M/S BELLA DAN, Libelant, v. CHESAPEAKE BAY BRIDGE AND TUNNEL DISTRICT, and Tidewater Construction Corporation, Raymond International Inc., and Peter Kewit Sons' Company, a joint venture, trading as Tidewater-Raymond-Kewit and Merritt-Chapman and Scott Corporation, Respondents. No. 8678. United States District Court E. D. Virginia, Norfolk Division. October 20, 1966. *634 *635 Vandeventer, Black, Meredith & Martin, Norfolk, Va., Hugh S. Meredith, Norfolk, Va., for libelant. Seawell, McCoy, Winston & Dalton, R. M. Hughes, III, Norfolk, Va., for Chesapeake Bay Bridge & Tunnel Dist. Jett, Sykes & Berkley, R. Arthur Jett, Norfolk, Va., for Tidewater Construction Corp. Williams, Cocke, Worrell & Kelly, Jack E. Greer, Norfolk, Va., for Merritt-Chapman & Scott Corp. MEMORANDUM WALTER E. HOFFMAN, Chief Judge. The question to be decided on respondent's exceptions to the libel filed herein is whether the Chesapeake Bay Bridge and Tunnel District, a political subdivision of the State of Virginia, is immune from an action brought in admiralty to recover damages to libelant's vessel arising from the ship's striking an underwater obstruction which respondent allegedly permitted to remain in a navigable ship channel following the construction of the seventeen mile bridge-tunnel project crossing the Chesapeake Bay. We hold that, under the particular facts of this case, respondent is not immune from suit. The Chesapeake Bay Bridge and Tunnel District was created by the 1962 Virginia Acts of Assembly, Chapter 605, approved March 31, 1962. The Act provides, in part, that the District may— "sue and be sued, and by and through the Chesapeake Bay Bridge and Tunnel Commission hereinafter created as the governing board thereof, the district may plead and be impleaded, and contract with, individuals, partnerships, associations, private corporations, municipal corporations, political subdivisions of the State of Virginia, and the federal government or any agency thereof having any interest or title in and to property, rights, easements or franchises authorized to be acquired by this act." The Act also created the Chesapeake Bay Bridge and Tunnel Commission and provided for the selection of its members. As required by federal law, 33 U.S.C. § 401, plans for the proposed Chesapeake Bay Bridge-Tunnel were submitted to the Corps of Engineers of the United States Army for approval. On August 1, 1958, a permit was issued by the Corps of Engineers approving the bridge-tunnel plans, subject to certain enumerated conditions.[1] Among these conditions were the requirements that all work should be conducted so as not to unreasonably interfere with navigation; that the navigable waters over and under the structure would be promptly cleared of all "false work, piling, and other obstructions resulting from construction of the bridge-tunnel system"; that no refuse piles should be allowed to remain on the bottom of the bay; and that the Commission would be responsible for the operation and maintenance of all permanent navigation aids and lights "at and approaching the navigation openings of the tunnel and bridges." These conditions have the force and effect of law. 33 U.S.C. § 525. Moreover, by applying for and receiving a permit to construct the bridge-tunnel project on the terms and conditions set forth therein, the political subdivision submitted itself to federal law, at least insofar as it directly affects foreign and interstate commerce, including navigation. *636 The bridge-tunnel was completed in 1964. On May 21, 1965, the M/S BELLA DAN was proceeding inbound in Thimble Shoals channel when it allegedly struck a submerged object in the vicinity of the bridge-tunnel causing allegedly extensive damage to the ship's hull. The submerged object is believed to have been a navigational light structure which had previously been either knocked down or had collapsed during a storm. Libelant brought the present action against the Bridge-Tunnel District and against certain contractors which were involved in the construction of the bridge-tunnel. We are concerned here only with whether this suit can be maintained against the Bridge and Tunnel District in light of the defense of sovereign immunity. It is not disputed that the Bridge and Tunnel District is a political subdivision of the State of Virginia and, under state law, such subdivisions have been held to be immune from any action predicated on tort liability even where the Act creating the District contains a "sue and be sued" clause, as in the present case. Elizabeth River Tunnel District v. Beecher, 202 Va. 452, 117 S.E.2d 685, 85 A.L.R.2d 469 (1961). The Beecher case involved an inter-urban bus transportation facility provided for under contract between the Elizabeth River Tunnel District and the bus company. There was no issue raised in Beecher as to interstate or foreign commerce. We think it clear that the basis of libelant's claim is a maritime tort. Eastern Transportation Company v. United States, 272 U.S. 675, 47 S.Ct. 289, 71 L.Ed. 472. A preliminary issue, therefore, is whether the state law should be applied or whether federal law is controlling, since Virginia law would appear to effectively uphold the defense of sovereign immunity. In Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1958), petitioner sued in a federal district court to recover under the Jones Act for the death of her husband while working aboard a Mississippi River ferryboat owned by respondent, an agency of the states of Tennessee and Missouri created by a compact which was entered into between them with the consent of Congress. The compact authorized respondent "to sue and be sued" and the Act of Congress approving same provided that it should not be construed "to affect, impair, or diminish any right, power or jurisdiction of * * * any court * * * of the United States, or over or in regard to any navigable waters, or any commerce between the States." The district court dismissed the suit on the ground that the Commission was immune from tort liability, 153 F.Supp. 512, and the Court of Appeals affirmed, 8 Cir., 254 F.2d 857. The Supreme Court reversed, holding that the individual states involved had waived their sovereign immunity by entering into a compact approved by Congress. Under the circumstances, the construction of the "sue and be sued" clause was a matter of federal, not state law. Thus, even though both Tennessee and Missouri construed such clauses strictly (as does Virginia), their construction would not prohibit a suit brought in the federal court. It is true that the Petty case is distinguishable from the present case, since it involved an interstate compact that had been expressly approved by Congress as well as a proviso protecting the jurisdiction of the federal courts. But in the more recent case of Parden v. Terminal R. of Alabama State Docks Dept., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964), the Supreme Court went a step further. In that case the petitioners brought suit in the federal district court in Alabama against respondent railway company, a state-owned railroad engaged in interstate commerce, for personal injuries sustained while employed by the railway. The district court dismissed the action on the ground of sovereign immunity, and the Court of Appeals affirmed, 5 Cir., 311 F.2d 727. The Supreme Court reversed, holding that the State of Alabama had waived its sovereign immunity and necessarily consented to be sued in federal courts when it *637 entered the field of interstate commerce, an area regulated by Congress. Referring to the Petty decision, the Court stated: "The broad principle of the Petty case is thus applicable here: Where a State's consent to suit is alleged to arise from an act not wholly within its own sphere of authority but within a sphere—whether it be interstate compacts or interstate commerce—subject to the constitutional power of the Federal Government, the question whether the State's act constitutes the alleged consent is one of federal law. Here, as in Petty, the States by venturing into the congressional realm `assume the conditions that Congress under the Constitution attached.' 359 U.S., at 281-282, 79 S.Ct., at 790." The Court then went further to state: "Our conclusion that this suit may be maintained is in accord with the common sense of this Nation's federalism. A State's immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation." We believe that these two decisions are controlling in the present instance,[2] not only as to what law applies but also as to whether there has been a waiver of sovereign immunity. When the State of Virginia permitted the construction of the Chesapeake Bay Bridge-Tunnel it clearly entered the twin spheres of interstate commerce and navigation which are indisputably subject to federal control. Not only does the bridge-tunnel serve as a major artery for north-south interstate traffic, but it also spans one of the most important bodies of navigable waters in the United States through which a great volume of interstate and foreign commerce traverses the waters daily. Before the construction of the bridge-tunnel could even be started, it was necessary, under federal law, to obtain approval of the plans by the Chief of Engineers and the Secretary of the Army. Clearly when the State of Virginia embarked on this project it became subject to the federal laws and regulations pertaining to navigation, the same as any private individual would be. To hold otherwise would result in immunity which would breed carelessness for the Bridge and Tunnel District remains responsible for the operation and maintenance of all permanent navigation aids and lights. It is inconceivable that the Bridge and Tunnel District could successfully invoke the doctrine of sovereign immunity if one of its employees should negligently cut off the permanent navigation lights which the District is charged with operating and maintaining, thereby resulting in substantial damage to a vessel using the channel entrance to the Port of Hampton Roads. Respondent does not dispute that it is subject to the federal laws pertaining to navigable waters, but it argues that these laws do not create any cause of action in favor of injured third parties such as the libelant here. It points out that the regulations prohibiting the obstruction of navigable waters do no more than establish a standard of care and give the United States the power of enforcement, *638 whereas the Federal Employers' Liability Act, under which petitioners sued in the Parden case, expressly created a cause of action for injured employees against "[e]very common carrier by railroad while engaging in commerce between any of the several States * * *." 45 U.S.C. § 51. It is true that the federal navigation regulations do not expressly provide a cause of action for injured parties as does the FELA, but such liability is clearly implied. Even though it be conceded that the statutes pertaining to the protection of navigable waters, 33 U.S.C. § 401 et seq., are penal in nature, it is clear that civil liability may be derived therefrom, both in favor of the United States, United States v. Perma Paving Co., 332 F.2d 754 (2 Cir. 1964), and private parties, Morania Barge No. 140, Inc. v. M. & J. Tracy, Inc., 312 F.2d 78 (2 Cir. 1962). Violation of the navigation laws gives rise to a presumption of negligence, which, if not rebutted, may result in liability to the negligent party. Reading Co. v. Pope & Talbot, Inc., 192 F.Supp. 663 (E.D.Penn. 1961), aff'd 295 F.2d 40 (3 Cir. 1961). We think it is evident that the regulations pertaining to the obstruction of navigable waters were manifestly intended for the protection of private parties such as the libelant here, even though the enforcement of these provisions was vested in the United States. United States v. Republic Steel Corporation, 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903; Texas & Pac. Ry. v. Rigsby, 241 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874; United States v. State of California, 297 U.S. 175, 56 S.Ct. 421, 80 L.Ed. 567; State of California v. Taylor, 353 U.S. 553, 77 S.Ct. 1037, 1 L.Ed.2d 1034. Furthermore, an examination of the historical background of the FELA explains, we think, the reason why that Act expressly provided a cause of action for injured railway employees. The FELA was enacted because Congress was dissatisfied with the common-law duty of the master to his servant. See Rogers v. Missouri Pacific R. R. Co., 352 U.S. 500, 507, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), rehearing denied 353 U.S. 943. The purpose of FELA was to enlarge the remedy of railroad employees, and it accomplished this by eliminating the common-law defenses of contributory negligence, assumption of risk, contract not to sue, and the fellow-servant rule. Metropolitan Coal Co. v. Johnson, 265 F.2d 173 (1 Cir. 1959); Slaughter v. Atlantic Coast Line R. R. Co., 112 U.S. App.D.C. 327, 302 F.2d 912 (1962), cert. den. 371 U.S. 827, 83 S.Ct. 48, 9 L.Ed.2d 65. In essence, it substituted a new statutory remedy for an overly restricted common-law remedy. But we perceive no sound reason for holding that a state has waived its immunity from suit where a federal law expressly grants a right of action, as in Parden, and denying such a waiver when civil liability clearly exists but it is not expressly mentioned, as in this case. The proper test, we believe, is whether the state has knowingly and directly entered a field which is subject to federal regulation, such as interstate or foreign commerce. If so, it must be deemed to have consented to suit to the same extent as a private individual. A contrary ruling would result in the same injustice which gave the Supreme Court cause for concern in the Parden case; namely, that injured parties would have a remedy when hurt by a private individual but would be remediless if the state, through its entry into the field of interstate or foreign commerce, happened to be the party at fault. When a state elects to enter the realm of interstate or foreign commerce it must be prepared to shoulder the attendant responsibility. We express no opinion as to whether this Court would reach a similar result under a different factual situation, such as one involving a motor vehicle accident on the bridge-tunnel itself. The fact that the present suit arose from an accident on navigable waters directly affecting the operation of a vessel in a ship's channel, and was brought in admiralty[3]*639 is, we think, a significant factor. Nor does today's decision in any way constitute an opinion as to liability in this case. We hold only that the Chesapeake Bay Bridge and Tunnel District, by entering into the realm of interstate commerce and navigation, impliedly waived its Eleventh Amendment immunity from suit to the extent that interstate commerce and navigation may be directly affected thereby. Acknowledging that the question is not free from doubt, and mindful of the fact that a prolonged trial may be avoided if the issue discussed herein is determined with greater finality than this Court is able to render, the Court will certify the matter for an appeal from an interlocutory decree upon request of the respondent, Chesapeake Bay Bridge and Tunnel District. NOTES [1] This permit was issued to the Chesapeake Bay Ferry Commission, the predecessor of the present Bridge and Tunnel Commission. [2] Cases decided prior to Petty and Parden are of little value. See: Banks v. Liverman (E.D.Va., 1955) 129 F.Supp. 743, aff'd. 4 Cir., 226 F.2d 524, In J. Ray McDermott & Co., Inc. v. Department of Highways, 5 Cir., 1959, 267 F.2d 317, cert. den. 361 U.S. 914, 80 S.Ct. 259, 4 L.Ed.2d 184, the Petty case had previously been decided, but not Parden and, additionally, the action was against a State Highway Commission with no "sue and be sued" clause. A case which did not involve a "sue and be sued" clause, but was subsequent to Petty and Parden is DeLong Corp. v. Oregon State Highway Comm'r., (D.Or.1964) 233 F.Supp. 7, aff'd. 9 Cir., 343 F.2d 911, cert. den. 382 U.S. 877, 86 S.Ct. 161, 15 L.Ed.2d 119. [3] See the discussion of the state's authority to deprive an admiralty court of the right to redress a wrong in In Re Neuces County, Texas, Road District No. 4, 174 F.Supp. 846, relying upon Workman v. New York City, 179 U.S. 552, 21 S.Ct. 212, 45 L.Ed. 314.

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-16-00092-CR Wayne Lee HORTON, Appellant v. The STATE of Texas, Appellee From the 198th Judicial District Court, Kerr County, Texas Trial Court No. B15406 Honorable Stephen B. Ables, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice Delivered and Filed: January 11, 2017 AFFIRMED Wayne Lee Horton appeals his conviction for family violence assault (enhanced). We affirm the trial court’s judgment. BACKGROUND Horton was charged with assault against his wife, a member of his family as designated by Family Code section 71.003. See TEX. PENAL CODE ANN. § 22.01(a), (b)(2)(A) (West Supp. 2016); see also TEX. FAM. CODE ANN. § 71.003 (West 2014). The indictment alleged that, on or about November 11, 2014, Horton “did . . . intentionally and knowingly cause bodily injury to Stephanie  04-16-00092-CR Anne Horton, a member of the Defendant’s family . . . by striking her on her face and nose.” The indictment further alleged that Horton was previously convicted of the offense of “Family Violence Assault (Enh.),” as well as two felony DWI offenses. Horton pled not guilty. Prior to trial, the complainant, Horton’s wife, signed a non-prosecution statement and refused to cooperate when the prosecutor declined to drop the charges. At trial, the State’s main witness was Stephanie’s ten-year old daughter, K.W., who testified that she saw Horton hit her mother in the face and nose. In addition, three administrators at K.W.’s school testified that K.W. told them she “saw her stepdad hit her mom,” and “saw [her] stepdad slap [her] mom across the face.” The State also presented expert testimony on the dynamics of domestic violence. Horton did not testify, but presented the testimony of an officer who investigated a claim by K.W. that she was not receiving her insulin at home; he found the allegation untrue and closed the case. Horton stipulated to his prior conviction for family violence assault. The jury found Horton guilty. Horton pled true to the enhancements and was sentenced to 35 years’ imprisonment. Horton now appeals. ANALYSIS On appeal, Horton argues the trial court erred in admitting “backdoor hearsay” and in permitting testimony that violated his Sixth Amendment confrontation right. Hearsay During direct examination by the State, K.W. testified as follows: Q: Do you remember a time about this time last year where you went in and you saw Nurse Jane and Ms. Wallace? A: Yes. *** Q: Were you pretty upset? A: Yes. -2-  04-16-00092-CR Q: Can you tell the jury, did you see something happen? A: Yes, sir. Q: Can you tell the jury what you saw? A: I saw my stepdad hit my mom. *** Q: Where did your stepdad hit your mom? A: Everywhere. Q: Did he hit her in the face? A: Yes. Q: Did he hit her in the nose? A: Yes. *** Q: Did it make your momma cry? A: Yes. K.W. continued testifying, giving her mother’s name and her stepdad’s name, identifying Horton in court, and stating the city where they lived at the time. During defense counsel’s cross-examination of K.W., the following occurred: Q: Okay. And so when you told us earlier that you saw Wayne hit your mom in the face, what were you doing? A: I was outside. And when I walked in, my mom was crying, and I asked her what happened, and she — Defense Counsel: Objection, hearsay. The Court: Overruled. After the trial court overruled Horton’s hearsay objection, there was no further testimony about what K.W.’s mother may have told her; the questioning shifted back to K.W. playing outside. -3-  04-16-00092-CR Horton contends the trial court abused its discretion in overruling his hearsay objection because K.W.’s testimony indirectly revealed to the jury what her mother told her without repeating the words verbatim, and thus amounted to “backdoor hearsay.” Horton cites no legal authority to support his backdoor hearsay argument, and has therefore inadequately briefed this issue. TEX. R. APP. P. 38.1(i); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000). Even if the issue were properly presented, the record shows that no hearsay statement, either direct or indirect, was admitted immediately before or after the objection. See TEX. R. EVID. 801(d) (defining hearsay as an out-of-court statement offered into evidence to prove the truth of the matter asserted); see Hajjar v. State, 176 S.W.3d 554, 564 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (holding “no hearsay evidence was directly or indirectly admitted because what the appellant’s son had revealed to [the investigating officer] was never introduced into evidence . . . .”). Backdoor hearsay consists of a “question and answer” that presents the jury with information from unsworn, out-of-court sources. Id. Here, no answer revealing the contents of her mother’s statement was given by K.W. at that time. See Head v. State, 4 S.W.3d 258, 262 (Tex. Crim. App. 1999) (when determining whether evidence indirectly conveys the contents of an out-of-court statement so as to constitute backdoor hearsay, the reviewing court limits itself to the state of the evidence at the time the trial court made the ruling on admissibility; the trial court cannot be asked to speculate on what evidence may be introduced later). Finally, any error was rendered harmless by Horton’s subsequent elicitation of the contents of the same out-of-court statement when he later asked K.W., “So is it possible that you didn’t see Mr. Wayne hit your mom and its [sic] just what your mom told you?” and K.W. answered, “Yes, and I believe my mom.” See Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (error in the admission of evidence is cured where the same evidence is admitted later without objection); see also Shaw v. State, 122 S.W.3d 358, 364 (Tex. App.—Texarkana 2003, no pet.) (if the fact to which the hearsay -4-  04-16-00092-CR relates is sufficiently proved by other competent and unobjected-to evidence, the admission of the hearsay is harmless). Confrontation Right As noted in part above, the following exchange occurred during Horton’s cross- examination of K.W.: Q: Okay. So is it possible that your mom told you something that happened? A: Yes. That was another day when I saw it. Q: We are just going to talk about that day, okay? So is it possible that you didn’t see Mr. Wayne hit your mom and it’s just what your mom told you? A: Yes, and I believe my mom. Horton asserts that the last question and answer quoted above amounted to a violation of his Sixth Amendment confrontation right because he was deprived of the opportunity to cross- examine Stephanie Horton concerning what she told K.W. U.S. CONST. amend. VI. Horton contends K.W.’s answer violated Crawford because the out-of-court statement by Stephanie Horton was testimonial in nature, she was unavailable to testify, and he did not have a prior opportunity to cross-examine Stephanie. See Crawford v. Washington, 541 U.S. 36, 68 (2004). However, Horton himself elicited the complained-of testimony and failed to preserve any error by objection in the trial court. See Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (claim of Confrontation Clause violation must be preserved by trial court objection); see also TEX. R. APP. P. 33.1(a). Therefore, nothing is presented for our review. Based on the foregoing analysis, we overrule Horton’s issues on appeal and affirm the trial court’s judgment. Rebeca C. Martinez, Justice DO NOT PUBLISH -5- 

718 F.2d 1085 Cookv.Jones 82-2046 UNITED STATES COURT OF APPEALS Second Circuit 1/25/83 1 S.D.N.Y. AFFIRMED

Order Michigan Supreme Court Lansing, Michigan March 4, 2013 Robert P. Young, Jr., Chief Justice Michael F. Cavanagh Stephen J. Markman 145927 Mary Beth Kelly Brian K. Zahra Bridget M. McCormack David F. Viviano, PEOPLE OF THE STATE OF MICHIGAN, Justices Plaintiff-Appellee, v SC: 145927 COA: 307598 Macomb CC: 2005-004728-FC RIGOBERTO CARDENAS-BORBON, Defendant-Appellant. _________________________________________/ On order of the Court, the application for leave to appeal the August 31, 2012 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). VIVIANO, J., not participating. I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. March 4, 2013 _________________________________________ s0225 Clerk 

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-1183 NORTH CAROLINA COURT OF APPEALS Filed: 6 May 2014 STATE OF NORTH CAROLINA v. Person County Nos. 13 CRS 329-30 DEZMOND HARDISON SHINE Appeal by defendant from judgments entered 14 June 2013 by Judge W. Osmond Smith, III, in Person County Superior Court. Heard in the Court of Appeals 7 April 2014. Attorney General Roy Cooper, by Associate Attorney General Christopher McLennan, for the State. Sue Genrich Berry for defendant-appellant. ELMORE, Judge. Defendant appeals from judgments entered upon revocation of his probation. Because the trial court entered the necessary findings of fact in support of revocation, we affirm. Defendant pled guilty to four counts of sale of cocaine on 22 March 2012. The trial court sentenced defendant to two consecutive prison terms of ten to twelve months each,  -2- suspended, and placed defendant on supervised probation for thirty-six months. Violation reports filed on 18 March 2013 charged defendant with violating multiple conditions of his probation, including the regular condition that he “[c]ommit no criminal offense in any jurisdiction.” N.C. Gen. Stat. § 15A-1343(b)(1) (2013). Specifically, the reports alleged that defendant committed the crimes of (1) possession with intent to manufacture, sell, or deliver (“PWIMSD”) a Schedule II controlled substance, and (2) maintaining a vehicle, dwelling, or place for keeping or selling a controlled substance on 5 March 2013, and that the “CHARGES ARE PENDING . . . IN PERSON COUNTY DISTRICT COURT.” At defendant’s revocation hearing, Roxboro Police Officer Ryan Ford testified that he stopped a car driven by defendant on the afternoon of 5 March 2013. The passenger seated in the front seat had an open container of alcohol. Defendant told the officer that the car “was leased to his girlfriend from Enterprise.” Officer Ford stated during the hearing that “when I asked him if there was anything in the trunk, [defendant] immediately . . . became nervous, and he actually approached the trunk, and . . . said there was nothing in there[.]” Officer Ford searched the trunk and found “25 individual packaged  -3- baggies of crack cocaine.” Defendant acknowledged that he did not have a driver’s license but disavowed any knowledge of the cocaine. At the conclusion of the hearing, the trial court announced as follows: The Court finds the defendant violated the valid conditions of his probation as alleged in each case. With regard to paragraph number six in one case and f[our] in the other case, the Court finds he committed the crime of possession with intent to sell and deliver a Schedule II controlled substance. I do not find, I’m not reasonably satisfied he violated the crime of maintaining a vehicle to violate the laws. Based on this finding, the trial court revoked defendant’s probation and activated the sentences as originally imposed. The trial court credited defendant with the forty-nine days of prior confinement. Defendant gave notice of appeal in open court. Defendant claims that the trial court erred in revoking his probation for commission of a new criminal offense without making proper findings of fact to support the revocation. He notes that, because he had not been convicted of the pending charges alleged in the violation reports, the trial court was required to make an independent determination that he had committed a new offense in violation of N.C. Gen. Stat. § 15A-  -4- 1343(b)(1). Defendant contends that the trial “court fail[ed] to find facts to support an independent judgment of revocation[.]” Initially, we note that defendant committed his alleged probation violations subsequent to the 1 December 2011 effective date of the Justice Reinvestment Act of 2011 (“JRA”). See 2011 N.C. Sess. Laws 192, § 4.(d); 2011 N.C. Sess. Laws 412, § 2.5. “[F]or probation violations occurring on or after 1 December 2011, the JRA limited trial courts’ authority to revoke probation to those circumstances in which the probationer: (1) commits a new crime in violation of N.C. Gen. Stat. § 15A- 1343(b)(1); (2) absconds supervision in violation of N.C. Gen. Stat. § 15A-1343(b)(3a); or (3) violates any condition of probation after serving two prior periods of [confinement in response to violation] under N.C. Gen. Stat. § 15A-1344(d2).” State v. Nolen, __ N.C. App. __, __, 743 S.E.2d 729, 730 (2013) (citing N.C. Gen. Stat. § 15A-1344(a) (2013)). Therefore, although the trial court found additional violations alleged by the probation officer, we confine our review to the violation that resulted in revocation – defendant’s commission of a new crime in violation of N.C. Gen. Stat. § 15A-1343(b)(1). In order to revoke probation, “[a]ll that is required is  -5- that the evidence be sufficient to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation.” State v. White, 129 N.C. App. 52, 58, 496 S.E.2d 842, 846 (1998), aff’d in part, disc. review improvidently allowed in part, 350 N.C. 302, 512 S.E.2d 424 (1999). The trial court is required to make findings of fact pursuant to N.C. Gen. Stat. § 15A- 1345(e)(2013). “The findings of fact by the judge must show he exercised his discretion to that effect.” State v. Williamson, 61 N.C. App. 531, 534, 301 S.E.2d 423, 426 (1983) (citation omitted). Moreover, “[t]he minimum requirements of due process in a final probation revocation hearing” require written “findings of fact as to the evidence relied on” and the “reasons for revoking probation.” Id. at 533-34, 301 S.E.2d at 425. We find no merit to defendant’s position. The judgments entered by the trial court incorporate the contents of the sworn violation reports and include findings “that the defendant violated each of the conditions of [his] probation as set forth” in the reports’ numbered paragraphs, and that he did so “willfully and without valid excuse[.]” See generally State v. Duncan, 270 N.C. 241, 246, 154 S.E.2d 53, 58 (1967) (deeming the  -6- verified violation report to be competent evidence of probation violations). Regarding the allegation that defendant violated N.C. Gen. Stat. § 15A-1343(b)(1) by committing the new offenses of PWIMSD a Schedule II controlled substance and maintaining a vehicle for keeping or selling a controlled substance, the judgments specify that the trial court did “NOT FIND DEFENDANT WILLFUL[] OF MAINTAINING A VEHICLE[.]” Finally, the trial court found that it was authorized to “revoke defendant’s probation for the willful violation of the condition[] that he[] not commit any criminal offense, G.S. 15A-1343(b)(1)[.]” These findings fully support revocation under N.C. Gen. Stat. § 15A- 1344(a). State v. Henderson, 179 N.C. App. 191, 197, 632 S.E.2d 818, 822 (2006); State v. Monroe, 83 N.C. App. 143, 146, 349 S.E.2d 315, 317 (1986). Although not designated as a separate argument in his appellate brief, defendant also suggests that the evidence was insufficient to support a finding by the trial court that he possessed the cocaine found in the car’s trunk by Officer Ford. We do not agree. Given the minimal proof standard that prevails at a revocation hearing, the sworn violation reports filed by the probation officer and Officer Ford’s hearing testimony were more than adequate to support the trial court’s findings. See  -7- State v. Tisdale, 153 N.C. App. 294, 298, 569 S.E.2d 680, 682 (2002) (“[W]here contraband material is found in a vehicle under the control of an accused, even though the accused is the borrower of the vehicle, this fact is sufficient to give rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury.”) (citations and quotation marks omitted); see also Duncan, 270 N.C. at 246, 154 S.E.2d at 58. Affirmed. Judges McGEE and DAVIS concur. Report per Rule 30(e). 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4742 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NICHOLAS ANTONIO COOPER, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. James A. Beaty, Jr., District Judge. (1:07-cr-00328-JAB-1) Submitted: April 18, 2014 Decided: April 24, 2014 Before KING, GREGORY, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. William S. Trivette, Greensboro, North Carolina, for Appellant. Michael A. DeFranco, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Nicholas Antonio Cooper appeals the eight-month sentence of imprisonment imposed by the district court after revocation of his supervised release. Counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious grounds for appeal but questioning whether Cooper’s sentence is plainly unreasonable. Although notified of his right to do so, Cooper has not filed a supplemental brief. We affirm. “A district court has broad discretion when imposing a sentence upon revocation of supervised release.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). “We will affirm a revocation sentence if it is within the statutory maximum and is not “‘plainly unreasonable.’” Id. (quoting United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006)). “In making this determination, we first consider whether the sentence imposed is procedurally or substantively unreasonable.” Id. Only if we so find, will “we . . . then decide whether the sentence is plainly unreasonable.” Crudup, 461 F.3d at 439. Here, the district court correctly calculated Cooper’s advisory policy statement range and considered the 18 U.S.C. § 3553(a) (2012) factors applicable to sentencing upon revocation of supervised release. The district court also adequately explained the basis for Cooper’s sentence. Thus, we 2 conclude that the district court did not abuse its discretion in sentencing Cooper. In accordance with Anders, we have reviewed the entire record and have found no meritorious grounds for appeal. We therefore affirm the district court’s judgment. This court requires that counsel inform Cooper, in writing, of his right to petition the Supreme Court of the United States for further review. If Cooper requests that a petition be filed, but counsel believes that such a petition would be frivolous, counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Cooper. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 3 

30 F.3d 1484 Abdul-Alim (Dr. Malik), Abdullah (Akbar), a/k/a Washington(Oacar), Dixon (James), a/k/a Qawi, Cardona(Rogelio), Williams (A.B.), West (Robert L.)v.State of New Jersey, N.J. Department of Corrections TrentonState Prison, Medical Department of Trenton StatePrison, Edwards (W. Cary), Fauver(William H.), Seidl (Richard A.) NO. 93-5242 United States Court of Appeals,Third Circuit. June 03, 1994 Appeal From: D.N.J., Brown, J. 1 AFFIRMED.

407 B.R. 593 (2009) In re FRUIT OF THE LOOM, INC., et al., Debtors. Fruit of the Loom, Inc., a New York corporation, and Union Underwear Company, Inc., d/b/a Fruit of the Loom, a Delaware corporation, Plaintiffs, v. Magnetek, Inc., Defendant. Bankruptcy No. 99-04497-PJW. Adversary No. 09-50948. United States Bankruptcy Court, D. Delaware. July 15, 2009. *595 Lisa C. McLaughlin, Stephen W. Spence, Phillips, Goldman & Spence, P.A., Wilmington, DE, Christopher P. McCormack, Pullman & Comley, LLC, Bridgeport, CT, for Defendant. Derek C. Abbott, Matthew B. Harvey, Morris Nichols Arsht & Tunnell LLP, Wilmington, DE, Michael S. Vitale, E. Kenly Ames, English Lucas Priest & Owsley LLP, Bowling Green, KY, for Plaintiffs. MEMORANDUM OPINION WALSH, Bankruptcy Judge. This opinion is with respect to the motion brought by Defendant Magnetek, Inc. ("Magnetek") requesting that this Court abstain from exercising jurisdiction over the instant adversary proceeding initiated by Fruit of the Loom, Inc. ("New Fruit") and Union Underwear Company (together "Plaintiffs"). (Adv.Doc.# 12.) For the reasons discussed below, I will grant the motion. BACKGROUND On December 29, 1999, Fruit of the Loom, Inc., a Delaware corporation ("Old Fruit"), and a number of its subsidiaries, including Fruit of the Loom, Inc., a New York corporation ("Fruit New York") (collectively, "Debtors"), filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq. (Case No. 99-04497.) Magnetek filed proofs of claim in several of the related cases asserting, among other things, that Old Fruit and certain of its subsidiaries were obligated to Magnetek with respect to certain environmental, health, and safety matters, including those related to a facility in Bridgeport, Connecticut ("Bridgeport Plant"). (Adv.Doc.# 19, p. 4.) The Bridgeport Plant is the subject of a regulatory filing pursuant to the Connecticut Transfer Act ("Transfer Act"), Conn. Gen.Stat. §§ 22a-134 et seq. The Transfer Act requires, upon transfer—defined as, "any transaction or proceeding through which an establishment undergoes a change in ownership"—certain forms be filed as to properties or business operations classified as hazardous waste "establishments." Conn. Gen.Stat. § 22a-134(1). In 1986, when Farley/Northwest Industries, Inc. ("NWI"), a predecessor entity of Fruit New York, transferred all the stock in the company that owned the Bridgeport Plant to Magnetek, NWI filed a Form III as to PCB contamination at the Bridgeport *596 Plant. (Adv. Doc. # 12, ex. 1 and ex. 8, p. 2.) Form III is defined as: [A] written certification ... [stating] that (A) a discharge, spillage, uncontrolled loss, seepage or filtration of hazardous waste or a hazardous substance has occurred at the establishment or the environmental conditions at the establishment are unknown, and (B) that the person signing the certification agrees to investigate the parcel in accordance with prevailing standards and guidelines and to remediate pollution caused by any release of a hazardous waste or hazardous substance from the establishment in accordance with the remediation standards. Conn. Gen.Stat. § 22a-134(12). Subsequently, in 1988, NWI entered into a consent order with the Connecticut Department of Environmental Protection ("DEP") obligating NWI to investigate and remediate the PCB contamination, including designing and installing a groundwater extraction system to address the contamination. (Adv. Doc. # 12, pp. 2-3 and ex. 1.) In 2001, Magnetek sold assets located at the Bridgeport Plant. As related to that transaction, upon consultation with the DEP, Magnetek filed another Form III pursuant to the Transfer Act. At the time of its filing, Magnetek believed that the DEP would look to NWI's first filed Form III for compliance with the 1988 consent order. (Id. at pp. 7-8.) However, the Transfer Act does not address which party is responsible, or whether both parties are responsible, in the situation in which a filed Form III remains outstanding as to the same "establishment" as to which a second Form III subsequently is filed. In January 2007, the DEP stated that the obligations under NWI's 1986 Form III filing and the 1988 consent order remained outstanding and effective. (Id. at p. 4 and ex. 5.) Subsequent to this reaffirmation of the obligations by the DEP, two independent plaintiffs filed two actions in Connecticut state court against Magnetek seeking to hold Magnetek responsible for continuing and completing investigation and remediation begun pursuant to the 1986 Form III filing and the 1988 consent order, and for obligations arising from its 2001 Form III filing. First, relying on both the 2001 Form III filing and the 1986 Form III filing and 1988 consent order, The Sergy Company, LLC ("Sergy"), the current owner of the Bridgeport Plant, seeks, among other things, to have Magnetek "complete" the PCB remediation ("Sergy Action"). (Id. at ex. 6.) Second, in the form of a civil enforcement proceeding, the State of Connecticut seeks civil penalties against Magnetek for "failing" to operate the groundwater extraction system established pursuant to the 1988 consent order, which it contends Magnetek is obligated to operate based on its 2001 Form III filing ("Commissioner's Action"). (Id. at ex. 7.) As to the Sergy Action, Magnetek moved to add Fruit New York as a defendant, which the Connecticut state court granted. (Id. at p. 8.) Magnetek seeks a declaratory judgment that Fruit New York is liable for the performance Sergy seeks, and that Fruit New York's obligations should be completely discharged before Magnetek is called upon to take any further action as to the Bridgeport Plant. (Adv.Doc. # 19, ex. A, pp. 4-5.) As to the Commissioner's Action, Magnetek similarly moved to add Fruit New York as a defendant and seeks a similar declaration; this motion remains pending. (Adv.Doc. # 12, p. 9.) Thus, through its addition of Fruit New York as a defendant, Magnetek seeks a declaratory judgment from the Connecticut state court that would impose liability on Fruit New York as to environmental *597 matters related to the Bridgeport Plant. With respect to Debtors' bankruptcy proceeding, Old Fruit and its related subsidiaries, including Fruit New York, entered into a settlement and release agreement ("Settlement Agreement"), which the Court approved on April 25, 2002. In pertinent part, the Settlement Agreement provides that: [Old Fruit and Magnetek ("Releasing Parties")] hereby unequivocally release and forever discharge each other and their affiliates ... from any and all rights, claims, demands, actions, liabilities, causes of action, costs, losses, suits... whether known or unknown, foreseen or unforeseen, suspected or unsuspected, fixed or contingent, disclosed or undisclosed, matured or unmatured ... which any of the Releasing Parties ever had or may have against the Released Parties pursuant to the Magnetek Agreements and the Magnetek Judgement, and, with respect to the matters addressed in the Magnetek Agreement and the Magnetek Judgement. MagneTek hereby withdraws with prejudice any proofs of claim it has filed against Fruit of the Loom in the referenced bankruptcy proceedings.... (Adv.Doc. # 1, ex. 4, pp. 5-6, § 4.) The Magnetek Agreements include agreements among Old Fruit, NWI, and Magnetek as to the Bridgeport Plant and its environmental matters. (Id. at pp. 1-2.) Further, § 9 of the Settlement Agreement, labeled "Bankruptcy Court Jurisdiction," provides that: "[w]hile the Bankruptcy Cases are pending and thereafter, the Bankruptcy Court shall retain jurisdiction to hear and determine all matters relating to or arising under the [Settlement] Agreement." (Id. at p. 7, § 9.) Similarly, the order entered by the Court approving the Settlement Agreement ("Order") states that: "[t]he Court shall retain jurisdiction to hear and determine all matters related to implementation and enforcement of this Order." (Doc. # 4437.) The Settlement Agreement is governed by the laws of the state of New York. (Adv.Doc. # 1, ex. 4, pp. 6-7, § 8.) On May 5, 2009, Plaintiffs initiated this adversary proceeding. Plaintiffs seek a declaration that the claims asserted by Magnetek in the Connecticut state court actions against Fruit New York were fully and finally waived, released, and discharged under the Settlement Agreement, and that Magnetek's addition of Fruit New York as a defendant in those actions constitutes a breach of the Settlement Agreement. (Adv.Doc. # 1, p. 11, ¶ 50.) Pursuant to 28 U.S.C. § 1334(c), on June 8, 2009, Magnetek filed the instant motion requesting that the Court abstain from exercising jurisdiction over this adversary proceeding. Magnetek argues that the Court must abstain in accordance with the mandatory abstention prescribed by 28 U.S.C. § 1334(c)(2), or, in the alternate, the Court should choose to abstain based upon the permissive abstention allowed by 28 U.S.C. § 1334(c)(1). (Adv. Doc.# 12.) In contrast, Plaintiffs contend that because the Court retained jurisdiction over the Settlement Agreement and accompanying Order, the Court cannot abstain as it already decided to retain jurisdiction. Alternatively, Plaintiffs maintain that mandatory abstention is inapplicable and that permissive abstention is not warranted. (Adv.Doc.# 19.) DISCUSSION Exclusive Jurisdiction Plaintiffs contend that the retention of jurisdiction provisions in the Settlement Agreement and the Order preclude this Court from reaching the abstention question *598 as both parties necessarily have agreed to this Court's exclusive jurisdiction and this Court already has retained exclusive jurisdiction. This conclusion contradicts a reported decision in this District. In LaRoche Indus., Inc. v. Orica Nitrogen LLC (In re LaRoche Indus., Inc.), 312 B.R. 249 (Bankr.D.Del.2004), the court faced similar retention of jurisdiction language and a motion for abstention. In that case, post-petition, the debtor entered into an asset purchase agreement which provided that: "the parties agree that any dispute between or among them arising out of or based upon this Agreement shall be submitted to and resolved by the [Delaware] Bankruptcy Court." Id. at 255 (emphasis added). The order which approved the asset purchase agreement likewise provided that: "this [Delaware Bankruptcy] Court retains jurisdiction (i) to enforce and implement the terms and provisions of the Agreement, ... (iv) to resolve any disputes, controversies or claims arising out of or relating to the Agreement, and (v) to interpret, implement and enforce the provisions of this Order." Id. (emphasis added). The debtor initiated an adversary proceeding in the Bankruptcy Court for the District of Delaware to pursue a claim arising from the asset purchase agreement. The other party to the agreement filed a motion for abstention. In response to the debtor's argument that the party seeking abstention had waived its right to seek both mandatory and permissive abstention by executing the agreement and its forum selection clause, the court first noted that, in the Third Circuit, forum selection clauses are prima facie valid. Id. at 256 (citing In re Diaz Contracting, Inc., 817 F.2d 1047 (3d Cir. 1987) and Coastal Steel v. Tilghman Wheelabrator, Ltd., 709 F.2d 190 (3d Cir. 1983)). However, the court went on to hold that although the parties to the agreement had waived their rights to seek mandatory and permissive abstention, the waiver did not prevent the court from taking up permissive abstention sua sponte pursuant to 28 U.S.C. § 1334(c)(1). Id. at 256-57. I hold the same in the instant case. As an initial matter, that the forum selection clause in the Settlement Agreement is labeled "Bankruptcy Court Jurisdiction" does not distinguish it materially from forum selection clauses labeled as such; the effect of the clause is the same: jurisdiction is sited in the prescribed court. See Flanagan v. Arnaiz, 143 F.3d 540 (9th Cir.1998) (using precedent involving forum selection clauses in its discussion of retention of jurisdiction clauses); Kane v. Mfrs. Life Ins. Co., 2009 WL 78143, **1-2, 2009 U.S. Dist. LEXIS 1630, at *2-*3 (D.N.J. Jan. 9, 2009) (using the terms "retention of jurisdiction provisions" and "forum selection clauses" interchangeably). Thus, in accordance with Third Circuit precedent, as neither party has argued against the enforceability of the jurisdiction clauses in the Settlement Agreement and the Order, the clauses are valid. See, e.g., Coastal Steel, 709 F.2d at 202 (noting that forum selection clauses are prima facie valid). Further, as held by the court in In re LaRoche Indus., the jurisdiction clauses in the Settlement Agreement and the Order entered into by Magnetek constitute a waiver of any right to seek mandatory or permissive abstention. See also Street v. End of the Road Trust, 386 B.R. 539, 547 (D.Del.2008) (holding that valid forum selection clauses entered into by the parties seeking abstention "constitute a waiver of any right to mandatory abstention under section 1334(c)(2)"). Nevertheless, this waiver does not prevent me from sua sponte addressing the issue of permissive abstention. 28 U.S.C. § 1334(c)(1) ("[N]othing in this section prevents a district court in the interest of justice, or in *599 the interest of comity with State courts or respect for State law, from abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11."). See also CCM Pathfinder Pompano Bay, LLC v. Compass Fin. Partners LLC, 396 B.R. 602 (S.D.N.Y.2008) (considering permissive abstention as to an issue arising from an agreement specifically covered by a bankruptcy plan despite a clause in that bankruptcy plan providing for retention of jurisdiction in the bankruptcy court); In re Alliance Leasing Corp., 2007 WL 5595446, 2007 Bankr.LEXIS 4637 (Bankr.M.D. Tenn July 3, 2007) (granting permissive abstention despite a "retention of jurisdiction" clause in a bankruptcy plan that covered the instant dispute); Gilbane Bldg. Co. v. Air Sys., Inc. (In re Encompass Servs. Corp.), 337 B.R. 864, 877 (Bankr. S.D.Tex.2006) (discussing permissive abstention despite retention of jurisdiction language in a bankruptcy plan, and specifically noting that "[t]he decision to [permissively] abstain is left up to the broad discretion of the bankruptcy court").[1] Permissive Abstention Pursuant to 28 U.S.C. § 1334(c)(1), a district court, "in the interest of justice, or in the interest of comity with state courts or respect for state law, [may abstain] from hearing a particular proceeding arising under title 11 or arising in or related to a case under title 11." Courts consider twelve factors in determining whether permissive abstention is appropriate: 1. the effect or lack thereof on the efficient administration of the estate; 2. the extent to which state law issues predominate over bankruptcy issues; 3. the difficulty or unsettled nature of applicable state law; 4. the presence of a related proceeding commenced in state court or other non-bankruptcy court; 5. the jurisdictional basis, if any, other than section 1334 6. the degree of relatedness or remoteness of the proceeding to the main bankruptcy case; 7. the substance rather than the form of an asserted "core" proceeding; 8. the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state *600 court with enforcement left to the bankruptcy court; 9. the burden of the court's docket; 10. the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties; 11. the existence of a right to a jury trial; and 12. the presence of non-debtor parties. In re LaRoche Indus., 312 B.R. at 253-54; see also In re Integrated Health Services, Inc., 291 B.R. 615, 619 (Bankr.D.Del.2003); Valley Media, Inc. v. Toys R Us, Inc. (In re Valley Media, Inc.), 289 B.R. 27, 29 (Bankr.D.Del.2003); In re Continental Airlines, Inc., 156 B.R. 441, 443 (Bankr. D.Del.1993). The evaluation of these factors is not "merely a mathematical exercise." Trans World Airlines, Inc. v. Karabu Corp., 196 B.R. 711, 715 (Bankr.D.Del. 1996). Some factors are more substantial than others, such as the effect on the administration of the estate, whether the claim involves only state law issues, and whether the proceeding is core or non-core under 28 U.S.C. § 157. In re LaRoche Indus., 312 B.R. at 255; In re Encompass Servs., 337 B.R. 864 at 878. I will address the factors in order. First, the instant action will not have any significant effect on the efficient administration of the estate. The Court approved Debtors' joint plan of reorganization on April 19, 2002, and the plan took effect on April 30, 2002, over seven years ago. (Adv.Doc.# 1, p. 3, ¶ 10.) There is little chance that the action will have an effect on the administration of the estate. Moreover, mere familiarity with the bankruptcy case is not sufficient to "militate against abstention." In re Integrated Health, 291 B.R. at 620; In re LaRoche Indus., 312 B.R. at 254. Accordingly, this factor favors abstention. Second, this adversary proceeding is an ordinary contract dispute involving claims for declaratory relief based on breach of contract. The contract at issue is governed by New York state law. The Settlement Agreement's release provision is of a "plain vanilla" type; no provision of the Bankruptcy Code is implicated. As such, state law issues predominate over bankruptcy issues. This factor favors abstention. Third, the state law issues as to the asserted claims involve straightforward contract issues. Though Magnetek contends that the state law issues "present difficult questions of state law on which there is no relevant precedent," in so stating, it addresses Connecticut state law issues as to the Connecticut actions deriving from the Transfer Act, which, though underlying the Plaintiffs' claims, are unlikely to be implicated in the instant adversary proceeding. (Adv.Doc.# 12, p. 24.) Nevertheless, "even if a matter does not involve unsettled issues of state law, where the state law issues so predominate the proceeding ..., this factor weighs in favor of having the state court decide it." In re Integrated Health, 291 B.R. at 620. However, in this case, the state law issues that predominate are state law issues as to a state other than the state to which the Court may ultimately permissively abstain, which diminishes the weight of this factors' underlying policy that a state court be allowed to decide issues of its state law in the first instance. Accordingly, I consider this factor neutral. Fourth, there are related proceedings already commenced in the Connecticut state court. Nevertheless, though this factor favors abstention, because Magnetek agreed to this Court's jurisdiction, I will give it little weight. See In re LaRoche Indus., 312 B.R. at 254 ("[T]he fact that *601 [the relevant party] ignored the agreement... should not be counted in its favor."). Fifth, this Court's jurisdictional basis rests solely upon 28 U.S.C. § 1334. There is no federal question jurisdiction pursuant to 28 U.S.C. § 1331, and there is no diversity jurisdiction under 28 U.S.C. § 1332 as both Plaintiffs and Magnetek are Delaware corporations. Thus, this factor favors abstention. Sixth, the instant adversary proceeding is remote both in substance and time from the main bankruptcy case. The proceeding involves an agreement merely executed as part of the main bankruptcy case. That is was executed in that context does not "inextricably" intertwine it with the main bankruptcy case. See In re Loewen Group Int'l, Inc., 344 B.R. 727, 730-31 (Bankr.D.Del.2006) (quoting In re LaRoche Indus., 312 B.R. at 254). Further, the proceeding and the main bankruptcy case are separated by nearly seven years. Accordingly, this factor favors abstention. Seventh, the instant adversary proceeding is not a "core" proceeding under 28 U.S.C. § 157(b). Proceedings "arising under" and "arising in" a case under the Bankruptcy Code are "core" proceedings. See In re Exide Techs., 544 F.3d 196, 206 (3d Cir.2008); In re Combustion Eng'g, Inc., 391 F.3d 190, 225-26 (3d Cir.2004). A proceeding "arises under" the Bankruptcy Code only if the Bankruptcy Code creates the cause of action or provides the substantive right invoked. Stoe v. Flaherty, 436 F.3d 209, 217 (3d Cir.2006). The instant adversary proceeding does not "arise under" the Bankruptcy Code: Plaintiffs allege breach of contract, claims which solely involve state law. A proceeding "arises in" a case under the Bankruptcy Code if the proceeding has "no existence outside of the bankruptcy." Id. at 216 (quoting U.S. Trustee v. Gryphon at the Stone Mansion, Inc., 166 F.3d 552, 556 (3d Cir.1999)). The instant adversary proceeding does not "arise in" a case under the Bankruptcy Code: the ordinary contract dispute exists outside of bankruptcy. Thus, the adversary proceeding is not a "core" proceeding, and this factor favors abstention. See, e.g., In re LaRoche Indus., 312 B.R. at 254. Eighth, as there are no "core" bankruptcy issues, severance of state law claims is not necessary. Consequentially, this factor is inapplicable. Ninth, with respect to the burden on this Court's docket, I would note the obvious. We are in the midst of the most severe recession and credit crisis in decades, and the volume of major chapter 11 filings in this Court has risen to an unprecedented level. Accordingly, this factor favors abstention. Tenth, there exists little risk that Plaintiffs are engaging in forum shopping. This Court was the situs for the underlying bankruptcy case, and the Settlement Agreement includes a provision placing jurisdiction over disputes arising under it in this Court. This factor does not favor abstention. Eleventh, though neither party has requested a jury trial yet, breach of contract is triable by a jury. As this Court cannot conduct a jury trial, this factors favors abstention. See, e.g., In re LaRoche Indus., 312 B.R. at 255. Twelfth, Magnetek is a non-debtor. Though Plaintiffs, as reorganized entities related to Debtors, are former debtors, "[m]erely having once been a debtor in a bankruptcy case is insufficient to require the bankruptcy court to continue to resolve all disputes involving that party." Id. As such, this factor favors abstention. The majority of the factors favor abstention. Moreover, those factors considered *602 more substantial — the effect on the administration of the estate, whether the claim involves only state law issues, and whether the proceeding is core — indicate the appropriateness of abstention. Plaintiffs' claims raise an ordinary contract law issue. The Settlement Agreement contains standard contract language. The Connecticut state court is just as competent to adjudicate the instant claims. Further, the Connecticut state court already is hearing related matters. In the interests of judicial efficiency, abstention appears appropriate. Consequently, I will abstain. CONCLUSION For the reasons stated above, Magnetek's motion requesting that this Court abstain from exercising jurisdiction over the instant adversary proceeding is granted. ORDER For the reasons set forth in the Court's memorandum opinion of this date, Defendant's motion (Doc. # 12) for abstention is GRANTED. NOTES [1] Plaintiffs argue that "under well-settled case law, the Court's retention of `jurisdiction' means `exclusive jurisdiction.'" (Adv.Doc. # 19, p. 8.) In making this statement, Plaintiffs cite cases from the 2nd Circuit, the 9th Circuit, and the state of New York. Flanagan v. Arnaiz, 143 F.3d 540, 545 (9th Cir.1998); United States v. American Soc'y of Composers, Authors and Publishers (In re Karmen), 32 F.3d 727, 731-32 (2d Cir. 1994); Wollman v. Jocar Realty Co., Inc., 19 A.D.3d 210, 211, 799 N.Y.S.2d 17 (N.Y.App.Div.2005). Others courts have opined differently, noting that mere retention of "jurisdiction" should be distinguished from more specific retention of jurisdiction, such as retention of "exclusive jurisdiction." See Kane v. Mfrs. Life Ins. Co., 2009 WL 78143, **4-5, 2009 U.S. Dist. LEXIS 1630, at *11-14 (D.N.J. Jan. 9, 2009); Eisenbud v. Omnitech, 1996 WL 162245, **1-2, 1996 Del. Ch. LEXIS 37, at *3-5 (Del. Ch. Mar. 21, 1996). I do not need to reach the question of whether retention of "jurisdiction" means "exclusive jurisdiction." 28 U.S.C. § 1334(c)(1) grants me the ability to sua sponte take up whether I should abstain from hearing a particular proceeding. That the parties may have sited jurisdiction merely concomitantly or definitely exclusively in this Court does not affect that ability. Indeed, the abundance of cases in which courts have addressed permissive abstention in the face of similar retention of jurisdiction and forum selection clauses, including in those jurisdictions in which courts have held that "jurisdiction" means "exclusive jurisdiction," demonstrates that my decision to sua sponte raise permissive abstention is appropriate.

106 Wn.2d 474 (1986) 722 P.2d 1299 THOMAS L. EMSLEY, SR., as Personal Representative, ET AL, Respondents, v. THE ARMY NATIONAL GUARD, Petitioner. No. 51821-1. The Supreme Court of Washington, En Banc. July 31, 1986. Kenneth O. Eikenberry, Attorney General, and Virginia O. Binns and Jon P. Ferguson, Assistants, for petitioner. Edwards & Barbieri, by Malcolm L. Edwards and Catherine W. Smith; Douglas B. Ehlke and James Beard (Fred G. Scott, Jr., of counsel), for respondents. Gene S. Anderson, United States Attorney, amicus curiae for petitioner. BRACHTENBACH, J. This case presents the question whether the State of Washington may be sued for torts committed against United States Army personnel by members of the Washington National Guard. We hold that the State is not immune from suit, and in so holding, we affirm the trial court denial of the State's motion for dismissal. On August 20, 1983, five United States Army soldiers on active duty were marching along a public road at Fort Lewis. A howitzer shell, fired moments earlier by members of the Washington National Guard as part of a training exercise, exploded next to the road. The explosion severely injured three and killed two of the United States Army soldiers. *476 The record contains substantial evidence that the National Guard gunnery team was negligent. It is alleged that the point of impact was three-fourths of a mile off target. The three injured servicemen and representatives of the estates of the two deceased soldiers filed separate actions against the National Guard and the State of Washington. After the actions were consolidated by the trial court, the State moved for dismissal under CR 12(b)(6), or, in the alternative, CR 56. The trial court denied the State's motion and set a trial date. In the interim, this court granted the State's motion for discretionary review of the trial court's denial of dismissal. Despite lack of clarity in the motion for dismissal and subsequent order, we treat the trial court order denying the State's motion for dismissal as one based on summary judgment. The trial judge, in reaching his decision, considered numerous affidavits and depositions offered by both parties. Consideration of these materials was necessary, because they presented the factual question whether the National Guard was in state or federal status at the time of the incident. Such status is crucial to a determination of the presence or absence of state immunity, with which this appeal is solely concerned. Thus, the trial court properly treated the State's motion as one for summary judgment. The State maintains that it is immune to suit on either of two theories: (1) the National Guard was in active federal service at the time of the firing incident; thus, the State is immune through application of the Feres doctrine (see Feres v. United States, 340 U.S. 135, 95 L.Ed. 152, 71 S.Ct. 153 (1950)); or (2) the National Guard was in state status at the time of the incident, but, notwithstanding the blanket waiver of tort immunity of RCW 4.92.090, the State is immune through fulfillment of the criteria announced in Evangelical United Brethren Church v. State, 67 Wn.2d 246, 407 P.2d 440 (1965). We hold that the State cannot prevail under either theory. The State first contends that it is immune to suit under *477 the rule announced in Feres v. United States, supra. The Feres doctrine prevents service personnel injured in activities incident to military service from bringing suit against the federal government or fellow members of the federal armed services. Thus, for Feres to be applicable to this case, the National Guard must have been in active federal service rather than state service when the gunnery team fired the howitzer. Whether the National Guard is in federal or state status at a given time is determined by the United States Constitution, the Washington Constitution, and federal laws. The foundation of each state's militia, forerunner of the modern National Guard, is U.S. Const. art. 1, § 8, cl. 16. Clause 16 empowers the United States Congress to organize, arm and discipline the militia, but it specifically reserves to the states the responsibility for training the militia. [1] The Washington Constitution also provides for maintenance of a militia. Const. art. 10, § 2 dictates that Washington shall maintain a state militia in a manner not incompatible with the United States Constitution and United States laws. Since the United States Constitution specifically reserves training of the National Guard to the states, and the Washington Constitution mandates compatibility with the United States Constitution and with federal laws, the Washington Constitution impliedly vests responsibility for National Guard training in the state. Moreover, we have specifically recognized this training responsibility. In Hupe v. Coates, 95 Wn.2d 56, 60, 621 P.2d 726 (1980), we said: "the Governor, as commander-in-chief, is in direct control of and responsible for the training, condition and performance of the Washington National Guard." The incident in this case occurred during a National Guard training exercise. National Guard training, under both the United States and Washington Constitutions, is a state function. Thus, the National Guard was in state status during the subject training maneuvers unless federal law dictates otherwise. *478 Federal law regulating states' National Guard units is included in Titles 32 and 10 of the United States Code. Of these laws, 10 U.S.C. § 3495 and 10 U.S.C. § 3500 are relevant for purposes of establishing whether a National Guard unit is in federal or state status at a given time. Section 3495 states: Members of the Army National Guard of the United States are not in active Federal service except when ordered thereto under law. The National Guard may be ordered into active federal service pursuant to 10 U.S.C. § 3500, which establishes the grounds and procedures for such an order. This section provides, in pertinent part: [T]he President may call into Federal service members and units of the Army National Guard of any State . .. in such numbers as he considers necessary to repeal [sic] the invasion [of a foreign nation], suppress... rebellion, or execute those laws [which the President is unable with the regular forces to execute]. 10 U.S.C. § 3500. The record in this case is clear that no state of emergency existed at Fort Lewis on August 20, 1983 such as that contemplated by 10 U.S.C. § 3500, and no "call" by the President had placed the National Guard in active federal service on that date. The National Guard was therefore in state status on the day in question. The case law is in accord: Maryland ex rel. Levin v. United States, 381 U.S. 41, 14 L.Ed.2d 205, 85 S.Ct. 1293 (1965) (the state governor is in charge of the National Guard in each state except when the Guard is called into active federal service); Greenwood v. Department of Military Affairs, 78 Pa. Commw. 480, 468 A.2d 866 (1983) (National Guard is in state status unless called into active federal service pursuant to 10 U.S.C. §§ 3495 and 3500). Because we have determined that the National Guard was in state status, rather than federal service, at the time of the training incident, we find the Feres doctrine inapplicable to this case. The State next contends that it cannot be sued, notwithstanding *479 state status of the National Guard, because it meets the criteria announced in Evangelical United Brethren Church v. State, supra, for reinstating tort immunity which would otherwise be waived by RCW 4.92.090. This contention also fails. The State, through its National Guard, is accused of tortious conduct. Based on concepts of sovereign immunity, the State cannot be sued for such conduct unless it has waived its immunity to suit. O'Donoghue v. State, 66 Wn.2d 787, 789, 405 P.2d 258 (1965). This State has waived such immunity. In 1961 the Legislature adopted RCW 4.92.090, which provides (as amended in 1963): The state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation. RCW 4.92.090. [2] Although the Legislature, through RCW 4.92.090, created a blanket waiver of sovereign immunity for tortious conduct, we have carved out a narrow exception to the waiver. In Evangelical United Brethren Church v. State, supra, we recognized governmental immunity from tort liability for discretionary acts. We reasoned that organized society requires room for basic governmental policy decisions and implementation of those decisions, without threat of sovereign tort liability. Evangelical, at 254. In order that a decision of a governmental official or agency qualify for immunity under the Evangelical exception, four questions must be affirmatively answered: (1) Does the challenged act ... necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act ... essential to the realization ... of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act ... require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved *480 possess the requisite ... authority and duty to do... the challenged act ...? Evangelical, at 255. The Evangelical inquiry focuses on the nature of the acts of a governmental agency. The governmental agency in this case is the National Guard gunnery team, which was directed to fire artillery on training maneuvers, pursuant to order of the Governor of Washington as commander-in-chief of the National Guard. Unless the actions of this gunnery team satisfy all four Evangelical criteria, the Evangelical exception will not immunize the State from suit for the torts of the gunnery team. The first, second, and fourth prongs of Evangelical are met. The challenged act (firing the howitzer) involved the basic governmental objective of training the National Guard. Furthermore, firing artillery is essential to realization of the goal of a National Guard which is trained to fire artillery. Finally, there has been no challenge to the gunnery team's authority to engage in this firing as part of its training maneuvers. It is the third question of the Evangelical test which cannot be answered affirmatively. That question asks whether the act performed by the government agency required a policy evaluation. As we stated most recently in Miotke v. Spokane, 101 Wn.2d 307, 678 P.2d 803 (1984), the discretionary activity protected by the Evangelical exception includes only basic policy discretion. Miotke, at 336 (citing Mason v. Bitton, 85 Wn.2d 321, 534 P.2d 1360 (1975)). The act performed by the gunnery team in this case required no policy evaluation. The team's job was to safely and effectively fire a piece of artillery. Such a job required that the gunnery team make decisions; however, the decisions were of the type requiring experience, care, and knowledge of proper procedures. As such, any decisions to be made by the team were operational, not policy decisions. The gunnery team's operational decisions are closely analogous to those of the city and state police officers in *481 Mason v. Bitton, supra. In Mason, we distinguished the type of discretion "exercised at a truly executive level, to which immunity was granted, from that discretion exercised at an operational level, which, if done in a negligent fashion, would subject the government to liability." Mason, at 328. In making such a distinction, we held that the decision of state and city police officers to engage in a high speed chase which resulted in two deaths involved discretion at an operational, rather than executive level. Such operational decision could not immunize the city and state governments from suit. Similarly, the decision of the gunnery team in this case regarding setting, safety-checking, and firing the howitzer involved an operational rather than executive level decision. Thus, under Mason, the State of Washington is not immune from suit for the torts of its National Guard gunnery team. Since the National Guard was acting in its state capacity at the time of the deaths and injuries suffered by United States Army personnel, and the State is not entitled to immunity under Evangelical and its progeny, the State of Washington is not immune to suit in this instance. Accordingly, the trial court refusal to grant dismissal in favor of the State is affirmed. DOLLIVER, C.J., and UTTER, PEARSON, and GOODLOE, JJ., concur. CALLOW, J. I concur in the result. The plaintiffs seek $14,575,000 from the State of Washington in addition to their federal benefits. FIRST: If an active member of the armed services of the United States is injured or killed by another active member of the armed services of the United States while both are on duty, recovery for that injury or death is limited by Feres v. United States, 340 U.S. 135, 95 L.Ed. 152, 71 S.Ct. 153 (1950). The Feres doctrine provides that United States Army personnel may recover against the United States for injuries suffered in the service only through the *482 federal compensation system defined by statute. As stated in Feres on page 146: We conclude that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. Without exception, the relationship of military personnel to the Government has been governed exclusively by federal law. SECOND: If a member of the Washington State National Guard is injured or killed while on duty by another member of the Washington State National Guard also on duty, the recovery for injury or death is limited by Wark v. Washington Nat'l Guard, 87 Wn.2d 864, 865, 557 P.2d 844 (1976), which held: RCW 38.40.030 ... provides the exclusive remedy for militiamen injured in the course of duty. That section provides that any officer or enlisted man of the organized militia, who is wounded or otherwise disabled (or his dependents if he dies) while in active service, shall receive from the State "just and reasonable relief" in an amount to conform as nearly as possible to the general schedule of payments and awards provided under the workmen's compensation law in effect in the state at the time of the disability or death. This formula for recovery may be expanded by 32 U.S.C. § 318 if federal funds supported the activity. Chapman v. Belden Corp., 414 So.2d 1283 (La. Ct. App. 1982). THIRD: If a member of the Washington State National Guard, while on active or training duty, is injured or killed by an active duty member of the armed services of the United States, recovery for the death or injury is also limited by Wark v. Washington Nat'l Guard, supra; RCW 38.40.030. See also Layne v. United States, 295 F.2d 433 (7th Cir.1961), cert. denied, 368 U.S. 990 (1962). Edgar v. State, 92 Wn.2d 217, 595 P.2d 534 (1979), cert. denied, 444 U.S. 1077 (1980), states at page 223: In Wark, we held that RCW 38.40.010-.030 provides the exclusive remedy for National Guardsmen wounded, killed or disabled in the line of duty. In interpreting our statutes, we noted the similarity of RCW 4.92.090 to the *483 federal tort claims procedure act, 28 U.S.C. §§ 2671-2680 (1970), and the fact that the federal government provides a compensation system for members of the military similar to that which is provided in this state for guardsmen. We cited Feres v. United States, supra, wherein the United States Supreme Court had held that it was not the intent of Congress to provide an additional remedy for those whose claims were already expressly provided for in another statute. The high court in Feres had also said that the military activities of government are so unique that there is no comparable function in the private sector and thus no common-law action in which a private person would be liable under similar circumstances. (But see 10 U.S.C. § 2733 permitting limited claims against the United States for personal injuries or death caused by a member of the armed services incident to noncombat activities.) Under the foregoing three illustrations (1) Army injures Army, (2) Guardsman injures Guardsman, and (3) Army injures Guardsman, the general rule is limited recovery under a statutory scheme of compensation. The narrow opening through which this action is allowed to pass is the absence of statutory directive and the chink in governmental immunity discussed in Evangelical United Brethren Church v. State, 67 Wn.2d 246, 407 P.2d 440 (1965). In that case a 14-year-old boy in the juvenile correctional facility at Green Hill escaped and set fire to a church. The plaintiffs alleged that the State was negligent and that the school had applied only minimal security measures to the boy when it knew, or should have known, that he had a propensity for setting fires. The opinion sets forth the four questions which must be answered in the affirmative if the challenged act is to be classified as a discretionary governmental action for which the State is immune from liability. The opinion states in part: (1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that *484 policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? Evangelical Church, at 255. The opinion found that each of the four questions was to be answered in the affirmative and that there was no State liability. The decision of the majority holds that the State does not have immunity from suit in the case before us since the act of firing the 155 mm. howitzer did not require the exercise of a basic policy judgment (interrogatory 3 of Evangelical Church), but was merely a negligent operational action by the Guardsmen who fired the piece. See Barnum v. State, 72 Wn.2d 928, 435 P.2d 678 (1967). I acknowledge that the negligent aiming of the artillery and its firing did not involve a high level discretionary act exercised at a truly executive level. Chambers-Castanes v. King Cy., 100 Wn.2d 275, 669 P.2d 451 (1983). I agree that when RCW 4.92.090 opened the door to suits against the State, the State Legislature restricted recovery by the militia as noted, but did not preclude actions for injury to United States military personnel caused by National Guardsmen. In any event, in the situation before us where members of the armed services of the United States have been injured or killed by the negligence of a member of the Washington State National Guard while on training duty, the limitations do not apply and the State of Washington is held liable under a direct civil suit against the State. There is no logical justification for treating this fourth circumstance, Guardsman injures Army, differently than the injured service person in the other three situations. The injured Army personnel involved in the case before us have full military death, treatment, disability and dependent benefits available for their injuries through *485 Titles 10 and 38 of the United States Code, the statutory military and veterans' administration entitlements which have been and are being provided. There is no question but that the plaintiffs in this action are entitled to compensation as well as sympathy and compassion for their loss. However, the circumstances in this case apparently were not contemplated by the Legislature of the State of Washington or by the Congress of the United States. Where under the three circumstances recited a person injured in the service of his country would be entitled only to a sum set by statute, in this situation, simply by virtue of his status or insignia on his blouse, the State is required to pay, in addition to the federal benefits, as if the injured party had been a civilian. Two compensations will result. Compare Lundeen v. Department of Labor & Indus., 78 Wn.2d 66, 469 P.2d 886 (1970). A soldier in the field serves his country at great risk. He can never be fully compensated for the risks to life and limb that he undertakes. Nor can his country or state fully compensate him other than by honors and gratitude. The risks a soldier takes in the field are part of the price he must pay for living in a free society. It would be a perfect world if the plaintiffs in this case could be properly compensated. However, it is not proper to compensate them on a different basis or more generously than others who are serving in a different status would be compensated in a like situation. I concur with the majority because the law does not preclude the recovery it allows and makes this recovery possible. However, it appears that this is a matter which has dropped between the cracks and should be corrected by the Legislature. DORE, ANDERSEN, and DURHAM, JJ., concur with CALLOW, J. Reconsideration denied October 2, 1986.

192 Ga. App. 32 (1989) 383 S.E.2d 593 ROBINSON v. THE STATE. A89A0670. Court of Appeals of Georgia. Decided June 6, 1989. Rehearing Denied June 21, 1989. Rosenzweig, Kam, Jones & McNabb, Douglas L. Dreyer, for appellant. William G. Hamrick, Jr., District Attorney, Agnes McCabe, Monique F. Kirby, Assistant District Attorneys, for appellee. BIRDSONG, Judge. Appellant Bobby Lewis Robinson appeals his conviction for sale of cocaine and sentence. Lieutenant Harris of the Troup County Sheriff's Department made a positive in-court identification of appellant as the person who *33 sold him drugs in a local motel. Laboratory analysis confirmed that the drugs tested positive as cocaine. The appellant testified in his own behalf and denied selling drugs to Harris. He testified that he was attending a birthday party for his son, and called alibi witnesses who corroborated his testimony. Held: Appellant's sole enumeration of error is that the trial court erred in failing to suppress his pretrial statement to the police. Appellant objected during an out-of-court hearing to the admission of this statement on the grounds that it was not relevant, that it improperly placed appellant's character in issue; and, that admission of the statement "would unnecessarily prejudice the minds of the jury ... even with ... curative instructions." Appellant also asserted that he was not provided with the ten-day notice required by Uniform Superior Court Rule 31.1. During the out-of-court hearing, it was established that Deputy Riggs, after advising appellant of his Miranda rights and obtaining a valid waiver thereof, questioned appellant and obtained an oral statement from him. The trial court ruled that the statement was admissible, and that the other acts of misconduct referred to in the statement did not constitute "a similar transaction." During the State's case in chief, Detective Riggs testified concerning this statement as follows: "[Appellant] told me that he had sold cocaine before but not in 1988 and he told me he had used cocaine and said that he did not sell cocaine ... concerning this arrest. This arrest was a mistake." Appellant renewed his objection to the admission of this statement on the grounds it was hearsay and because it "improperly places the defendant's character in issue...." The trial court overruled these objections. It is the general rule that "`"[i]f evidence is relevant and material to an issue in (a) case, it is not inadmissible because it incidentally puts the defendant's character in issue."'" Richie v. State, 258 Ga. 361 (3) (369 SE2d 740); accord Stitt v. State, 256 Ga. 155 (1) (345 SE2d 578); Dampier v. State, 245 Ga. 427 (10) (265 SE2d 565); Hudson v. State, 237 Ga. 443, 444 (228 SE2d 834); see also Perez v. State, 182 Ga. App. 628 (3) (356 SE2d 706). It is an equally well-recognized general rule that "`[w]hat is forbidden is the introduction by the state in the first instance of evidence whose sole relevance to the crime charged is that it tends to show that the defendant has bad character.'" Johnson v. State, 258 Ga. 506 (3) (371 SE2d 396); Frazier v. State, 257 Ga. 690, 698 (362 SE2d 351). In this case, the statement contained a reference to prior independent crimes committed by the appellant, specifically, the crimes of cocaine use and prior cocaine sale. These statements did not constitute an integral part of a criminal confession nor was each statement an inseparable part of the total oral statement made to Detective *34 Riggs. Compare generally Stitt, supra at 157 with Florence v. State, 162 Ga. App. 830 (1) (292 SE2d 923). In fact, when the two statements regarding prior offenses are deleted from the statement in question, all that remains is appellant's strong denial that he committed the charged offense. Thus, the facts of this case are clearly distinguishable from Richie, Stitt, Dampier, Hudson and Perez. The confession contained in the appellant's statement, regarding prior use of cocaine, had nothing whatsoever to do with the conduct for which he was on trial (sale of cocaine in 1988). "Indeed, the statement cannot be construed as anything other than a denial of the offenses for which he was on trial. Thus, the only possible evidentiary function which the [confession concerning prior cocaine use] could have served as far as the state was concerned was an impermissible one, i.e., to impugn the appellant's character before the jury by showing that he was generally prone to criminal conduct." Florence, supra at 832 (1). Regarding the confession contained in the appellant's statement, regarding sale of cocaine on an unknown date prior to 1988, a somewhat different situation arises. In certain circumstances, evidence of independent crimes is admissible "`"for the purpose of showing identity, motive, plan, scheme, bent of mind and course of conduct,"'" (emphasis supplied) Williams v. State, 257 Ga. 761, 764, n. 3 (a) (363 SE2d 535), or for "some other rational connection with the offense for which [appellant] is being tried." Jones v. State, 257 Ga. 753, 757-758, n. 6 (363 SE2d 529); Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515). "[B]efore evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged that proof of the former tends to prove the latter." (Emphasis supplied.) Hamilton, supra at 75. Moreover, "`(i)t has long been the rule in Georgia that evidence of an independent crime is never admissible unless the prejudice it creates is outweighed by its relevancy to the issues on trial.'" Rainwater v. State, 256 Ga. 271, 272, n. 2 (347 SE2d 586), citing Robinson v. State, 246 Ga. 469, 470 (271 SE2d 786). In the case sub judice, the trial court in essence ruled that the prior crimes confessed to in appellant's pretrial statement were not similar in nature to the offense with which he was charged. We are not convinced that a prior sale of a drug identical to the type with which an accused is currently charged with selling is not per se of sufficient similarity or of sufficient logical connection to comply with the second condition above discussed. However, rendering this point moot is the fact that the confession to prior drug crimes was admitted in evidence without any limiting instructions being given regarding *35 the purpose for which the jury could consider such evidence. (Compare with Johnson, supra at 508 (3), where no error was found in part because an appropriate limiting instruction was given.) Moreover, in the charge to the jury the trial court pertinently instructed that "you will give consideration to this case, taking into consideration all of the evidence ... and if in doing so you believe, beyond a reasonable doubt, that the defendant is guilty of the offense charged ... you would be authorized to convict...." (Emphasis supplied.) The introduction in evidence of a prior, undated offense of using cocaine (having no reasonable relevance to sale of cocaine in 1988), the introduction of evidence of a prior, undated sale of cocaine without benefit of a limiting instruction, coupled with a charge to the jury that it will take "into consideration all of the evidence," created a fair risk that the evidence of these prior drug offenses impugned the appellant's character by showing that he was generally prone to criminal conduct. Accordingly, we find "that this testimony ... was so prejudicial that its admission demands reversal." Merritt v. State, 255 Ga. 459 (2) (339 SE2d 594). Moreover, under these circumstances, any possible relevance which the evidence of an undated, prior cocaine sale might have regarding the sale of cocaine in 1988 is outweighed by the prejudice caused by admitting the evidence of both prior drug offenses, particularly in view of the issue discussed above regarding charges to the jury. Compare with Robinson, supra at 470. Finally, we note that the appellant vigorously contested his guilt with an aggressive alibi defense, under such circumstances, and in light of the posture of the State's evidence, we cannot say that this error was harmless. Judgment reversed. Deen, P. J., and Benham, J., concur.

981 So.2d 1208 (2008) TSONEV v. STATE. No. 2D08-2229. District Court of Appeal of Florida, Second District. May 9, 2008. Decision without published opinion. Hab.Corp.denied.

897 F.2d 531 U.S.v.VanVeghel (Thomas J.) NO. 89-2837 United States Court of Appeals,Seventh Circuit. FEB 07, 1990 1 Appeal From: E.D.Wis. 2 DISMISSED.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 85 CA 10-00923 PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ. JUDITH A. ROST, PLAINTIFF-RESPONDENT, V MEMORANDUM AND ORDER MICHAEL A. STOLZMAN, MICHAEL OLIVER, SUSAN OLIVER, DEFENDANTS-RESPONDENTS, JENNIFER D. MARTINO AND GINA L. AVINO, DEFENDANTS-APPELLANTS. BARTH SULLIVAN BEHR, BUFFALO (SARAH P. RERA OF COUNSEL), FOR DEFENDANTS-APPELLANTS. LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-RESPONDENT. KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF COUNSEL), FOR DEFENDANT-RESPONDENT MICHAEL A. STOLZMAN. HAGELIN KENT LLC, BUFFALO (VICTOR M. WRIGHT OF COUNSEL), FOR DEFENDANTS-RESPONDENTS MICHAEL OLIVER AND SUSAN OLIVER. Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered July 8, 2009 in a personal injury action. The order denied the motion of defendants Jennifer D. Martino and Gina L. Avino for summary judgment. It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained in an automobile accident. Defendant Michael A. Stolzman backed his automobile, in which plaintiff was a passenger, out of the driveway of the home of defendants Michael Oliver and Susan Oliver and into the path of an oncoming automobile operated by defendant Jennifer D. Martino. Martino was operating the automobile with the permission of the owner, defendant Gina L. Avino. In a prior appeal, we concluded that Supreme Court properly denied, inter alia, that part of the Olivers’ motion seeking to dismiss the negligence cause of action against them inasmuch as there was a triable issue of fact whether the Olivers were negligent with respect to that accident (Martino v Stolzman, 74 AD3d 1764, 1766-1767, appeal dismissed 15 NY3d 890, lv granted 79 AD3d 1832). We conclude on this appeal that Supreme Court properly denied the motion of Martino and Avino for summary judgment dismissing the amended complaint against them  -2- 85 CA 10-00923 inasmuch as there is a triable issue of fact whether Martino was negligent in the operation of the automobile owned by Avino. Defendants contend that the court erred in denying their motion because there is no admissible evidence indicating that Martino was negligent. We reject that contention. “ ‘[A]n operator [of an automobile] who has the right[-]of[-]way is entitled to anticipate that other [automobiles] will obey the traffic laws that require them to yield’ ” (Barile v Carroll, 280 AD2d 988, 988; see Hillman v Eick, 8 AD3d 989, 991). Consequently, although “ ‘[n]egligence cases . . . do not usually lend themselves to summary judgment’ ” (Hyatt v Messana, 67 AD3d 1400, 1401, quoting Ugarriza v Schmieder, 46 NY2d 471, 474), an operator of an automobile involved in an accident similar to that at issue may establish entitlement to summary judgment, i.e., that he or she was free from negligence, by demonstrating that the other automobile “suddenly entered the lane where [that driver] was operating [his or her automobile] in a lawful and prudent manner and that there was nothing [that driver] could have done to avoid the collision” (Bulls v Massara, 71 AD3d 1408, 1409 [internal quotation marks omitted]; see Fratangelo v Benson, 294 AD2d 880). Here, defendants met their initial burden on the motion by demonstrating that the accident occurred after the automobile operated by Stolzman entered the path of the oncoming automobile operated by Martino (see e.g. DeLuca v Cerda, 60 AD3d 721; Yasinosky v Lenio, 28 AD3d 652). We further conclude, however, that plaintiff and the remaining defendants raised a triable issue of fact in opposition to the motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562). All drivers have a general “ ‘duty to see that which through the proper use of [their] senses [they] should have seen’ ” (Huff v Rodriguez, 45 AD3d 1430, 1431; see Hyatt, 67 AD3d at 1402). Here, the papers submitted in opposition to the motion included evidence that Martino could not remember whether she was using her windshield wipers on the rainy night of the accident, that Martino had four or five drinks on that night and that Martino was prescribed the medications Zoloft and Xanax at the time of the accident. Further, although Martino testified at her deposition that she did not feel impaired by alcohol at the time of the accident, she told police at the accident scene that she had not consumed alcohol on the night of the accident and, according to Avino, Martino tried to switch seats with Avino after the impact. Moreover, Martino could not recall where she was looking prior to the accident and did not attempt to avoid colliding with the automobile operated by Stolzman. That evidence, when viewed in its entirety, raises a triable issue of fact sufficient to defeat the motion (see Harris v Jackson, 30 AD3d 1027, 1028; see generally Zuckerman, 49 NY2d at 562). We note that, in reaching our determination, we have disregarded the affidavit of the accident reconstruction expert submitted in support of the motion inasmuch as the conclusions asserted therein “are speculative or unsupported by any evidentiary foundation” (Diaz v New York Downtown Hosp., 99 NY2d 542, 544; see Ciccarelli v Cotira, Inc., 24 AD3d 1276). Even assuming, arguendo, that the affidavit was  -3- 85 CA 10-00923 supported by an evidentiary foundation, we conclude that the court properly denied the motion because there is a triable issue of fact whether Martino drove in a lawful and prudent manner immediately before the accident (see Bulls, 71 AD3d at 1409; Fratangelo, 294 AD2d 880; see generally Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, rearg denied 52 NY2d 784, 829). Martino and Avino further contend that the court erred in denying their motion because Martino acted reasonably in response to the intrusion of the automobile operated by Stolzman into her lane of travel. We reject that contention. “As a general rule, ‘whether a party acted prudently is a question for the trier of fact’ ” (Heye v Smith, 30 AD3d 991, 992), and “ ‘[a] driver confronted with an emergency situation may still be found to be at fault for the resulting accident where his or her reaction is found to be unreasonable or where the prior tortious conduct of the driver contributed to bringing about the emergency’ ” (Sossin v Lewis, 9 AD3d 849, 851, amended on rearg 11 AD3d 1045; see Greenwell v Moody, 295 AD2d 954, 955). Here, there are triable issues of fact whether Martino’s reaction to the automobile operated by Stolzman was reasonable and whether any negligence on the part of Martino was a proximate cause of the accident (see Sossin, 9 AD3d at 851; Greenwell, 295 AD2d at 955; cf. Lucksinger v M.T. Unloading Servs., 280 AD2d 741, 742). Entered: February 18, 2011 Patricia L. Morgan Clerk of the Court 

585 F.Supp.2d 925 (2008) UNITED STATES STUDENT ASSOCIATION FOUNDATION, as an organization and representative of its members; American Civil Liberties Union Fund of Michigan, as an organization and representative of its members; and American Civil Liberties Union of Michigan, as an organization and representative of its members, Plaintiffs, v. Terri Lynn LAND, Michigan Secretary of State; Christopher M. Thomas, Michigan Director of Elections; and Frances McMullan, City Clerk for the City of Ypsilanti, Michigan, in their official capacities, Defendants. No. 2:08-cv-14019. United States District Court, E.D. Michigan, Southern Division. October 13, 2008. *928 Bradley E. Heard, Advancement Project, Washington, DC, Mary K. Deon, Matthew J. Lund, Pepper Hamilton, Detroit, MI, for Plaintiffs. Denise C. Barton, Heather S. Meingast, MI Department of Attorney General, Lansing, MI, John M. Barr, Barr, Anhut, Ypsilanti, MI, for Defendants. *929 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION STEPHEN J. MURPHY, III, District Judge. This lawsuit involves a challenge to the State of Michigan's election practices. The plaintiffs initiated the case by filing a complaint on September 17, 2008, and simultaneously requested both the entry of a preliminary injunction and expedited hearing of the matter. The defendants filed a brief opposing the plaintiffs' motion for preliminary injunction on September 26, 2008, and the plaintiffs filed a reply brief on September 29, 2008. All three of these filings exceeded the page limitations for such pleadings and in all three instances, the Court granted motions to exceed page limits. All filings have been supported by voluminous attachments and exhibits. The Court held a lengthy hearing on the motion for preliminary junction on September 30, 2008. None of the defendants have filed an answer to the complaint. INTRODUCTION The plaintiffs challenge two separate practices of the defendants, all of whom are Michigan election officials. Each of the challenged practice involves the marking of voter registrations as "rejected" or "cancelled." The plaintiffs first challenge the Michigan Secretary of State's practice of cancelling voter registrations of Michigan voters who apply for driver's licenses in other states. Secondly, they object to a Michigan statute requiring the automatic "rejection" of new registrations if, after the state mails a voter ID card to the address provided on the voter's application, the card is returned by the post office as undeliverable to that address. The plaintiffs challenge these practices as forbidden by certain provisions of the constitution and by various state and federal statutes. The facts of the matter are largely undisputed. FACTS I. Background—Michigan's Voter Registration Regime Michigan's statewide voter registration database is known as its Qualified Voter File ("QVF"). Local clerks and employees in the Michigan Department of State process completed voter registration application forms by entering the potential voter's name and other information into the QVF. Shortly thereafter, the official prints and mails a voter identification card to the potential voter. Subsequently, the Department of State generates local voter lists from the QVF. These are used by local election officials on election day to determine whether persons appearing at the polls are registered to vote. A voter's registration in the QVF may have one of several status marks or labels attached to it. The default status for a registration is "active," meaning that there are no further administrative obstacles to a registrant being able to vote. If, however, a potential voter's registration materials are deemed insufficient, the voter's information will nonetheless be entered into the QVF, but can be marked as "rejected." Similarly, when a voter is determined to be no longer eligible, his or her registration record is retained in the QVF, but marked as "cancelled." Because the names of voters whose registrations are marked as "rejected" or "cancelled" will not appear on precinct lists generated from the QVF, these voters will not be permitted to cast regular ballots if they appear at the polls on election day in Michigan unless they can produce an original receipt of their voter registrations. The QVF also permits registrations to be marked as "verify" or "challenged" *930 without being entirely cancelled. These markings allow the registrant's name to appear on the precinct lists generated from the QVF, but will appear on those lists as directions to local poll workers to require various forms of confirmation of the voter's eligibility before permitting a vote to be cast. Thus, on a precinct list, a marking of "verify" next to a voter's registration requires the voter to provide some sort of verification of eligibility before casting a ballot. See, e.g., M.C.L. § 168.509aa (requiring voter to affirm residence at polls if voter fails to respond by 30 days before election to notice that local clerk received "reliable information" that voter has moved out of jurisdiction). Similarly, a marking of "challenge" next to a voter's name seems, under the statute, to require that a more stringent assessment of a voter's eligibility be conducted at the polls. See M.C.L. § 168.509cc. II. The Challenged Practices A. "Rejection" of registrations when the voter's ID card is returned as undeliverable. As noted, after a potential voter's registration information is received and entered into the QVF, the system generates a voter ID card that is mailed to the voter. If, however, an original voter ID card is returned by the United States Postal Service as being undeliverable to the address listed on the registration, M.C.L. § 168.449(3) requires the clerk to "reject the registration and send the individual a notice of rejection." See also M.C.L. § 168.500c (person whose original voter ID is returned as undeliverable "shall be deemed not registered under this act.") As a result, the name of an applicant whose voter ID card is returned as undeliverable will not appear on the local voter rolls. When a registration is "rejected" in this manner, the city or county clerk sends out a notice of rejection to the voter. The notice of rejection is accompanied by a reply card that offers the potential voter a chance to complete his or her registration by correcting the address information, or by another version of the card that simply states the necessity of re-registering should the recipient wish to vote. In this opinion, the Court will subsequently refer to this sequence as the "undeliverable ID practice." The Court finds that from January 1, 2008, until September 25th, 2008, the State of Michigan "rejected" 1,438 voter registration applications as a result of the undeliverable ID practice. Thomas aff., docket no. 15 ex. A, at ¶ 6. This practice described above differs from the procedures required by M.C.L. § 168.499(3) when a duplicate voter ID card is returned as undeliverable. In that case, the local clerk is directed to provide a voter with an opportunity to confirm or correct the voter's address. Even if the voter fails to confirm or correct the address, the registration will not be cancelled, but marked by a precinct worker as "verify" or—if the address confirmation form is also returned as undeliverable—as "challenged." See M.C.L. 168.509aa(3) and (4) (explaining procedures required by § 168.499(3)). B. Cancellation of registrations on the voter's application for a driver's license in another state. In addition to managing the state's voter rolls, the Michigan Secretary of State also has authority over Michigan driver's license records. Since most states require an applicant for a driver's license to surrender any license the applicant holds from another state, at the time of application the Secretary regularly receives records of surrendered Michigan driver's licenses from her counterparts in other states. At issue in this case is the Secretary's specific practice of cross-referencing *931 the numbers on surrendered licenses against the driver's license numbers listed in the state's QVF, and then marking any matching voter registrations as "cancelled."[1]See Thomas aff., docket no. 15 ex. A, at p. 30. The sequence described in this paragraph will subsequently be referenced in this opinion as the "driver's license practice." When a match of the sort described above occurs, a local clerk must send to the affected voter a reply card that permits the affected voter to state that his or her absence from Michigan is only temporary and that he or she remains register to vote. If the voter makes an affirmation of this sort, the voter's registration is returned to "active" status by the Secretary. The reply card also states that "Mt' the reply card is not returned, you will be asked to confirm your address at the polls on Election Day. If the reply card is not returned and you do not vote within 30 days, your voter registration will be canceled."[2] ANALYSIS I. Plaintiffs' Legal Challenges The plaintiffs assert a wide variety of legal theories in support of the unlawfulness of the two practices governing voter registrations in which Michigan engages. The heart of the plaintiffs' legal attack, however, is grounded in Section 8 of the National Voting Rights Act (the "NVRA," or "Act"), codified at 42 U.S.C. §§ 1973 et seq. More specifically, subsection 1973gg(6)(d) of the Act states the exclusive procedures by which a state may "remove the name of a registrant from the official list of eligible voters in elections for Federal office on the ground that the registrant has changed residence." Removals are permitted only in two situations: The first situation in which a registered voter can be removed from the rolls is when a registrant confirms the disqualifying address change in writing. 42 U.S.C. § 1973gg-6(d)(1)(A). The second situation occurs when (a) the state sends the registrant, by forwardable mail, a postage-prepaid return form by which the registrant can update his address information, and (b) the registrant neither returns the form nor votes or appears to vote in the next two general elections for Federal office. Id. at § 1973gg-6(d)(1)(B). The plaintiffs claim that both the undeliverable ID practice and the driver's license practice are deregistrations of registered voters on the basis of a change in residence, within the meaning of the NVRA. If their characterizations are accurate, it follows that the practices violate the NVRA, since the defendants— throughout the short history of this litigation—have conceded that the procedures provide neither the notice nor the waiting period mandated by 42 U.S.C. § 1973gg-6(d). The plaintiffs therefore seek a declaration that the practices are unlawful, and request that the Court enjoin the defendants to cease the practices, to restore to the rolls all registrants marked "rejected" *932 or "cancelled" pursuant to the practices since January 1, 2006, and to preserve all records related to such cancellations until the end of 2009. II. Standing to Sue One overriding and threshold issue is whether the plaintiffs have standing to sue. Although the defendants have not moved for dismissal based on lack of standing, both sides raise the issue in their briefs on the instant motion and the Court provided counsel ample opportunity to address the matter during oral argument. All parties surely recognize that "[b]ecause the standing issue goes to this Court's subject matter jurisdiction, it can be raised sua sponte." Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598, 607 (6th Cir.2007). The Court therefore addresses standing here. A. The Legal Standard. To demonstrate the existence of a case or controversy of the kind that a federal court is constitutionally authorized to hear, a plaintiff must show that "`(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.'" Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 523-24 (2001) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). Here, the plaintiffs are not natural persons, but instead associations of persons. "There is no question that an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy." Am. Canoe Ass'n, Inc. v. City of Louisa Water & Sewer Comm'n, 389 F.3d 536, 544 (6th Cir.2004) (quoting Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Further, regardless of whether an association of persons would not have standing based on its organizational interests, it will be able to sue as a representative of its membership "when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Cleveland Branch, 263 F.3d at 524 (quoting Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693 (2000)). B. Level of Showing Required. "Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoted in Sault Ste. Marie Tribe of Chippewa Indians v. U.S., 288 F.3d 910, 915 (6th Cir.2007)). Thus, in those cases when a defendant moves for dismissal based on a plaintiffs lack of standing, a court "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir.1996) (quoting Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. 2197). In this sua sponte inquiry, the Court will apply the standard stated above and further notes that under the standard, if the allegations in the complaint do not establish standing, "it is within the trial court's power *933 to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of the plaintiff's standing." Warth, 422 U.S. at 501, 95 S.Ct. 2197. It is only at trial that a plaintiff bears the burden of proving facts supporting standing, along with the elements of its case. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. The plaintiffs in the present suit claim that they have adequately alleged facts supporting their standing, both in their own rights and as representatives of their members. The Court will first explain why the plaintiffs have not alleged a sufficient injury to their organizational interests to have standing in their own rights, and then set forth the reasons for the Court's conclusion that the plaintiffs have standing to sue as representatives of their members. C. Injury In Fact. 1. The Legal Standard. A person who has actually been harmed or faces certain future harm obviously presents the kind of injury in fact required for standing to sue the party by whom he or she was or will be injured. But, as plaintiffs note, even a likelihood of future harm, which may or may not materialize into actual injury for the plaintiff, qualifies as an injury in fact for purposes of standing analysis. This principle has been repeatedly applied in election-law cases decided by the United States Court of Appeals for the Sixth Circuit and various lower courts within it. Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir.2004) involved, among other things, a challenge to Ohio's requirement that a poll worker determine that a voter of questionable eligibility was at the correct precinct polling place before being permitting the voter to cast a provisional ballot. Id. at 571. The plaintiff organizations argued that human errors in compiling the rolls, or in determining whether a given voter's name was on them, could result in some of their members mistakenly being wrongfully denied the right to vote on this basis. Since these mistakes could occur up to the moment a voter was turned away from the polls, however, they plaintiffs could not beforehand which if any of their members would actually be disenfranchised in this fashion. Nevertheless, the Sixth Circuit held that they had standing based on the increased risk of disenfranchisement faced by all their members as a result of the "inevitable ... mistakes" of poll workers. Id. at 574. Other cases have adopted similar reasoning. In Stewart v. Blackwell, 444 F.3d 843 (6th Cir.2006), vacated as moot, 473 F.3d 692 (6th Cir.2007), the Sixth Circuit found several individual plaintiffs to have standing to claim that the punch-card voting machines used at their polling places were unlawfully unreliable, again on a theory that each plaintiff faced an increased risk of having her vote counted improperly as a result of the alleged unreliability. Although the judgment in that case was vacated as moot when Ohio abandoned the use of the machines in question, its reasoning on the standing issue is fully consistent with that of Sandusky County. Two cases decided by the district courts have also applied this standard as well. In both Summit County Democratic Central and Executive Committee v. Blackwell, No. 5:04CV2165, 2004 WL 5550698 (N.D.Ohio Oct. 31, 2004), and Spencer v. Blackwell, 347 F.Supp.2d 528 (S.D.Ohio 2004) district judges found the plaintiffs to have standing to sue based on the risk that they would be wrongfully disenfranchised by Ohio's laws permitting at-the-polls challenges to voters' qualifications. *934 To establish representative standing in this case, then, the plaintiffs must plead that at least one of their members either actually has been or will be wrongfully disenfranchised by each of the complainedof practices, or that they face some risk of disenfranchisement. By contrast, to establish standing in their own right, the plaintiffs must plead that such wrongful disenfranchisements, or the risks thereof, have harmed them as organizations in some concrete and meaningful way. Under either theory, plaintiffs' standing will ultimately have to be grounded in the deprivations of voting rights caused by the Secretary's allegedly unlawful practices. 2. Standing as organizations. The plaintiffs claim that they have alleged sufficient harm to their organizations as a whole to have standing in their own rights. Each of the plaintiffs claims an interest in politically empowering the communities they serve, which interest they further by, among other things, conducting voter registration drives. Comps. at ¶¶ 2-3. Nevertheless, "a mere interest in a problem is not . . . sufficient to confer standing on an organization." Greater Cincinnati Coalition for the Homeless v. Cincinnati, 56 F.3d 710, 716 (6th Cir.1995) (citing Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.E d.2d 636 (1972)). Instead, the plaintiffs must show that their organizations themselves, as opposed to the ideals they pursue, have suffered some kind of concrete harm as a result of the alleged disenfranchisement. To take the most obvious example, if the plaintiffs' expenditures of time and money on voter registration drives have been rendered a waste in any significant measure because the voters they registered at those drives were unlawfully taken off the rolls, that would be sufficient injury to confer standing. Here, though, the plaintiffs have alleged that some of their members are among the voters who face disenfranchisement, but do not allege, either expressly or by implication, that they as organizations had any concrete involvement in the registration of those voters. Even if the organizations had actually registered such voters, the complaint cannot fairly be read to allege that the number of such disenfranchisements was great enough to have had the required impact upon the organization's interests as a whole.[3] Nor have the plaintiffs alleged in any other way that the disenfranchisements harm their concrete organizational interests, as opposed to the organizations' more abstract social goals. Therefore, in the view of the Court, in order to proceed on a theory of organizational standing the plaintiffs would be required to amend their complaint to include more specific allegations as to the nature and manner of the harm or potential harm to their organizations. 3. Standing as representatives of the plaintiffs' members The plaintiffs additionally claim standing not just as organizations, but as representatives of their members who individually face disenfranchisement. Attacking this claim, the defendants argue that the plaintiffs have not identified any individual, much less one of their members, who they claim to have been harmed by the practices of which they complain. The plaintiffs have, however, pleaded the existence of such persons among their membership. Specifically, paragraphs 73 and *935 88 of the complaint allege that the out of state driver's license application and undeliverable ID practices, respectively, "present[ the real and immediate threat that such members will be disfranchised." Compl. ¶¶ 73, 88. While these allegations are conclusory, in light of the plaintiffs' other allegations, and "constru[ing] the complaint in favor of the complaining party," Kardules v. City of Columbus, 95 F.3d 1335, 1346 (6th Cir.1996), the facts required for standing follow from these claims by necessary implication. With respect to the undeliverable ID card practice, paragraph 73 can fairly be read as a claim that some of plaintiffs' members have recently registered to vote, but have not yet received their voter ID cards—so as to be at risk of wrongful disenfranchisement if human error causes them to be returned as undeliverable. The paragraph can also be read to claim that other of plaintiffs' members have actually been wrongfully removed from the rolls pursuant to this practice, and will almost certainly be denied the right to vote in the upcoming election. With respect to the out of state driver's license application practice, paragraph 88 necessarily implies that some of plaintiffs' members have applied or are currently planning on applying for out-of-state driver's licenses without actually surrendering their Michigan residence. The paragraph also implies that some of plaintiffs' members have indicated or plan to indicate on their applications that their listed address is not for voter-registration purposes, and that they were or will be unable or unwilling to return the reply card from the state in time to be restored to the active status. Thus, once the logical implications of the sparse language of the complaint are considered, the Court concludes that it satisfies—just barely—the requirement of alleging injury in fact to the plaintiffs' membership, so as to support representative standing to challenge both practices at issue here. D. Causal Connection Between the Injury and the Challenged Practices. Michigan claims that any injury suffered by the plaintiff results not from the Secretary's adverse voter-registration actions, but rather from the actions of the voters which precipitate the Secretary's decisions. This argument is plausible, but without merit. With regard to the undeliverable ID practice, it does not appear that an eligible voter who gives his correct address could do anything differently to avoid the risk that his or her card would be misaddressed or misdelivered, and as a result returned as undeliverable. With respect to the out of state driver's license application practice, it is true that a voter's registration will not be cancelled if he or she does not apply for a license from another state, and thus that any disenfranchisement is, in a superficial sense, "caused" by that action. But it is equally plausible to conclude that disenfranchisement may caused by the defendants' allegedly unlawful actions in cancelling the voter's registration. The Court divines no reason, and defendants offer none, why the first of these "causes" is the only one that should count in its analysis of the plaintiffs' standing to sue. E. Redressability Michigan argues against the redressability requirement on the sole ground that because its cancellation-notification and provisional-ballot procedures prevent any voters from actually being disenfranchised, there is no injury to redress. This argument is redundant of the argument the State makes in opposing a finding of injury in fact, and is addressed above in the Court's consideration of that element of the standing test. In other *936 respects, it is clear that the disenfranchisement alleged by the plaintiffs will cease if, as plaintiffs request in this action, the defendants are ordered to stop rejecting and cancelling the relevant voter registrations, and restore registrations already rejected or cancelled. Therefore, the redressability requirement has been met in this case. F. Additional Representative Standing Requirements. The complaint states that the plaintiff United States Student Foundation has as "a cornerstone" of its activities "helping students make their voice heard at the ballot box, including through non-partisan voter registration drives," and that its "national electoral project focuses on building strong peer-to-peer student electoral coalitions and maximizing voter turnout among college populations." Compl. at ¶ 2. Likewise, the plaintiff ACLU Fund "is extensively involved in a variety of voter empowerment initiatives throughout Michigan, including voter education, collection and analysis of voting irregularities, advocacy for positive election reform, and—when necessary—litigation to ensure the protection of voters' rights under the law." Id. at ¶ 3. Disenfranchisement, the injury alleged here, seems obviously germane to these organizational purposes, and the defendants do not contest this point. Finally, participation by individuals "is `not normally necessary when an association seeks prospective or injunctive relief for its members.'" Sandusky Co. Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir.2004) (quoting United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 546, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996)). In this matter, the defendants have not identified any need for individual participation, and the Court does not see the necessity for it in seeking the relief requested. G. Conclusion—Standing to Sue. The plaintiffs have pleaded standing, as representatives of their members, to seek the relief they request. Should this case progress to trial, they will bear the additional burden of proving what they have pleaded in order to conclusively establish their standing to sue. III. Preliminary Injunction Motions. The decision of whether or not to issue a preliminary injunction lies within the sound discretion of the district court. Golden v. Kelsey-Hayes, 73 F.3d 648, 653 (6th Cir.1996). The Supreme Court and the Sixth Circuit have noted that "the purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981); Six Clinics Holding Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 400 (6th Cir.1997). The Sixth Circuit, however, has advised that "a preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it." Overstreet v. Lexington-Fayette Urban Co. Gov't, 305 F.3d 566, 573 (6th Cir.2002) (citation omitted). When considering whether to grant the "extraordinary" remedy of a preliminary injunction, a district court must consider and balance four factors: (1) whether the moving party has a strong likelihood of success on the merits; (2) whether the moving party would suffer irreparable injury without the preliminary injunction; (3) whether issuance of the preliminary injunction would cause substantial harm to others; and (4) whether *937 the public interest would be served by issuance of the preliminary injunction. Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir.2003) (citations omitted). These "are factors to be balanced, not prerequisites that must be met." Hamad v. Woodcrest Condo. Ass'n, 328 F.3d 224, 230 (6th Cir.2003) (citation omitted). A district court must make specific findings concerning each of the four factors unless fewer are dispositive of the issue. Performance Unlimited v. Questar Publishers, Inc., 52 F.3d 1373, 1381 (6th Cir.1995); Jones, 341 F.3d at 476 (citations omitted) (a court "is not required to make specific findings concerning each of the four factors used in determining a motion for a preliminary injunction if fewer factors are dispositive of the issue."). A. Likelihood of Success on the Merits. 1. Lawfulness of the Practices. a. The undeliverable ID practice. The parties' dispute over the legality of the undeliverable ID practice essentially boils down to a disagreement over the meaning of the word "registrant," as it appears in the NVRA. As the Court noted earlier, when a voter's original voter ID card is returned to a local clerk as undeliverable, the clerk marks the voter's registration in the QVF as "rejected,"[4] without following the procedures mandated by the NVRA for removing voters from the rolls based on a change of address.[5] The NVRA, however, provides that only "registrants" enjoy the protection of these procedures. Plaintiffs therefore claim that a potential voter who sends in registration materials becomes a "registrant" under the NVRA as soon as a Department of State employee or a local clerk processes the materials and enters the voter's name into the QVF. By contrast, the defendants argue that a potential voter's registration is actually not effective until the voter receives his or her voter ID card. If the defendants prevailed on this point, the Court would have little option but to conclude that the undeliverable ID practice does not remove "registrants" from the rolls, because the potential voters whose registrations are marked "rejected" after their cards are returned as undeliverable would never have been registered in the first place. The parties cite what appear to be dueling statutes to establish their respective positions on the issue of when a potential *938 voter becomes registered to vote as a matter of Michigan law. Defendants point out that M.C.L. .§ 168.500c states that a person whose original voter ID is returned as undeliverable "shall be deemed not registered." In response, the plaintiffs rely upon M.C.L. § 168.509o(2), which provides that "[n]otwithstanding any other provision of law to the contrary ... a person who appears to vote in an election and whose name appears in the qualified voter file for that city, township, village, or school district is considered a registered voter." The Court regards this dispute as largely irrelevant, however, because making the question of who is a "registrant" a matter of state law would frustrate the NVRA's purpose of regulating state conduct of elections, by essentially permitting states to decide when they will be bound by the Act's requirements. If Michigan can label potential voters who have not received their IDs as not "registered" under the NVRA, nothing is to stop it from attaching that same label to any other group of people, and thus from circumventing the procedures mandated by the NVRA whenever it sees fit. Instead, the Court concludes that whether a potential voter is a "registrant" entitled to the NVRA's protections is clearly a question of federal law, to be answered by a careful consideration of the substance of the potential voter's status in the state registration program in question. Indeed, the plain language of the NVRA virtually dictates that a person be regarded a "registrant" within the meaning of that statute at the moment his or her name appears on "the official list of eligible voters." See 42 U.S.C. § 1973gg-6(d)(1).[6] In Michigan, as noted above, this list is the QVF (exclusive of registrations designated "rejected" or "cancelled") and the individual precinct rolls generated from it. Thus, the lawfulness of the undeliverable ID practice ultimately hinges on whether Michigan lists a potential voter as permitted to vote on the QVF as soon as it processes his or her registration application, without waiting to determine whether it will be returned as undeliverable. In other words, the central question is: if a potential voter's ID card were to be returned as undeliverable only after an election has intervened, would the voter's QVF status have permitted him or her to vote in that election in the meantime? At the hearing on this motion, counsel for the defendants represented that the answer to these questions is "yes." In fact, counsel stressed at the hearing that a potential voter whose ID is returned as undeliverable may nonetheless cast a regular ballot on election day if he or she presents a receipt of registration at the polls. Since the Court accepts these facts as true, the Court also concludes that a potential voter in Michigan is a "registrant" under the NVRA the moment the state processes his or her registration, and that the voter may only have his or her status changed to one that would not permit a valid vote (regardless of whether Michigan calls the change "rejection," "cancellation," or anything else) pursuant to the provisions of the statute. *939 In Ass'n of Cmty. Orgs. for Reform Now v. Miller, 912 F.Supp. 976 (W.D.Mich.1995) (hereinafter "ACORN"), the court took a contrary view, and found Michigan's categorization of voters as registered or unregistered to be conclusive of the questions involved. In support of its position, the Western District of Michigan cited portions of the NVRA's legislative history reflecting a congressional desire to leave the states "discretion" to tailor their notification procedures to prevent fraud. Id. at 987 (quoting Sen. Rep. No. 6, 103d Cong., 1st Sess., at 30 (1993); H.R.Rep. No. 9, 103d Cong., 1st Sess., at 14 (1993), U.S.Code Cong. & Admin. News 1993 at 105, 118, 134). While such discretion is undoubtedly important, the terms of the NVRA, which the Court reads to be clear and unambiguous on the issue, say absolutely nothing about it. Moreover, the state's discretion can be appropriately preserved within the provisions of 1973gg-6(d); without making its procedures entirely optional for any state in the union. Nothing prevents Michigan, for example, from creating a new "pending" voter registration status that will bar potential voters from voting, and thus render them not NVRA "registrants," for a limited time after their information is added to the QVF, and providing that any registrations returned as undeliverable during that time will be rejected. What the state may not do and still act consistently with the NVRA is to place a potential voter's name on the QVF in a status that permits the registrant to vote, only to later mark the registration as "rejected" at a later datepossibly even after the registrant has cast a vote. Because the defendants in this case appear to be doing precisely that, the Court concludes that the plaintiffs have shown a strong likelihood that the undeliverable ID practice violates federal law.[7] b. The driver's license practice. The defendants concede that the driver's license practice involves cancelling voter registrations based on the voter's change on residence, such that 42 U.S.C. § 1973gg-6(d)(1) requires either written confirmation of the address change from the voter, or written notice to the voter followed by a waiting period of two federal elections. Defendants claim, however, that by applying for a driver's license in another state, a voter is confirming his or her change of residence in writing, in satisfaction of subparagraph (A) of that provision. In support of this contention, they cite another portion of the NVRA, codified at 42 U.S.C. § 1973gg-3(a). This subsection provides that: (1) Each State motor vehicle driver's license application (including any renewal application) submitted to the appropriate State motor vehicle authority under State law shall serve as an application for voter registration with respect to elections for Federal office unless the applicant fails to sign the voter registration application. *940 (2) An application for voter registration submitted under paragraph (1) shall be considered as updating any previous voter registration by the applicant. Further, subsection (d) of the same section provides that [a]ny change of address form submitted in accordance with State law for purposes of a State motor vehicle driver's license shall serve as notification of change of address for voter registration with respect to elections for Federal office for the registrant involved unless the registrant states on the form that the change of address is not for voter registration purposes. The plaintiffs urge that subsection (d) applies only to changes of address within a single state, and not to an original application for a driver's license in another state. This specific question has not been exhaustively briefed, and the Court will not decide it now. It does seem to the Court, however, that interpreting subsections (a) and (d) to both apply to an original driver's license application would create the potential that the two sections might mandate contradictory outcomes in some cases. Specifically, if an applicant* for a driver's license signed a voter-registration application in conjunction with the driver's license paperwork, subsection (a)(2) would require this action to be considered an update to the previous voter registration. This would permit the address on the old registration to be replaced with the address on the new application—indeed, such address updates would seem to be the main purpose of paragraph (2). But if subsection (d) were also to apply to the case, the applicant would additionally be able to indicate on the driver's license application that the change of address was not for voting purposes. Obviously, both of these mandates could not be simultaneously fulfilled. The easiest way to avoid potentially inconsistent outcomes such as these would be to accept the plaintiffs' invitation to interpret the phrase "change of address form" in subsection (d) as not including applications for an entirely new driver's license in a state where the applicant has not previously held a license. Should the defendants prefer a different construction, they should propose some alternative solution to this problem—and authority for their proposal—as soon as possible. Whatever the correct construction of subsection (d) may be, however, there can be little doubt that the out of state driver's license practice is violative of the NVRA. Even if out of state driver's license applications qualify as "change of address forms" under subsection (d), that very subsection still clearly requires states to ascertain whether the applicant has designated the application as not a change of address for voter registration purposes. The plaintiffs claim, and the defendants have not contradicted, that Michigan currently has no procedure for doing so. If, on the other hand, subsection (d) does not apply to driver's license applications, then subsection (a) would only permit the Secretary to cancel an applicant's Michigan voter registration if the applicant actually registered to vote in conjunction with the application. But again, there is no evidence that the current practices in place in the state of Michigan include any efforts, by the defendants or anyone else, to determine whether a voter actually does so. The defendants claim that applying for a driver's license in another state is in fact confirmation of a change of address for voting purposes even if, as is permitted by the NVRA, the voter designates it otherwise. This is true, the defendants assert, because under the law of every state except Hawaii, only residents are permitted to apply for driver's licenses. As a result, they argue, no Michigan voter will be permitted to apply for a driver's license in *941 another state without also confirming his or her residence in that state. Even if the defendants' survey of state laws is correct, their conclusion is invalid for two different reasons. First, even if it is unlawful in almost every state to apply for a driver's license without being a resident there, it is dubious whether every person applying for a driver's license actually does confirm his or her residency in the state of application. Defendants concede that fully eighteen states—including Michigan's largest contiguous neighbor, Ohio—have no requirement that a driver's license applicant actually prove residency. Response brief, docket no. 15, ex. A. Thus, the reality is that state driver's license application procedures permit some applicants, through ignorance of or even outright disregard for the law, to apply for driver's licenses in different states even while representing that their home address or domicile is still in Michigan. Although defendants' evidence indicates that this action is unlawful in most states, it still does not constitute written confirmation of an address change, and thus cannot justify the cancellation of an applicant's Michigan voter registration—which in any event would be an illogical consequence for this particular form of lawlessness. Second, and more importantly in the view of the Court, there is no reason to believe that the kind of "residence" that any given state requires in order to issue a driver's license is identical to "residence" for voting purposes. Unless it is at least possible for a person to have different addresses for his or her driver's license and voting residences, it would be nonsensical for the NVRA to permit a voter to change the former without also changing the latter. In fact, Michigan itself permits out-of-state driver's license applicants to retain their active status in the QVF by affirming that their out of state addresses are only temporary, and that they remains eligible to vote in Michigan. Thomas aft, docket 15 ex. A, at ¶ 11. Thus, even the state recognizes that voters can be eligible both to vote in Michigan and to apply for a driver's license in another state, and that the residence requirements for the two are not always identical. For all these reasons, then, and contrary to the defendants' contention, the appearance of an out-ofstate address on a driver's license application simply does not establish that the applicant is no longer an eligible Michigan voter.[8] In their complaint and briefing on the instant motion, the plaintiffs essentially argued that every cancellation pursuant to the out of state driver's license practice was unlawful. As the foregoing makes clear, this argument is incorrect. 42 U.S.C. § 1973gg-3(a) permits such cancellations if a driver's license applicant also registers to vote in his or her new state, and, if it applies, subsection (d) of the same section permits such cancellations unless the applicant affirmatively opts out of them. At the hearing on the preliminary injunction motion, the plaintiffs narrowed their contentions to cover only cancellations precluded by one or both of these provisions The Court concludes, therefore, based upon all of the foregoing analysis, that the plaintiffs' legal claim is likely to succeed on the merits.[9] *942 2. Likelihood of Success on the Standing Issues. The Court is mindful that to succeed on the merits at trial, the plaintiffs will bear the burden of proving their standing to sue in addition to the unlawfulness of the defendants' practices, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and that a plaintiff's likelihood of successfully showing standing is properly considered as part of the overall analysis of the likelihood of success on the merits, see N.E. Ohio Coalition for Homeless & Serv. Employees Int'l Union v. Blackwell, 467 F.3d 999, 1010 (6th Cir.2006) ("The weakness of plaintiffs' showing of standing leads us to conclude that their likelihood of success on the merits is not strong.") The Court will now analyze whether the plaintiffs are likely to succeed on the merits of the standing issues in this case. a. Undeliverable ID practice. As the Court noted previously, to establish representational standing in this case, the plaintiffs will eventually have to prove that at least one of their members actually has suffered or is at risk of suffering wrongful disenfranchisement as a result of the complained of practices. Since plaintiffs plead that they have a total Michigan membership of over 20,000, it appears likely that they will be able to produce one or more members who have registered recently enough that they are still in doubt as to whether their registration will be wrongfully cancelled as a result of their ID being mistakenly returned as undeliverable. The Court has already determined that exposure to such a risk from the actions in question here is sufficient to confer standing. Thus, considering the lawfulness and standing prongs together, the Court finds that plaintiffs have a very strong likelihood of succeeding on the merits of their challenge to the undeliverable voter ID practice. b. Out of state driver's license application practice. The plaintiffs' standing to challenge the out of state driver's license application practice is in more serious doubt. As the Court noted above, the voters placed at risk of disenfranchisement by this practice appears quite narrow. The Court believes there to be three characteristics common to all the members of this group: (1) they have applied or plan to apply for a driver's license in a state other than Michigan; (2) they have designated or plan on designating that their address on their application is not for voter-registration purposes; and (3) they have been or will actually be eligible to vote in Michigan in at least one election after their registrations were or will be cancelled.[10] Since the Court regards it to be nearly impossible for a Michigan resident to inadvertently apply for a driver's license in another state, persons not in this group face no risk of wrongful disenfranchisement from the driver's license practice, and thus they have no standing to challenge it. The Court is considerably less confident that one of the plaintiffs' members will prove to have these characteristics than that one of their members has recently registered to vote, as is required for standing to challenge the undeliverable ID practice. The Secretary informed the Court both in her brief and at the hearing in this matter that she receives notice of about *943 72,000 out of state driver's license applications every year.[11] At the hearing, the Court directly questioned counsel for both sides as to how many out of state drivers license applicants indicate that the address on their applications are not for voting purposes, and whether they are legally correct in so indicating. Their responses made it apparent to the Court that neither side can present, because no data whatever exists, any evidence or other information that would allow the Court or any other finder of fact to answer these questions. Furthermore, while—for the reasons discussed previously—the defendants' argument that most states permit only residents to apply to them for driver's licenses does not establish that the driver's license practice harms no one at all, it certainly does suggest strongly that the number of persons harmed by the practice may be small. Although the residence requirement for driver's license purposes may be less stringent than that for voting purposes, it nevertheless undoubtedly deters many people who satisfy neither of them from applying for out of state driver's licenses—and thus prevents them from having their Michigan voter registrations cancelled. Thus, the Court finds that the only persons who are even potentially harmed by the driver's license practice are those who either applied for out of state driver's licenses (and surrendered their Michigan licenses) despite not meeting the residency requirement in the state of application, or who applied for a driver's license in states where they satisfied the residency requirement for receiving a driver's license, but not for voting. The Court therefore concludes that the number of voters who will be able to meet the injury in fact requirement for standing, while not zero, is likely to be correspondingly small. For the plaintiffs to be entitled to a permanent injunction on a theory of representative standing, they will have to show that at least one member of this group of people is also a member of one of their organizations. While it is certainly possible that they will be able to make such a showing, there has been no discovery or any other factual development on this issue in the case—indeed, both parties affirmatively state that no facts or data exist to resolve the question—and as a result the Court does not have any confidence that the plaintiffs will be able to do so. Thus, the plaintiffs' likelihood of success on the merits of the standing issues with regard to the driver's license practice can best be described at this juncture as questionable. * * * * * * The Court's analysis of the standing issue should not be construed to mitigate what seems to be the clear unlawfulness of what the Secretary is doing with regard to out of state driver's license applications. But even if the outcome of the NVRA challenge were absolutely certain, plaintiffs' overall likelihood of success on the merits can be no greater than their likelihood of proving their standing. Thus, the plaintiffs' overall likelihood of success on the merits in the view of the Court is questionable. B. Irreparable Harm. The injury threatened to their members that establishes the plaintiffs' representative standing is the deprivation of the right to vote. Authorities are split on the issue of whether this type of alleged harm is irreparable per se. Compare, e.g., Williams v. Salerno, 792 F.2d 323, 326 (2d Cir.1986) ("The registration applicants in this case would certainly suffer irreparable harm if their right to vote were impinged *944 upon"), with Chisom v. Roemer, 853 F.2d 1186, 1188-89 (5th Cir.1988) ("We are not prepared to adopt a per se rule in such a vital area of federal-state relations.") While the Sixth Circuit appears not to have decided the issue, even the leading case declining to adopt a per se rule, Chisom, was a decision on whether to enjoin an election for state office, and not whether to require a state to permit more persons to vote in a federal election. Chisom, 853 F.2d at 1189. Even in that context, the 5th Circuit recognized that a preliminary injunction is appropriate "when the threatened harm would impair the court's ability to grant an effective remedy." Id. (citation omitted). In this case, where state sovereignty is not squarely implicated and a federal election is approaching rapidly enough that, according to the defendants, delaying the issuance of an injunction until close to the election date would risk organizational chaos in the Michigan Department of State, the Court finds that any disenfranchisement effected by the undeliverable ID or driver's license practices would indeed constitute irreparable harm. Thus, the only consideration mitigating the strength of this factor in favor of an injunction is the possibility that the harm might not actually be suffered by any of the plaintiffs' members. With respect to the practices at issue here, however, the irreparable harm inquiry diverges from the Court's analysis on standing because the plaintiffs' standing is predicated not on actual harm to their members, but rather on a risk of harm that may or may not occur in any individual case. This possibility—that the potential harm that confers standing on the plaintiffs may not actually materialize with respect to any of their members—is clearly relevant to the question of whether plaintiffs will suffer irreparable harm without a preliminary injunction. In this light, each of the practices will be analyzed in turn. 1. The undeliverable ID practice. The plaintiffs have demonstrated a strong likelihood of proving standing to challenge the undeliverable ID practice because every eligible Michigan voter who registers is at risk of being stricken from the rolls until he or she actually receives an ID card. But, since only 1,500 registrants have been removed in this fashion this year—as compared to more than 70,000 per year as a result of the driver's license practice—only a very small fraction of the people who register actually suffer the harm of being removed from the rolls, and thus deprived of the right to vote. Further, at the hearing held in this matter, the defendants stressed that a voter whose registration has been "rejected" pursuant to the undeliverable ID practice may nonetheless cast a regular ballot if he or she presents a receipt of registration at the polls. This obviously will prevent disenfranchisement, but only for those voters who bring receipts with them to the polls. Presentation of a receipt, however, is not required of other voters, and since many or most Michigan residents removed from the lists pursuant to the undeliverable ID practice will in reality not receive separate notice of removal, they will likely not even know that their registrations have been rejected, and thus will be unaware of the necessity of bringing their receipts to the polls even if they have in fact retained them. Further, the plaintiffs argue that voters who register by mail do not even receive receipts in the first place, and as a result, the number of disenfranchisements prevented by the possibility of presenting a voter registration receipt is likely to be small. The defendants additionally argue that both the undeliverable ID practice includes the sending of a postage-prepaid, preaddressed reply card, which the voter can mail back and be restored to the rolls. *945 While this additional practice will not cure the deficiency of the programs under the NVRA, if substantial numbers of eligible voters actually return cards it would reduce the number of persons who are harmed by the practices, and thus the likelihood that any of that group are members of the plaintiffs. There are three possible objections to effectiveness of this practice. First, if the defendants' rationale for removing a voter from the rolls is that the voter does not live at the address they have on file, then mailing a notice to that address is a poor way of permitting the voter to clarify that the voter is still a permanent Michigan resident. It seems likely that even if they remain eligible Michigan voters, a substantial number of registrants will not receive the reply card, or at least not receive the card in time to return it, for the very same reasons that led the defendants to believe that they have abandoned their residences. Second, even if voters receive the reply cards, at least some of them will not fill them out (or not fill them out properly), and the NVRA does not permit Michigan from removing them based on their failure to do so. Finally, even voters who receive the cards and return them will have been wrongfully taken off the rolls until the date that their cards are processed and their registrations are reactivated. The combination of these three objections convinces the Court that, while this backup procedure reduces somewhat the likelihood that plaintiffs' members will be injured by these undeliverable ID practice, it by no means eliminates it.[12] It is undisputed that more than one thousand voters have been disqualified so far in 2008 pursuant to the undeliverable ID practice. But neither side has provided the Court with any information as to how many of these disqualifications are actually wrongful. Plaintiffs argue that some simply must be wrongful, because human error in addressing and delivering voter IDs is inevitable, and the Court agrees with the plaintiffs' analysis. The Court, however, also regards the likely number of these errors to be small enough as to raise serious questions about whether the undeliverable ID practice will actually adversely affect any of plaintiffs' membership if a preliminary injunction is not entered. Overall, and based upon the analysis set forth here, the Court concludes that although the number of plaintiffs' members likely to be adversely affected by the practice is relatively low, these members face certain irreparable harm. 2. The driver's license practice The Court has already noted that the plaintiffs have only a questionable likelihood of proving their allegations of standing to challenge the driver's license practice, because of the low likelihood that one of the (probably) small number of Michigan voters harmed by the practice is a member of one of the plaintiffs. This alone would dictate a conclusion that any likelihood of irreparable harm to plaintiffs' members is insufficient to weigh in favor of a preliminary injunction. Additionally, the Court recognizes that the reply-card component of the driver's license practice, although subject to the same shortcomings *946 identified in connection with the undeliverable ID reply cards, does provide some out of state driver's license applicants with the opportunity to reaffirm their Michigan residence and remain on the rolls. Again, this does not satisfy the NVRA, but it does provide some registrants the chance to avoid disenfranchisement, and thus likely decreases even further the number of persons who suffer irreparable harm as a result of the driver's license practice. For these reasons, the Court is unable to conclude at this juncture that any plaintiffs' members are likely to suffer irreparable harm if a preliminary injunction is not entered against the driver's license practice. C. Balance of Hardships from Entry of an Injunction. The defendants argue that making the changes that the plaintiffs seek in their motion for preliminary injunction would impose serious administrative difficulties, especially if an injunction is entered close to the November, 2008 election. For instance, the defendants claim that the only method of restoring the active status of the cancelled registrants would, if implemented, also affect the registrations of anyone who first applied for a driver's license in another state and then re-registered in Michigan. These voters, according to the defendants, would see their QVF addresses revert to the ones that were current before their initial out of state driver's license application. If the Department of State is forced to deal with these and other difficulties—not to mention the task of identifying which registrations are entitled to reactivation[13]—the result, the defendants warn, could be their inability to deal with the other requirements of conducting a smooth election. The Court fully agrees with the State on this issue and makes what it regards a common sense conclusion that the logistical problems involved with restoring a large number voters to the rolls, as the plaintiffs request in their motion, are likely to be significant. Plaintiffs contend, however, and rightly so in the judgment of the Court, that any hardship suffered by the state of Michigan and its officials as a result of the entry of the requested injunction would be largely self-imposed. Two reasons support the Court's conclusion: First, the NVRA language governing these practices is clear enough that the defendants should have been on notice of the potential that they might be found unlawful—as well as being on notice of the kind of remedial action that might be required in the event of such a finding. Second, at the hearing held in this matter, the plaintiffs represented— without any sort of contest from the defendants—that the plaintiffs explained their objections to these practices to the defendants as early as July, 2007, two months before the filing of this lawsuit. The counsel for the plaintiffs also asserted—and the state of Michigan did not contest—that no official from the state met with the plaintiffs to address, resolve, or even respond to their claims. Thus, the state defendants have actually had a considerable period of time in which to consider how to smoothly implement the sorts of relief the plaintiffs are asking for here. If the defendants have failed to undertake such considerations, any hardship faced by the defendants now is squarely attributable as much to the lack of preparation as to the actual changes the plaintiffs are asking for, and should be discounted accordingly. As a result, the Court finds that the potential hardship to the defendants *947 weighs only very slightly against the entry of a preliminary injunction. Additionally, the Court notes that due to the much larger potential number of voters who might have to be restored to comprehensively address the driver's license practice, coupled with the Court's lessened ability to determine how many voters will actually be harmed by the practice, this factor weighs somewhat more perceptibly against restoring those voters than it does for the voters affected by the undeliverable ID practice. D. The Public Interest. The defendants argue that the injunction requested by the plaintiffs here would harm the public interest by opening the door to voter fraud. This is true, they contend, is because Michigan's system has been set up on the premise that no one whose voter ID is returned as undeliverable, or who applies for a driver's license in another state, is entitled to vote in Michigan. As a result, the state has no means of determining whether a registrant whose ID has been returned as undeliverable is actually a resident of Michigan, or whether an applicant for an out of state driver's license has designated, as permitted by the NVRA, that the application is not to be used for voting purposes. The Court will now examine the impact an injunction might have on the public interest in regard to each of Michigan's challenged practices. 1. Undeliverable ID practice. The defendants' invocation of the public interest on the issue of undeliverable IDs amounts to an argument that the procedures required by the NVRA pose an unacceptable risk of fraud to the state of Michigan. The state is rightly concerned that some, and perhaps many, of the "rejected" voter registrations were fraudulent. Whatever the merits of that concern may be, however, in the context of the current litigation, the concern has been rejected by Congress when it enacted the terms of the NVRA. "[T]he public has an interest in the enforcement of federal statutes." Coxcom, Inc. v. Chaffee, 536 F.3d 101, 112 (1st Cir.2008). Whether or not a person is actually entitled to vote in Michigan, the NVRA clearly requires that once a person is a "registrant" he or she may not be removed from the voter rolls except by operation of the procedures laid out in the Act. Although it might be desirable for the defendants to develop and implement other measures to remove ineligible voters from the rolls before they become NVRA "registrants", the defendants' acts in doing so—whatever they may be—are not a prerequisite to the NVRA's enforcement. Likewise, the fact that the defendants could have developed a lawful policy that would have removed some of the same registrations from the rolls does not detract substantially from the illegal manner in which each and every one of these removals actually did occur. The public interest cannot weigh heavily against restoring voters to the status that, given Michigan's current voter registration regime, those voters had been entitled to all along pursuant to the applicable federal law. 2. Driver's license practice. With respect to the driver's license practice, the Court finds that the defendants' concerns carry more weight. Because a great number of out of state driver's license applicants no doubt simultaneously register to vote (or decline to designate their change of address as being for voting purposes), many—and perhaps most—of the removals under this practice were perfectly lawful under the NVRA. Since the parties have no way of knowing which applicants did what in this regard, however, the only way for the defendants to immediately restore any wrongfully-cancelled *948 registrations, and to avoid any further wrongful cancellations, is apparently to undo every cancellation pursuant to the driver's license practice, and to stop entering any further cancellations pursuant thereto. The result would be returning to "active" status the registrations of up to 200,000 voters, an unknown but probably large number of whom were initially removed from the rolls in accordance with the NVRA in the first place and who are in fact no longer eligible to vote in Michigan. Plaintiffs have offered no evidence contradicting these claims by defendants, but assert that if they are true, the burden of developing a method for avoiding the restoration of voters who are removable under the NVRA properly lies on the defendants. This is very likely the case, but the Court cannot ignore the fact that the defendants' claimed inability to immediately develop such a method will have a significant impact on the public interest. The public has an interest on both sides of this case. On the one hand, there is undoubtedly a strong public interest in ensuring that all eligible voters are able to cast their votes in an election. On the other hand, the public has a strong interest in the prevention of fraudulent voting as well.[14] A question exists as to whether the Secretary's practices at issue here removed more ineligible than eligible voters from the rolls, but in determining where the balance of the public interest lies the interests providing resolution to the question cannot be weighed against each other on a one-for-one basis. It seems likely that the portion of ineligible voters removed from the rolls who will attempt to vote after becoming ineligible is smaller than the portion of wrongfully-removed eligible voters who will show up at the polls, and so the public interest in removing ineligible voters must be discounted accordingly. Additionally, the harm from disenfranchisement is concrete and serious even if it occurs to only one individual, whereas the harms from fraudulent voting—loss of public confidence in the election process and the risk of distorted outcomes—are more diffuse, depending as much on the volume of fraudulent votes as on the fact that any one of them is being cast.[15] The risk of fraudulent voting must nevertheless be a serious consideration in deciding whether to require the state to restore to active status (or refrain from cancelling in the first place) the registrations of some 200,000 voters, a great number of whom are likely not entitled to vote. As noted previously, neither side has provided any data relating to how many of the registrations cancelled pursuant to the driver's license procedure were those of eligible Michigan voters. On the record available at this preliminary stage, the Court concludes that this is likely to be quite a small portion of the cancellations, and consequently that the public interest in preventing the mass reactivation of ineligible voters is of significant weight. Based on the foregoing, the Court draws slightly differing conclusions with respect to the impact on the public interest of the prohibitory and mandatory aspects of the relief from the driver's license practice requested by the plaintiffs. Currently, the Secretary is cancelling voter registrations based on out of state driver's *949 license application, without even having before her the key piece of information necessary to determine whether the NVRA permits such removals; that is, whether the applicant has designated the change of address as not for voting purposes. This is unlawful, and the public policies in favor of preventing unlawful disenfranchisement and enforcing federal statutes clearly dictate that it be stopped. This would in no way obstruct the secretary's task of avoiding the harm to the public interest that would result from retaining ineligible voters on the rolls, since she has been and will remain free to adopt any method for doing so that is permitted by the NVRA. With respect to cancellations that have already occurred, however, the NVRA has already been violated, and the only question is how that violation can be remedied in a manner most consistent with the public interest. Restoring voters who were not entitled under the NVRA to remain on the rolls is to be avoided if possible. Given the defendants' claims as to the information they have, a mass reactivation of the type requested by the plaintiffs would risk grave harm to the public interest by permitting a large number of ineligible voters to vote. Accordingly, the Court finds that this factor weighs rather strongly against the mandatory relief requested by plaintiffs. IV. Summary and Form of Relief A. The Undeliverable ID Practice. As to the undeliverable ID practice, the Court concludes that the plaintiffs have made a strong showing of success on the merits and a substantial but not overly strong showing of irreparable harm. The prohibitory injunction requested by the plaintiffs would work very little hardship on the defendants and would be in the public interest. The mandatory injunction would result in some, mostly self-imposed, hardship for defendants, but entering the injunction would also serve the public interest by restoring the registrations of voters entitled under the NVRA to be on the rolls. Accordingly, the Court will grant both prohibitory and mandatory injunctions with respect to the undeliverable ID practice. A question remains as to the proper form of this relief. While these registrants seem entitled under the NVRA to have their cancellations reversed, the defendants point out (and the plaintiffs do not dispute) that because their IDs were returned as undeliverable, there is reason to doubt whether some of them actually live in Michigan, and thus whether they are entitled to vote here. This suggests that, after reversing the cancellations of these voters' registrations, it would be appropriate for the defendants to take additional steps to verify the Michigan residence of the voters before permitting them to vote. They plaintiffs, however, briefly argue that both the Equal Protection Clause and a provision of the Civil Rights Act, codified at 42 U.S.C. § 1971(a) (2)(A), prohibit treating voters whose original IDs are returned as undeliverable any differently from those whose duplicate IDs are similarly returned. Since a voter whose duplicate ID is returned as undeliverable is marked as "challenge" on the QVF, the plaintiffs seem to argue that this is the only step defendants should be permitted to take to verify the restored voters' residence. The Court does not agree. The relevant portion of the Civil Rights Act prohibits the application of different "standards, practices or procedures" in determining whether any two citizens of a state are qualified to vote. This simply requires that if Michigan wishes to impose unique procedural requirements on the basis of a registrant's original voter ID being returned *950 as undeliverable, it must impose those requirements on everyone whose original ID is returned as undeliverable. In the Court's view, the treatment of registrants whose other documents are similarly returned is simply irrelevant under the statute.[16] The Court likewise does not consider these requirements to be any sort of disparate treatment unrelated to a legitimate state interest, as the plaintiffs argue pursuant to their equal-protection claim. The Court makes a common sense conclusion that a person whose first ID card is returned as undeliverable to his or her registered address is less likely to actually reside at that address—or anywhere else in Michigan—than a person who has previously received an ID card at his or her Michigan address but now appears no longer to live there. Since the state certainly has an interest in preventing nonresidents from voting within its borders, the state is therefore entitled to draw distinctions between these two different classes of persons. As a result, the defendants need not treat voters whose original IDs are returned as undeliverable identically to any other class of voters. This Court's injunction will not prevent them from requiring of such voters whatever further proofs of residence may be necessary or permitted under state law and the NVRA. What the defendants must do, however, is restore the cancelled registrations to some status that will not by itself, as their current status does, require the rejection of a ballot cast by these voters. B. The out of state driver's license application practice. With respect to the out of state driver's license application practice, the Court concludes that there is only a questionable likelihood that any of plaintiffs' members will suffer an injury in fact, and thus that plaintiffs have only a questionable likelihood of success on the merits on the issue of their standing to sue. This weak showing of injury also indicates a relatively low probability that plaintiffs' members will suffer irreparable harm without a preliminary injunction. A prohibitory injunction would involve some hardship to the defendants, and a mandatory injunction would involve considerably greater hardship, but both sets of hardships would be largely self-imposed. Finally, a prohibitory injunction would be in the public interest, but mandatorily enjoining the defendants on this issue would not. Weighing these factors, a preliminary injunction against the driver's license practice is not appropriate on this record. Nevertheless, it bears repeating that this practice does appear to be in violation of the NVRA. Should the plaintiffs be able to shore up their standing in this case, it is the Court's hope that both sides will cooperate in developing a method by which any voters who have wrongfully had their registrations cancelled can be restored to the rolls, without resorting to a mass reactivation. After the defendants answer the complaint and the parties proceed through discovery, information and evidence from the state of Michigan should be able to bring light to the question of how the practice should be changed. C. The Ypsilanti City Clerk. A further word is appropriate to address the arguments of the City Clerk for the City of Ypsilanti, Michigan ("the clerk"). In a separate brief in response to this *951 motion, the clerk claimed that because of staff and budget shortages she does not, and will not before the upcoming election, remove voter names from the rolls pursuant to the undeliverable ID practice.[17] If this is true, then the likelihood of irreparable harm to plaintiffs' members from the clerk would be reduced to minuscule proportions. The burden of an injunction on the clerk herself, however, would be correspondingly reduced, as would any impact on the public interest. The plaintiffs' strong likelihood of success on the merits would remain unchanged. Since the Court's injunction against the other defendants will preclude them not only from personally marking voters' QVF entries with a disqualifying status, but also from directing or encouraging others to do so, the foregoing makes it unnecessary to enjoin the clerk from doing so as well. If the plaintiffs present the Court with information that her actions fail to correspond with her representations in her brief, however, such an injunction will promptly issue. CONCLUSION WHEREFORE, it is hereby ORDERED that the defendants Michigan Secretary of State and the Michigan Director of Elections: (1) Immediately discontinue their practice of cancelling or rejecting a voter's registration based upon the return of the voter's original voter identification card as undeliverable; (2) Remove the "rejected" marking in the QVF from the registrations of all voters whose original voter IDs have been returned as undeliverable since January 1, 2006 until the present, unless rejection was warranted for some other lawful reason; (3) Make no other designation, including but not limited to "cancelled," in these voters' registration records in the QVF or elsewhere, that will prevent their ballots from being counted if they appear at the polls and give whatever further proof of Michigan residence is required or permitted under applicable state and federal law; unless such a designation is warranted by written notice from the voter or for some reason other than change of residence; (4) Preserve and not destroy until after December 31, 2009, any and all records relating to maintenance of Michigan's voter registration files that have, since January 1, 2006, resulted in the cancellation of the registration of voters who have applied for out of state driver's licenses, or the cancellation or rejection of voters' registrations based upon the return of original voter identification cards; and (5) Give no order, direction, or encouragement that any other government official or any other person engage in activity hereby prohibited to them. It is further ORDERED that the defendants Michigan Secretary of State, the Michigan Director of Elections, and the Ypsilanti City Clerk file an answer to the complaint in this action no later than fourteen days from the date of this Order. SO ORDERED. NOTES [1] It is not clear to the Court whether this practice is required by state law. M.C.L. § 168.500h requires the Secretary to conduct the cross-check process and to notify local clerks of the results. The statute further provides that a match "shall constitute reliable information that the registered elector has removed from the municipality." Id. But the statutory section's only directive to local clerks is to "proceed in compliance with section 513," id., a section that has been repealed. Regardless of whether the practice is required, there is no dispute between the parties that the Secretary actually is directing cancellations in this manner. [2] The language quoted here from the reply card does not appear to be accurate, since at the time of receipt of the card the voter's registration has already been cancelled. But this apparent inaccuracy does not underlie the plaintiffs' challenge to the practice. [3] Of course even a single disenfranchisement would support standing for the disenfranchised person to sue as an individual, or for an organization to which he or she belonged to sue in a representative capacity. That is why, as the Court will explain below, the plaintiffs have pleaded facts establishing representative standing in this case. [4] There apparently is no dispute that such a person has been "removed ... from the official list of eligible voters.. within the meaning of 42 U.S.C. § 1973gg-6(d)(1), despite the fact that his or her name remains listed in the QVF. The Court concludes that persons designated as ineligible to vote have in fact been so removed, even if their registrations appear in the same document with voters who remain listed as eligible. In any event, the precinct lists are also indisputably "official list[s] of eligible voters," and if a voter's registration has been rejected or cancelled, it is clearly removed when those lists are compiled from the QVF. [5] It could be argued that any removals of voters produced by the undeliverable ID practice are made on the grounds that the removed voters have never shown that they have a Michigan residence in the first place, rather than that they have moved away from the undeliverable addresses, and that § 1973gg-(d) therefore does not apply in this circumstance at all. The defendants, however, do not make this argument, apparently because failure to prove residence is not a permissible ground for removal under the NVRA. The Act provides that a registrant may be removed from the rolls based only on his own request, criminal conviction, mental incapacity, the voter's death, or the voter's change of residence. 42 U.S.C. § 1973gg-6(a)(3) and (4). Thus, if the plaintiffs are correct that the undeliverable ID practice actually does remove already-registered voters, change of residence is the only possible ground for such removals under the NVRA, and the § 1973gg-6(d) provisions will govern the removals. [6] Since the statute only governs when a registrant can be removed from the list of eligible voters, it could be construed in the strictest sense to permit a state never to place some or all of its "registrants" on that list in the first place. But this interpretation would have a similar effect of permitting states to follow NVRA removal procedures only when they saw fit, and thus of completely neutering those procedures. It is also theoretically possible that some persons whose names appear on the list of eligible voters are nevertheless not "registrants." The defendants here, however, make no such contention with respect to potential voters whose registrations were affected by the undeliverable ID practice. [7] For this reason, it is for the most part unnecessary to reach the other asserted grounds for the unlawfulness of the undeliverable ID practice. Specifically, although M.C.L. § 168.509aa provides procedural protections similar to those of 42 U.S.C. § 1973gg-6(d), the Court expresses no view on the state-law question of who qualifies as a "voter" within the meaning of this statute, so as to be entitled to those protections. Since these procedures are redundant to those of the NVRA, it is irrelevant whether Michigan offers them to a narrower class of persons than those deemed "registrants" under federal law. In considering what relief is appropriate, therefore, the Court will briefly consider below the plaintiffs' claim that the Fourteenth Amendment and the Civil Rights Act, 42 U.S.C. § 1971(a)(2)(A), require that the registrants whose original voter IDs are returned as undeliverable be treated the same as those who have their duplicate IDs returned to the sender. [8] Even if every out of state driver's license applicant were to have moved out of Michigan for voting purposes, the NVRA would still clearly forbid the Secretary from regarding their applications as evidence of that fact if the applicants had designated otherwise. In this case, though, regardless of any NVRA violation, the plaintiffs would have no standing to sue because there could be no supportable allegation of harm since no voter would have been wrongfully disenfranchised. [9] There is, accordingly, no need to consider the plaintiffs' other challenges to the driver's license practice. [10] If a driver's license applicant has indicated that his or her change of address is not for voter registration purposes, then the Secretary's cancellation of his or her registration is a violation of the NVRA regardless of whether the voter actually remains eligible in Michigan. Nevertheless, if the voter is not eligible in Michigan, then the voter has not suffered the harm of disenfranchisement and thus will lack standing to sue. [11] In their brief, the plaintiffs claimed that the number was approximately 280,000 per year, but at the hearing they conceded the correctness of the Secretary's figure. [12] The defendants also argue, in defense of both the undeliverable ID and driver's license practices, that because a voter whose name has been removed from the rolls can always cast a provisional ballot, no harm is done by the removal. Plaintiffs respond that under both federal and state law a voter's eligibility for purposes of counting a provisional ballot must be determined by the same standards as is her eligibility to cast a regular ballot. See 42 U.S.C. § 15482(a)(4); M.C.L. § 18.183. Thus, even if a voter who does not appear on the rolls is permitted to cast a provisional ballot, this only delays the inevitable disenfranchisement. [13] The defendants claim that this task would be nearly impossible. Because it also has significant implications for voter fraud, this claim and the reasons for it are discussed more fully below, with respect to its impact on the public interest. [14] "Fraudulent" here refers both to active attempts to circumvent the election laws, and to situations in which a voter is simply mistaken as to which state he or she is eligible to vote in. [15] Disenfranchisement of eligible voters also risks distorting election outcomes, though if one assumes that anti-fraud measures will prevent more fraudulent than legitimate votes, then such measures will still have a net effect of reducing rather than exacerbating these sorts of distortions. [16] There accordingly is no need to resolve the parties' dispute over whether this federal statute can be enforced through a private lawsuit under 42 U.S.C. § 1983, or only by the Attorney General. Cf. McKay v. Thompson, 226 F.3d 752 (6th Cir.2000) (holding that 42 U.S.C. § 1971(a) is not directly enforceable in a private action). [17] The clerk makes a much more convoluted argument with regard to the out of state driver's license application practice, but since the nature of the Court's relief will not entail the issuance of an injunction on that issue, the Court finds it unnecessary to address the clerk's arguments on the drivers license issue here.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-18-00149-CR LEWIS JAMES JACKSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 1 Tarrant County, Texas Trial Court No. 1470765R Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss  MEMORANDUM OPINION Fifteen months after “pleading down” two counts of sexual assault to one count of injury to a child and receiving deferred-adjudication community supervision, 1 Lewis James Jackson pled true, in Tarrant County, 2 to eight violations of the terms of his community supervision, had his guilt adjudicated on the underlying charge, and was sentenced to five years’ imprisonment. In both his subsequent motion for new trial 3 and this appeal, Jackson has complained regarding only the underlying proceeding from which he received community supervision, not his subsequent adjudication or sentencing. On appeal, Jackson complains in two points of error that the trial court abused its discretion by denying his motion for new trial and by failing to hold a hearing on his motion for new trial. Both arguments share Jackson’s common assertion that his original plea was involuntary due to ineffective assistance of his trial counsel in the underlying proceeding. We dismiss this appeal for want of jurisdiction, because Jackson’s complaints on appeal are untimely. 1 In the underlying prosecution, a Tarrant County grand jury had charged Jackson with two counts of sexual assault. Pursuant to a plea agreement, Jackson had pled guilty to one count of injury to a child, see TEX. PENAL CODE ANN. § 22.04(a) (West Supp. 2018), and the trial court had deferred his adjudication of guilt and had placed him on community supervision for six years. See TEX. CODE CRIM. PROC. ANN. § 42A.101(a) (West 2018). 2 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3. 3 Jackson’s motion for new trial challenged his guilty plea entered when he was placed on deferred-adjudication community supervision. In his motion, Jackson alleged that his guilty plea was involuntary as a result of the ineffective assistance of his attorney, in that his attorney had failed to advise him that Jackson could not be convicted of injury to a child, since the victim was sixteen years old at the time of the offense. The offense of injury to a child applies only if the victim is fourteen years of age or younger. TEX. PENAL CODE ANN. § 22.04(a), (c)(1) (West Supp. 2018). Attached to the motion were uncertified copies of documents purporting to be the arrest warrant affidavit and police report related to this case. These documents indicated that the victim was sixteen at the time of the offense. The motion and attachments were not supported by an affidavit. The motion was overruled by operation of law. 2  In his first issue, Jackson argues that his trial attorney’s ineffective assistance in not investigating and discovering the age of the victim, and not advising him that he could not be convicted of injury to a child, rendered his plea of guilty involuntary. In his second issue, Jackson argues that he was entitled to a hearing so he could put on evidence not appearing in the record of his trial attorney’s ineffective assistance in advising him to plead guilty to the offense of injury to a child. Both of Jackson’s issues challenge the validity of the trial court’s original deferred- adjudication order. Generally, “a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding . . . only in appeals taken when deferred adjudication community supervision is first imposed.” Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999). “Unless an order placing a defendant on deferred adjudication community supervision is void, that defendant may not raise issues related to the original plea proceeding—including voluntariness-related issues—in an appeal from a subsequent adjudication proceeding.” Robinson v. State, Nos. 02-17-00054-CR, 02-17-00055-CR, 2018 WL 1095793, at *2 (Tex. App.—Fort Worth Mar. 1, 2018, no pet.) (mem. op., not designated for publication) 4 (citing Nix v. State, 65 S.W.3d 664, 667–69 (Tex. Crim. App. 2001) (“[A] judgment is void only in very rare situations—usually due to a lack of jurisdiction.”); Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001); Manuel, 994 S.W.2d at 661–62)). An involuntary guilty plea does 4 “Although unpublished opinions have no precedential value, we may take guidance from them ‘as an aid in developing reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana 2017, pet. ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)). 3 not render the resulting judgment void. Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001). Since Jackson did not challenge the voluntariness of his guilty plea in an appeal from the original order placing him on deferred-adjudication community supervision, his appeal is untimely, and we must dismiss his appeal for want of jurisdiction. Manuel v. State, 981 S.W.2d 65, 67 (Tex. App.—Fort Worth 1998), aff’d, 994 S.W.2d 658 (Tex. Crim. App. 1999). We dismiss this appeal for want of jurisdiction. Josh R. Morriss III Chief Justice Date Submitted: March 20, 2019 Date Decided: April 2, 2019 Do Not Publish 4 

U NITED S TATES AIR F ORCE C OURT OF C RIMINAL APPEALS ________________________ No. ACM 39125 (f rev) ________________________ UNITED STATES Appellee v. John D. GONZALEZ Senior Airman (E-4), U.S. Air Force, Appellant ________________________ Appeal from the United States Air Force Trial Judiciary Upon further review Decided 21 August 2018 ________________________ Military Judge: Marvin W. Tubbs II. Approved sentence: Bad-conduct discharge, confinement for 6 years, and reduction to E-1. Sentence adjudged 21 April 2016 by GCM convened at Scott Air Force Base, Illinois. For Appellant: Major Mark C. Bruegger, USAF; Major Patrick A. Clary, USAF. For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mary Ellen Payne, USAF; Major J. Ronald Steelman III, USAF; Gerald R. Bruce, Esquire. Before JOHNSON, MINK, and DENNIS, Appellate Military Judges. ________________________ This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule of Practice and Procedure 18.4. ________________________ PER CURIAM: We have this case for further review after returning the record of trial to The Judge Advocate General for remand to the convening authority for a new  United States v. Gonzalez, No. ACM 39125 (f rev) post-trial process and action due to ineffective assistance of counsel during the post-trial phase. United States v. Gonzalez, 2018 CCA LEXIS 145, at *31–40, 44 (A.F. Ct. Crim. App. 22 Mar. 2018). A new post-trial process and convening authority action have been accom- plished with Appellant represented by conflict-free counsel. We find the ap- proved findings and sentence to be correct in law and fact, and no error mate- rially prejudicial to Appellant’s substantial rights remains to be addressed. Ar- ticles 59(a) and 66(c), Uniform Code of Military Justice, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings and sentence are AFFIRMED. FOR THE COURT CAROL K. JOYCE Clerk of the Court 2 

911 F.Supp. 1051 (1995) WOMEN'S MEDICAL PROFESSIONAL CORP. and Martin Haskell, M.D., Plaintiffs, v. George VOINOVICH, Governor, State of Ohio and Betty Montgomery, Attorney General, State of Ohio and Matthias Heck, Jr., Prosecuting Attorney, Montgomery County, Ohio, Defendants. No. C-3-95-414. United States District Court, S.D. Ohio, Western Division. December 13, 1995. *1052 *1053 *1054 *1055 David Carr Greer, Bieser, Greer & Landis, Dayton, OH, Alphonse Adam Gerhardstein, Cincinnati, OH, Sarah Poston, Cincinnati, OH, Kathryn Kolbert, Janet Crepps, The Center for Reproductive Law and Policy, New York City, for plaintiffs. Kent M. Shimeall, Ohio Attorney General, Columbus, OH, Marilena R. Walters, Michael John Renner, Diane R. Richards, Ohio Attorney General, Columbus, OH, for George NMI Voinovich, Betty Montgomery. *1056 Chris Van Schaik, Montgomery County Prosecutor's, Dayton, OH, Elissa Dale Cohen, Montgomery County Prosecutor, Dayton, OH, for Mathias H. Heck, Jr. DECISION AND ENTRY GRANTING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION (DOC. # 2); DEFENDANTS, EMPLOYEES, AGENTS, SERVANTS PRELIMINARILY ENJOINED FROM ENFORCING ANY PROVISION OF HOUSE BILL 135, PENDING A FINAL DECISION ON THE MERITS; CONFERENCE CALL SET TO DETERMINE FURTHER PROCEDURES TO BE FOLLOWED IN THIS LITIGATION RICE, District Judge. Never, since the final shot of the Civil War, over a century and a quarter ago, has American society been faced with an issue so polarizing and, at the same time, so totally incapable of either rational discussion or compromise, as is the ongoing controversy, of which this case is but the latest chapter, over the legality of attempts by the State to regulate abortion — the act of voluntarily terminating a pregnancy, prior to full term.[1] Over the course of six days of hearings, this Court has heard testimony from a number of medical practitioners, each expert in the field in which he or she testified. This Court believes that, regardless of the personal opinions of these professionals, whether pro-choice or pro-life, each testified, not in accordance with those personal opinions, but rather on the basis of his or her medical opinion. So, too, has this Court endeavored to put aside its personal opinion on the issues herein, in order to render an opinion which it *1057 believes is mandated by the present state of the law. This case presents a challenge to the constitutionality of House Bill 135, which was enacted by the Ohio General Assembly on August 16, 1995, and was to have become effective on November 14, 1995. After hearing two days of testimony, this Court granted a ten-day Temporary Restraining Order on November 13, 1995, which was extended for an additional ten days, and was set to expire today, on December 13, 1995. Following four additional days of testimony, the Court now issues a preliminary injunction which enjoins enforcement of the three major portions of the Act: the ban on the use of the Dilation and Extraction ("D & X") abortion procedure; the ban on the performance of post-viability abortions, and the viability testing requirement. During the effective period of this preliminary injunction, no part of House Bill 135 may be enforced, as there is no part which appears to be either constitutional, or severable, from the remainder of the Act. This Act creates two separate bans, and a separate requirement with regard to post-viability abortions. First, the Act bans the use of the Dilation and Extraction ("D & X") procedure[2] in all abortions, including those performed before viability. O.R.C. § 2919.15(B). Physicians who are criminally prosecuted or sued civilly for violating this ban may assert, as an affirmative defense, that all other available abortion procedures would pose a greater risk to the health of the pregnant woman. § 2919.15(C); § 2307.51(C). Second, the Act bans all post-viability abortions, except where necessary to prevent the pregnant woman's death, or to avoid a serious risk of substantial and irreversible impairment to a major bodily function.[3] § 2919.17(A). For purposes of the post-viability ban only, any unborn child of at least 24 weeks is presumed to be viable.[4] § 2919.17(C). Third, the Act also imposes a viability testing requirement before an abortion may be performed after the 22nd week of pregnancy. § 2919.18. Unless a medical emergency exists, any physician intending to perform a post-viability abortion must meet several requirements.[5] The Act creates civil and criminal liability for violations of the D & X ban or the post-viability ban, and criminal liability for violations of the viability testing requirement.[6] Plaintiff Women's Medical Professional Corporation ("WMPC") operates clinics and *1058 provides abortion services in Montgomery, Hamilton, and Summit Counties (Doc. # 1, ¶ 5). Plaintiff Haskell, a doctor affiliated with Plaintiff WMPC, formerly performed abortions after the 24th week, but no longer does so; he uses the D & X procedure for abortions during the 21st to 24th week of gestation (Id., ¶ 6). On October 27, 1995, Plaintiffs filed this suit for declaratory and injunctive relief from all provisions of the Act, on their own behalf and on behalf of their patients. Plaintiffs allege that this Act imposes an undue burden on the rights of their patients to choose an abortion, and, further, that the Act's provisions are unconstitutionally vague and fail to give physicians fair warning as to what actions will incur criminal and civil liability. Accordingly, they seek to enjoin the Act as a violation of Plaintiffs' rights to privacy, liberty, and due process, as guaranteed by the Fourteenth Amendment to the United States Constitution. I. Jurisdiction, Ripeness, Standing, Preliminary Injunction Standard Before addressing the merits of Plaintiffs' request for a preliminary injunction, this Court must address three issues relating to its jurisdiction over this action. First, because this case involves a challenge to the constitutionality of a state statute under the United States Constitution, federal question jurisdiction is proper under 28 U.S.C. § 1331. Second, even though Plaintiff Haskell has not yet been prosecuted for violating the Act, this case is ripe for decision because a doctor facing criminal penalties for performing abortions may sue for pre-enforcement review of the relevant statute. Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745-46, 35 L.Ed.2d 201 (1973). Third, Plaintiff Haskell has the necessary standing to raise both his own rights and the rights of his patients. Because Plaintiff Haskell has asserted that he intends to continue performing the D & X procedure after this law takes effect, he is at direct risk of prosecution, and has standing to seek pre-enforcement review of this statute. Doe, 410 U.S. at 188, 93 S.Ct. at 745-46. Given the close relationship between Plaintiff Haskell and his patients, and given the obstacles which prevent pregnant women from challenging this statute, including a desire for privacy and the imminent mootness of their claims, he may also assert third-party standing and raise the rights of his patients. Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (plurality opinion) (allowing two doctors to sue for declaratory and injunctive relief from state statute taking away Medicaid funding for abortions), cited with approval in Planned Parenthood Ass'n v. Cincinnati, 822 F.2d 1390, 1396 (6th Cir. 1987). It is also noteworthy that in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), an action for declaratory and injunctive relief from a state statute restricting the right to abortion was brought by similar plaintiffs: abortion clinics and a doctor. Based on the foregoing authority, Plaintiff Haskell has standing to bring this action, and to assert both his own rights and the rights of his patients. Although Defendants have argued that the Plaintiff must show that a particular woman will be impacted by the Act in order to have standing to raise her rights, this Court agrees with Plaintiff Haskell's argument that such a showing is unnecessary. It is sufficient that Plaintiff Haskell has alleged that he regularly has patients upon whom he performs the procedure, and that he will have such in the future.[7] Plaintiff Haskell also has standing to challenge the provisions of the Act which ban post-viability abortions, codified at O.R.C. § 2919.17, and the viability testing requirement in O.R.C. § 2919.18. Defendants have argued that he lacks standing to challenge these provisions, because he only performs the D & X procedure up through the 24th week of pregnancy (Defendant's Memorandum in Opposition, Doc. # 11, p. 27, 34). The ban on post-viability abortions, however, imposes a rebuttable presumption of viability at 24 weeks, O.R.C. § 2919.17(C), which will *1059 apply to Plaintiff Haskell. If, in certain cases, he is unable to rebut the presumption of viability, the remaining provisions relating to the ban on post-viability abortions will also apply to him. In addition, Plaintiff Haskell will have to satisfy the viability testing requirement for any patients he treats who are in or beyond their twenty-second week of pregnancy. Therefore, Plaintiff Haskell also has standing to challenge these provisions of House Bill 135. Plaintiff WMPC sues on behalf of its physicians who are employed at its various affiliated locations, and on behalf of women who receive medical services, including abortions, at these locations. This Court does not now reach the issue of whether Plaintiff WMPC has standing to bring this action, due to an inadequately developed factual record.[8] This issue need not be reached at this time, because Plaintiff's Haskell's standing is sufficient to allow this action to go forward. Accordingly, the remainder of this opinion will use "Plaintiff" in the singular, in reference to Plaintiff Haskell. This Court now turns to the merits of Plaintiff's Motion for a Preliminary Injunction. When considering whether a preliminary injunction is proper, this Court must consider four factors: (1) the substantial likelihood of the Plaintiff's success on the merits; (2) whether the injunction will save the Plaintiff's patients from irreparable injury; (3) whether the injunction would harm others;[9] and (4) whether the public interest would be served by issuance of the injunction. International Longshoremen's Ass'n v. Norfolk Southern Corp., 927 F.2d 900, 903 (6th Cir. 1991), cert. denied, 502 U.S. 813, 112 S.Ct. 63, 116 L.Ed.2d 38 (citing In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985)). This Court need not conclude that all four factors support its decision. Chrysler Corp. v. Franklin Mint Corp., 1994 WL 378144, at * 2, 1994 U.S.App. LEXIS 18389, at *4 (6th Cir.1994). Rather than being "rigid and unbending requirements" that must be satisfied, these factors are intended to guide this Court's discretion in balancing the equities. In re Eagle-Picher Industries, Inc., 963 F.2d 855, 859 (6th Cir.1992). For example, the degree of likelihood of success which is required to issue a preliminary injunction may vary according to the strength of the other factors. In re DeLorean Motor Co., 755 F.2d at 1229. This Court must make specific findings as to each of these factors, unless fewer are dispositive of the issue. International Longshoremen's Ass'n, 927 F.2d at 903. II. Plaintiff's Substantial Likelihood of Success on the Merits Plaintiff has asserted a number of arguments attacking the constitutionality of the D & X ban, the post-viability ban, and the viability testing requirement. Many of these arguments can be divided into two categories: first, those that assert that the Act either imposes an undue burden on a woman's right to an abortion, or jeopardizes the pregnant woman's health, and is thus unconstitutional under Casey; second, those that assert that the Act is unconstitutionally vague. Before addressing these arguments, this Court will briefly set forth the relevant law to be applied to each of these categories. This Court will then consider each of the three challenged statutory provisions in turn. A. Standards for Challenging Abortion Regulations 1. The Substantive Law In Planned Parenthood v. Casey, a plurality of the Supreme Court held that viability marks the point at which the State's interest in protecting the potential life of the fetus outweighs the pregnant woman's liberty interest in having an abortion, subject only to a medical determination that her own life or health is at risk. 505 U.S. at 868-70, 874-77, 112 S.Ct. at 2816-17, 2819-2821. Before viability, states may not enact regulations *1060 which have "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion...." 505 U.S. at 877, 112 S.Ct. at 2820. Such regulations constitute an "undue burden" on a pregnant woman's right to have an abortion, and are an unconstitutional violation of her liberty interest, as guaranteed by the Fourteenth Amendment to the United States Constitution. Id. at 874-75, 112 S.Ct. at 2819. After viability, however, the State may regulate and proscribe abortions "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Id. at 879, 112 S.Ct. at 2821. Therefore, whereas regulations which affect pre-viability abortions are subject to an undue burden analysis, regulations which apply only to post-viability abortions are presumptively valid, unless they have an adverse impact on the life or health of the pregnant woman. It has been suggested that "strict scrutiny" should be applied to the medical necessity exception to the ban on post-viability abortions, codified at O.R.C. § 2919.17(A)(1).[10] In the opinion of this Court, a strict scrutiny approach would be improper in this specific situation, because it might allow a state, in some circumstances, to proscribe a post-viability abortion even where such an abortion is necessary to preserve the life or health of the mother. For example, in a situation where the mother is terminally ill, and is only expected to live for a maximum of six months following the post-viability abortion that saves her life, a state might attempt to argue that its interest in the fetus's life was actually more compelling than the mother's compelling interest in her own life, and that this interest should allow it to forbid an abortion in that circumstance. This would force courts to decide when, and under what circumstances, an unborn child's life becomes more important, and more worthy of protection, than the life of its mother. In the opinion of this Court, this inquiry is beyond the realm of legal jurisprudence, and must be left to the discretion of the individuals involved. Neither the legislature, nor the courts, has either the legal or the moral authority to balance the interests and the lives involved, and to make this decision. Therefore, this Court holds that although a state may ban most abortions subsequent to viability, it may not take away a pregnant woman's right, as recognized in Casey, to have a post-viability abortion which is necessary to preserve her life or health. A strict scrutiny analysis could have the effect of narrowing this exception, and should not be applied. Instead, any regulation which impinges upon or narrows this exception, must be declared to be unconstitutional. 2. Standard for Reviewing Facial Challenges to Abortion Regulations There is some dispute as to the proper showing which Plaintiff must make in order to succeed in bringing this facial challenge.[11] Before the Supreme Court's decision in Casey, a plaintiff bringing a facial challenge to a statute imposing restrictions on abortion faced the difficult burden of establishing "that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987), followed *1061 by Rust v. Sullivan, 500 U.S. 173, 183, 111 S.Ct. 1759, 1767, 114 L.Ed.2d 233 (1991) (applying Salerno to facial challenge to regulations prohibiting facilities which receive federal funds from counseling, referring, or advocating abortion as a method of family planning); Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 2980-81, 111 L.Ed.2d 405 (1990) (applying Salerno to facial challenge to judicial bypass procedure for minors seeking abortions); cited in Webster v. Reproductive Health Services, 492 U.S. 490, 524, 109 S.Ct. 3040, 3060, 106 L.Ed.2d 410 (1989) (O'Connor, J., concurring) (applying Salerno to facial challenge to state law prohibiting use of public facilities to perform abortions except where necessary to save the mother's life). In Casey, however, the plurality employed a more relaxed standard in striking down the Pennsylvania spousal notification provision: the law was held to be invalid because "in a large fraction of the cases in which [it] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion." 505 U.S. at 895, 112 S.Ct. at 2830. Moreover, when examining the informed consent provision, the plurality specifically examined the record, and the facts contained therein, which related to the application of the challenged provision to specific persons and in specific circumstances. Id. at 885-98, 112 S.Ct. at 2825-31. This appeared to signal a new approach to evaluating facial challenges to pre-viability abortion regulations. Since Casey, a split has developed among the Circuits as to whether the Casey approach has replaced the Salerno standard. The Third and Eighth Circuits, joined by district courts in the Seventh (Indiana) and Tenth Circuits (Utah), have concluded that Casey did replace Salerno. Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452, 1458 (8th Cir.1995) ("we choose to follow what the Supreme Court actually did ... and apply the undue burden test"); Casey v. Planned Parenthood, 14 F.3d 848, 863 n. 21 (3rd Cir.1994) ("the Court has ... set a new standard for facial challenges to pre-viability abortion laws"); A Woman's Choice-East Side Women's Clinic v. Newman, 904 F.Supp. 1434, 1448 (S.D.Ind.1995) (memorandum opinion on motion for preliminary injunction) ("this court believes that Casey effectively displaced Salerno's application to abortion laws"); Utah Women's Clinic v. Leavitt, 844 F.Supp. 1482, 1489 (D.Utah 1994) ("to bring a facial challenge in good faith, one must reasonably believe that the statute is incapable of being applied constitutionally in a large fraction of the cases in which it is relevant."). The Fifth Circuit has disagreed, and continues to apply the Salerno standard when evaluating restrictions on abortion. Barnes v. Moore, 970 F.2d 12, 14 n. 2 (5th Cir.1992) ("we do not interpret Casey as having overruled, sub silentio, long-standing Supreme Court precedent governing challenges to the facial constitutionality of statutes"). The Supreme Court, itself, appears to be split on this issue. Compare Fargo Women' Health Org. v. Schafer, 507 U.S. 1013, 113 S.Ct. 1668, 123 L.Ed.2d 285 (1993) (O'Connor, concurring with denial of application for stay and injunction) (stating that the Casey approach should be followed by lower courts), with Ada v. Guam Society of Obstetricians and Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, dissenting from denial of petition for writ of certiorari) (stating that Court did not change the Salerno standard in Casey). Not surprisingly, whereas Plaintiff has urged this Court to adopt the Casey approach, Defendants have vigorously argued that the Salerno standard should be employed. Because the Sixth Circuit is silent on the issue of whether Salerno should apply to pre-viability abortion regulations, it is a matter of first impression in this Circuit. This Court concludes that for purposes of evaluating the ban on the D & X procedure, which is used in the weeks preceding viability, this Court will follow the approach actually undertaken in Casey, and employed by courts in the Third, Seventh, Eighth, and Tenth Circuits, and ask whether, "in a large fraction of the cases in which [the ban] is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion." This Court makes this decision for two reasons. First, because Casey did *1062 not require that every married woman be subject to physical abuse in striking down the spousal notification requirement, the plaintiffs in that case did not have to show that "no set of circumstances exist under which the law would be invalid" in order to successfully challenge it. Second, it seems that it would be impossible, as a practical matter, to evaluate whether a regulation will create an undue burden on the right to an abortion, without examining specific facts in the record, and evaluating the likely impact that a regulation will have on the specific group of women who are affected by it. For these reasons, this Court declines to apply Salerno to the challenged pre-viability regulations in this case. Although this Court has concluded that it will not apply Salerno to the pre-viability regulations in House Bill 135, the issue of whether Salerno should apply to the post-viability regulations in House Bill 135 is a separate issue. For purposes of evaluating the ban on post-viability abortions, therefore, this Court must likewise consider whether it is bound to apply the more restrictive Salerno standard.[12] Whether the Salerno standard for facial challenges should apply to post-viability regulations appears to be an issue of first impression before this, or any, Court. Casey is not dispositive, because the approach in that case is specifically designed to evaluate whether a law restricting access to pre-viability abortions would impose an "undue burden" on a large fraction of the relevant population; it does not evaluate whether a law restricting access to post-viability abortions is invalid simply because it may jeopardize the life or health of a few (or many) pregnant women who need such an abortion. Indeed, none of the cases cited above which followed the new Casey approach involved restrictions on post-viability abortions. Thus, this appears to be an issue of first impression in this, or any, Court. After careful consideration of the interests involved, this Court concludes that the Salerno requirement that the plaintiff must show that "no set of circumstances exists under which the law would be valid," should not apply to facial challenges to post-viability abortion regulations which may unconstitutionally threaten the life or health of even a few pregnant women. The Court so holds for three reasons. First, the cases which have applied Salerno have not involved laws which threaten to inflict, unconstitutionally, such severe and irreparable harm.[13] Second, because the Supreme Court signalled in Casey that an unconstitutional infringement of the liberty interests of some, but not all, pregnant women, is sufficient to justify application of a lesser standard where a pre-viability abortion is concerned, there is no reason why the Court would not similarly apply a lesser standard where a law threatens to deprive some, but not all, pregnant women of their greater constitutional interest in their own life and health. Finally, and most importantly, it would be unconscionable to hold that a pregnant woman—or her estate —may not challenge a post-viability regulation until after she is unconstitutionally deprived of her life or health. Therefore, this Court will allow Plaintiff to facially challenge this post-viability ban, even though he *1063 has not shown that "no set of circumstances" exists under which the ban would be valid. B. Standard for Vagueness Challenges In addition to arguing that this Act is unconstitutional under Casey, Plaintiff argues that the Act is unconstitutionally vague. When determining whether a statute or regulation is sufficiently vague so as to violate due process, there are several relevant considerations. A statute or regulation may be vague if it fails to give fair warning as to what conduct is prohibited. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ("we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly"), cited in Fleming v. United States Dept. of Agriculture, 713 F.2d 179, 184 (6th Cir.1983). A statute or regulation may also be vague if it is subject to arbitrary and discriminatory enforcement, due to a failure to provide explicit standards for those who apply the law. Id. Finally, the lack of a mens rea requirement in a statute which imposes criminal liability may indicate that the statute is unconstitutionally vague. Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 685, 58 L.Ed.2d 596 (1979) ("Because of the absence of a scienter requirement in the provision directing the physician to determine whether the fetus is or may be viable, the statute is little more than `a trap for those who act in good faith.'"). A vague law is especially problematic in two situations. First, its potential to cause citizens to "`steer far wider of the unlawful zone' ... than if the boundaries of the forbidden areas were clearly marked," Id. (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 1322-23, 12 L.Ed.2d 377 (1964)), is of particular concern where the exercise of constitutionally protected rights may be inhibited or "chilled." Colautti v. Franklin, 439 U.S. 379, 391, 99 S.Ct. 675, 683, 58 L.Ed.2d 596 (1979) (applying to the right to an abortion); Baggett, 377 U.S. at 372, 84 S.Ct. at 1322-23 (applying to First Amendment rights). Second, a vague law which provides for criminal penalties is troubling because of the severe consequences which may result from violating the law. Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). When determining whether a law is void for vagueness, this Court must examine the challenged law in light of all of the above considerations. This Court now turns to Plaintiff's arguments challenging the constitutionality of the D & X ban, the post-viability ban, and the viability testing requirement, for purposes of gauging whether the likelihood of Plaintiff's success on the merits of these arguments is substantial. C. Ban on Use of the D & X Procedure 1. Vagueness of the Definition of D & X House Bill 135 bans the performance or attempted performance of any abortion, pre-viability or post-viability, by use of the Dilation and Extraction ("D & X") procedure, which is defined as follows: [T]he termination of a human pregnancy by purposely inserting a suction device into the skull of a fetus to remove the brain. `Dilation and extraction procedure' does not include either the suction curettage procedure of abortion or the suction aspiration procedure of abortion. O.R.C. § 2919.15(A). Plaintiff argues that this definition is unconstitutionally vague, because it does not adequately distinguish the D & X procedure from a different procedure known as the Dilation and Evacuation ("D & E") procedure. Plaintiff further argues that this vagueness will chill physicians from performing abortions by use of the D & E method, which is the most common method used in the early to mid-second trimester. Defendants dispute this, arguing that the definition does not include or describe the D & E procedure, and so is not vague; further, Defendants argue that the D & E procedure is included in the definition of suction curettage, and so is excepted from the ban. In order to address this vagueness argument, it is necessary to define and describe the various methods of abortion, based on the testimony in this case. When the procedures are described in detail, it becomes apparent that the statutory definition of the Dilation *1064 and Extraction procedure could be construed to include the more widespread Dilation and Evacuation ("D & E") procedure. It also becomes apparent that the D & E method is not included in any definition of suction curettage: although a D & E procedure does include suction curettage, it also includes additional steps, such as dismemberment, and additional instruments, such as forceps. Furthermore, suction curettage is a first-trimester procedure, whereas D & E is a second-trimester procedure. Accordingly, Plaintiff has demonstrated a substantial likelihood of success of showing that the definition of a D & X procedure is unconstitutionally vague. a. suction curettage/aspiration Suction curettage and suction aspiration (also known as vacuum aspiration) are common methods of first-trimester abortions, and the terms are used interchangeably (Tr., 12/6, at 13, 115).[14] In a suction curettage procedure, the doctor mechanically dilates the opening to the uterus by the use of metal rods, inserts a vacuum apparatus into the uterus, and removes the products of conception by the use of negative suction (Tr., 12/5, at 33). There is no need to dilate the patient's cervix in the days before the procedure is performed (Id.). Suction curettage/aspiration can sometimes be performed up to the 15th week of pregnancy, but is typically a first-trimester procedure (Id.). Approximately ninety-five percent of the abortions which are performed in this country are performed during the first fifteen weeks of pregnancy[15] (Tr., 12/6, at 13). b. Dilation & Evacuation (D & E) In the second trimester, the fetus becomes too large to remove by use of suction curettage (Tr., 12/5, at 33-34). At that point, the most common abortion method is a Dilation and Evacuation (D & E) procedure; indeed, it is the only procedure which can be used from the thirteenth to sixteenth weeks of pregnancy (Tr., 11/8, at 51). Instead of using metal rods to dilate the cervix over a short period of time, the doctor inserts laminaria into the cervix during the one-to-two day period prior to the procedure, in order to slowly dilate the cervix. Then, a suction curette with a larger diameter is placed through the cervix, and the doctor removes some, or all, of the fetal tissue. Frequently, however, the torso and the head cannot be removed in this manner (Tr., 12/5, at 35). The procedure typically results, therefore, in a dismemberment of the fetus, beginning with the extremities. This dismemberment is accomplished both by use of the suction curettage, and by the use of forceps (Id.). Removing the head of the fetus from the uterus is typically the most difficult part of the D & E procedure, in part because the head is often too large to fit through the partially dilated cervix. It is important to remove the head as quickly as possible, because fetal neurologic tissue can negatively affect the mother's ability to clot, and lead to greater bleeding (Tr., 12/6, at 32). Physicians have developed different methods of decompressing the head, in order to remove it. Dr. Anthony Levatino testified that when he performed D & E abortions, he preferred to grasp the fetal head with a clamp, crush it, and remove it in pieces along with the skull contents (Tr., 12/7, at 190). Because he decompressed the skull by crushing it, he found it unnecessary to decompress the skull by purposely inserting a suction device into the skull and removing some of its contents (Id. at 192). *1065 Dr. Paula Hillard testified that when the skull is too large to remove intact, she grasps the skull and suctions out its contents with a cannula—which may enter the skull—in order to decompress it and facilitate its removal (Tr., 11/8, at 77). She has never performed the procedure utilized by Dr. Haskell (Id. at 49). Dr. Doe Number One testified that because the use of forceps can cause trauma to the mother's uterus, his preference is to collapse the head by the use of suction, prior to its removal. By making a small incision at the base of the skull and inserting a suction device into the brain—while the head is still within the uterus, and no longer attached to the body—he can collapse the head and easily remove it, without the use of forceps (Tr., 12/5, at 43). This method decreases injury to the cervix and uterus, and reduces operating room time, blood loss, and anesthesia time (Id. at 44). Dr. Doe describes his procedure as a D & E, and collapses the head by the use of suction even in procedures performed from 15 to 18 weeks. Although he does not always collapse the head in this fashion, Dr. Doe Number One testified that the two procedures— D & E with collapse, and D & E without collapse—are on a continuum (Id. at 72). He has never performed the procedure utilized by Dr. Haskell (Id. at 84). Dr. Mary Campbell has not performed second-trimester abortions, but has read about and observed various second-trimester methods, in preparation for setting up a second-trimester practice at her clinic. In describing the D & E procedure, she testified that the fetal skull is generally not intact following dismemberment of the body—the jaw is often removed with the neck—and "the edges of the fetal skull are sharp enough to lacerate the maternal uterine [blood] vessels ..." (Tr., 12/6, at 35). The goal is therefore to place the suction cannula into the skull in order to remove its contents and make it smaller, thereby allowing it to be removed intact, in order to minimize lacerations (Id. at 33). In addition, removing the head intact is advantageous because it ensures that no parts of the skull are left behind in the woman's uterus (Id. at 35). Dr. Harlan Giles, who performs D & E abortions up to the twentieth week of pregnancy, testified that he had never seen an instance in which the fetal head was too large to be removed without being crushed or somehow decompressed, but he admitted that such an occurrence was possible (Tr., 11/13, at 269-70; Tr., 12/8, at 41). The D & E procedure appears to be preferable to other available procedures before the twentieth week; at thirteen to sixteen weeks, it is the only available procedure. The main alternative to a D & E procedure after sixteen weeks is an induction or instillation method, which involves either the injection of saline, urea, or prostaglandins into the amniotic cavity, or, the insertion of vaginal prostaglandin suppositories. These procedures result in labor, and are further described below. The D & E procedure appears to be less painful for the mother than induction procedures, because it does not require labor, and because the cervix is dilated slowly with laminaria rather than being dilated more forcefully by uterine contractions. In addition, the D & E procedure takes less time, generally between ten and twenty minutes, as opposed to twelve to thirty-six hours. Because the uterus is not under pressure over a long period of time, there is less of a risk of forcing fluids or fetal proteins into the maternal circulation (Tr., 12/6, at 31). Finally, there is a reduced risk of retained products of conception, infection, hemorrhage, and cervical injury (Id. at 39). Although the D & E procedure appears to have a lower rate of complications than other methods of abortion in the early to mid-second trimester, it can be equally risky at later periods, when the fetus is larger. One serious complication of later D & Es is caused by the use of forceps, which results in uterine and cervical injuries, and increased blood loss (Tr., 12/5, at 41). c. Dilation and Extraction (D & X) In this section, the Court will describe Dr. Haskell's specific method of abortion, which has been described by various parties as either an "intact D & E," a "brain suction procedure," or a "Dilation and Extraction" procedure. It is typically used late in the *1066 second trimester, from twenty to twenty-four weeks. Plaintiff Haskell described his procedure in a paper presented at the National Abortion Federation Conference in 1992 (Defendant's Exhibit A). The following description is taken from that paper. On the first and second days of the procedure, Dr. Haskell inserts dilators into the patient's cervix. On the third day, the dilators are removed and the patient's membranes are ruptured.[16] Then, with the guidance of ultrasound, Haskell inserts forceps into the uterus, grasps a lower extremity, and pulls it into the vagina. With his fingers, Haskell then delivers the other lower extremity, the torso, shoulders, and the upper extremities. The skull, which is too big to be delivered, lodges in the internal cervical os.[17] Haskell uses his fingers to push the anterior cervical lip out of the way, then presses a pair of scissors against the base of the fetal skull. He then forces the scissors into the base of the skull, spreads them to enlarge the opening, removes the scissors, inserts a suction catheter, and evacuates the skull contents. With the head decompressed, he then removes the fetus completely from the patient. The primary distinction between this D & X procedure and the D & E procedure previously described appears to be that, whereas the D & E procedure results in dismemberment and piece-by-piece removal of the fetus from the uterus—and, possibly, in removal of portions of the skull contents by the use of suction after the skull is crushed with forceps or otherwise invaded, and before the head is placed next to the opening to the uterus—the D & X procedure results in a fetus which is removed basically intact except for portions of the skull contents, which are suctioned out after the head is placed next to the opening to the uterus (and after the rest of the fetus is removed from the uterus), and before the fetus is fully removed from the mother's body.[18] The hallmark of the D & X procedure, therefore, is that the fetus is removed intact, rather than being dismembered prior to removal, as is done in a D & E procedure. In both procedures, the head usually must be decompressed, either by crushing the skull, or by invading the skull and suctioning out its contents. In the D & X procedure, the suctioning is purposeful; in a D & E procedure, the suction may either be purposeful, or, given the inability to clearly see the fetus, even with ultrasound, and the consequent difficulty of knowing whether the surgical instrument is in, or simply near, the skull, it may be accidental. The testimony indicates that the D & X procedure may be considered to be a variant of the D & E technique.[19] Indeed, doctors *1067 who use the procedure may not know which procedure they will perform until they encounter particular surgical variables and circumstances after they begin the procedure to terminate the pregnancy.[20] The doctor may intend to do a D & X in cases where the patient has requested an intact fetus for purposes of genetic testing, or, perhaps, where a patient has a history of Cesarean sections and a uterine scar, and thus is more vulnerable to uterine injury (Tr., 12/7, at 89). Based on the testimony of various physicians, this Court further finds that in both the D & E and the D & X procedures, a suction device may be purposely inserted into the skull in order to remove the skull contents, to accomplish the goal of decompressing the fetal head, thereby facilitating its removal from the woman's body. Because the statutory definition of the prohibited "Dilation and Extraction Procedure" thereby appears to encompass the purportedly allowable D & E procedure as well, Plaintiff has demonstrated a substantial likelihood of success of showing that this definition is unconstitutionally vague, as it does not provide physicians with fair warning as to what conduct is permitted, and as to what conduct will expose them to criminal and civil liability.[21] 2. Constitutionality of Banning the Specific Abortion Procedure at Issue As far as this Court is aware, only one case has considered the propriety of a ban on a specific abortion procedure. In Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), the Supreme Court struck down a ban on the second-trimester abortion method of saline amniocentisis. The Court reasoned that, because the method was commonly used and was safer than other available methods, it failed to serve the stated purpose of protecting maternal health. The Court concluded that, given that there were no safe, available alternatives to the banned method, the ban was "an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting, the vast majority" of second trimester abortions. Accordingly the ban was held to be unconstitutional. Id. at 75-79, 96 S.Ct. at 2844-46. The reasoning in Danforth suggests that a state may act to prohibit a method of abortion, if there are safe and available alternatives. This reading comports with Casey, which dictates that if a ban on a specific method were to place a substantial obstacle in the path of a woman seeking a pre-viability abortion—for example, if there were no safe and available alternative method of abortion—the ban would be an undue burden and therefore unconstitutional. The issue before this Court, therefore, is whether, in Ohio, there are safe and available alternatives to the D & X procedure, which is typically performed during the twentieth to twenty-fourth weeks of pregnancy, such that there would be no undue burden if the procedure were banned. a. D & E Procedure Due to the larger size of the fetus in the mid to late-second trimester, when the fetus is not necessarily viable, the D & E is no longer the procedure of choice to perform an *1068 abortion.[22] Therefore, in considering the safest method of abortion at this stage of pregnancy, this Court will compare the D & X procedure—which is typically performed from the twentieth to the twenty-fourth weeks of pregnancy—to other available procedures. b. Instillation/Induction Procedures The main alternative to the D & X procedure, in the late second trimester, is the use of an induction method of abortion. Induction methods are also known as "instillation" methods. In one type of induction method, the physician injects some substance—typically saline, or a combination of a prostaglandin and urea—into the amniotic cavity of the woman. In another type, the physician places prostaglandin suppositories into the patient's vagina. In both cases, the end result is labor: the substances cause the uterus to contract, resulting in the eventual expulsion of the fetus. This labor typically lasts between twelve and twenty-four hours (Tr., 12/6, at 25), but may last as long as thirty-six hours (Id. at 118). The evidence suggests that induction methods were more frequently used in the 1970s, when the D & E procedure was just being developed. Also, induction procedures are more often used by less skilled physicians (Id. at 22). Finally, they must be performed in a hospital environment, and so cannot be done on an outpatient basis. There appear to be two advantages which induction methods have over the D & E procedure: they require less skill to perform, and they do not involve the placement of any sharp instruments into the uterus (Id. at 29). One obvious disadvantage of the induction method is that it results in labor, with all of its potential complications. These may include: fear, lack of control, mild to severe abdominal pain, nausea, and diarrhea, and extreme discomfort, over a lengthy period of time. The substances used, especially saline, may result in mild side effects—vomiting, diarrhea, and high fever—or in severe maternal complications. The fluids which are introduced may be forced into the maternal circulation, leading either to amniotic fluid embolus, which is generally fatal, or to disseminated intravascular coagulation (DIC), in which the clotting factors in the blood are used up, and bleeding cannot be stopped. Induction methods can also thin out the lower uterus to the point that the fetus comes through the uterine wall instead of through the vagina (Tr., 12/6, at 25-26). In addition, induction methods cannot be performed on women who have an active pelvic infection, or who are carrying dead fetuses (Id. at 26), and probably should not be performed on women who had previously had Cesarean sections, given the possibility of rupturing the uterine scar (Id. at 28). Finally, induction methods may be ineffective in cases where the fetus is lying with its head on one side and its feet on the other, because there is no pressure against the cervix (Id. at 27), and the fetus will not be expelled from the uterus. c. Hysterectomy/Hysterotomy Another alternative to the D & X is a hysterotomy, which is essentially a Cesarean section performed before term, although it is potentially more dangerous because the uterus is thicker than it is at the end of term, and the incision causes more bleeding and may make future pregnancies more difficult. A more extreme alternative is a hysterectomy, which removes the uterus completely. Both of these methods entail the risks associated with major surgical procedures, and are rarely used today. d. D & X Procedure Before discussing the apparent benefits and risks of the D & X procedure, it is necessary to address Defendant's arguments that the procedure has no measurable benefits, for the reason that no peer review journal has published any studies measuring these benefits. The Court acknowledges *1069 that if there were a statistical study, published in a peer review journal, which demonstrated the benefits of the D & X procedure, this would make the asserted benefits more credible. Nevertheless, the lack of a study in a peer review journal does not, ipso facto, mean that there are no benefits, or no risks. Indeed, in this situation, there are a number of factors which help to explain the lack of such a statistical study. First, the D & X procedure is relatively new—it apparently was first described in 1992—and it will take time for other practitioners to begin using and evaluating the procedure. Second, given the security concerns which must be considered by doctors who perform abortions, physicians who use the D & X procedure may be understandably reluctant to publicly acknowledge that they use this procedure, and may be even more reluctant to participate in a study and publish the results. Finally, as was testified to by Dr. Mary Campbell, funding for studies of abortion methods was cut drastically in the early 1980s, and there have been no large-scale abortion studies since that time (Tr., 12/6, at 74, 76). Given these obstacles to performing and publishing statistically valid studies on new abortion methods, this Court is not persuaded that the absence of a study on D & X abortions in the medical literature means that the procedure has no benefits.[23] Dr. George Goler, the Ohio Section Chief of the American College of Obstetricians and Gynecologists, testified that he views Dr. Haskell's procedure as an improvement over the traditional D & E procedure, because it causes less trauma to the maternal tissues (by avoiding the break up of bones, and the possible laceration caused by their raw edges), less blood loss, and results in an intact fetus that can be studied for genetic reasons (Tr., 12/6, at 126). Dr. Haynes Robinson, a pathologist and geneticist, testified that it is sometimes desirable to obtain an intact fetus in order to confirm the presence of fetal anomalies, and to predict their likely recurrence in future pregnancies (Tr., 12/5, at 118). Although an intact fetus can be obtained following an induction or instillation procedure—and such a method might be preferable where the brain needs to be studied intact—the use of various substances to induce labor can cause autolysis, or the breaking down of tissue, which may make the fetal tissue less useful for such studies (Tr., 12/6, at 34). A further advantage over induction or instillation procedures is that the D & X procedure takes far less time—ten to twenty minutes—than the twelve to thirty-six hours in which a woman must be in labor following an induction or instillation procedure.[24] Plaintiff Haskell testified that, in approximately 1,000 D & E procedures performed after the twentieth week of pregnancy, two patients had serious complications (Tr., 11/8, at 149). In approximately 1,000 D & X procedures performed after the twentieth week of pregnancy, there were no serious complications (Id. at 150-51). Although this is anecdotal, not statistical, evidence, this Court finds that it is both uncontradicted and plausible. Dr. Levatino, who has performed D & E but not D & X abortions, predicted that the D & X procedure would have greater complications than the induction methods, because there is an increased possibility of perforating the patient's uterus when the abortion is performed in the late second trimester (Tr., 12/7, at 198, 205). This testimony appears, *1070 however, to have been based less on his analysis of the specific procedure than on his estimate of the risks of performing late-term D & E abortions, generally. As noted earlier, the D & E procedure can be risky in the late-second trimester, because the fetus is larger and more difficult to dismember, and the use of forceps in the uterus becomes more dangerous. The D & X procedure mitigates this risk by delivering the fetus intact—except for a decompression of the head after it has been placed next to the opening to the uterus—and thus would not appear to bear an increased risk of uterine perforation. Although forceps are still used, their use appears to be minimized. Dr. Giles testified that the procedure is not new, but is rather a resurrection of an obstetric method discarded in the 1960s, which was used to deliver dead fetuses, and known as craniotomy (Tr., 12/8, at 18-23). His criticisms of the D & X procedure on this ground are not persuasive. First, the reason for the abandonment of the craniotomy procedure— which required the use of sharp instruments, and caused uterine lacerations and perforations —does not appear to be relevant to the D & X procedure, which reduces the risk of uterine lacerations (in comparison to the D & E procedure) by delivering all but the head of the fetus intact, which is then decompressed by the use of scissors and suction. Second, unlike the situation in the 1960s, ultrasound can now be utilized to help to avoid injury when sharp instruments are introduced into the uterus. Finally, in regard to the availability of the D & X procedure, it can be performed on an outpatient basis, and does not require hospitalization. Although the procedure requires three separate visits to the clinic, the insertion of laminaria on days one and two takes less than an hour (Tr., 12/5, at 22), and the D & X procedure itself, which is performed on the third day, requires a total time of less than two hours (Id.). At least three doctors in Ohio perform some variation of the D & X procedure: Plaintiff Haskell (Tr., 11/8, at 109-10); Dr. John Doe Number One (Tr., 12/5, at 43); and Dr. John Doe Number Two (Tr., 12/7, at 47-48). e. Conclusion After viewing all of the evidence, and hearing all of the testimony, this Court finds that use of the D & X procedure in the late second trimester appears to pose less of a risk to maternal health than does the D & E procedure, because it is less invasive—that is, it does not require sharp instruments to be inserted into the uterus with the same frequency or extent—and does not pose the same degree of risk of uterine and cervical lacerations, due to the reduced use of forceps in the uterus, and due to the removal of any need to crush the skull and remove it in pieces, which can injure maternal tissue. This Court also finds that the D & X procedure appears to pose less of a risk to maternal health than the use of induction procedures, which require the woman to go through labor, pose additional risks resulting from the injection of fluids into the mother, and cannot be used for every woman needing an abortion. Finally, the Court finds that the D & X procedure appears to pose less of a risk to maternal health than either a hysterotomy or a hysterectomy, both of which are major, traumatic surgeries. Because the D & X procedure appears to have the potential of being a safer procedure than all other available abortion procedures, this Court holds that the Plaintiff has demonstrated a substantial likelihood of success of showing that the state is not constitutionally permitted to ban the procedure. If this abortion procedure, which appears to pose less of a risk to maternal health than any other alternative, were banned, and women were forced to use riskier and more deleterious abortion procedures, the ban could have the effect of placing a substantial obstacle in the path of women seeking pre-viability abortions, which would be an undue burden and thus unconstitutional under Casey. Even if induction procedures were as safe as the D & X procedure—and this Court does not find, on the evidence, that they are as safe—the requirement that a pregnant woman be hospitalized in order to undergo an induction procedure may also have a negative impact on the practical availability of *1071 abortions for women seeking pre-viability abortions. First, hospitals may refuse to allow induction procedures on an elective basis,[25] including those situations in which a woman wishes to abort a fetus with severe anomalies. Second, it may be psychologically daunting to undergo the induction procedure in the hospital environment.[26] These practical problems may discourage women in their second trimester from exercising their right of seeking elective, pre-viability abortions, or make it practically impossible to do so, thereby amounting to an undue burden on the right to seek a pre-viability abortion. In contrast, the D & X procedure can be performed on an outpatient basis within a much shorter period of time, and is not limited by either of these practical problems. For both of these reasons—because the D & X procedure appears to be the safest method of terminating a pregnancy in the late second trimester, and because the D & X procedure is more available than induction methods, which require the woman to be hospitalized—this Court holds that Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on the D & X procedure is unconstitutional under Danforth and Casey.[27] 3. Legitimacy of the State's Asserted Interest in Banning the D & X Procedure Next, this Court turns to the state's asserted interest in enacting the ban on the D & X procedure, and to the constitutional legitimacy of that interest. The Ohio General Assembly declared that its intent in banning the D & X procedure was: "to prevent the unnecessary use of a specific procedure used in performing an abortion. This intent is based on a state interest in preventing unnecessary cruelty to the human fetus." House Bill 135, Sec. 3 (emphasis added). In Casey, the Supreme Court recognized two specific interests which the state has in regulating abortions prior to viability. First, "to promote the State's profound interest in potential life throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and [these] will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion." 505 U.S. at 878, 112 S.Ct. at *1072 2821. Second, "the State may enact regulations to further the health or safety of a woman seeking an abortion." Id. Neither of these interests, however, justify regulations which impose an undue burden on the right to seek a pre-viability abortion. Because Casey only specifically mentioned these two interests, Plaintiff argues that any other interest—such as that of preventing unnecessary cruelty to the fetus during the abortion—is neither proper nor legitimate. Defendants argue that the interest is justified by the "State's profound interest in potential life throughout pregnancy," and that it would be contrary to logic and common sense to hold that this interest is not legitimate. The State further argues that if it is permitted to impose regulations which prevent cruelty to animals, then surely, it should be permitted to impose regulations which prevent cruelty to fetuses. Again, this appears to be an issue of first impression before this, or any, Court. To this Court's knowledge, no abortion regulation has heretofore been justified by an interest in preventing unnecessary cruelty to the fetus. Moreover, this Court has no precedent to directly guide and inform its decision. There are, however, a few observations which help its analysis. First, and foremost, this Court is mindful of Casey's strong recognition of the State's interest in potential life throughout the pregnancy. Second, although Casey only specifically delineated a few interests which the state has which justify regulation, nowhere in the opinion did the Court hold that no other state interest could justify regulations on pre-viability abortions. These observations, taken together, suggest that the state may impose regulations which vindicate its interest in the potential life of the fetus, based on interests other than those of persuading the woman to choose childbirth over abortion, or of protecting her health and safety. Finally, the Court agrees with Defendants that it would be contrary to all logic and common sense, to hold that a state has no interest in preventing unnecessary cruelty to fetuses. Assuming arguendo that the interest is legitimate, however, Casey is clear in holding that regulations enacted to further legitimate interests may not impose an undue burden on the right to seek a pre-viability abortion. Because Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on D & X abortions would impose an undue burden on the right, the legitimacy of the state's interest, no matter how legitimate or compelling, will, in all likelihood, once the merits of this litigation are determined, not save the ban from being unconstitutional. Although the Court need not, at this point, address the testimony concerning the cruelty of the D & X procedure—given that Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on the procedure is an undue burden and therefore is unconstitutional—it is in the public interest to discuss the issue of cruelty. Therefore, this Court now turns to the relevant testimony. Defendants called two experts to testify to the pain felt by the fetus during the D & X procedure.[28] Dr. Joseph Conomy is a professor of clinical neurology at Case Western Reserve University, and is involved in the issue of medical ethics. He has studied the formation of the nervous system, and has worked on problems of the nervous system in fetuses and newborn infants. In regard to fetal neurology, Dr. Conomy testified that, at the age of twenty to twenty-four weeks, many of the neural pathways which transmit pain to the brain are established, although the cortical projections from the lower level of the brain, the thalamus, are not yet established (Tr., 11/13, at 301). It is his opinion, therefore, that pain can be transmitted to at least the lower levels of the brain at that age (Id. at 302). *1073 Dr. Conomy further testified that fetuses at the age of twenty to twenty-four weeks respond to nurturing stimuli, such as stroking the face, and noxious stimuli, such as pricking the skin, in different ways. Nurturing stimuli may cause a turning of the head, or pursing of the lips. Noxious stimuli will cause flexion and withdrawal (Id. at 300-302). In reference to the D & X procedure, Dr. Conomy testified that it is his opinion that the procedure would prompt an unpleasurable stimulus to the fetus (Id. at 303). He also testified, however, that it would be "speculative" to try to "get inside the mind of a fetus, if there is one." (Id. at 301). Indeed, Dr. Conomy specifically refused to testify that a fetus can feel pain: although the fetus does "exhibit a class of responses that are characteristic of reflex response to obnoxious stimulation.... feeling is very much beyond that because it involves perception, designation, locality, and things that are far too speculative for me to assure you that a fetus feels." (Id. at 305). Thus, although Dr. Conomy testified that a fetus at the age of twenty to twenty-four weeks may physically respond to noxious stimuli, he did not testify that the fetus has a conscious, mindful awareness of the pain it is experiencing. Finally, Dr. Conomy testified that a fetus who is aborted by the D & E procedure, which involves dismemberment, might experience as much discomfort as a fetus who is aborted by the D & X procedure (Id. at 307). Defendants' second expert was Dr. Robert White, who is a professor of neurosurgery at Case Western Reserve University. He has been the director of a brain research laboratory for thirty years, but has not specifically studied pain or its mechanisms. In his testimony, Dr. White defined "pain" as a physiological, or perhaps behavioral, expression resulting from the appreciation of a noxious stimulus (Tr., 12/7, at 119-120). In particular reference to the mechanics of the D & X procedure, Dr. White testified that two maneuvers would cause pain to the fetus. First, the act of compressing, rotating, and pulling the fetus down into the birth canal—which also occurs during childbirth, at a more advanced age—must cause pain to the fetus (Id. at 131). Second, it was his opinion that the act of making an incision in the back of the neck and enlarging it—without, apparently, cutting any part of the nervous system—and then inserting a suction tube and evacuating the skull contents, must be painful (Id.). Initially, Dr. White testified that it was his opinion that the fetus may feel pain during the D & X procedure; this answer was stricken from the record because it did not indicate an opinion within reasonable medical probability (Id. at 110-11). Later in his testimony, and after viewing a videotape of the procedure being performed on a dead fetus, Dr. White amended his opinion to state that the fetus can feel pain (Id. at 124). He based this opinion partly on the small size of the infant, which means that pain travels a much shorter distance than in adults, and partly on his opinion that chemicals in the brain which suppress pain are not established in fetuses, whereas, chemicals which reinforce pain are so established (Id. at 126-27). He also disputed Dr. Conomy's opinion that the cortical projections from the thalamus are not established at twenty-four weeks (Id. at 158-59). In regard to whether a fetus at twenty-four weeks can consciously experience pain, Dr. White noted that the problem is "what we consider consciousness." (Id. at 162). He did admit, however, that he did not know "at what particular stage in the gestational [age] ... that an infant is conscious." (Id. at 163). Finally, Dr. White testified that the D & E procedure would also be painful for the fetus, although the nervous system is more formed at twenty to twenty-four weeks, when the D & E procedure is used on a less frequent basis (Id. at 164). Based on this testimony, this Court concludes the following: first, there is evidence that a fetus of age twenty to twenty-four weeks will react, physiologically, to noxious stimuli. Second, the evidence is inconclusive as to whether the pain impulses are transmitted to the higher levels of the brain at that age. Third, the evidence is inconclusive as to *1074 whether the D & X procedure is more painful than the D & E procedure.[29] Finally, and most importantly, neither Dr. Conomy nor Dr. White testified that a fetus at age twenty to twenty-four weeks experiences a conscious awareness of pain. Although Defendants have suggested that there needn't be a conscious awareness of pain in order to conclude that the D & X procedure is "cruel," a finding that there is such a conscious awareness of pain on the part of the fetus does appear to be relevant to this Court; so, too, is the inability of the Court to make such a finding. Some might argue that abortion is always cruel because it ends in the death of the fetus; this, however, does not provide a basis for distinguishing between different methods of abortion. If the fetus does not perceive or experience the pain, then it is hard to see how the D & X procedure could be any more cruel than any other abortion method. This Court recognizes that the subject of when a fetus attains consciousness is a matter of great debate, and that reasonable minds can differ on the issue. As the Supreme Court stated in Casey: Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code. 505 U.S. at 850, 112 S.Ct. at 2806. Until medical science advances to a point at which the determination of when a fetus becomes "conscious" can be made within a reasonable degree of certainty, neither doctors nor judges nor legislators can definitively state when an abortion procedure becomes "cruel," in the sense of when the fetus becomes aware of pain. That judgment must be made by each individual member of society. Given that there is no reliable evidence that the D & X procedure is more cruel than other methods of abortion, this Court is unable to conclude that the ban on the use of the D & X procedure serves the stated interest of preventing unnecessary cruelty to the fetus.[30] As in Danforth, the ban on the D & *1075 X procedure therefore "comes into focus, instead, as an unreasonable or arbitrary regulation designed to inhibit, and having the effect of inhibiting," second-trimester abortions prior to viability. 428 U.S. at 79, 96 S.Ct. at 2845. This conclusion does not, however, mean that the state cannot regulate the D & X procedure, short of an absolute ban. As discussed above, Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on the D & X procedure is unconstitutional, because it imposes an undue burden on the right to seek a pre-viability abortion, and because the definition of D & X is vague. Assuming, however, that the fetus is conscious of the pain involved in the D & X procedure, it appears to this Court that the state could still seek to vindicate its asserted interest in preventing arguably unnecessary cruelty to the fetus, by regulating the procedure without banning it outright. Although the testimony on this issue was not conclusive, one such possible regulation may require the physician to cut the umbilical cord prior to making an incision in the base of the skull, and to wait until the fetus dies as a result. Another possible regulation might require the use of local or general anesthetic, on the fetus or the mother. By use of such regulations, states could prevent arguably unnecessary cruelty in the abortion procedure, without taking away the right to seek a pre-viability abortion. In enacting any regulation on the D & X procedure, however, states must bear in mind that they cannot reduce either the safety or the availability of the procedure. Such an effect would render the regulation unconstitutional under both Danforth and Casey. D. The Ban on Post-Viability Abortions 1. Description of the Statute Because the challenged ban on post-viability abortions is particularly complex, it is advisable to provide a detailed overview of all of the provisions before proceeding to analyze them individually. House Bill 135 bans the performance of all post-viability abortions, unless: (1) the physician determines, in good faith and in the exercise of reasonable medical judgment, that the abortion is necessary to prevent the death of the pregnant woman or [medically necessary to prevent] a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman, [or] (2) the physician determines, in good faith and in the exercise of reasonable medical judgment, after making a determination relative to the viability of the unborn human in conformity with [§ 2919.18(A)], that the unborn human is not viable. O.R.C. § 2919.17(A)(1-2). The statute defines a serious risk of the substantial and irreversible impairment of a major bodily function as follows: [A]ny medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function, including, but not limited to, the following conditions: (1) pre-eclampsia; (2) inevitable abortion; (3) prematurely ruptured membrane; (4) diabetes; (5) multiple sclerosis. O.R.C. § 2919.16(J). This definition appears to limit the legality of post-viability abortions to situations where an abortion is required to preserve the woman's physical health, as opposed to her emotional or psychological health. If the first exception applies (the abortion is medically necessary), the physician must conform with a number of requirements governing the performance of the abortion, unless a medical emergency exists. The statute sets forth five specific conditions which must be satisfied: (a) the physician who performs ... the abortion certifies in writing that that physician has determined, in good faith and in the exercise of reasonable medical judgment, that the abortion is necessary to *1076 prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. (b) the determination of [that] physician ... is concurred in by at least one other physician who certifies in writing that the concurring physician has determined, in good faith, in the exercise of reasonable medical judgment, and following a review of the available medical records of and any available tests pertaining to the pregnant woman, that the abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. (c) the abortion is performed ... in a health care facility that has or has access to appropriate neonatal services for premature infants. (d) the physician ... terminate[s] the pregnancy in the manner that provides the best opportunity for the unborn human to survive, unless that physician determines, in good faith and in the exercise of reasonable medical judgment, that the termination of the pregnancy in that manner poses a significantly greater risk of the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman than would other available methods of abortion. (e) the physician ... has arranged for the attendance in the same room in which the abortion is to be performed ... of at least one other physician who is to take control of, provide immediate medical care for, and take all reasonable steps necessary to preserve the life and health of the unborn human immediately upon the unborn human's complete expulsion or extraction from the pregnant woman. O.R.C. § 2919.17(B)(1)(a-e). These requirements may be summarized as follows: (1) the certification requirement, (2) the second physician concurrence requirement, (3) the neonatal facility requirement, (4) the choice of method requirement, and (5) the second physician attendance requirement. In the event of a medical emergency, some or all of these requirements may be waived. The statute defines a medical emergency as: [A] condition that a pregnant woman's physician determines, in good faith and in the exercise of reasonable medical judgment, so complicates the woman's pregnancy as to necessitate the immediate performance or inducement of an abortion in order to prevent the death of the woman or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman that delay in the performance or inducement of the abortion would create. O.R.C. § 2919.16(F). If a medical emergency exists, and is such that the physician cannot comply with one or more of the conditions, the physician may perform the abortion without fulfilling those statutory requirements. The statute also creates a rebuttable presumption of viability at twenty-four weeks of gestational age. O.R.C. § 2919.17(C). The statute defines gestational age as: [T]he age of an unborn human as calculated from the first day of the last menstrual period of a pregnant woman. O.R.C. § 2919.16(B). A person who violates any of the above provisions is guilty of the crime of terminating a human pregnancy after viability, a fourth-degree felony. O.R.C. § 2919.17(D). In addition, that person may be civilly liable for compensatory and punitive damages. O.R.C. § 2307.52(B). Plaintiffs have challenged seven separate provisions of this ban: (1) the determination of non-viability, (2) the definition of serious risk of the substantial and irreversible impairment of a major bodily function, (3) the definition of medical emergency, (4) the second physician concurrence requirement, (5) the choice of method requirement, (6) the second physician attendance requirement, and (7) the presumption of viability, including the statutory definition of gestational age. This Court will consider each of these challenges separately. *1077 2. Determination of Non-viability As noted, one exception to the ban on post-viability abortions allows a performance of a late-term abortion if the fetus is determined not to be viable. House Bill 135 defines viable as: [T]he stage of development of a human fetus at which in the determination of a physician, based on the particular facts of a woman's pregnancy that are known to the physician and in light of medical technology and information reasonably available to the physician, there is a realistic possibility of the maintaining and nourishing of a life outside of the womb with or without temporary artificial life-sustaining support. O.R.C. § 2919.16(L) (emphasis added). This definition appears to allow the physician to rely on his own best clinical judgment in determining whether a fetus is viable. The statute directs, however, that the physician cannot perform a late-term abortion unless the fetus is non-viable, as determined in the following manner: [T]he physician determines, in good faith and in the exercise of reasonable medical judgment, that the unborn human is not viable, and the physician makes that determination after performing a medical examination of the pregnant woman and after performing or causing the performing of gestational age, weight, lung maturity, or other tests of the unborn human that a reasonable physician making a determination as to whether an unborn human is or is not viable would perform or cause to be performed. O.R.C. § 2919.18(A)(1) (emphasis added). Under this provision, it appears that the physician cannot rely solely on his or her own best clinical judgment in determining whether a fetus is viable; instead, that determination must be objectively reasonable as well, that is, reasonable to other physicians, as well as to the physician making the determination.[31] Plaintiff argues that because one provision (the definition of "viable") suggests that a viability determination may be made based on a physician's own best clinical judgment, whereas another provision (the determination of non-viability) requires that determination to be reasonable to other physicians as well, the statute is unclear as to what standard will be applied, and, thus, is unconstitutionally vague. This Court agrees that the quoted provisions of the statute set forth different standards for judging the legality of the physician's determination, and, thus, that Plaintiff has demonstrated a substantial likelihood of success of showing that the determination of non-viability, as required to satisfy one exception to the post-viability ban, at O.R.C. § 2919.17(A)(2), is unconstitutionally vague, because it fails to provide the physician with fair warning of what legal standard will be applied, and, therefore, of what conduct will incur criminal and civil liability.[32] *1078 3. Definition of "Serious Risk of Substantial and Irreversible Impairment of a Major Bodily Function" The other exception to the post-viability ban requires a determination that the abortion is necessary to avert the death of the pregnant woman, or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function. The statute defines the term "serious risk of the substantial and irreversible impairment of a major bodily function" as follows: [A]ny medically diagnosed condition that so complicates the pregnancy of the woman as to directly or indirectly cause the substantial and irreversible impairment of a major bodily function, including, but not limited to, the following conditions: (1) pre-eclampsia; (2) inevitable abortion; (3) prematurely ruptured membrane; (4) diabetes; (5) multiple sclerosis. O.R.C. § 2919.16(J). This definition appears to limit the legality of post-viability abortions to situations where an abortion is required to preserve the woman's physical health. Plaintiff argues that this definition is too narrow, and does not allow the physician to consider other factors which relate to the woman's health, including psychological and emotional factors. Plaintiff cites to a Supreme Court abortion case decided before abortion was legalized in Roe v. Wade, which discussed a statute that outlawed abortions except where a doctor determined that the abortion was necessary to preserve the mother's life or health: We agree ... that the medical judgment may be exercised in the light of all factors —physical, emotional, psychological, familial, and the woman's age—relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman. Doe v. Bolton, 410 U.S. 179, 192, 93 S.Ct. 739, 747, 35 L.Ed.2d 201 (1973). Plaintiff argues that House Bill 135 impermissibly limits the physician's discretion to determine whether an abortion is necessary to preserve the woman's health, because it limits the physician's consideration to medical factors relating to physical health.[33] Defendant, however, cites to the Supreme Court's more recent decision in Casey, which upheld a similar definition of serious risk of the substantial and irreversible impairment of a major bodily function, that also limited the physician's determination to consideration of medical factors. 505 U.S. at 879-81, 112 S.Ct. at 2822. Defendant argues that the Supreme Court's decision in Casey governs here. Plaintiff responds by pointing out that the challenged definition in Casey did not have the effect of preventing the performance of an abortion, altogether; instead, it merely allowed for an exception to the informed consent requirement, the 24-hour waiting period, and the parental consent provision. Thus, Plaintiff argues, the application of this definition to the challenged ban on post-viability abortions will have a more severe impact than it did in Casey, because it will completely prevent, and not merely delay, abortions that may be necessary to preserve the mother's overall health. The testimony of Jane Doe Number Two is illustrative of how severe this impact may be. This witness testified to the pain and suffering she and her husband experienced when they discovered, during her twenty-second week of pregnancy, that their baby lacked a spine, had malfunctioning kidneys, and a clubbed foot (Tr., 12/6, at 151-53). A neonatal *1079 specialist advised them that after the baby was born, it would be paralyzed, at least from the waist down, would require immediate kidney dialysis, would need major surgery within thirty minutes of birth, and would probably be hydrocephalic (have water on the brain) (Id. at 154). Before this discovery, the witness testified that all indications pointed to an uneventful pregnancy (Id. at 155). Jane Doe Number Two and her husband decided to terminate the pregnancy, rather than carry the baby to term. She explained their decision as follows: Just finding out about this, mentally, it just—it crushed both of us. We were excited. We wanted a baby very badly. We had prayed for a girl, and I guess there was guilt involved because maybe we didn't pray for [the baby to be] healthy. And you felt selfish. I kept thinking, What did I do? You know, I didn't smoke. I didn't drink. I was eating right. This has to be one of our fault's. It has to be somebody's fault in some way that we're going through this.... I couldn't imagine mentally going to term. When I found this out, it was on a Friday, and I had my [abortion] procedure scheduled for Tuesday; and just, during that time, all we did was cry, we beat ourselves up about what could we have done differently, when there was nothing we could have done. I just—if I had to carry that baby to term, I am not sure I would have chosen to have children again. Id. at 155-56. Jane Doe Number Two terminated her pregnancy by use of the D & X procedure, which was performed by Dr. Haskell. She testified that it was important to her that the fetus be intact, in order have an autopsy performed, and thereby to determine whether a genetic defect had caused the fetal anomalies (Id. at 158). The autopsy results indicated that the defect was not genetic. She and her husband have since had twin girls. Under House Bill 135, it seems probable that a physician would have been forced to determine that Jane Doe Number Two's fetus had a realistic possibility of living after birth with life-sustaining support, although its prognosis was dismal. Therefore, if this Act had been in effect, Jane Doe Number Two would have been forced to carry her baby to term, because there was no threat to her physical health, even though it seems clear that this would have been very damaging to her mental and emotional health. It is also possible that a pregnant woman who is faced with such a law, and who is carrying a fetus with severe anomalies, might feel forced to abort her pregnancy before her twenty-fourth week of pregnancy merely in order to avoid the ban, even if she would prefer to try some measure, such as fetal surgery, to mitigate or cure the anomaly. This possibility is suggested by the testimony of another of Dr. Haskell's patients, Jane Doe Number One, who terminated her most recent pregnancy on November 30, 1995. She first learned that there was a problem in her sixteenth week of pregnancy, when it was discovered that her baby had a bladder obstruction and could not urinate (Tr., 12/5, at 16-17). Once it was determined that the kidneys were functioning and that the baby was making good urine, this witness traveled to Detroit and underwent surgery to alleviate the bladder obstruction, in her eighteenth week (Id. at 17-18). That surgery was successful; however, the baby's ureter did not function properly, and the baby's right kidney failed as a consequence (Id.). In her twentieth week of pregnancy, Jane Doe Number One traveled back to Detroit, and learned that her baby suffered from "prune belly syndrome." (Id. at 19). After reading about the syndrome and consulting with their physician, the witness and her husband learned that their baby only had a twenty percent chance of survival at birth, that he would need a kidney transplant, and that he would probably die before the age of two (Id. at 19-20). Jane Doe Number One was now in her twenty-second week of pregnancy. She and her husband consulted with their own doctor and a pediatric urologist, and then decided to terminate the pregnancy. She explained why they decided to have an abortion: *1080 Because the prognosis was so poor. We had seen that the left kidney had already become involved, and the left ureter was dilated. So, we felt certain that that kidney was going to fail, and we felt that the baby was not going to survive.... It's terribly agonizing to have a baby growing inside of you and to feel him kick and to know that he won't live. It's terrible. Id. at 21. During her twenty-fourth week of pregnancy, Jane Doe Number One received an abortion by use of the D & X procedure, which was performed by Dr. Haskell. She compared her experience with the D & X procedure to a previous abortion by use of an induction procedure, by which she terminated another pregnancy with severe fetal anomalies: Physically ... there is no comparison. There was minimal pain. I was alert the entire time, and the procedure took, I would say, about an hour to an hour and a half. Physically, the [D & X] procedure is much—it's terrible to say it was easier or better, but the procedure was much easier to endure. Id. at 22-23. She testified that it was definitely helpful to have the D & X procedure available to her (Id. at 24). In addition, Jane Doe Number One expressed concern that House Bill 135 would have forced her to make a decision to terminate the baby before she had the opportunity to do everything possible to save it: In our situation, the kidneys were involved, and ... the baby's kidneys don't function until week sixteen or eighteen. So, therefore, we would not have known, or couldn't know, that there was a problem and totally tried to help the baby and make him a viable baby prior to that time. We'd have lost the opportunity.... We wouldn't have had a choice, or as many choices. Id. Because her physical health would not have been threatened by carrying the baby to term, Jane Doe Number One would not, under House Bill 135, have been permitted to terminate her pregnancy after her baby was deemed to be viable. The testimony of these two witnesses demonstrates the problems with House Bill 135's narrow definition of "serious risk of the substantial and irreversible impairment of a major bodily function," and its limitation to strictly medical factors. First, as in the case of Jane Doe Number Two, this definition will force women to carry babies to term which are likely to die before birth or immediately thereafter, or which have a prognosis so poor that its parents feel it would be best to terminate the pregnancy. This result could have a severe, negative impact on the mental and emotional health of the pregnant woman, as well as on the mental and emotional health of the baby's father. Second, as in the case of Jane Doe Number One, the possibility of being required to carry a severely deformed fetus to term might prompt pregnant women who are carrying fetuses with severe anomalies to abort before their twenty-fourth week, simply in order to avoid the ban, even if they would prefer first to attempt some measures to improve their baby's chances of survival. Finally, although there was no direct testimony from a victim of rape or incest, Dr. Hillard did testify about an eleven-year-old victim of incest, whose pregnancy was not diagnosed until approximately her twenty-second week, at which time legal charges were brought against her father (Tr., 11/8, at 52). The girl and her mother then requested that the pregnancy be terminated, and Dr. Hillard performed the procedure. Under House Bill 135, Dr. Hillard would have had to perform viability testing before terminating the pregnancy; if the fetus had been adjudged to be viable, and there were no physical threat to the girl's health, she would have been forced to carry her pregnancy to term. In this Court's view, it is inconceivable that the act of being forced to bear her father's child, could have failed to have a severe, negative, and lasting impact on this girl's emotional and psychological health. The issue of whether a state may ban post-viability abortions except where necessary to preserve the woman's physical health, even if carrying the baby to term would cause her to suffer severe mental or emotional harm, appears to be an issue of first impression before this, or any, Court. Under the authority of Doe v. Bolton, discussed above, this Court holds that a *1081 state may not constitutionally limit the provision of abortions only to those situations in which a pregnant woman's physical health is threatened, because this impermissibly limits the physician's discretion to determine what measures are necessary to preserve her health.[34]Casey is not dispositive of this issue, because it only considered restrictions which delayed, but did not prevent, pre-viability abortions; whereas, in this case, the statute will completely prevent the performance of post-viability abortions that may, in appropriate medical judgment, be necessary to preserve the health of the pregnant woman. Under Casey, such a regulation is clearly unconstitutional. 505 U.S. at 877-79, 112 S.Ct. at 2821. Accordingly, Plaintiff has demonstrated a substantial likelihood of success of showing that the Act's definition of "serious risk of the substantial and irreversible impairment of a major bodily function," which is limited to strictly medical factors in application to the ban on post-viability abortions, is unconstitutional.[35] 4. Definition of "Medical Emergency" In its explanation of its Temporary Restraining Order, granted on November 13, 1995, this Court stated that Plaintiff had demonstrated a substantial likelihood of success of showing that the medical emergency definition was unconstitutional on two grounds: first, it lacked a mens rea, or scienter, requirement, and therefore was vague; second, it did not allow physicians to rely solely on their own best clinical judgment in determining that a medical emergency existed, and so would chill physicians from exercising their best medical judgment in deciding whether such an emergency exists.[36] Most of that discussion will be repeated here. In addition, the Court will address the effect of O.R.C. § 2901.21, which could potentially allow this Court to import a scienter requirement of "recklessness" into the medical emergency definition. Before turning to the Act itself, it is advisable to define the meaning of the terms "scienter" and "mens rea", and to describe their importance in the law. The term "scienter" means "knowingly" and is "frequently used to signify the defendant's guilty knowledge." Black's Law Dictionary 1207 (5th ed.1979). The term "mens rea" refers to a "guilty mind, a guilty or wrongful purpose, a criminal intent." Id. at 889. Both of these terms require that a defendant have some degree of guilty knowledge, or some degree of blameworthiness or culpability, in order to be criminally liable. Statutes which do not contain such a requirement, and which impose criminal liability even if the defendant did not knowingly violate the law, or did not have a culpable state of mind, are known as "strict liability" statutes. There is a strong presumption in our law favoring a mens rea or scienter requirement in statutes which create criminal liability. See Staples v. United States, ___ U.S. ___, ___, 114 S.Ct. 1793, 1797, 128 L.Ed.2d 608 (1994) ("we must construe the statute in light of the background rules of common law ... in which the requirement of some mens rea for a crime is firmly embedded"); United *1082 States v. United States Gypsum Co., 438 U.S. 422, 437-38, 98 S.Ct. 2864, 2873-74, 57 L.Ed.2d 854 (1978) ("the limited circumstances in which Congress has created and this Court has recognized [strict-liability] offenses ... attest to their generally disfavored status"); Dennis v. United States, 341 U.S. 494, 500, 71 S.Ct. 857, 862, 95 L.Ed. 1137 (1951) ("the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence"). The rationale for this presumption was eloquently set forth by Justice Jackson: The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to".... The unanimity with which [courts] have adhered to the central thought that wrongdoing must be conscious to be criminal is emphasized by the variety, disparity and confusion of their definitions of the requisite but elusive mental element ... [including] such terms as "felonious intent," "criminal intent," "malice aforethought," "guilty knowledge," "fraudulent intent," "willfulness," "scienter," to denote guilty knowledge, or "mens rea," to signify an evil purpose or mental culpability. By use or combination of these various tokens, they have sought to protect those who were not blameworthy in mind from conviction of infamous common-law crimes. Morissette v. United States, 342 U.S. 246, 250-52, 72 S.Ct. 240, 243-44, 96 L.Ed. 288 (1952) (emphasis added). Although the presumption favoring a mens rea requirement is not as strong in statutes creating civil liability, because House Bill 135 imposes civil and criminal liability for the same actions, this Court must analyze the provisions of the Act in light of the presumption of a mens rea requirement. Having described the meaning and importance of a "guilty knowledge" requirement in laws creating criminal liability, this Court now turns to House Bill 135. The medical emergency exception, which is defined in Ohio Revised Code section 2919.16(F), is employed in the ban on post-viability abortions. This Court concludes that because, under the definition of medical emergency, a physician may not rely alone on his own good-faith clinical judgment in determining that a medical emergency exists, and because both the medical emergency definition and provisions imposing criminal liability for violations of section 2919.17 lack scienter requirements, Plaintiff has demonstrated a substantial likelihood of success of showing that the medical emergency definition in the Act is unconstitutional. House Bill 135 defines a medical emergency as follows: "Medical emergency" means a condition that a pregnant woman's physician determines, in good faith and in the exercise of reasonable medical judgment, so complicates the woman's pregnancy as to necessitate the immediate performance or inducement of an abortion in order to prevent the death of the pregnant woman or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman that delay in the performance or inducement of the abortion would create. O.R.C. § 2919.16(F) (emphasis added). This definition includes subjective and objective requirements: the physician must believe, himself, that the abortion is necessary, and his belief must be objectively reasonable to other physicians. Under this definition, a finding that the physician failed to act in good faith is therefore not necessary to impose civil and criminal liability. One could act in good faith and according to one's own best medical judgment, and yet incur civil and criminal liability if, after the fact, the exercise of that medical judgment is determined by others to have been not objectively reasonable. In other words, physicians need not act willfully or recklessly in determining that a medical emergency exists in order to incur criminal liability; instead, they face liability even if they act in good faith, and *1083 according to their own best (albeit, in the later opinion of others, mistaken) medical judgment. Thus, this definition appears to create strict liability, that is, liability even if the physician acts in good faith, and without a culpable mental state, to comply with the statute. Although this Court is unaware of any case which has considered the constitutionality of a similar provision, there are three cases which this Court finds to be relevant. In Colautti v. Franklin, 439 U.S. 379, 396, 99 S.Ct. 675, 686, 58 L.Ed.2d 596 (1979), the Supreme Court held unconstitutional a Pennsylvania provision which required physicians to determine non-viability before performing an abortion. If a physician failed to abide by specific requirements where there was "sufficient reason" to believe that the fetus "may be viable," he was civilly and criminally liable. Id. at 394, 99 S.Ct. at 685. No language in the statute indicated that liability was to be predicated on a culpable state of mind. Id. at 380 n. 1, 99 S.Ct. at 678 n. 1. The determination of non-viability was to be based on the physician's "experience, judgment, or professional competence." Id. at 380 n. 1, 99 S.Ct. at 678 n. 1. In concluding that the provision did not contain a scienter requirement, the Court found that neither Pennsylvania criminal law nor the Act itself "requires that the physician be culpable in failing to find sufficient reason to believe that the fetus may be viable." Id. at 394-95, 99 S.Ct. at 685. The Court also noted that the subjective standard in the Act which is "keyed to the physician's individual skills and abilities ... is different from a requirement that the physician be culpable or blameworthy for his performance...." Id. at 395 n. 12, 99 S.Ct. at 685 n. 12. The Supreme Court then held the provision void for vagueness due to its lack of a mens rea requirement: This Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea. Because of the absence of a scienter requirement in the provision directing the physician to determine whether the fetus is or may be viable, the statute is little more than a `trap for those who act in good faith.' The perils of strict criminal liability are particularly acute here because of the uncertainty of the viability determination itself. As the record in this case indicates, a physician determines whether or not a fetus is viable after considering a number of variables.... In the face of these uncertainties, it is not unlikely that experts will disagree.... The prospect of such disagreement, in conjunction with a statute imposing strict civil and criminal liability for an erroneous determination of viability, could have a profound chilling effect on the willingness of physicians to perform abortions ... in the manner indicated by their best medical judgment. Id. at 395-96, 99 S.Ct. at 686 (citations omitted) (emphasis added). Colautti is directly applicable to this case, insofar as the determination of whether a medical emergency exists is similarly fraught with uncertainty, and is therefore equally susceptible to being disputed by experts at a later date, thereby resulting in criminal liability even where the physician acted in good faith. As noted, the medical emergency exception in House Bill 135 contains both a subjective and an objective requirement. Because both of these requirements must be met in order for the physician to avoid liability, and because there is no scienter requirement in this provision, a physician who performs a post-viability abortion under the medical emergency exception may be held liable even if he or she acted in good faith, as long as the physician was later determined, in the eyes of others, using 20/20 hindsight, to have acted unreasonably. Plaintiffs have demonstrated a substantial likelihood of success of showing that, given the short amount of time in which every decision regarding a medical emergency must be made, and given the varying, highly individual factors which must be considered for each case, it is not unlikely that even where a physician acts in good faith, experts may later disagree as to the existence, immediacy, or extent of a medical emergency. As in Colautti, this prospect of disagreement, combined with the strict civil and criminal liability for even good-faith *1084 determinations, could chill physicians from performing post-viability abortions even where it is their best medical judgment that an abortion is required to preserve the life or health of a patient. In so finding, this Court acknowledges that the "undue burden" analysis in Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), applies only to pre-viability abortions, and therefore does not apply to this provision governing the performance of post-viability abortions. Although it may seem that this would render any "chilling effect" irrelevant, this is manifestly not the case. In Casey, the Supreme Court recognized that the State's interest in the life of the fetus allows it to regulate or proscribe abortions after viability, except "where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." 505 U.S. at 879, 112 S.Ct. at 2821. Such is the situation here. If physicians were chilled from acting according to their own best medical judgment when determining whether a post-viability abortion is necessary to save the life of the mother, and were forced to resolve even the smallest doubt in favor of a refusal to act, this could have a profound, negative impact on the State's interest in preserving the life and health of the mother, and on the pregnant woman's interest in her own life and health. It is this Court's belief that such a situation would offend the Constitution to an even greater degree than those situations in which a chilling effect precludes the performance of elective pre-viability abortions, which are not necessary to preserve the mother's life or health. Therefore, the analysis in Colautti is applicable to this case. A more recent case which addresses this issue is Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452 (8th Cir.1995). In that case, the Court invalidated provisions regarding the performance of abortions which created civil and criminal liability for violations of South Dakota's parental-notice, mandatory-information, and medical-emergency requirements. The medical emergency provision in that case did not require the physician either to act in good faith, or to apply reasonable medical judgment; instead, it merely provided: If a medical emergency compels the performance of an abortion, the physician shall inform the female, prior to the abortion if possible, of the medical indications supporting his judgment that an abortion is necessary to avert her death or that delay will create serious risk of substantial and irreversible impairment of a major bodily function. Id. at 1455 n. 4. Other provisions imposed civil and criminal liability for violation of the medical emergency provision: [§ 34-23A-22] If an abortion occurs which is not in compliance with [the medical emergency provision], the person upon whom such an abortion has been performed ... may maintain an action against the person who performed the abortion for ten thousand dollars in punitive damages and treble whatever actual damages the plaintiff may have sustained. [34-23A-10.2] A physician who violates [the medical emergency provision] is guilty of a Class 2 misdemeanor. Id. at 1455-56 n. 5-6. None of these provisions contained a scienter or mens rea requirement on their face. The District Court found that the provision creating criminal liability lacked a mens rea requirement, which "made it unconstitutionally vague, creating a `chilling effect' so that physicians, who cannot guess the standard under which the courts will judge their conduct, would choose not to act at all." Id. at 1463. The District Court also invalidated the civil liability provision on similar grounds, after concluding that strict civil liability created an undue burden because it made it unlikely that any physician would perform abortions. Id. The Eighth Circuit affirmed the lower court's decision, due to the statute's lack of a scienter requirement. It agreed that the provision creating criminal liability would create an undue burden by chilling the willingness of physicians to perform abortions. Id. at 1465. It further agreed that the provision creating civil liability — which did not require a finding that the defendant acted *1085 willfully, wantonly, or maliciously, before awarding punitive damages — was invalid: The potential civil liability for even good-faith, reasonable mistakes is more than enough to chill the willingness of physicians to perform abortions in South Dakota. We therefore hold that [this provision] is an undue burden on a woman's right to choose whether to terminate her pre-viability pregnancy. Id. at 1467. As noted, the medical emergency exception in House Bill 135 could impose civil and criminal liability even where the physician acted in good faith. Plaintiffs have demonstrated a substantial likelihood of success of showing that, given the fact that reasonable physicians might disagree as to the existence or immediacy of a medical emergency, this provision would create liability even for good-faith, reasonable mistakes. As in Miller, this result would chill the willingness of physicians to perform post-viability abortions even where they are necessary, in a medical emergency, to preserve the life and health of the mother. A third case which supports this Court's findings is the Eighth Circuit's decision to uphold the North Dakota definition of a medical emergency, because it allowed the physician to rely on his or her own "best clinical judgment" in determining whether an emergency existed, and because the statute contained a scienter requirement. Fargo Women's Health Org. v. Schafer, 18 F.3d 526, 534 (8th Cir.1994) ("It is the exercise of clinical judgment that saves the statute from vagueness ... In addition, the North Dakota Act contains a scienter requirement that we believe prevents a finding of vagueness."). Accord Barnes v. Moore, 970 F.2d 12, 15 (5th Cir.1992) (upholding medical emergency definition which allowed physician to rely on "best clinical judgment" and contained scienter requirement for imposition of criminal liability). The statute at issue in Schafer defined a "medical emergency" as: that condition which, on the basis of the physician's best clinical judgment, so complicates a pregnancy as to necessitate an immediate abortion to avert the death of the mother or for which a twenty-four hour delay will create grave peril of immediate and irreversible loss of major bodily function. Id. at 527, n. 3 (emphasis added). Although the North Dakota statute did not expressly contain a scienter requirement, North Dakota criminal statutes which neither specify culpability, nor explicitly provide that culpability is not required, are construed as requiring a "willful" violation of the statute, which is further defined as conduct done "intentionally, knowingly, or recklessly." Id. at 534-35. Thus, although the statute containing the medical emergency definition was silent on the question of intent, the Eighth Circuit imported a scienter requirement into the statute. The medical emergency definition in House Bill 135 differs in two significant respects from the definition in Schafer. First, the definition in House Bill 135 does not allow the physician to rely solely on his or her own best, good-faith medical judgment; instead, in addition to requiring that he or she act in good faith, it requires the physician to apply "reasonable medical judgment," which is an objective requirement, subject to second-guessing by other physicians. Second, the medical emergency provision creates strict liability because it lacks a scienter requirement; in addition, the provisions creating criminal liability for violations of the ban on post-viability abortions, and of the viability testing requirement — both of which apply the medical emergency exception — lack scienter requirements. Therefore, the medical emergency exception in House Bill 135 appears to fail both of the tests upon which the North Dakota definition was held to be valid. In its earlier opinion which explained its Temporary Restraining Order, this Court incorrectly stated that Ohio law does not allow courts to import a scienter requirement into criminal statutes that are silent on the issue of whether intent is a required element, relying on State v. Curry, 43 Ohio St.2d 66, 330 N.E.2d 720 (1975) ("If the statute is silent on the question of intent, intent is not an element of the crime."). Plaintiff correctly pointed out that an Ohio law enacted immediately prior to Curry (although inapplicable to *1086 the facts in Curry, which arose prior to the effective date of the statute) might, however, allow this Court to import a scienter requirement into the medical emergency definition, even though that definition does not include any intent requirement. Section 2901.21(B) of the Ohio Revised Code provides that: When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in such section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense. Thus, if the statute does not plainly indicate an intent to impose strict liability, Ohio courts could import a scienter requirement of recklessness into the statute. For two reasons, it is this Court's opinion that Ohio courts would decline to import a recklessness standard into the statute's requirement that a physician act "in the exercise of reasonable medical judgment" when determining whether a medical emergency exists. First, both sections of the statute which apply the medical emergency definition — the ban on post-viability abortions, and the viability testing requirement, discussed infra — plainly indicate an intention to impose strict liability. Both of these sections state that "no person shall" perform the proscribed acts, and fail to specify any mental state. Ohio courts have held that similar laws which lack culpable mental states, and contain the term "no person shall ...," plainly indicate an intention to impose strict liability. State v. Cheraso, 43 Ohio App.3d 221, 223, 540 N.E.2d 326 (1988); Village of Bridgeport v. Bowen, 1995 WL 539605, at *3, 1995 Ohio App. LEXIS 3892, at *6 (Ohio Ct.App.1995). In addition, it is significant that although the post-viability ban and the viability testing requirement lack scienter requirements, the ban on use of the D & X procedure does contain a scienter requirement.[37] Ohio courts have held if portions of a statute specify a culpable mental state, whereas other portions of the statute are silent as to the culpable mental state, this is a plain indication of an intent to impose strict liability in the latter sections or portions. State v. Wac, 68 Ohio St.2d 84, 87, 428 N.E.2d 428 (1981); City of Brecksville v. Marchetti, 1995 WL 693091, 1995 Ohio App. LEXIS 5164 (Ohio Ct.App.1995). Based on the foregoing, this Court finds that the ban on post-viability abortions, and the viability testing requirement, "plainly indicate" an intention to create strict liability. Even if this were not the case, however, Ohio courts would be unable to import a recklessness requirement without, in effect, rewriting the statute. This is because the statute's standard of "reasonableness," which imposes criminal liability if a physician acts unreasonably in determining that a medical emergency exists, is a lower standard for incurring criminal liability, from the perspective of the actor, than the standard of "recklessness."[38] If courts were to import a recklessness requirement into the medical emergency definition per the above-quoted section 2901.21(B), physicians would no longer be liable if they acted unreasonably, i.e., negligently; instead, they would have to act recklessly in order to be liable. This would contradict the legislature's intent to create liability if a physician fails to act "in the exercise of reasonable medical judgment," and would amount to rewriting the statute, which courts *1087 may not do. Therefore, this Court concludes that a scienter requirement may not be imported into the definition of medical emergency. On the basis of the foregoing, this Court concludes that the Plaintiffs have shown a substantial likelihood of demonstrating that the medical emergency exception in O.R.C. § 2919.16(F) is unconstitutional on two grounds: first, it appears to be vague, because both the definition of medical emergency, and the provisions imposing criminal (and civil) liability for violations of the post-viability ban and the viability testing requirement, lack scienter requirements; second, the requirement that a physician's determination be objectively reasonable — that is, reasonable to other physicians — would appear to create a chilling effect that would prevent physicians from performing post-viability abortions where, in their own best judgment, an abortion is necessary to preserve the life or health of the mother. 5. Second Physician Concurrence Requirement If it is determined that a post-viability abortion is necessary to save the life of the mother, or to avoid a serious risk of the substantial and irreversible impairment of a major bodily function of the mother, the physician who performs the abortion must comply with a number of conditions governing the performance of the abortion. One of these provisions requires that at least one other doctor concur, in writing, as to the necessity of the abortion: The determination of the physician who performs ... the abortion ... is concurred in by at least one other physician who certifies in writing that the concurring physician has determined, in good faith, in the exercise of reasonable medical judgment, and following a review of the available medical records of and any available tests [sic] results pertaining to the pregnant woman, that the abortion is necessary to prevent the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman. O.R.C. § 2919.17(B)(1)(b). Plaintiff argues that this requirement is unconstitutional because it undermines the physician's judgment, imposes unnecessary and cumbersome delays, and will be difficult to satisfy because few physicians will be willing to concur, in writing, to an abortion's necessity.[39] In Doe v. Bolton, the Supreme Court struck down a Georgia statute which required a physician to obtain confirmation of his decision to perform an abortion, from two other doctors. The Court reasoned that this requirement interfered with the physician's clinical judgment and discretion: The statute's emphasis ... is on the attending physician's `best clinical judgment that an abortion is necessary.' That should be sufficient. The reasons for the presence of the confirmation step in the statute are perhaps apparent, but they are insufficient to withstand constitutional challenge.... If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies. Required acquiescence by co-practitioners has no rational connection with a patient's needs and unduly infringes on the physician's right to practice. 410 U.S. at 199, 93 S.Ct. at 751. This holding by the Supreme Court appears to govern the analysis of the concurrence requirement in this case, and Defendants have made no argument as to why it should not so apply. Accordingly, this Court finds that Plaintiff has demonstrated a substantial likelihood of success of showing that the second physician concurrence requirement in House Bill 135 is *1088 unconstitutional, because it impermissibly interferes with the physician's discretion. Additionally, it appears to this Court that this requirement may be unconstitutional for the same reasons which render the medical emergency definition likely to be unconstitutional; to wit, the requirement that a second physician concur "in good faith [and] in the exercise of reasonable medical judgment" imposes criminal and civil liability on such concurring physicians who act according to their own best clinical judgment, without any criminal intent. This is likely to create a chilling effect which will deter physicians from concurring, in writing, that an abortion is medically necessary; this will chill the performance of abortions which are necessary to preserve the life or health of the mother. Accordingly, this Court finds that Plaintiff has demonstrated a substantial likelihood of success of showing that the second physician concurrence requirement in House Bill 135 is unconstitutional, because it is likely to chill the performance of post-viability abortions which are necessary to preserve the life or health of the mother. 6. Choice of Method Requirement Under House Bill 135, another condition which must be satisfied by a doctor performing a post-viability abortion is the so-called "choice of method" requirement: The physician who performs ... the abortion terminates ... the pregnancy in the manner that provides the best opportunity for the unborn human to survive, unless that physician determines, in good faith and in the exercise of reasonable medical judgment, that the termination of the pregnancy in that manner poses a significantly greater risk of the death of the pregnant woman or a serious risk of the substantial and irreversible impairment of a major bodily function of the pregnant woman than would other available methods of abortion. O.R.C. § 2919.17(B)(1)(d) (emphasis added). Plaintiff argues that the requirement that a particular method of abortion be used unless it would pose a significantly greater risk of harm to the woman, is unconstitutional, because it requires the physician to "trade off" the woman's health for that of the fetus. In Colautti v. Franklin, 439 U.S. 379, 400, 99 S.Ct. 675, 688, 58 L.Ed.2d 596 (1979) the Supreme Court held that a statute which "requires the physician to make a `trade-off' between the woman's health and additional percentage points of fetal survival" posed serious ethical and constitutional difficulties. Later, in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 769, 106 S.Ct. 2169, 2183, 90 L.Ed.2d 779 (1986), the Supreme Court invalidated a "choice of method" provision which was remarkably similar to the challenged provision in House Bill 135, reasoning that the words "significantly greater medical risk" required the woman to bear an additional, increased risk to her health, and so was unconstitutional. The provision at issue in Thornburgh read: Every person who performs or induces an abortion after an unborn child has been determined to be viable shall exercise that degree of professional skill, care and diligence ... and the abortion technique employed shall be that which would provide the best opportunity for the unborn child to be aborted alive unless, in the good faith judgment of the physician, that method or technique would present a significantly greater medical risk to the life or health of the pregnant woman.... Any person who intentionally, knowingly, or recklessly violates that provisions of this subsection commits a felony of the third degree. 476 U.S. at 768 n. 13, 106 S.Ct. at 2182 n. 13 (emphasis added). The only differences between this statute and the one at issue in the present case are: first, that the provision in Thornburgh allowed the physician to rely solely on his best clinical judgment, whereas the provision in House Bill 135 does not; second, that the statute in Thornburgh required a culpable mental state in order to impose criminal liability, whereas House Bill 135 does not require any criminal intent. The Thornburgh provision therefore seems far less egregious than that in House Bill 135, which, because it does not allow the physician to rely solely on his or her best clinical judgment, and imposes criminal liability *1089 even if there were no criminal intent, seems likely to have a chilling effect on the physician's exercise of discretion in determining which abortion method may be used without causing a "significantly" greater risk to the woman's health. This chilling effect would negatively impact the woman's life and health. Accordingly, this Court finds that Plaintiff has demonstrated a substantial likelihood of success of showing that the choice of method provision in House Bill 135 is unconstitutional, because it will impermissibly interfere with the physician's exercise of discretion, to the detriment of the pregnant woman's health. Given the similarity between the provision in Thornburgh and the challenged provision in this case, this Court further finds that Plaintiff has demonstrated a substantial likelihood of success of showing that the choice of method requirement is unconstitutional, because it "trades off" the health of the mother for that of the fetus, and requires her to bear an increased medical risk. 7. Second Physician Attendance Requirement Another requirement in House Bill 135 pertaining to the provision of post-viability abortions requires that a second physician be present when the abortion is performed, to care for the fetus: The physician who performs ... the abortion has arranged for the attendance in the same room in which the abortion is to be performed ... of at least one other physician who is to take control of, provide immediate medical care for, and take all reasonable steps necessary to preserve the life and health of the unborn human immediately upon the unborn human's complete expulsion or extraction from the pregnant woman. O.R.C. § 2919.17(B)(1)(e). Plaintiff also challenges the constitutionality of this provision. The Supreme Court has considered similar provisions in two cases. In Planned Parenthood Ass'n of Kansas City v. Ashcroft, 462 U.S. 476, 485-86, 103 S.Ct. 2517, 2522, 76 L.Ed.2d 733 (1983), the Supreme Court upheld a second physician attendance requirement because it served the state's compelling interest in preserving the life of the fetus. Although there was no clear medical emergency exception in that statute, the Court construed the requirement as allowing for an exception in medical emergencies. 462 U.S. at 485 n. 8, 103 S.Ct. at 2522 n. 8. In Thornburgh, however, the Court struck down a second physician attendance requirement, because it did not contain a valid medical emergency exception. 476 U.S. at 771, 106 S.Ct. at 2184. Therefore, the constitutionality of the second physician attendance requirement in House Bill 135 appears to depend upon the validity of the statute's medical emergency exception. As discussed above, this Court has found that Plaintiff has demonstrated a substantial likelihood of success of showing that the medical emergency exception in House Bill 135 is unconstitutional, because it lacks a scienter requirement, and is thus vague, and because its objective reasonableness standard will chill physicians from determining that a medical emergency exists. For that reason, this Court finds that Plaintiff has also demonstrated a substantial likelihood of success of showing that the second physician attendance requirement in House Bill 135 is unconstitutional.[40] 8. Rebuttable Presumption of Viability For purposes of the ban on post-viability abortions, House Bill 135 creates a rebuttable presumption "that an unborn child of at least twenty-four weeks of gestational age is viable." O.R.C. § 2919.17(C). The statute defines gestational age as "the age of an unborn human as calculated from the first day of the last menstrual period of a pregnant woman." O.R.C. § 2919.16(B). Plaintiff challenges this requirement on three grounds. First, Plaintiff argues that a rebuttable presumption of viability impermissibly *1090 limits the physician's discretion to determine viability. Second, Plaintiff argues that because the last menstrual period (LMP) method of calculating gestational age generally produces an age that is two weeks earlier than the age from conception, the presumption actually attaches at twenty-two weeks, when fetuses are not viable, and so is necessarily invalid. Finally, Plaintiff argues that because the presumption can only be rebutted after the physician is arrested and prosecuted, it will chill physicians from determining that fetuses of a gestational age of twenty-four or more weeks are not viable, and will constitute an undue burden on the right to seek a pre-viability abortion. This Court declines to consider the likelihood of success of any of these arguments. Although the Supreme Court's decision in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), indicates that it may be constitutionally permissible for a state to impose a rebuttable presumption of viability,[41] this Court finds it unnecessary to reach this issue at this time, because, as was discussed supra, Plaintiff has demonstrated a substantial likelihood of success of showing that the determination of non-viability in House Bill 135 is unconstitutionally vague, as the objective standard in that determination conflicts with the purely subjective standard in the statute's definition of viable in O.R.C. § 2919.16(L). If this Court determines, after a hearing on the merits, that the determination of non-viability is unconstitutional, then any portion of the statute which requires a physician to either determine viability, or rebut a presumption of viability, must, likewise, be invalidated. Accordingly, the Court finds it unnecessary to reach any of Plaintiff's arguments, in order to find that Plaintiff has demonstrated a substantial likelihood of success of showing that the rebuttable presumption of viability is unconstitutional, for the reason that the statute's mandated determination of non-viability is invalid. E. Viability Testing Requirement The third major portion of House Bill 135 creates a viability testing requirement at the twenty-second week of pregnancy, which must be complied with before an abortion after that time may be performed: Except as provided in [the medical emergency exception], no physician shall perform ... an abortion upon a pregnant woman after the beginning of her twenty-second week of pregnancy unless, prior to the performance [of] ... the abortion, the physician determines, in good faith and in the exercise of reasonable medical judgment, that the unborn human is not viable, and the physician makes that determination after performing a medical examination of the pregnant woman and after performing or causing the performing of gestational age, weight, lung maturity, or other tests of the unborn human that a reasonable physician making a determination as to whether an unborn human is or is not viable would perform or cause to be performed. O.R.C. § 2919.18(A)(1). In addition to performing these tests, the physician may not perform the abortion "without first entering the determination ... and the associated findings of the medical examination and tests described ... in the medical records of the pregnant woman." § 2919.18(A)(2). The physician need not comply with either of these requirements if a medical emergency exists. § 2919.18(A)(3). Violation of this section of the Act is a fourth degree misdemeanor. § 2919.18(B). Although a viability testing requirement was upheld in Webster, 492 U.S. at 490, 109 S.Ct. at 3041, the viability testing requirement in House Bill 135 appears to be unconstitutional for two reasons. First, for the *1091 reasons given in an earlier part of this opinion, the statute's determination of non-viability appears to be unconstitutionally vague. Second, for the reasons also given in an earlier part of this opinion, the definition of medical emergency appears to lack a mens rea requirement, which creates vagueness, and also appears likely to create a chilling effect that would unconstitutionally jeopardize the life or health of pregnant women needing an abortion, due to its requirement that a physician's determination that a medical emergency exists be objectively reasonable. Accordingly, Plaintiff has demonstrated a substantial likelihood of success of showing that the challenged viability testing requirement is unconstitutional, for two reasons. First, it lacks a valid medical emergency exception. Second, the definition of viable in O.R.C. § 2919.16(L), which applies to this viability testing requirement,[42] allows the physician to rely solely on his or her own best clinical judgment, whereas this mandated determination of non-viability also imposes a requirement that the physician's determination be objectively reasonable; this conflict creates an ambiguity which appears to render this portion of the Act unconstitutionally vague, because the physician has no clear guidance as to what standard will be applied in judging whether he or she is criminally and civilly liable. III. Whether Issuance of an Injunction Will Save Plaintiff from Irreparable Injury Having considered the substantial likelihood of Plaintiff's success on the merits, this Court now turns to the remaining prongs governing the issuance of a preliminary injunction. The second prong of the preliminary injunction standard requires the Court to make findings as to whether the issuance of an injunction is necessary to save the plaintiff from irreparable injury. Importantly, Plaintiff Haskell has standing in this lawsuit not only to raise his own rights, but also to raise the rights of his patients. Therefore, this Court need not decide whether the harm which Plaintiff Haskell will suffer if prosecuted criminally or sued civilly under the Act, is irreparable. Instead, this Court will focus on the harm which will be suffered by his patients. Both Jane Doe Number One and Jane Doe Number Two testified that they chose to terminate their pregnancies, late in the second trimester, after discovering that their unborn children had severe anomalies. If this Act had been in effect, either or both of these women may have been prevented from terminating their pregnancies, under either the provisions of the viability testing requirement, or the provisions of the post-viability ban. In both cases, the fetus may well have been determined to have been viable, and would not have been able to be aborted. In this Court's opinion, the cost of being forced by the state to carry to term a child without a spine, or functioning kidneys, or with other such severe defects, is beyond description. It is difficult to imagine how horrible it would be to knowingly carry a child to term who is dying, or who has no reasonable chance of normal physical development.[43] In addition, it is impossible to calculate the harm which would be suffered by a pregnant woman who, though she would prefer to try surgery or other methods to mitigate her unborn child's severe defects, is compelled by this ban on post-viability abortions — which only allows an abortion if her physical health is in danger — to terminate her pregnancy before the ban can apply to her, instead of *1092 taking measures to help her unborn child, because she feared the emotional and mental cost of carrying a child to term who had such severe defects. It is difficult to imagine a clearer example of irreparable harm, than is evidenced by these two scenarios. As for the harm suffered by pregnant women who are unable to terminate their pregnancies by means of the D & X procedure, Jane Doe Number Two testified that the procedure was helpful to her because it allowed her fetus to be aborted intact, which was necessary for the performance of an autopsy. After learning that the defect was not genetic, she and her husband had more children. Jane Doe Number One testified that the D & X procedure was much easier to endure than an earlier abortion performed by use of an induction procedure. In addition, this Court has held that Plaintiff has demonstrated a substantial likelihood of success of showing that the alternatives to the D & X procedure — induction methods, hysterotomies, and hysterectomies — are neither as safe to the mother's health, nor as available to women seeking non-therapeutic abortions. Pregnant women in this state who are unable to terminate their pregnancies by means of the D & X procedure may therefore suffer irreparable harm, either because other abortion methods are not as safe for their health, or because other abortion methods are not as available to them. Based on the above, this Court concludes that a preliminary injunction would serve to prevent irreparable injury to the patients of Plaintiff Haskell. IV. Whether Issuance of an Injunction Would Harm Others The third prong of the preliminary injunction standard traditionally requires this Court to "balance the equities" in considering whether the harm to the Defendant resulting from issuing the injunction, would outweigh the harm to the Plaintiff resulting from denying the injunction. As far as the Defendants' interests are concerned, a preliminary injunction will merely maintain the status quo while the constitutionality of this legislation is decided. The potential for irreparable injury to some of Plaintiff's patients has already been discussed; in addition, other pregnant women may be harmed by specific provisions of the Act. For example, the objective reasonableness standard in the medical emergency definition may chill the discretion of a pregnant woman's physician in determining that a medical emergency exists, to the detriment of her health. As another example, the apparent vagueness of the determination of non-viability may chill physicians from determining that certain fetuses are not viable, and, therefore, may place an undue burden in the path of a woman seeking a pre-viability abortion. In this Court's opinion, therefore, the harm to the patients whom Plaintiff represents, should the preliminary injunction be denied, would be greater than the harm to the Defendants, if the injunction were granted. V. Whether Issuance of an Injunction Would Serve the Public Interest The final prong of the preliminary injunction standard requires this Court to determine whether the issuance of an injunction would serve the public interest. In this Court's opinion, the public interest is best served by a full and fair hearing on the merits of the constitutionality of this legislation, particularly in view of the fact that the Plaintiff has demonstrated a substantial likelihood of success of showing that numerous provisions in House Bill 135 are unconstitutional. Accordingly, the Court concludes that the public interest would be served by the issuance of a preliminary injunction. VI. Conclusion/Conclusions of Law To summarize, this Court has held that all four prongs of the preliminary injunction standard weigh in favor of granting a preliminary injunction, which enjoins enforcement of all provisions of House Bill 135. In addition, this Court has held: (1) it has federal question jurisdiction, under 28 U.S.C. § 1331, over this constitutional challenge to a state statute; *1093 (2) Plaintiff Haskell may seek pre-enforcement review of House Bill 135, and this lawsuit is therefore ripe; (3) Plaintiff Haskell has standing to bring this action, and may assert both his own rights and the rights of his patients; (4) the Salerno standard no longer applies to a facial challenge to pre-viability abortion regulations; (5) the Salerno standard does not apply to a facial challenge to post-viability abortion regulations; (6) although a state may proscribe most abortions subsequent to viability, the state may not take away a pregnant woman's right to have a post-viability abortion where, in appropriate medical judgment, such an abortion is necessary to preserve her life or health — accordingly, strict scrutiny should not be utilized in this analysis; (7) Plaintiff has demonstrated a substantial likelihood of success of showing that the definition of "Dilation and Extraction procedure" in O.R.C. § 2919.15(A) is unconstitutional, because of vagueness; (8) Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on use of the D & X procedure in § 2919.15(B) is unconstitutional, because the state may not ban an abortion procedure unless there are safe and available alternatives, and because this ban may chill the exercise of a woman's right to a pre-viability abortion; (9) Plaintiff has demonstrated a substantial likelihood of success of showing that the ban on use of the D & X procedure does not serve the stated interest of preventing unnecessary cruelty to the fetus; (10) Plaintiff has demonstrated a substantial likelihood of success of showing that the mandated determination of non-viability in § 2919.18(A)(1), as applied to the post-viability ban (§ 2919.17(A)(2)) and the viability testing requirement (§ 2919.18), is unconstitutional, because the objective standard in that determination is inconsistent with the purely subjective standard in the definition of viable in § 2919.16(L); (11) Plaintiff has demonstrated a substantial likelihood of success of showing that the definition of serious risk of the substantial and irreversible impairment of a major bodily function in § 2919.16(J), as it applies to one allowable exception to the ban on post viability abortions, in § 2919.17(A)(1), is unconstitutional, because its limitation to factors relating solely to physical health impermissibly restricts the physician's determination of whether an abortion is necessary to preserve the health of the pregnant woman; (12) Plaintiff has demonstrated a substantial likelihood of success of showing that the definition of medical emergency in § 2919.16(F), as it applies to the post-viability ban (§ 2919.17) and the viability testing requirement (§ 2919.18), is unconstitutional, because it lacks a scienter requirement, and thus is vague, and because it does not allow the physician to rely on his or her own best clinical judgment that a medical emergency exists, and so may chill physicians from determining that a medical emergency exists even where necessary to preserve the pregnant woman's life or health; (13) Plaintiff has demonstrated a substantial likelihood of success of showing that the second physician concurrence requirement in § 2919.17(B)(1)(b) is unconstitutional, because it impermissibly limits the primary physician's discretion, and because it may chill the performance of post-viability abortions that are necessary to preserve the life or health of the mother; (14) Plaintiff has demonstrated a substantial likelihood of success of showing that the choice of method requirement in § 2919.17(B)(1)(d) is unconstitutional, because it requires the woman to bear an increased medical risk, forces the physician to "trade off" the pregnant woman's health for that of the fetus, and impermissibly interferes with the physician's exercise of discretion, to the detriment of the pregnant woman's health; (15) Plaintiff has demonstrated a substantial likelihood of success of showing that the second physician attendance requirement in § 2919.17(B)(1)(e) is unconstitutional, because the medical emergency exception appears to be unconstitutional; (16) Plaintiff has demonstrated a substantial likelihood of success of showing that the *1094 rebuttable presumption of viability in § 2919.17(C) is unconstitutional, because the mandated determination of non-viability in House Bill 135 appears to be unconstitutional; (17) Plaintiff has demonstrated a substantial likelihood of success of showing that the viability testing requirement in § 2919.18(A)(1) is unconstitutional, because the medical emergency definition appears to be unconstitutional, and because the mandated determination of non-viability appears to be unconstitutional. This Court further concludes that the issuance of an injunction will prevent irreparable injury to the patients of Plaintiff Haskell, that such injury outweighs the injury which will be suffered by Defendants if this injunction is issued, and that the public interest would be served by the issuance of this preliminary injunction.[44] WHEREFORE, based upon the aforesaid, this Court orders that the Plaintiff's Motion for a Preliminary Injunction be GRANTED, effective as of the filing of this opinion. Accordingly, Defendants, their employees, agents, and servants are preliminarily enjoined from enforcing any provision of House Bill 135. Having considered the issue of bond as is required by Rule 65 of the Federal Rules of Civil Procedure, this Court concludes that no bond should be required of the Plaintiff. Counsel listed below will note that a brief telephone conference will be held, between Court and Counsel, beginning at 4:00 p.m., Eastern time, on Friday, December 22, 1995, for the express purpose of determining further procedures to be followed in this litigation. Specifically, Counsel should be prepared to discuss whether they wish to proceed to trial upon the merits of the captioned cause, at a date in mid-1996, or whether, in the alternative, Defendants wish to take an immediate appeal of this decision to the Sixth Circuit Court of Appeals, pursuant to 28 U.S.C. § 1292(a)(1). NOTES [1] According to the Supreme Court's opinion in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), until the last half of the nineteenth century, most states used the English common-law approach to abortion, which only criminalized abortion after the fetus "quickened," or moved in utero, which typically occurred during the sixteenth to eighteenth weeks of pregnancy. Id. at 132, 138, 93 S.Ct. at 716, 719. In the latter half of the nineteenth century, a number of states enacted statutes which criminalized abortion, at any stage of pregnancy. Id. at 139, 93 S.Ct. at 720. By the end of the 1950s, most states banned all abortions except those necessary to preserve the life or health of the mother. Id. In Roe, the Supreme Court held that a pregnant woman has a constitutional right to privacy, under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, which prevents states from proscribing abortion before viability. 410 U.S. at 147-65, 93 S.Ct. at 724-33. Roe also established a trimester framework: during the first trimester, the State could not interfere with the woman's decision to have an abortion; during the second trimester and until viability, the State could regulate abortion in ways that were reasonably related to the mother's health; after viability, the State could proscribe abortion, except where necessary to preserve the life or health of the mother. Id. at 163-65, 93 S.Ct. at 732-33. In Planned Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), the Supreme Court reaffirmed Roe's "central holding" that, prior to viability, the State could not prohibit any woman from obtaining an abortion, because of the woman's liberty interest as protected by the Fourteenth Amendment to the United States Constitution. In contrast to Roe, however, the Court placed a greater emphasis on the State's interest in potential life throughout pregnancy. Accordingly, the Court discarded the trimester framework in Roe, and allowed the State to regulate pre-viability abortions as long as the regulation did not impose an "undue burden": that is, as long as the regulation had neither "the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." Id. at 877, 112 S.Ct. at 2820-21. In the few years since Casey was decided, several states have enacted regulations on previability abortions, and the constitutionality of some of these regulations has been challenged. See, e.g., Planned Parenthood v. Miller, 63 F.3d 1452 (8th Cir.1995) (striking down parental notification provisions, criminal provisions, and civil penalty provisions; upholding mandatory information requirements); Jane L. v. Bangerter, 61 F.3d 1493 (10th Cir.1995) (striking down ban on abortions after 20 weeks, fetal experimentation ban, and choice of method requirement; upholding medical emergency exception); Fargo Women's Health Org. v. Schafer, 18 F.3d 526 (8th Cir.1994) (upholding mandatory information requirement, 24-hour waiting period, and medical emergency definition); Barnes v. Mississippi, 992 F.2d 1335 (5th Cir.) (upholding parental consent requirement and judicial bypass mechanism), cert. denied, ___ U.S. ___, 114 S.Ct. 468, 126 L.Ed.2d 419 (1993); Barnes v. Moore, 970 F.2d 12 (5th Cir.) (upholding informational requirement and 24-hour waiting period), cert. denied, 506 U.S. 1021, 113 S.Ct. 656, 121 L.Ed.2d 582 (1992); Utah Women's Clinic, Inc. v. Leavitt, 844 F.Supp. 1482 (D.Utah 1994) (upholding 24-hour waiting period and medical emergency exception); Planned Parenthood v. Neely, 804 F.Supp. 1210 (D.Ariz.1992) (striking down medical emergency definition, and definition of medical procedures with respect to an abortion). [2] The D & X procedure is defined as: The termination of a human pregnancy by purposely inserting a suction device into the skull of a fetus to remove the brain. "Dilation and extraction procedure" does not include either the suction curettage procedure of abortion or the suction aspiration procedure of abortion. O.R.C. § 2919.15(A). [3] The determination that a post-viability abortion is necessary must be made in good faith, and in the exercise of reasonable medical judgment. O.R.C. § 2919.17(A). [4] The gestational age is calculated from the first day of the last menstrual period of the pregnant woman. § 2919.16(B). [5] The following requirements apply to post-viability abortions: (1) the physician must certify the necessity of the abortion in writing, (2) a second physician must certify the necessity of the abortion in writing, after reviewing the patient's medical records and tests, (3) the abortion must be performed in a health care facility which has access to neonatal services for premature infants, (4) the physician must choose the abortion method which provides the best opportunity for the fetus to survive, unless it would pose a significantly greater risk of death to the pregnant woman, or a serious risk of substantial and irreversible impairment to a major bodily function, and (5) a second physician must be present at the abortion to care for the unborn human. O.R.C. § 2919.17(B)(1). These conditions need not be complied with if the physician determines, in good faith and in the exercise of reasonable medical judgment, that a medical emergency exists and prevents compliance. § 2919.17(B)(2). [6] Violation of the viability testing requirement is a fourth degree misdemeanor. O.R.C. § 2919.18(B). Violation of either the D & X ban or the post-viability ban is a fourth degree felony. § 2919.15(D), § 2919.17(D). A patient upon whom one of these procedures is performed or attempted to be performed is not criminally liable. § 2919.15(E), § 2919.17(D). She may, however, sue within one year of the procedure or attempted procedure for compensatory punitive, and exemplary damages, as well as for costs and attorneys fees. § 2307.51(B), § 2307.52(B). Derivative claims for relief may also be brought. § 2305.11(D)(3) & (7). [7] In addition, this Court notes that one such patient, Jane Doe Number 2, testified in this hearing after her abortion was performed by Dr. Haskell on November 30, 1995 — two weeks after the Act was to have taken effect. [8] For example, although Plaintiff WMPC has asserted that it has standing because it will incur civil liability under the Act, this Court does not now have facts sufficient to conclude that Plaintiff WMPC may be civilly liable. [9] This third prong is also construed as a "balancing of equities"; to wit, whether the harm which would be suffered by the Plaintiff if the injunction were not granted, outweighs the harm which would be suffered by the Defendant if the injunction were to be granted. [10] Quite obviously, such a level of scrutiny cannot be applied to the ban itself, for Casey instructs us that a state may ban abortions after viability, unless an abortion is necessary, in the appropriate medical judgment, to preserve the life or health of the mother. [11] The difference between challenging a statute "on its face," as in this case, or in challenging it "as applied," was recently explained by Justice Scalia: Statutes are ordinarily challenged ... "as applied" — that is, the plaintiff contends that application of the statute in the particular context in which he has acted, or in which he proposes to act, would be unconstitutional. The practical effect of holding a statute unconstitutional "as applied" is to prevent its future application in a similar context, but not to render it utterly inoperative. To achieve the latter result, the plaintiff must succeed in challenging the statute "on its face." Ada v. Guam Society of Obstetricians & Gynecologists, 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting from denial of cert.). In the instant case, Plaintiff Haskell seeks to have the entirety of House Bill 135 declared unconstitutional, and not only as it applies to his particular situation. Thus, he is bringing a facial challenge to the statute. [12] Defendants have argued, for example, that the testimony given by Jane Doe Number One and Jane Doe Number Two — both of whom would have been adversely affected by this ban on post-viability abortions—should be disregarded by this Court, because Salerno requires that the law be unconstitutional in all of its applications, rather than in a few or many situations. Because this is a facial challenge, Defendants argue, such testimony as to how the law may affect specific individuals is irrelevant. [13] In Rust, the Court applied Salerno to a facial challenge to regulations which restricted the ability of facilities receiving Title X funding to counsel, make referrals, or advocate, abortion. 500 U.S. at 183, 111 S.Ct. at 1767. In Akron Center for Reproductive Health, plaintiffs brought a facial challenge to a parental notification statute; in considering the judicial bypass procedure, the Court applied Salerno, rejecting arguments that the procedure's time requirements might be construed as "business days" instead of "calendar days," and reasoning that the statute should not be invalidated "based on a worst-case analysis that may never occur." 502 U.S. at 514, 112 S.Ct. at 834. Finally, in Webster, Justice O'Connor stated that Salerno should apply to a Missouri provision that prohibited the use of public facilities to perform abortions not necessary to save the life of the mother. 490 U.S. at 523, 109 S.Ct. at 1991-92. [14] The transcripts of the hearing testimony are, for the most part, paginated separately for each day of testimony. Therefore, when referring to transcript testimony throughout this opinion, this Court will indicate the date of the transcript, as well as the page on which the specific reference may be found. [15] The testimony indicates that some women who seek abortions in their second trimester are victims of rape or incest, and may have been psychologically unable to face their pregnancies at an earlier time (Tr., 11/8, at 27). Other women who seek abortions in the second trimester do so because it is only then that they discover that their fetus has developed severe anomalies, i.e., physical defects that call into question the ability of the fetus, once carried to term, to survive (Tr., 12/5, at 103-08). [16] Defendants pointed out that, in the videotape in which Dr. Haskell demonstrates the procedure (Defendant's Exhibit R), the patient's membranes had ruptured (her "water had broken") prior to the procedure, on the very first day. Although this fact might be relevant if this were a medical malpractice action brought by that particular patient, it is not relevant to the issue of whether the D & X procedure is generally safe for the mother's health. [17] Although Dr. Haskell does not state in his paper that he cuts the umbilical cord prior to penetrating the base of the skull with scissors, he testified that he routinely cuts the cord, and he did so on the videotape which demonstrates this procedure (Defendant's Exhibit R). Further, although the Court notes that it generally takes eight to ten minutes for the fetus to die, following the cutting of the umbilical cord, and that, on the videotape, Haskell waited only thirty seconds from the time he cut the cord to the time he inserted the scissors, this Court also notes that the fetus in the videotape appeared to be dead at the beginning of the procedure. [18] If the skull could not be decompressed by suctioning out part of the contents, and yet was too big to pass through the cervix, it apparently would have to be crushed in order to remove it. [19] The testimony indicates that each physician's surgical procedures may differ from similar procedures used by other physicians (Tr., 12/6, at 103). Indeed, physicians experiment with and develop their own variants of surgical techniques, and then use them, even if those variants are not specifically approved in a peer review journal (Id. at 104). In this case, Dr. John Doe Number One testified that he developed a procedure which is similar to Haskell's D & X procedure for use in his D & E procedures at fifteen to eighteen weeks: after the extremities of the fetus are dismembered and removed, he collapses the head by making an incision and then using suction to decompress the skull, instead of crushing it with forceps, so that he can remove the skull intact (Tr., 12/5, at 42-44). Dr. John Doe Number Two, who uses Haskell's D & X procedure in situations where an intact fetus is requested, or if the fetus is breech (feet first), testified that he considers the D & X procedure to be a modification of the D & E procedure (Tr., 12/6, at 47-48). [20] Dr. Doe Number Two testified, for example, that he uses the D & X procedure in the specific circumstances when the fetus is "double footling breech" and comes out feet first, resulting in a trapped head. At that point, he has "no room to work" because the head is trapped in the lower uterine segment, and must try to finish the procedure as quickly as possible to lower the risks to the mother. In that circumstance, the D & X procedure is the safest and fastest method. If he were prohibited from suctioning out the skull contents to decompress the head, he would have to dismember the head from the body, push the detached head back up into the uterus, crush the skull with the appropriate instruments, and then remove it in pieces (Tr., 12/7, at 76). [21] In addition, this Court notes that House Bill 135 bans not only the performance of D & X abortions, but also the attempted performance of D & X abortions. Given this Court's finding that the D & X procedure is on a continuum with the D & E procedure, this phrase adds confusion as to when a doctor, who is performing a D & E abortion, attempts to perform a D & X, and thus incurs criminal and civil liability. [22] Additional obstacles to performing a D & E after the twenty-second week of pregnancy include: the presentation of the fetus, in which the spine is oriented toward the cervix, and the toughness of the fetal tissues; both of these factors make it more difficult to dismember the fetus (Tr., 11/8, at 177). Because the operating time is thereby increased, this can cause heavy blood loss (Id. at 178). [23] In addition, and for similar reasoning, this Court is unpersuaded by the Defendant's argument that the D & X procedure is not within the accepted medical standards. This is a new, controversial procedure. As Dr. Goler testified: "I don't think enough people know about it to really say its within the accepted standards of practice. I think, as it gets to be better known and the results [are] published, it will be." (Tr., 12/6, at 133-34). Given the recent development of the D & X procedure, the fact that no publication has concluded, to date, that it is within acceptable medical standards, is not dispositive. [24] This Court rejects Defendant's claim that the D & X procedure takes longer, because it requires the insertion of laminaria one or two days before the procedure. Dr. Doe Number Two testified that the insertion of laminaria does not impair the woman's ability to function in any way, nor does it cause major discomfort, although it may cause some cramping. This does not compare to the more traumatic experience of going through labor. [25] For example, Miami Valley Hospital, in Dayton, Ohio, only permits therapeutic abortions, and does not allow their performance on an elective basis (Defendant's Exhibit F). Dr. George Goler, the Ohio Section Chief of the American College of Obstetricians and Gynecologists, also testified that "it's gotten to the point now where many of the hospitals do not have facilities" to perform abortions by use of induction methods (Tr., 12/6 at 118). Although Dr. Harlan Giles, a Pennsylvania physician, testified that it was his opinion that several Ohio facilities allowed the performance of elective abortions (Tr., 11/13, at 237), this Court is more inclined to rely on the testimony of Dr. Goler, who practices in Ohio, and whose testimony was specifically directed toward second-trimester abortions. This Court concludes that the preponderance of the evidence is that few Ohio hospitals allow non-therapeutic, second-trimester abortions. [26] Dr. Doe Number One, who used to perform induction procedures but now performs a version of the D & X procedure, testified that hospitals and hospital personnel view induction procedures as a "second-class procedure" performed on "second-class patients," and that the problem is exacerbated by the practice of locating the woman obtaining the abortion in close proximity to women giving birth (Tr., 12/5, at 37-38). Dr. Mary Campbell also testified that it's depressing for the patient to undergo an abortion procedure in the labor and delivery area of a hospital: "These are families often with wanted pregnancies gone awry who in the course of their time in the hospital ... get to hear several other families through closed doors ... shouting rather happily ... it's a boy or it's a girl." (Tr., 12/6, at 28-29). [27] Defendants have argued that the affirmative defense, codified at O.R.C. § 2919.15(C), saves the ban from being an undue burden. Under the affirmative defense, if a physician who is prosecuted for performing a D & X procedure can present prima facie evidence that all other procedures would have posed a greater risk to the mother's health, then the prosecutor has the burden of proving, beyond a reasonable doubt, that at least one other abortion method would not have posed a greater risk to the mother's health. Defendants' argument is unpersuasive, for two reasons. First, the certainty of arrest and prosecution is certain to chill physicians from performing the D & X procedure, even where it is the least risky method of abortion. Second, even if there were no chilling effect, the challenged law restricts the availability of D & X procedures to situations where it is obviously and irrefutably the safest method. Given this Court's findings that the D & X procedure may be safer and more available than other methods of abortion, this would still amount to an undue burden. [28] Plaintiff Haskell testified that he didn't believe that fetal neurological development at twenty-four weeks would allow pain impulses to be transmitted to the brain (Tr., 11/8, at 179), and that a fetus of the same age lacked the cognitive ability to perceive pain (Id. at 180). Because Dr. Haskell was not qualified as an expert in the area of fetal neurology, this Court will not consider this testimony. [29] The parties stipulated that at the beginning of the D & X procedure, some fetuses are dead, and some are alive. An exact definition of the term "alive" was neither stipulated, nor clarified by the evidence. Indeed, in some basic, elemental sense, the fetus is "alive" from the moment of conception. What is clear, however, is that "alive" does not mean "viable." Were alive to mean viable, the stipulation arguably would be transformed into an acknowledgment that the D & X procedure is more cruel than either the D & E procedure, or any other form of mid-second trimester pregnancy terminations. Assuming arguendo that the fetus does feel pain, one factor which suggests that the D & E procedure might be more painful than the D & X procedure—the physical act of dismembering the fetus in the D & E, as opposed to a relatively quick incision and suctioning process in the D & X—is balanced by the younger age of the fetus during the D & E procedure, which is performed earlier in the second trimester, when the nervous system is not as fully developed. Assuming that the D & X procedure is "cruel," however, this Court fails to see how it is more cruel than the D & E procedure—which involves the dismemberment of the fetus and, sometimes, the crushing of its skull—or how it is always cruel, given that the fetus may already be dead (see Defendant's Exhibit R). The State's banning of the D & X procedure thus raises a question of whether its purpose in so doing was to prevent unnecessary cruelty, as stated, or, rather, was to place a significant obstacle in the path of a woman seeking a pre-viability abortion in the mid-second trimester. Casey, 505 U.S. at 876-77, 112 S.Ct. at 2820. Cf. Danforth, 428 U.S. at 78, 96 S.Ct. at 2845 (discussing "the anomaly inherent in [the ban on saline amniocentisis] when it proscribes the use of saline but does not prohibit techniques that are many times more likely to result in maternal death"). [30] Before Casey, the State would have had to show that the ban on the D & X procedure was necessary to achieve a compelling state interest, under a strict scrutiny standard. After Casey, the State need only show that it has a legitimate interest, and that the challenged regulation "cannot be said [to] serve no purpose other than to make abortions more difficult." 505 U.S. at 901, 112 S.Ct. at 2833. This new approach appears to require courts to examine whether the challenged regulation serves the stated, legitimate purpose. See, e.g., Barnes v. Mississippi, 992 F.2d 1335, 1340 (5th Cir.) (holding that because the challenged two-parent consent statute helped to safeguard the interests of both parents and the family, it could not be said to serve no purpose other than to make abortions more difficult), cert. denied, ___ U.S. ___, 114 S.Ct. 468, 126 L.Ed.2d 419 (1993). Accordingly, this Court must examine whether the ban on the D & X procedure serves the purpose of preventing unnecessary cruelty to the fetus. [31] The Court draws this conclusion for two reasons. First, if the term "in the exercise of reasonable medical judgment" were a subjective standard, referring to the physician's own judgment, there would be no need to also require the physician to act "in good faith." It is a maxim of statutory construction that no word or words should be construed in such a way that they are surplusage. Second, the term "reasonable," as it is used in the law generally, almost always incorporates an objective standard. The term "reasonable belief," for example, is commonly used to indicate both that the actor himself holds a belief, and that a reasonable man would hold that belief under the same circumstances. Black's Law Dictionary 874 (6th ed. 1991). The term "reasonable care" means "that degree of care which a person of ordinary prudence would exercise in the same or similar circumstances." Id. at 875. The term "reasonable cause" refers to the "basis for arrest without warrant, [with] such state of facts as would lead a man of ordinary care and prudence to believe ... that the person sought to be arrested is guilty of committing a crime." Id. These examples, which are not exhaustive, demonstrate that the term "reasonable" generally indicates a requirement that the action be reasonable to others. Absent a clear statutory intent to the contrary, this Court must construe the term "in the exercise of reasonable medical judgment" as incorporating an objective standard. [32] Standing alone, the statute's definition of viable would appear to be unobjectionable, because it contains a purely subjective standard. In contrast, it could be argued that the determination of viability is void, either because its lack of a scienter requirement creates vagueness, or because the objective reasonableness standard will chill the physician's determination of non-viability, and create an undue burden. For this reason, this Court holds that the determination of nonviability, but not the definition of viable, is unconstitutional. [33] The testimony in this case indicates that physicians do routinely consider non-medical factors that relate to health, when counseling women about having an abortion. Dr. Paula Hillard testified that she "takes into account the circumstances of the pregnancy which may be a result of rape or incest. So, I take into account the psychological health of the individual." (Tr., 11/8, at 29). Dr. John Doe Number Two testified that he deals with his patients "in a holistic approach, encompassing not only the physical consequences of the patient's particular situation, but encompassing her psychological well-being, both short and long term." (Tr., 12/7, at 22). [34] In addition, as highlighted by Jane Doe Number One's testimony, an exception which is limited only to preserving the pregnant woman's physical health may run the risk of impermissibly limiting the physician's discretion — and the mother's decision — to take whatever steps may be helpful (surgical or otherwise) in dealing with the specific problems facing that unborn child. [35] As discussed in an earlier part of the opinion, this Court concludes that it need not apply the Salerno standard to restrictions on post-viability abortions, and that a pregnant woman may therefore succeed in a facial challenge to such a regulation, even if she cannot show that "no set of circumstances exists under which the law would be valid." [36] On this point, it is significant that, as far as this Court is aware, no other court has been confronted with a medical emergency definition that includes an objective requirement, and therefore does not permit the physician to rely solely on his or her best clinical judgment. This objective requirement seems certain to create a chilling effect — particularly given the lack of a scienter requirement. Even if the statute had a scienter requirement, it might still have a chilling effect, though to a lesser extent, given that the physician would still be subject to prosecution if other physicians disagreed with his or her determination. This Court therefore takes no position on whether an objective requirement in a medical emergency definition, with or without a scienter requirement, is also void for vagueness. [37] O.R.C. § 2919.15(B) provides: "No person shall knowingly perform or attempt to perform a Dilation and Extraction procedure upon a pregnant woman." (emphasis added). This demonstrates that the General Assembly knows how to include a scienter requirement when that is its intention. [38] The difference between the two standards is most easily discernible in the area of tort law. As an example, a physician who commits medical malpractice may be found guilty of negligence if he acts unreasonably. If he acts recklessly, however, he may be found guilty of gross negligence, which is a more serious offense, and exposes the physician to a greater degree of liability. See, e.g., Gearhart v. Angeloff, 17 Ohio App.2d 143, 244 N.E.2d 802 (1969) ("Punitive damages may be recovered in an action for negligence where such negligence is so gross as to show a reckless indifference to the rights and safety of other persons.") (quoting syllabus). [39] The testimony by doctors who perform late-term abortions indicates that this may be a valid concern. Dr. John Doe Number One testified that it would be "virtually impossible" to find a second physician who would be willing to certify in writing that an abortion is necessary: "No one wants to involve themselves in the issue. I think ... whether it would be fear of personal harm, whether it would be fear of being ostracized, fear of picketing, who would want to involve themselves in this issue. It would be much easier to ignore it rather than to have your name on that chart." (Tr., 12/5, at 51). [40] In this Court's opinion, the chilling argument which applied to the second physician concurrence requirement would not apply to this requirement, which does not require the second physician to give a written endorsement of the abortion, and merely requires him or her to perform the arguably laudable role of caring for the fetus. [41] In Webster, a five-member majority of the Supreme Court upheld a viability testing requirement that attached at the twentieth week of pregnancy. Although the challenged statute also imposed "what is essentially a presumption of viability at 20 weeks," id. at 515, 109 S.Ct. at 3055, Justice O'Connor pointed out in her concurring opinion that the constitutionality of that presumption was not an issue before the Court. Id. at 526, 109 S.Ct. at 3061. Justice O'Connor did state, however, that, in her opinion, an argument that this presumption of viability impermissibly restricted the judgment of the physician would probably be unsuccessful. Id. at 527, 109 S.Ct. at 3061. [42] The definitions in O.R.C. § 2919.16 apply both to the post-viability ban in § 2919.17, and to the viability testing requirement in § 2919.18. If the definition is flawed, then a regulation or requirement based on that definition is also flawed. [43] Although it may seem that a child who was certain to die, and had no reasonable chance for normal development, would not be considered to be viable, the testimony in this case indicates otherwise. Dr. Harlan Giles, for example, testified that babies with certain chromosomal defects are considered to be viable "even though these children have no reasonable chance for normal mental motor development.... even though it's a very serious defect, [and] even though it usually leads to death in the nursery." (Tr., 11/13, at 286). [44] This Court adopts the findings set forth within this Opinion as its Findings of Fact, for purposes of Rule 52(a) of the Federal Rules of Civil Procedure. This Court finds support for its lack of separate findings of fact in the Supreme Court's holding "that there must be findings, stated either in the court's opinion or separately, which are sufficient to indicate the factual basis for the ultimate conclusion." Kelley v. Everglades Drainage Dist., 319 U.S. 415, 422, 63 S.Ct. 1141, 1145, 87 L.Ed. 1485 (1943), quoted with approval in B.F. Goodrich Co. v. Rubber Latex Prod., Inc., 400 F.2d 401, 402 (6th Cir.1968); see also Slanco v. United Counties, 711 F.2d 1059 (6th Cir.1983) (allowing district court to adopt oral opinion as findings of fact and conclusions of law for purposes of Rule 52); Craggett v. Bd. of Educ. of Cleveland City Sch. Dist., 338 F.2d 941 (6th Cir. 1964) (allowing district court to adopt written memorandum as findings of fact and conclusions of law for purposes of Rule 52). However, this Court assures Counsel for the Plaintiff and the state Defendants that their detailed, proposed Findings of Fact and Conclusions of Law were thoroughly reviewed and form the basis of much of the discussion contained herein. This includes the submissions of the state Defendants which were not fully delivered to this Court's chambers, by facsimile, until 3:45 a.m., this date. In short, the diligent efforts of Counsel have not been in vain. For purposes of completing the record, this Court also renders the following evidentiary rulings: Plaintiff's Exhibit 24 is admitted, for the limited purpose of showing the position of the American College of Obstetricians and Gynecologists on the federal Partial Birth Abortion Act of 1995, but not for the truth of the statements asserted therein. Plaintiff's Exhibit 25 is excluded, as hearsay.

Case: 11-20218 Document: 00511927366 Page: 1 Date Filed: 07/19/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 19, 2012 No. 11-20218 Lyle W. Cayce Clerk DAMEWARE DEVELOPMENT, L.L.C.; DAMEWARE DEVELOPMENT L.L.C. DEFINED BENEFIT PENSION PLAN AND TRUST, Plaintiffs - Appellants, v. AMERICAN GENERAL LIFE INSURANCE COMPANY, Defendant - Appellee. Appeal from the United States District Court for the Southern District of Texas Before STEWART, ELROD, and SOUTHWICK, Circuit Judges. CARL E. STEWART, Circuit Judge: Dameware Development, LLC Defined Benefit Pension Plan and Trust (“Dameware” or the “Plan”)1 bought several life insurance policies (the “policies”) from American General Life Insurance Company (“American General”). After Dameware was unable to obtain the tax benefits it hoped would result from purchasing the policies, it sued American General for damages and for rescission of the contract. The district court granted summary judgment to American 1 Dameware Development LLC is a named party to this suit, but the district court ruled that it did not have standing. Because it does not challenge this contention on appeal, the only remaining appellant is the Dameware Development, LLC Defined Benefit Pension Plan and Trust.  Case: 11-20218 Document: 00511927366 Page: 2 Date Filed: 07/19/2012 No. 11-20218 General. Because we conclude that Dameware has not shown any basis for rescinding the contract nor any contractual duties breached by American General, we AFFIRM the district court’s judgment. I. In 2003, Joseph Vizzini, Dameware’s financial advisor, attended a presentation about the use of American General financial products to establish a pension plan that qualified for favorable tax treatment pursuant to section 412 of the Internal Revenue Code. On Vizzini’s advice, Dameware decided to establish such a plan. Accordingly, Vizzini contacted Kimberly Branch, an American General vice president. Branch referred Vizzini to Alan Zeplain, an American General agent, who, Vizzini says, advised Vizzini that, in order to establish a 412(i) Plan funded by American General’s financial products, Dameware must select a Third-Party Administrator (“TPA”)2 from American General’s list of approved TPAs. Dameware chose B&F Corporate Benefit Services, Inc. (“B&F”), one of the TPAs that American General had approved. On December 16, 2003, B&F sent Zeplain a proposed 412(I) Plan, and Zeplain forwarded it to Vizzini the next day. Dameware signed an administrative services agreement with B&F on December 23, 2003. Dameware intended to fund the Plan, which came to be known as the Dameware Development, LLC Defined Benefit Pension Plan and Trust, with life insurance policies for three employees and annuities from American General. 2 Vizzini’s affidavit explains the role of TPAs as follows: A key player in putting together a 412(I) plan is the third party administrator (TPA). The TPA develops the plan based on the clients[’] objectives, cash flow, and employee census. Annual administration, performed by the TPA, typically includes calculating the required plan contributions, and completing annual reports for the IRS, Department of Labor, and the Pension Benefit Guarantee Corporation, the federal agency that monitors pension plans. 2  Case: 11-20218 Document: 00511927366 Page: 3 Date Filed: 07/19/2012 No. 11-20218 On January 13, 2004, Dameware submitted applications for life insurance policies to American General on behalf of three employees: Victoria Goodwin, Karla Hatcher, and Robert K. Hatcher. It paid American General $743,510.47 to fund the Plan for 2003 and partially fund the Plan for 2004 on February 20, 2004, and subsequently paid American General an additional $486,274 to fund the Plan for the remainder of 2004. The three insureds acknowledged receipt of the policies on March 24, 2004. The policies themselves contained no information relating to a 412(I) Plan, except that the applications asserted that one basis for purchasing the policies was “tax benefit.” Delivered along with the policies were Disclosure and Acknowledgment Forms. These Disclosure and Acknowledgment Forms included a list of thirteen TPAs, and required the signor to check a box next to the TPA it selected. Each signor selected B&F as TPA. The Disclosure and Acknowledgment Forms contained a number of disclaimers, including the following: that Dameware is not relying on any “representation, warranty or guarantee beyond those contained within the insurance policy contract itself, including any riders or amendments thereto”; that “the TPA indicated herein is responsible for administering the section 412(I) Plan . . .”; and that American General Life Insurance Company operates solely in the capacity of a product provider and that any sales presentations, tax consequences, and/or planning concepts that may have been presented by American General Life Insurance Company . . . describing the benefits of using life insurance in connection with the Plan cannot be relied upon as tax or legal advice. Each Disclosure and Acknowledgment Form was signed on March 24 by Dameware, acting through an agent; the covered Dameware employee; and by Vizzini. While American General immediately began to provide life insurance coverage for the three covered Dameware employees, Dameware never obtained 3  Case: 11-20218 Document: 00511927366 Page: 4 Date Filed: 07/19/2012 No. 11-20218 any tax benefits from the life insurance policies or annuities it purchased from American General. In July 2005, Vizzini began contacting B&F to learn what information needed to be submitted to receive tax benefits for 2004, but received no response. Vizzini accordingly contacted American General’s Zeplain, who informed Vizzini that American General had terminated its relationship with B&F. Vizzini and Zeplain thereafter contacted Pension Professionals of America, which American General had also approved as a TPA. The Pension Professionals of America worked on Dameware’s 412(i) Plan for approximately a year. In April 2006, a representative of Pension Professionals informed Vizzini that B&F’s strategy in formulating Dameware’s 412(i) Plan had been flawed. Then, in the summer of 2006, a representative from Pension Professionals of America informed Vizzini that the company was no longer acting as a TPA, and that it had not completed Dameware’s 412(i) Plan. Vizzini contacted Zeplain again, and Zeplain provided the names of two more TPAs. Vizzini contacted National Pension Associates, one of the two TPAs Zeplain named, and it agreed to do the work. But it, too, failed to perform the work required to complete a Plan that could be submitted for Dameware’s 2006 tax returns. In December 2006, Dameware advised American General that it no longer wanted to wait to obtain the benefits of a 412(I) Plan. At this point, it had been three years since Dameware had signed an administrative services agreement with the first TPA, and Dameware had paid more than two million dollars to American General for insurance products. Dameware asked American General to return the money it had already paid. American General returned the money Dameware had paid for annuities, but did not return the $1,043,900.83 Dameware had paid in life insurance premiums. When American General failed to return the life insurance premiums, Dameware sued, alleging that its error 4  Case: 11-20218 Document: 00511927366 Page: 5 Date Filed: 07/19/2012 No. 11-20218 concerning a cause for entering into the contract had vitiated its consent, and that American General had breached the contract. The district court granted summary judgment to American General on Dameware’s claims, reasoning that American General had no duties to Dameware with respect to the provision of the TPAs. Dameware appeals. II. The court reviews a decision rendered on a motion for summary judgment de novo, applying the same standard as the district court. Threadgill v. Prudential Sec. Grp., Inc., 145 F.3d 286, 292 (5th Cir. 1998). 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 moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When considering a motion for summary judgment, the court must view all facts and evidence in the light most favorable to the non-moving party. United Fire & Cas. Co. v. Hixson Bros., 453 F.3d 283, 285 (5th Cir. 2006). III. A. We first address Dameware’s contention that its contract with American General was invalid. The four elements of a valid contract under Louisiana law are the following: (1) the parties must possess the capacity to contract; (2) the parties’ mutual consent must be freely given; (3) there must be a certain object for the contract; and (4) the contract must have a lawful purpose. St. Charles Ventures, L.L.C. v. Albertsons, Inc., 265 F. Supp. 2d 682, 688-90 (E.D. La. 2003) (citing Provenza v. Cent. & Sw. Servs., Inc., 775 So. 2d 84, 89 (La. Ct. App. 5  Case: 11-20218 Document: 00511927366 Page: 6 Date Filed: 07/19/2012 No. 11-20218 2000)). At issue here is the requirement that both parties have consented to a contract.3 Dameware contends that its consent was vitiated by an error concerning cause. Articles 1949 and 1950 of the Louisiana Civil Code explain what types of error vitiate consent. An error vitiates consent when it “concer[ns] . . a cause without which the obligation would not have been incurred.” La. Civ. Code Ann. art. 1949. A “cause” is “the reason why a party obligates himself.” Id. art. 1967. “Error may concern a cause” when the error bears on the nature of the contract, or the thing that is the contractual object or a substantial quality of that thing, or the person or the qualities of the other party, or the law, or any other circumstances that the parties regarded, or should in good faith have regarded, as a cause of that obligation. Id. art. 1950. Dameware maintains that its cause for entering into the contract was to establish a 412(I) Plan, and that its inability to establish a 412(I) Plan constitutes an error concerning cause. But the contractual language undercuts Dameware’s argument. The contract between Dameware and American General focuses almost entirely on American General’s provision of life insurance policies. Only one document, the Disclosure and Acknowledgment Form, focuses on the establishment of a 412(I) Plan.4 The Disclosure and Acknowledgment Form does not demonstrate that the establishment of a 412(I) Plan was Dameware’s cause for entering into a contract with American General. As we 3 American General argues that Dameware failed to adequately plead vitiated consent in its complaint and therefore waived arguments based on this theory. We assume without deciding that Dameware has not waived these arguments. 4 The district court found that the contract was limited to the insurance policies. On appeal, Dameware argues that the Disclosure and Acknowledgment Forms–which were signed on the same day as the insurance policies and which are the only documents connecting American General to the TPAs in any way–were also part of the contract. We assume without deciding that the Disclosure and Acknowledgment Forms were part of the contract. 6  Case: 11-20218 Document: 00511927366 Page: 7 Date Filed: 07/19/2012 No. 11-20218 discuss below, the Disclosure and Acknowledgment Form has two primary functions: first, it disclaims any responsibility on the part of American General for establishing a 412(i) Plan; and second, it contains a list of TPAs for Dameware to choose from, and provides that whichever TPA Dameware selects is solely responsible for establishing Dameware’s 412(i) Plan. The relationships between Dameware and the TPAs were governed by contractual agreements separate from the contract between Dameware and American General. Thus, the cause of the contracts between Dameware and the TPAs–which are not at issue in this case–might have been to establish a 412(I) Plan; but the language of the contract between Dameware and American General demonstrates that “the reason Dameware obligated itself” in its contract with American General was to secure life insurance policies for its employees.5 In addition to not squaring with the language of the contract, Dameware’s argument does not follow from the language of the Code. Dameware maintains that it committed an error concerning cause by incorrectly assuming that the establishment of a 412(i) Plan would follow from its purchase of the policies. While the comments to the Louisiana Civil Code provide a number of examples illustrating the application of Article 1950, none of the examples concern factually analogous circumstances. Comment C, the closest analogy, reads as follows: relief may be obtained when either the thing for which a party has contracted or a substantial quality of that thing is different from what he understood at the time of contract, as when, intending to 5 In order to establish that American General owed some duty to Dameware with respect to the 412(I) Plan, Dameware makes much of an affidavit from its financial advisor Joseph Vizzini. It is well established, though, that courts interpreting contracts may resort to parol evidence only when the contract is ambiguous. See, e.g., Carmichael v. Bass P’ship, Nos. 11-845, 11-669, 2012 WL 280611, at *6 (La. Ct. App. Feb. 1, 2012). Here, the language of the contract clearly shows that its cause was to exchange premium payments for life insurance coverage, so we are not permitted to consider parol evidence such as Vizzini’s affidavit. 7  Case: 11-20218 Document: 00511927366 Page: 8 Date Filed: 07/19/2012 No. 11-20218 buy bars of silver, he has unknowingly bought bars of another metal, or when, intending to buy a gold vase, he has unknowingly bought a gold-plated one. Id. art. 1950 cmt. C. Dameware does not allege that American General’s life insurance policies did not provide life insurance. It does not even argue that the policies were inadequate for the purpose of forming 412(I) Plans. Thus, it does not argue that the “thing for which [it] contracted or a substantial quality of that thing is different from what [it] understood at the time of the contract . . . .” See id. Instead, it blames the TPAs, which are not parties to this action, for failing to follow the procedures necessary for establishing a 412(I) Plan.6 In other words, Dameware argues that while American General provided the bargained- for life insurance policies, external events that arose subsequent to contract formation prevented Dameware from using those policies as it had originally hoped to. The language of Article 1950 does not cover such a contention. Nor does Dameware’s argument find support from case law. Dameware maintains, in essence, that its decision to enter into a contract with American 6 Notably, Dameware does not argue that American General knew or should have known that the contract’s list of TPAs contained TPAs that were incompetent at the time the parties entered into the contract, let alone that American General intended to deceive Dameware when it provided the list of TPAs. Thus, this case is distinguishable from The Board of Trustees of the Ironworkers Local No. 498 Pension Fund v. Nationwide Life Insurance Co., No. 04 C 821, 2005 WL 711977 (N.D. Ill. Mar. 28, 2005) (interpreting Illinois law), relied upon by Dameware. In Local No. 498 Pension Fund, plaintiffs alleged that the defendants “acted to deprive them of money, which should have been invested on their behalf, through a scheme in which Defendants deducted money from fund assets and paid fees, kickbacks, and commissions to third-party administrators . . .” Id. at *1. Further, plaintiffs alleged that defendants “willfully concealed” those improper payments. Id. at *8. While Dameware points to payments from American General to B&F, it does not argue that these payments were improper, or that American General “willfully concealed” those payments. Dameware does argue in a footnote in its brief that, based on a separate lawsuit American General filed against B&F, American General “must have been aware that B&F was likely engaging in wrongful behavior related to their duties as Plan Administrators in February 2005.” The contract at issue here, however, was signed in March 2004, long before American General filed suit against B&F. 8  Case: 11-20218 Document: 00511927366 Page: 9 Date Filed: 07/19/2012 No. 11-20218 General was based on an error concerning whether a future event would occur. But Louisiana law does not contemplate such errors as proper bases for rescission. While mistakes as to the state of the world as it exists at the time of the contract can sometimes constitute errors of cause under Louisiana law, see Desonier v. Golden Gulf Marine Operators, Inc., 474 So.2d at 1316, this logic does not extend to mistaken predictions regarding events that occur after a contract is signed. See St. Charles Ventures, 265 F. Supp. 2d at 693 (“[A] claim of error cannot be based on the fact that a party would not have entered into a contact had it anticipated a future event . . . .”) (quoting Shelton v. Congress St. Prop., Inc., No. 92-1084, 1993 WL 43637, at *3 (E.D. La. Feb. 16, 1993) (internal quotation marks omitted)); Saul Litvinoff, Vices of Consent, Error, Fraud, Duress and an Epilogue on Lesion, 50 La. Law Rev. 1, 28 (1989) (“[T]he general conclusion is that the chance of a future event happening or not is a risk assumed by the party whose expectations will materialize if the event happens or will be frustrated if the event does not happen . . . ”). For this reason, Louisiana courts have rejected arguments that post-contract changes in the market prices of contracted-for items constitute error in cause that vitiated consent. See Hanover Petroleum Corp. v. Tennecco Inc., 521 So.2d 1234, 1240-41 (La. Ct. App. 1988).7 Accordingly, Dameware’s error was not an “error concern[ing] cause” contemplated by the Code. We therefore reject Dameware’s argument that its contract with American General should be rescinded. B. We next consider whether American General has breached any duties it owed to Dameware. Under Louisiana law, “[i]nterpretation of a contract is the 7 Regarding the proposition that events occurring after a contract is signed do not provide grounds for rescinding that contract, Louisiana law accords with the common law rule. See Restatement (Second) of Contracts § 154 cmt. a. 9  Case: 11-20218 Document: 00511927366 Page: 10 Date Filed: 07/19/2012 No. 11-20218 determination of the common intent of the parties.” La. Civ. Code Ann. art. 2045. “Conditions may be expressed either in a stipulation or implied by law, the nature of the contract or the intent of the parties.” Id. art. 1768. Dameware argues that the contract demonstrated that Dameware could only choose from the TPAs listed by American General. This restriction, Dameware argues, imposed an obligation on American General to ensure that the TPAs it listed were capable of designing a viable 412(I) Plan. Dameware further contends that its inability to form a Plan within three years shows that American General did not satisfy the condition of ensuring that the TPAs were competent. The language of the contract demonstrates that American General had no obligation to ensure the TPAs performed competently. The Disclosure and Acknowledgment Form–the only component of the contract that even mentions a 412(I) Plan–specifies the thirteen TPAs that Dameware can choose from to administer its Plan. It creates no duties on the part of American General respecting the establishment of the 412(I) Plan. In fact, three sentences in the Disclosure and Acknowledgment Form specifically disclaim any duties on the part of American General. First, the Disclosure and Acknowledgment Form asserts the following: The Employer and Plan Trustee further acknowledge that they understand that American General Life Insurance Company operates solely in the capacity of a product provider and that any sales presentations, tax consequences and/or planning concepts that may have been presented by American General Life Insurance Company, its employees, agents, representatives and/or other affiliates describing the benefits of using life insurance in connection with the Plan cannot be relied upon as tax or legal advice. If American General “operates solely in the capacity of a product provider,” and the product that it provides is life insurance policies, it follows that the contract 10  Case: 11-20218 Document: 00511927366 Page: 11 Date Filed: 07/19/2012 No. 11-20218 between American General and Dameware does not guarantee that the TPAs hired by Dameware will competently establish a 412(I) Plan. Second, in the Disclosure and Acknowledgment Form, Dameware disclaims reliance on representations not contained in the policies: “In addition, the Employer and Plan Trustee acknowledge that they are not relying upon any representation, warranty, or guarantee beyond those contained within the insurance policy contract itself, including any riders or amendments thereto.” Id. Nowhere in the insurance policy contract itself does American General provide any statement that can be construed as a “representation, warranty, or guarantee” concerning a 412(I) Plan. Thus, this language forecloses Dameware’s argument that the Disclosure and Acknowledgment Form created a duty on the part of American General to ensure that the TPAs were competent to establish a 412(I) Plan. Third, the Disclosure and Acknowledgment Form reads that “[t]he Employer and Plan Trustee also hereby acknowledge their understanding that the TPA indicated herein is responsible for administering the section 412(I) plan consistent with the Internal Revenue Code and related Treasury regulations and IRS guidance governing such plans.” This language further undercuts Dameware’s contention that American General was responsible for ensuring that a viable 412(I) Plan was created by entirely allocating that responsibility to the TPAs. For these reasons, American General did not breach any duties it owed to Dameware. The contract did not explicitly or implicitly impose a duty on American General to ensure that a 412(I) Plan was formed; in fact, the Disclosure and Acknowledgment Forms expressly provide that such a duty does not exist. Given the extensive disclaimers contained in the Disclosure and Acknowledgment Forms, the contract cannot be read to mean that American 11  Case: 11-20218 Document: 00511927366 Page: 12 Date Filed: 07/19/2012 No. 11-20218 General guaranteed the performance of the TPAs, nor can it be read as endorsing the advice provided by whichever TPA Dameware chose. IV. For the foregoing reasons, we AFFIRM the district court’s judgment. 12 

573 F.2d 921 1978-1 Trade Cases 61,965 Vernon STENBERG, Sr., Plaintiff-Appellee,v.CHEKER OIL COMPANY and Marathon Oil Company,Defendants-Appellants (two cases). Nos. 76-2330 and 76-2689. United States Court of Appeals,Sixth Circuit. Argued Feb. 16, 1978.Decided and Filed April 10, 1978. Sherwin J. Malkin, Malkin & Gottlieb, Chicago, Ill., for defendants-appellants. Samuel D. Carpenter, Vandervoort, Cooke, McFee, Christ, Carpenter & Fisher, Battle Creek, Mich., for plaintiff-appellee. Before CELEBREZZE, LIVELY and ENGEL, Circuit Judges. LIVELY, Circuit Judge. 1 In this consolidated appeal Cheker Oil Company (Cheker) seeks to have vacated two orders of the district court: an order granting plaintiff Stenberg's motion for a preliminary injunction and one finding Cheker in contempt. Stenberg's case is related to a longstanding dispute between Cheker and a number of its former lessees of service stations in Michigan which have been converted to company-operated stations, usually featuring self-service. See Blaylock v. Cheker Oil Company, 547 F.2d 962 (6th Cir. 1976). THE PRELIMINARY INJUNCTION 2 Stenberg first leased a station in Kalamazoo, Michigan from Cheker in October 1971. The lease was for one year with rent payable monthly at the rate of two cents for each gallon of gasoline sold during the month. The lease also provided for a minimum monthly rental and a cash security deposit by the lessee to guarantee the minimum rent in the event the gallonage failed to produce that amount. The lease did not set the price at which Cheker would provide petroleum products to Stenberg or require that he purchase such products from Cheker. Stenberg was a satisfactory lessee, and when a more desirable station was constructed in Portage, Michigan, Stenberg leased it in October 1972. Except for a higher minimum rent this lease was identical to the previous lease, some terms of which had been changed in June 1972. No new lease was executed in October 1973, but Stenberg remained in possession of the Portage station and operated as before. 3 On February 21, 1974, Stenberg and a Cheker representative executed a "mutual termination agreement" by which the lessor-lessee relationship was ended. At the same time Stenberg was employed at a salary of $300.00 per week as the Portage station manager. Stenberg was permitted to continue to operate the station as lessee until self-service pumps were installed a few weeks later and then as manager until June 24, 1974 when he was discharged. The present action was commenced in the district court on December 11, 1974. In the complaint jurisdiction is claimed to rest on diversity of citizenship and federal questions under the Sherman and Clayton antitrust laws and the Emergency Petroleum Allocation Act of 1973 (1973 Act). 4 Asserting that he had been induced to enter into the lease agreement and to expend extensive efforts to develop a substantial business "by representations, express and implied, that plaintiff would be able to continue in business in said location and would not be terminated except for good cause," Stenberg sought damages for breach of contract. He also claimed damages under the 1973 Act for failure of the defendant to supply him with his allocation of gasoline, and treble damages for various antitrust violations. 5 The prayer of the complaint was that the court either award damages as set forth, or in the alternative, if the court should determine that damages "are speculative or impossible of reasonably accurate determination," that it issue a permanent mandatory injunction reinstating Stenberg as lessee and awarding damages for the time he was wrongfully denied the right to operate as lessee. The complaint also sought a temporary restraining order and preliminary injunction for alleged violation of the 1973 Act. Cheker filed a motion to dismiss the complaint, relying on the mutual termination agreement. 6 On November 13, 1975, eleven months after filing the complaint, Stenberg made a motion for entry of a preliminary injunction. The district court held a hearing on the motion on November 24-25, 1975. On August 23, 1976 the court issued an opinion and order granting a preliminary injunction. Cheker was ordered to reinstate Stenberg as lessee of the Portage station as soon as suitable provisions could be made for transfer of the salaried manager then operating the station, but in no event more than 60 days after entry of the order. The preliminary injunction was premised upon findings that Stenberg had shown a likelihood of success on the merits and that he would suffer irreparable harm if such relief were not granted. The district court made specific "preliminary" findings on a number of disputed factual issues in concluding that the plaintiff had shown a likelihood of success on the merits. Among these were somewhat contradictory findings with respect to the mutual termination agreement. The district court first found that the agreement applied only to "the interim arrangement which was to last until the equipment was available" and later found that it was void as "a product of Cheker's superior bargaining power and economic duress." 7 A jury was demanded in this case and ultimate determination of the merits will depend upon the jury's resolution of many factual disputes. For this reason we have stated only those facts which appear to be undisputed and proceed to a discussion of the narrow issues presented by this appeal. 8 Emphasizing that the motion for a preliminary injunction was filed 21 months after Stenberg was terminated as lessee and the injunction was issued nine months later, Cheker argues that the district court wrongfully used a preliminary injunction to grant ultimate relief to the plaintiff rather than to preserve the status quo. It further points out that suit was not filed until ten months after the lease was terminated and six months after Stenberg was discharged as a station manager. Cheker also contends that Stenberg failed to establish that he would suffer irreparable harm if the injunction were denied since the only injury claimed was loss of profits from operation of the service station and resulting financial problems. Stenberg argues that the district court's findings of fact are not clearly erroneous and that there was no abuse of discretion in ordering Cheker to reinstate him as a lessee. He maintains that he was coerced to sign the mutual termination agreement and that his "last uncontested, peaceable status" was that of a lessee-dealer. 9 We believe the record in this case supports the decision of the district court to grant a preliminary injunction. Stenberg was not required to establish his right to an injunction "wholly without doubt," Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953); the district court was required to balance the hardships in determining whether or not to grant the injunction. Id. at 742-43. Without in any way indicating an opinion on the merits of this case we conclude that the plaintiff demonstrated sufficient likelihood of success on the merits, as defined by this court, to justify the issuance of a preliminary injunction. See Brandeis Machinery & Supply Corp. v. Barber-Greene Co., 503 F.2d 503, 505 (6th Cir. 1974). It is our further conclusion that irreparable harm may be established by a franchisee, or one situated as Stenberg, by proof of financial losses from withholding or revoking a franchise or lease. Other injuries, "not measurable entirely in monetary terms" may be included in the financial losses which result from the loss of such a business relationship. See Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir. 1970). In this case the district court made no finding of irreparable harm other than that related to loss of income. Nevertheless, the plaintiff introduced proof of such severe financial hardship that, upon finding the requisite likelihood of success, the court could reasonably conclude that delay in granting interlocutory relief would render a later judgment on the merits meaningless. Under Stenberg's proof he would have been completely "wiped out" long before a final decision could be expected. The district court did not abuse its discretion in granting interlocutory relief. 10 Though our review of an order granting a preliminary injunction is limited, we are required to examine the terms of the injunction carefully to determine that the remedy fits the wrong which the district court found. This principle was clearly stated in Consolidation Coal Co. v. Disabled Miners of Southern West Virginia, 442 F.2d 1261, 1267 (4th Cir.), cert. denied, 404 U.S. 911, 92 S.Ct. 228, 30 L.Ed.2d 184 (1971), as follows: 11 Whenever the extraordinary writ of injunction is granted, it should be tailored to restrain no more than what is reasonably required to accomplish its ends. Particularly is this so when preliminary relief, on something less than a full record and full resolution of the facts, is granted. 12 The parties have contended at some length concerning the true status quo ad litem in the present case. Stenberg argues that he was a lessee under renewal of his last written lease by reason of Cheker's continued acceptance of rent after that lease expired. He contends that the lessor-lessee relationship continued after February 21, 1974 because the mutual termination agreement executed that date was not his voluntary act. On the other hand, Cheker maintains that Stenberg voluntarily relinquished his lease and for three months accepted the salary and other benefits of a station manager, thus establishing an employer-employee relationship as the last uncontested status of the parties. 13 It is not essential that we determine which relationship represented the status quo at the time this action was commenced. To do so would require resolution of a number of important fact issues. Where parties to a contract have reached a misunderstanding after performance has begun it is difficult to restore them to the exact status quo which formerly existed. The prevention of irreparable harm should outweigh re-establishment of the status quo in fashioning interlocutory relief in such a case. And this should be done with a minimum of contract interpretation at the preliminary injunction stage of the proceedings. Unicon Management Corp. v. Koppers Co., 366 F.2d 199, 204-05 (2d Cir. 1966). 14 Too much concern with the status quo may lead a court into error. The proper consideration to be given the status quo question was stated in Canal Authority of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974), as follows: 15 First and foremost, we reemphasize the importance of the general requirements for a preliminary injunction. It is an extraordinary remedy, not available unless the plaintiff carries his burden of persuasion as to all of the four prerequisites. The primary justification for granting a preliminary injunction is to preserve the court's ability to render a meaningful decision after a trial on the merits. 16 It is often loosely stated that the purpose of a preliminary injunction is to preserve the status quo. See, e. g., Exhibitors Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1971, 441 F.2d 560; Miami Beach Federal Savings & Loan Association v. Callander, 5 Cir. 1958, 256 F.2d 410. Indeed, some such notion may have influenced the district judge in this case, since he wrote of a "status quo that would normally be entitled to temporary protection." It must not be thought, however, that there is any particular magic in the phrase "status quo." The purpose of a preliminary injunction is always to prevent irreparable injury so as to preserve the court's ability to render a meaningful decision on the merits. If often happens that this purpose is furthered by preservation of the status quo, but not always. If the currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury, either by returning to the last uncontested status quo between the parties, Ross-Whitney Corp. v. Smith Kline & French Laboratories, 9 Cir. 1953, 207 F.2d 190, by the issuance of a mandatory injunction, see 7 Moore's Federal Practice P 65.04(1), or by allowing the parties to take proposed action that the court finds will minimize the irreparable injury. The focus always must be on prevention of injury by a proper order, not merely on preservation of the status quo. 17 In the present case the condition which threatened the district court's "ability to render a meaningful decision after a trial on the merits" was the imminent financial ruin of the plaintiff. This was the only irreparable harm disclosed by the record. The district court found, on the basis of substantial evidence, that Stenberg's salary of $300.00 per week as station manager was about as much as he would have been able to make as a dealer-lessee under conditions which existed in 1976 when the injunction issued. We conclude that the preliminary injunction which the district court issued exceeded the requirements for preserving its ability to proceed meaningfully to a final judgment on the merits. This could have been accomplished by ordering Stenberg restored to his salaried position as manager of the Portage station. Such an order would have avoided premature resolution of sharply disputed factual issues. Furthermore the court would be relieved of the necessity to exercise continuing oversight of a lease which has expired by its own terms, and if renewed by law, was ostensibly ended by a mutual termination agreement. See Unicon Management Corp. v. Koppers Co., supra, 366 F.2d at 205. It was error for the district court to fail to tailor the exceptional remedy of a preliminary injunction to the requirements of this case. 18 The preliminary injunction entered by the district court is vacated. This cause is remanded to the district court for entry of a preliminary injunction which requires Cheker to reinstate Stenberg to his position as manager of the Portage, Michigan service station at a salary comparable to that being paid managers of other company-owned stations of comparable size and sales volume, but in no event, less than $300.00 per week. Stenberg is to have all fringe benefits received by other similarly situated station managers. Unless good cause for his discharge is demonstrated Stenberg shall be entitled to continue as manager until final determination of the issues in this case. THE CONTEMPT ORDER 19 When Cheker failed to reinstate Stenberg as lessee after 60 days he filed a petition to find Cheker in contempt. After a hearing the district court found Cheker in contempt of its August 23, 1976 order granting the preliminary injunction. The court directed fines to be paid by Cheker in the amount of $5,000 per day for each day after actual receipt of the contempt order that it failed to comply with the injunction. In addition the president of Cheker and its attorney were each ordered to pay fines of $1,000 per day for each day that they failed to comply with the injunction. The order then went on to broaden the previously issued injunction by directing Cheker not to collect minimum monthly rents from Stenberg during pendency of the law suit, not to collect the $1,000 security deposit required by the last written lease between the parties, not to interfere with Stenberg's operation of the service station "in any way" and not to collect a tankwagon price of more than 51.6 cents per gallon of regular gasoline sold Stenberg, including rent of two cents per gallon. The matter of price was to be reconsidered by the court following a review of "the entire situation" three months later. The order also directed Cheker to pay Stenberg $1,500 as attorney fees for the contempt proceedings. 20 The entire contempt order relates to the failure of Cheker to reinstate Stenberg pendente lite as lessee of the Portage station, a requirement which we have found to be unwarranted. Furthermore, the contempt order seeks to impose obligations on Cheker which were not contained in the lease between the parties and to relieve Stenberg of some of the obligations which he undertook to perform. We vacated similar provisions in Blaylock v. Cheker Oil Co., supra. In addition, the contempt order requires continuing supervision by the district court. This order was improvidently entered. The contempt order which the district court entered on November 30, 1976 is reversed and vacated in its entirety. 21 This action is remanded to the district court for further proceedings consistent with this opinion. No costs are awarded. The parties will bear their own costs on this appeal.

Case: 15-30524 Document: 00513457527 Page: 1 Date Filed: 04/08/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 15-30524 FILED April 8, 2016 MICHAEL ANTHONY CRIPPS; JOHN DAVID CRIPPS, Lyle W. Cayce Clerk Plaintiffs - Appellants v. STATE OF LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY; STRUCTURAL PEST CONTROL, Commission; DAVID FIELDS, In his individual capacity, Defendants - Appellees ------------------------------------------------------------------- WILLIE CRIPPS, Plaintiff - Appellant v. STATE OF LOUISIANA DEPARTMENT OF AGRICULTURE AND FORESTRY; STRUCTURAL PEST CONTROL, Commission; DAVID M. FIELDS, In his Individual capacity, Defendants - Appellees Appeal from the United States District Court for the Middle District of Louisiana Before STEWART, Chief Judge, and OWEN, and COSTA, Circuit Judges. CARL E. STEWART, Chief Judge:  Case: 15-30524 Document: 00513457527 Page: 2 Date Filed: 04/08/2016 No. 15-30524 In the years following hearings before the Louisiana Department of Agriculture and Forestry (“LDAF” or the “Commission”) for violations of Louisiana’s Pest Control Laws, Plaintiffs Michael, David, and Willie Cripps filed this 42 U.S.C. § 1983 suit against Defendants LDAF and LDAF’s Assistant Director David Fields (“Fields”), in his individual capacity. Plaintiffs contend that (1) Defendants retaliated against them for complaining before the Commission and others in violation of the First Amendment and Louisiana Constitution Art. I, § 7; (2) Defendants violated Plaintiffs’ substantive due process rights under both the Fourteenth Amendment and Louisiana Constitution Art. I, § 2, following administrative rulings by the Commission that curtailed Plaintiffs’ ability to continue their profession; and (3) the Commission imposed excessive fines on Plaintiffs in violation of both the Eighth Amendment and Louisiana Constitution Art. I, § 20. Plaintiffs also argue that the district court erred in finding Fields entitled to qualified immunity. Following rulings in favor of Defendants on summary judgment, Plaintiffs appealed. We AFFIRM. I. Facts A. The Louisiana Department of Agriculture and Forestry The Louisiana Structural Pest Control Commission was created within the Louisiana Department of Agriculture and Forestry by the Louisiana Pest Control Law. La. Stat. Ann. § 3:3363. The purpose of the Commission is to adopt and implement rules and regulations that protect the interests, health, safety, and welfare of the public. La. Stat. Ann. § 3:3366. The Commission is made up of five members: a quorum of three members, and the votes of three members are required to take any action. La. Stat. Ann. § 3:3363(D). The Commission members select the Director and Assistant Director of the Commission, “subject to the approval of the commissioner.” La. Stat. Ann. § 2  Case: 15-30524 Document: 00513457527 Page: 3 Date Filed: 04/08/2016 No. 15-30524 3:3364(B). In addition to imposing civil penalties for violations of the Pest Control Laws, La. Stat. Ann. § 3:3371, the Commission may issue subpoenas for the production of records and for the attendance of witnesses at Commission hearings, La. Stat. Ann. § 3:3365(E)(1). Commission employees have statutory access only to “premises where there is reason to believe that structural pest control work is being conducted for the purpose of sampling pesticides and inspecting and observing the application of any pesticide,” but “only during reasonable hours and only upon presentation of proper credentials.” La. Stat. Ann. § 3:3365(C). A. Michael and David Cripps Michael and David Cripps are brothers who worked in the pest control industry for numerous years. David Cripps operated the business Innovative Pest Management, and Michael Cripps was his employee. Between 1999 and 2000, David Fields, then Assistant Director for Environmental and Pesticide Programs at LDAF, notified Michael and David Cripps that each would be fined for having committed multiple violations of the LDAF Structural Pest Control Law. 1 The Commission entered into a stipulation in which neither Michael nor David Cripps admitted or denied the Commission’s allegations but agreed to a civil fine. Pursuant to the stipulations, Michael Cripps was fined $5,000, with $4,000 being suspended, and David Cripps was fined $17,000, with $12,000 being suspended. Individually, Michael Cripps was responsible for $1,000 and David Cripps for $5,000. Neither paid the fines. 1 David Cripps was charged with twenty violations of the Louisiana Pest Control Law, La. Stat. Ann. § 3:3201 et seq. His main offenses included violations of La. Stat. Ann. § 3:3371A(1), (7), (13), and (14). Michael Cripps also committed numerous minor and moderate violations of the Louisiana Pest Control Laws. La. Stat. Ann. §§ 3:3371, 3:3372. 3  Case: 15-30524 Document: 00513457527 Page: 4 Date Filed: 04/08/2016 No. 15-30524 On May 25, 2000, the LDAF mailed David Cripps a letter requesting that he remit payment for his prior fine or additional sanctions could result. The Commission informed David Cripps of its intent to bring charges against him for failing to pay the stipulated fine and scheduled a hearing to allow David Cripps the opportunity to address the Commission in response to the charges. Despite David Cripps’ testimony, the Commission imposed a penalty of $5,000 following the hearing. The Commission agreed to suspend $4,000 of the penalty pending David Cripps’ payment of the past due fine. David Cripps did not pay his 1999 or 2000 fines and was notified via letter that his license would be suspended effective August 7, 2001. On September 1, 2000, Michael Cripps similarly received notice of his alleged violation of the Structural Pest Control Law for failing to pay a fine previously imposed in 2000 for paperwork violations. 2 Michael Cripps did not attend an adjudicatory hearing set by the Commission for October 4, 2000. On October 31, 2000, due to Michael Cripps’ failure to pay the requisite amount, the Commission increased the fine to $10,000, pursuant to La. State. Ann. § 3:72(C)(3)(e), and required full payment within 30 days. Several years later, in 2011, Michael Cripps sought recertification from the LDAF as a condition of employment with the company Terminix. Fields mailed Michael Cripps a letter denying his registration request because of his previous violations of the Structural Pest Control Law. Fields informed Michael Cripps that he would have an opportunity to discuss his registration as a pest control employee at a hearing before the Commission. 2A major violation mandates a penalty of “not more than five thousand dollars.” La. Stat. Ann. § § 3:3372(A)(3). Such a violation includes “[a]ny failure to timely pay any civil penalty imposed by the commission, or any failure to timely pay any fee collected by the commission.” La. Stat. Ann. § 3:3371(C)(3)(e). 4  Case: 15-30524 Document: 00513457527 Page: 5 Date Filed: 04/08/2016 No. 15-30524 In order to rebut the Commission’s assertions that there was a violation of the law, on August 3, 2011, Michael appeared at a hearing in order to reinstate both his license and that of David Cripps. 3 Michael Cripps detailed the numerous ways in which he believed Fields’ conduct was wrongful. A Commission member proposed an initial motion to deny Michael Cripps and David Cripps’ licenses unless payment of the full balance with interest was made. A substitute motion was then made, which applied only to Michael Cripps. The Commission voted unanimously to deny Michael Cripps’ license until he paid the levied fines and appeared before the Commission. 4 Because the Commission did not approve his registration, Michael Cripps was unable to do business as a salesperson for any pest control company. Michael and David Cripps filed suit against Defendants as a result, asserting Section 1983 claims under the First, Eighth, and Fourteenth Amendments. B. Willie Cripps Willie Cripps, the father of Michael and David Cripps, also filed suit against Defendants. Willie Cripps is a licensed pest control operator and holds a structural pest control license from the Commission. In July 2010, Toby Richmond, an LDAF inspector, received a complaint from Bob Hogan, a 3 David Cripps was also present at the Commission hearing, but did not address the Commission, and the Commission took no action against him. During the Commission meeting, a Commission member stated that he had received a request from David Cripps to address the Commission but had failed to add the item to the agenda. Following a successful motion to amend the agenda to add David Cripps, the Commission member located David Cripps in the building. When asked if he would like to address the Commission, David Cripps declined. 4 Michael Cripps brought a procedural due process claim against Defendants for their denial of his registration request. He argued that Defendants violated his right to procedural due process by refusing to grant him registrant status without prior notice or hearing. La. Stat. Ann. § 3:3369. Michael Cripps filed a motion to dismiss, which the court granted. The claim was subsequently settled. 5  Case: 15-30524 Document: 00513457527 Page: 6 Date Filed: 04/08/2016 No. 15-30524 homeowner in Deridder, Louisiana, that Willie Cripps was incorrectly treating client properties when performing termiticide sprays. 5 Richmond requested records from Willie Cripps regarding the treatment but Willie Cripps’ was unable to produce the requested documentation to show the extent of treatment conducted on the property or the date and time such treatment occurred. LDAF notified Willie Cripps that it would require him to re-treat one property at issue. Between November 2010 and February 2011, Willie Cripps corresponded with the LDAF and its officials, asserting that its request that he retreat any properties was in violation of the Federal Insecticide, Fungicide, and Rodenticide Act. 6 On April 14, 2011, Willie Cripps addressed the Commission without counsel in order to rebut Richmond’s directive to re-treat the Deridder property. Immediately thereafter, the Commission passed a resolution allowing LDAF staff to examine Willie Cripps’ business records of a previously treated property. Willie Cripps turned over the Deridder property business records to Richmond on April 29, 2011. In reviewing these records, the Commission found Willie Cripps in violation of twelve separate offenses under Louisiana’s pesticide law, including paperwork violations and his failure to use the proper amount of chemicals to treat termites, and assessed civil penalties. 7 5 The Deridder property was under contract for pest control by Lasalle Exterminating, Plaintiffs’ company at the time of the request. After receiving the complaint, Richmond arrived at the property and conducted a visual inspection of it. 6 Willie Cripps argues that the original treatment required of the pest control product “Termidor SC” was for the purpose of preventing ground infestations of termites. The subsequent infestation was caused by Formosan termites that resulted from a roof leak. He informed the Commission that any re-treatment that was required was not due to his treatment of ground infestation, but because of a separate unrelated incidence of the leak. Willie Cripps requested documentation from the Commission that would show that they were allowed to order him to re-treat the structure, but the Commission denied Willie’s request. 7 Under the LDAF Pest Control Law, “[a] moderate violation is any act of negligence in meeting the guarantees of an agreement for structural pest control work including but not 6  Case: 15-30524 Document: 00513457527 Page: 7 Date Filed: 04/08/2016 No. 15-30524 Willie Cripps received notice of these violations in a June 28, 2011, letter from the LDAF. Willie Cripps was notified of his violations and of the opportunity to address the Commission on August 3, 2011, the same date that Michael Cripps was scheduled to appear before the Commission. At the hearing, the LDAF presented evidence in the form of documents and testimony of witnesses rebutting Willie Cripps’ position that he properly applied the pesticide treatments. The LDAF established that the industry standard required Willie Cripps to use four gallons of treatment per ten linear feet per foot of depth. Willie Cripps used half that amount. Following Willie Cripps’ testimony, the Commission unanimously voted that he was guilty of all charges and imposed fines. In its resolution, the Commission stated that LDAF staff would be permitted to inspect the records of all wood-destroying insect treatments done by Willie Cripps to determine whether he may have committed other violations. The resolution stated that Willie Cripps’ would be required to re- treat each property that is not in compliance with the law. The Commission issued a Notice of Inspection on September 30, 2011, and sent an inspector to review Willie Cripps’ records. Willie Cripps refused to allow an inspector in his home without a warrant. II. Procedural History Plaintiffs sought declaratory and injunctive relief and damages under 42 U.S.C. § 1983 and Louisiana state law. The parties filed cross motions for summary judgment. Michael Cripps argued first that his procedural due limited to failure to apply pesticides in accordance with the label or failure to comply with minimum specifications adopted by the commission. A violation which is not a minor violation or a major violation shall be a moderate violation.” La. Stat. Ann. § 3:3371(C)(2). The accompanying fine may be five thousand dollars. See La. Stat. Ann. § 3:3372(A)(2). 7  Case: 15-30524 Document: 00513457527 Page: 8 Date Filed: 04/08/2016 No. 15-30524 process rights were violated when Defendants deprived him of his liberty interest in pursuing an occupation by fining him without first having the benefit of an adjudicatory hearing. Willie Cripps similarly filed a Motion for Partial Summary Judgment, requesting that the court prevent the re-litigation of issues previously decided by the 19th Judicial District of the State of Louisiana. The district court found Michael Cripps’ argument compelling, granting partial summary judgment on his procedural due process claims, but denied Willie Cripps’ motion. Defendants filed a Motion for Partial Summary Judgment as to Willie Cripps and a Motion for Summary Judgment as to Michael and David Cripps. Defendants argued that (1) Plaintiffs put forth no evidence to support a First, Eighth, or Fourteenth Amendment violation; and (2) Fields is entitled to qualified immunity. The court granted summary judgment in favor of Defendants as to these remaining claims. Plaintiffs timely appeal. On appeal, Plaintiffs argue that the district court erred in (1) granting summary judgment in favor of Defendants on their First Amendment retaliation claim; (2) granting summary judgment in favor of Defendants on Plaintiffs’ substantive due process claim; and (3) dismissing Plaintiffs’ Eighth Amendment claims by ruling that the Excessive Fines Clause of the Eighth Amendment is not applicable to the states through the Fourteenth Amendment. Plaintiffs asserted state law claims against Defendants corresponding to these same offenses. Plaintiffs also argue that the district court erred in finding Fields entitled to qualified immunity. III. Standard of Review This Court reviews grants of summary judgment de novo, applying the same standard as the district court. See Wheeler v. BL Dev. Corp., 415 F.3d 399, 401 (5th Cir. 2005). If no genuine issue of material fact exists, summary 8  Case: 15-30524 Document: 00513457527 Page: 9 Date Filed: 04/08/2016 No. 15-30524 judgment is appropriate and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Piazza’s Seafood World, LLC v. Odom, 448 F.3d 744, 752 (5th Cir. 2006). The court views the evidence in the light most favorable to the non-movant. Wheeler, 415 F.3d at 401–02. The non-movant must produce specific facts indicating a genuine issue for trial to avoid summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Summary judgment is appropriate, however, if the non-movant ‘fails to make a showing sufficient to establish the existence of an element essential to that party’s case.’” Odom, 448 F.3d at 752 (quoting Celotex, 477 U.S. at 322–23). IV. Analysis A. First Amendment Retaliation This court has never had the occasion to consider whether First Amendment retaliation has occurred where an administrative agency imposes fines, suspends or denies a registrant’s license and registration, or requires a registrant to provide access to its employment records following client complaints after the registrant appeared before the agency. However, our conclusion follows from earlier precedents. The First Amendment prohibits both direct limits on individual speech and adverse governmental action against an individual in retaliation for the exercise of protected speech activities. See Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002). Similarly, Article I, § 7 of the Louisiana Constitution provides: “No law should curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.” 9  Case: 15-30524 Document: 00513457527 Page: 10 Date Filed: 04/08/2016 No. 15-30524 While most First Amendment retaliation cases involve an employment or other contractual relationship between the plaintiffs and governmental officials, a claim may also be brought by an ordinary citizen. See id. at 258. To prevail on a First Amendment retaliation claim in this instance, a party must establish that: (1) they were engaged in a constitutionally protected activity; (2) the defendants’ actions caused them to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) the defendants’ adverse actions were substantially motivated against the plaintiffs’ exercise of constitutionally protected conduct. See id. In reviewing the Commission’s conduct, Plaintiffs present evidence of two incidents: (1) Michael Cripps appeared before the Commission and made inflammatory comments about Fields and the Commission in order to show the disdain that Fields had for Plaintiffs; and (2) Willie Cripps made several complaints, to the Commission and others in the pest control industry, in response to the Commission’s request to inspect his work records and that he re-treat properties, which resulted in an adverse action by the Commission. Plaintiffs’ arguments rest, first, on the assumption that Fields was directly involved in the decision-making process and influenced the Commission to rule against them, and second, that the closeness in time between Michael Cripps and Willie Cripps’ statements and letters before the Commission’s vote clearly shows retaliatory action. Michael Cripps alleges that the Commission’s August 3, 2011, determination was retaliatory because he was vocal about his grievances before the Commission and others. At this Commission hearing, Michael Cripps stated: (1) Fields, through his position at the LDAF, displayed anger toward Michael and David Cripps; (2) following LDAF’s accusation that David Cripps improperly treated properties, and the Commission’s request that the 10  Case: 15-30524 Document: 00513457527 Page: 11 Date Filed: 04/08/2016 No. 15-30524 properties be re-treated, David Cripps no longer had favorable experiences with his clients; (3) Fields refused to disclose soil samples that would show that properties Willie Cripps serviced had not been adequately treated; (4) Fields denied Michael and David Cripps the ability to enter an adjudicatory hearing on January 27, 1999, to address alleged violations of the Louisiana Pest Control Law; and (5) Fields allegedly demanded that the brothers sign a stipulation showing guilt. Following Michael Cripps’ oration, the Commission passed a motion to deny Michael Cripps’ request to have both his license and registration reinstated until he paid the imposed fine including interest. The district court concluded that Defendants’ actions, even when viewed in the light most favorable to Plaintiffs, presented no genuine issue of material fact. We agree. First, while Michael Cripps “provided a scathing rebuke of defendant David Fields,” Fields himself did not engage in retaliation against Michael Cripps. Fields did not vote to deny Michael Cripps’ registration, nor has Michael Cripps provided any direct evidence showing that his protected speech was the cause of any adverse action Defendants took. In fact, the entity that voted on August 3, 2011, was the Commission alone. Fields, who was not a sitting member of the Commission, did not propose any of the motions related to Michael Cripps, nor did he have a vote on any of the motions proffered at the meeting. Next, Michael Cripps essentially asks us to subject all actions by a Commission following a hearing to a First Amendment retaliation claim merely because of the closeness in time between an individual’s petition to the Commission and the Commission’s decision. We decline to do so. As the district court found, “the close proximity between the plaintiff’s presentation and the Commission’s action was a byproduct of the general procedure in these 11  Case: 15-30524 Document: 00513457527 Page: 12 Date Filed: 04/08/2016 No. 15-30524 type of commission meetings—a committee attempts to entirely deal with each item on its agenda as they are presented at the meeting.” The Commission meeting minutes show this clearly—the Commission addressed each issue or person before it in full before moving on to the next. While circumstantial evidence may show improper motive, the evidence here fails to undermine Defendants’ lawful decision to impose sanctions on Plaintiffs for violating state law, and merely relying on such temporal proximity between the conduct and any adverse action here is insufficient to show First Amendment retaliation. Cf. Tompkins v. Vickers, 26 F.3d 603, 609–10 (5th Cir. 1994). Though “[c]lose timing between an employee’s protected activity and an adverse employment action can be a sufficient basis for a court to find a causal connection required to make out a prima facie case of retaliation,” the court should view temporal proximity between the activity and the adverse action in the context of other evidence. Mooney v. Lafayette Cty. Sch. Dist., 538 F. App’x 447, 454 (5th Cir. 2013). Second, David Cripps fails to establish a genuine issue of material fact as it relates to both the second and third requirements of a First Amendment retaliation claim. The district court found, and we agree, that David Cripps did not actually suffer any injury because the Commission took no action against him following the August 3, 2011, hearing. See Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982) (noting that § 1983 is a tort statute and that “[a] tort to be actionable requires injury,” which, in this context, is the deprivation of a constitutional right). David Cripps experienced no change in his license and registration status following the hearing. Similarly, in order to show First Amendment retaliation, there must be conduct by an official acting under color of state law. See Keenan, 290 F.3d at 258; Colson v. Grohman, 174 F.3d 498, 508 (5th Cir. 1999) (“As a general rule, the First Amendment prohibits not only 12  Case: 15-30524 Document: 00513457527 Page: 13 Date Filed: 04/08/2016 No. 15-30524 direct limitations on speech but also adverse government action against an individual because of her exercise of First Amendment freedoms.”). No such action occurred here. Despite the fact that Michael Cripps requested that the Commission reinstate David Cripps’ license at the August 3, 2011, hearing, the Commission’s first offered motion to prevent the reinstatement of David Cripps’ license was superseded by a later motion that solely referenced Michael Cripps. The Commission’s failure to make a ruling regarding David Cripps is neither an action by Defendants causing him to suffer an injury nor substantially motivated against his exercise of constitutionally protected conduct. Without more, David Cripps fails to create a genuine issue of material fact. Finally, Willie Cripps claims that Defendants retaliated against him by baselessly charging him with violations of the Pest Control Law, finding him guilty of these charges, and subsequently ordering and attempting to search his home without a search warrant or reasonable suspicion. Willie Cripps relies on Hartman v. Moore for the proposition that “when non-retaliatory grounds are in fact insufficient to provoke the adverse consequences, [courts] have held that retaliation is subject to recovery as the but-for-cause of official action offending the Constitution.” 547 U.S. 250, 256 (2006). Reliance on Hartman is misplaced. Willie Cripps, like his son, relies on both Fields’ presence at the Commission meeting as well as the closeness in time between his actions and the Commission’s decision to show retaliation. As explained, Fields’ mere presence and the closeness in time between the First Amendment speech and the Commission’s decision are insufficient to show a violation of a clear mandate under state law. The record reflects that Defendants’ decision was directly supported by the reasonable belief that Willie Cripps failed to use 13  Case: 15-30524 Document: 00513457527 Page: 14 Date Filed: 04/08/2016 No. 15-30524 the proper amount of termiticide in the treatment of properties, a direct violation of state law. It is evident that among the claims Plaintiffs made, none were that the regulations or statutes under which the Commission acted were unconstitutional. To the contrary, Plaintiffs’ complaint is that this exercise of authority is unconstitutional as to them. Plaintiffs fail, however, to provide substantiated evidence that the Commission acted beyond its regulatory authority. Put in context, the Commission was within its regulatory bounds to take the action it did. Accordingly, we decline the invitation to overturn the administrative decisions in this case merely because they are adverse to Plaintiffs. Plaintiffs failed to establish a genuine issue of material fact and summary judgment was proper. As summary judgment is proper as to Plaintiffs’ First Amendment claims, summary judgment is also proper on Plaintiffs’ Article I, § 7 state law claims. See Davis v. Allen Par. Serv. Dist., 210 F. App’x 404, 413 (5th Cir. 2006) (finding summary judgment proper for claim brought under the Louisiana Constitution where the court granted summary judgment on § 1983 First Amendment claim). B. Substantive Due Process We next address Plaintiffs’ second constitutional claim: the allegation that Defendants violated their Fourteenth Amendment substantive due process rights. At the outset, we hold that summary judgment was properly granted. The Fourteenth Amendment of the United States Constitution provides that no state shall deprive any person of “life, liberty, and property, except by due process of law.” U.S. Const. amend. XIV, § 1. The Louisiana Constitution provides the same due process protections as that of the United States Constitution. See Progressive Sec. Ins. Co. v. Foster, 711 So. 2d 675, 688 14  Case: 15-30524 Document: 00513457527 Page: 15 Date Filed: 04/08/2016 No. 15-30524 (La. 1998) (“[O]ur due process guarantee in La. Const. Art. I, § 2 does not vary from the Due Process Clause of the Fourteenth Amendment to the United States Constitution.”). A plaintiff who brings a substantive due process claim must: (1) “allege a deprivation of a constitutionally protected right;” and (2) demonstrate that the government action is not “rationally related to a legitimate governmental interest.” Mikeska v. City of Galveston, 451 F.3d 376, 379 (5th Cir. 2006). Courts analyze substantive due process claims by asking “whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Conroe Creosoting Co. v. Montgomery Cty., 249 F.3d 337, 341 (5th Cir. 2001). Relevant here, the denial of a license to practice one’s profession can be a deprivation of a liberty interest if the reasons for the denial offend due process. Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 238–39 (1957). Whether the governmental action is rationally related to a legitimate governmental interest is a question of law for the court. Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1044 (5th Cir. 1998). We easily see a rational relationship here. Louisiana law provides the Commission with authority under the Pest Control Law to, inter alia, suspend or revoke any permit, license, or registration for the Commission. 8 The Commission’s decision to withhold Plaintiffs’ licenses and registration, as well as its alleged inaction regarding Plaintiffs’ applications, serves the legitimate governmental interest of preventing conduct in violation of the law in order to 8 The Commission may suspend or revoke “any permit, license, or registration for the commission of any act which is a major violation or for multiple acts which are minor or moderate violations,” based on “the affirmative vote of each of the five members of the commission.” La. Stat. Ann. § 3:3372(B). “Civil penalties may be assessed, probation may be imposed, and permits, licenses, and registrations may be suspended or revoked only by a ruling of the commission based on an adjudicatory hearing held in accordance with the Administrative Procedure Act and” specified procedural rights. La. Stat. Ann. § 3:3372(E). 15  Case: 15-30524 Document: 00513457527 Page: 16 Date Filed: 04/08/2016 No. 15-30524 protect the health and safety of Louisiana’s citizens. See, e.g., City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 198–99 (2003) (finding rational a city’s decision to refuse requests for building permits to applicants until a referendum had been passed enabling its issuance as such conduct would be in violation of the law); Green Turtle Landscaping Co. v. City of New Orleans, No. 01–1666, 2003 WL 22272188, at *1–4 (E.D. La. Oct. 2, 2003). In light of City of Cuyahoga Falls and Green Turtle Landscaping Co., we find no error in the district court’s determination that Plaintiffs’ right to work “in the common occupations of his community” does not exist exclusive of regulatory rules created to protect the consumer and the environment. Michael Cripps challenges the Defendants’ conduct as applied to him, arguing that the decision to impose fines, as well as filing the baseless charges themselves, bears no rational relationship to any legitimate government interest. However, the Commission was merely imposing practical requirements as a penalty for violations of law in an attempt to protect the constituents the LDAF serves. FM Props. Operating Co. v. City of Austin, 93 F.3d 167, 172–73 (5th Cir. 1996) (finding no substantive due process violation where a city disapproved a company’s development project for its failure to comply with established law). The Commission, an agency charged with administering the regulatory scheme that governs the implementation of rules and regulations in the interests, health, safety, and welfare of the Louisiana public, imposed fines and withheld licensing in order to uphold the law and its duty to the public. Even assuming that Michael Cripps’ interest in pursuing an occupation was deprived when Defendants refused to grant him temporary registration or licensure, see Brantley v. Kuntz, 98 F. Supp. 3d 884, 889–90 (W.D. Tex. 2015), these preliminary fines, and any potential resulting penalty for nonpayment, 16  Case: 15-30524 Document: 00513457527 Page: 17 Date Filed: 04/08/2016 No. 15-30524 were agreed upon by stipulation. Despite the numerous arguments for why the charges were levied against him, Michael Cripps has failed to show that the complained-of conduct does not relate to the government’s interest in enforcing the law and ensuring the health and safety of the public. See, e.g., Brennan v. Stewart, 834 F.2d 1248, 1259 (5th Cir. 1988) (concluding that the Texas Board of Examiners’ decision to license only examiners who can provide good care to clients, where the Board imposed a series of practical requirements and easily-administered rules, was rational). The Commission’s actions do not fall below the Fourteenth Amendment’s constitutional mandate. See Simi Inv. Co. v. Harris Cty., 236 F.3d 240, 251 (5th Cir. 2000) (“If the question is at least debatable, there is no substantive due process violation.” (citation and internal quotation marks omitted)). While David Cripps contends that the Commission’s failure to properly address any of his grievances is evidence of a violation of his due process rights, the Commission took no action against him on August 3, 2011, at all. The Commission’s failure to respond was neither so “egregious” nor “outrageous” that it may fairly be said to shock the contemporary conscience. See Conroe Creosoting Co., 249 F.3d at 341. Further, at the very least, the Commission’s decision not to act on David Cripps’ licensing and registration was rational. David Cripps expressly stated that he did not wish to address the Commission, his matter was not before the Commission at that time, and the Commission was not required to make a ruling as to any of his prior claims even if Michael Cripps spoke on David Cripps’ behalf. Finally, Willie Cripps bases his substantive due process claim on the Commission’s August 3, 2011, resolution requiring inspection of his business records to determine if he complied with the law. The resolution states that if treatments were not in compliance with law, Willie Cripps would then need to 17  Case: 15-30524 Document: 00513457527 Page: 18 Date Filed: 04/08/2016 No. 15-30524 re-treat each property to ensure compliance. Willie Cripps argues that such a search would be an “unlimited and unqualified” search of all of his books and records relating to properties he had treated. It is clear here, however, that Willie Cripps fails to substantiate any claim for such a constitutional violation. The Commission’s resolution requiring Willie Cripps to re-treat property was in direct response to Willie Cripps’ statement that he treated properties with the incorrect amounts of pesticide. However, at no time has Willie Cripps’ interest in freely engaging in the common occupations of life been infringed upon, as no action has occurred related to his license or registration, he has not yet been required to re-treat any properties, and no search has been conducted of his home. Even if such an infringement occurred, the legitimate governmental interest overriding such action is the Commission’s goal of ensuring that his previous treatments are in compliance with the law in order to maintain the health and safety of the public. See FM Properties Operating Co., 93 F.3d at 172–73 (finding government action to have a rational relationship to the legitimate governmental purpose of protecting the public health, safety, and welfare). However broad, such a request by the Commission was not in contravention of the Fourteenth Amendment. In sum, although Plaintiffs may have a protected interest in being free from arbitrary state action not rationally related to a state purpose, they do not have a constitutional right to violate rules and regulations of the Louisiana Pest Control law. The record establishes a substantial basis for Defendants’ actions and precludes any inference that such actions were arbitrary. See Green Turtle Landscaping, 2003 WL 22272188, at *1–4. The district court’s finding of no genuine issue of material fact was proper. Because Louisiana courts have found the due process protections in the Louisiana Constitution to be coextensive with the protections of the 18  Case: 15-30524 Document: 00513457527 Page: 19 Date Filed: 04/08/2016 No. 15-30524 Fourteenth Amendment, the same determination applies to Plaintiffs’ state law claims. See Plaquemines Par. Gov’t v. River/Rd. Constr., Inc., 828 So. 2d 16, 24 (La. App. 4 Cir. 2002). C. Eighth Amendment Excessive Fines Clause Next, we turn to Plaintiffs’ argument that the district court erred in dismissing Plaintiffs’ Eighth Amendment Excessive Fines Clause claim where the Commission imposed fines and interest on Plaintiffs. The Eighth Amendment of the United States Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed . . .” U.S. Const. amend. VIII. An administrative agency’s fine does not violate the Eighth Amendment—no matter how excessive the fine may appear—if it does not exceed the limits prescribed by the statute authorizing it. See Newell Recycling Co. v. E.P.A., 231 F.3d 204, 210 (5th Cir. 2000). Plaintiffs’ Eighth Amendment argument fails. In addressing the Commission’s imposition of fines, we echo prior Supreme Court and Fifth Circuit precedent: first, the Eighth Amendment does not apply of its own force to the States, see Hinojosa v. Livingston, 807 F.3d 657, 665 n.5 (5th Cir. 2015), and second, “[w]e never have decided whether . . . the Eighth Amendment’s prohibition of excessive fines applies to the States through the Due Process Clause,” see McDonald v. City of Chicago, 561 U.S. 742, 765 (2010). See also Browning–Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 276, n. 22 (1989) (declining to decide whether the excessive fines protection applies to the States). Notwithstanding, Plaintiffs highlight that this court has assumed, without deciding, that the Clause is applicable. Vanderbilt Mortg. & Fin., Inc. v. Flores, 692 F.3d 358, 74 (5th Cir. 2012) (“Even assuming that the [Excessive Fines] Clause has been incorporated against the states, the fine in 19  Case: 15-30524 Document: 00513457527 Page: 20 Date Filed: 04/08/2016 No. 15-30524 question—$10,000 for filing a fraudulent lien [under Texas law]—is not ‘grossly disproportional to the gravity of a defendant’s offense’”). Assuming arguendo that the Excessive Fines Clause applies, the record indicates that each of Plaintiffs’ offenses resulted in fines that do not exceed the limits prescribed by the statute authorizing it. See Newell Recycling Co., 231 F.3d at 210. In fact, the Commission imposed penalties well below the statutorily prescribed maximum—both Michael and David Cripps faced potential fines of roughly $20,000 or more, but the Commission imposed a final penalty that did not exceed even half this amount. Thus, even assuming that the Excessive Fines Clause has been incorporated against the States, the fines imposed here were neither grossly disproportional to the gravity of their offenses nor beyond that prescribed by statute. D. Qualified Immunity The final issue before this court is whether the district court erred in finding Fields entitled to qualified immunity. Plaintiffs argue that the district court erred in granting the qualified immunity defense with respect to their claim that Fields’ conduct violated their First and Fourteenth Amendment rights. Plaintiffs argue that Fields was personally involved in all adverse actions against them and that a reasonable jury could conclude that Fields’ actions were not objectively reasonable in light of the law and the facts. See Samuel v. Holmes, 138 F.3d 173, 176 (5th Cir. 1998) (reviewing claims of qualified immunity using a two-step analysis: first, asking whether a plaintiff has alleged the violation of a clearly established statutory or constitutional right and, second, determining whether a defendant’s conduct was “objectively reasonable”). They offer Fields’ presence at the Commission hearing and his prior interactions with Plaintiffs as evidence of his direct violation of their rights. Defendants emphasize that Fields was a government official 20  Case: 15-30524 Document: 00513457527 Page: 21 Date Filed: 04/08/2016 No. 15-30524 performing a discretionary task, Fields’ conduct did not violate Plaintiffs’ constitutional rights, and even assuming that Fields’ conduct did violate any of Plaintiffs’ rights, a reasonable official would not have known that “merely being present” at the Commission hearing is an adverse action that could give rise to personal liability. Because Plaintiffs’ failed to establish a constitutional violation, we need not reach the question of whether Fields’ conduct was objectively reasonable. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Nerren v. Livingston Police Dep’t, 86 F.3d 469, 473 (5th Cir. 1996); Dorsett v. Bd. of Trs. for State Colls. & Univs., 940 F.2d 121, 125 (5th Cir. 1991). Under the facts established by the summary judgment record, this claim must fail and the district court’s grant of summary judgment in favor of Defendants is without error. V. Conclusion For the foregoing reasons, we AFFIRM. 21 

559 F.2d 29 U. S.v.Brown No. 75-2482 United States Court of Appeals, Fifth Circuit 8/24/77 M.D.Ga., 555 F.2d 407

747 F.2d 1467 Nimsv.Friedlander NO. 84-8103 United States Court of Appeals,Eleventh Circuit. NOV 09, 1984 Appeal From: N.D.Ga., 571 F.Supp. 1188 1 DISMISSED.

132 F.3d 1455 Carterv.Whitley* NO. 96-30936 United States Court of Appeals,Fifth Circuit. Nov 25, 1997 Appeal From: M.D.La. ,No.94CV2572BM1 1 Affirmed. * Fed.R.App.P. 34(a); 5th Cir.R. 34-2

FILED NOT FOR PUBLICATION NOV 19 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT ARACELI HERNANDEZ; et al., No. 07-74986 Petitioners, Agency Nos. A096-385-884 A096-385-880 v. A096-385-881 A096-385-883 ERIC H. HOLDER, Jr., Attorney General, Respondent. MEMORANDUM * On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 16, 2010 ** Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges. Araceli Hernandez and three of her sons, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ orders dismissing their appeals from the immigration judge’s (“IJ”) decisions denying their applications for withholding of removal and relief under the Convention Against Torture * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Nagoulko v. INS, 333 F.3d 1012, 1015 (9th Cir. 2003), and we deny in part and dismiss in part the petition for review. The record does not compel the conclusion that the threats petitioners received from police after they sought to file a complaint against a police officer amounted to persecution or demonstrated a clear probability of persecution. See Lim v. INS, 224 F.3d 929, 936-38 (9th Cir. 2000) (unfulfilled threats, without more, generally do not constitute persecution); Ramadan v. Gonzales, 479 F.3d 646, 658 (9th Cir. 2007) (threats alone did not demonstrate a clear probability of persecution). Accordingly, petitioners’ withholding of removal claims fail. See 8 U.S.C. § 1231(b)(3). We lack jurisdiction to review any assertion by Hernandez’s son, Raymundo San Augustin-Hernandez, that he is eligible for CAT relief, because he specifically declined to apply for that relief before the IJ. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Substantial evidence supports the IJ’s denial of CAT relief to the remaining petitioners because they failed to establish it is more likely 2 07-74986 than not that they will be tortured if returned to Mexico. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009). PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 07-74986 

816 So.2d 805 (2002) Carlos RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee. No. 3D01-3507. District Court of Appeal of Florida, Third District. May 15, 2002. *806 Bennett H. Brummer, Public Defender and Robert Kalter, Assistant Public Defender, for appellant. Robert A. Butterworth, Attorney General and Susan Odzer Hugentugler, Assistant Attorney General, for appellee. Before LEVY, GERSTEN and GODERICH, JJ. PER CURIAM. The defendant, Carlos Rodriguez, challenges his conviction for felony battery in a domestic violence context, contending that the trial court erred in denying his challenge for cause to prospective juror Damato. We agree and reverse. The defendant was charged with felony battery resulting from a domestic dispute with his wife. During voir dire, prospective juror Damato revealed that when she was eighteen, she had been abused by a boyfriend. She also said that she had encountered domestic violence on two other occasions, one of which involved her sister being beaten by her boyfriend. When asked if, based upon her experience, she could listen to the evidence and make a decision based solely on the facts and merits of this particular case, Damato candidly replied: "I might have a problem with it. I'm just listening to the words that have been speaking [sic] to these people and I am understanding where it is coming from. There is nothing that justifies violence. So I might have a problem." After further questioning by the prosecutor and the court, juror Damato eventually said that she would try to the best of her ability to be fair and put aside her experiences with domestic violence. The defendant requested to have juror Damato excused for cause. The trial court denied the request, finding that she had been rehabilitated. The defendant used a peremptory challenge and juror Damato was excused. Thereafter, the defendant attempted to excuse prospective juror Eller. Having exhausted all of his peremptory challenges, the defendant requested an additional peremptory challenge. That request was denied and juror Eller was seated on the panel. We find that the trial court erred in failing to excuse juror Damato for cause, despite the attempts at rehabilitation. "A *807 juror is not impartial when one side must overcome a preconceived opinion in order to prevail." Hill v. State, 477 So.2d 553, 556 (Fla.1985). "If a prospective juror's statements raise reasonable doubts as to that juror's ability to render an impartial verdict, the juror should be excused." Hall v. State, 682 So.2d 208, 209 (Fla. 3d DCA 1996). "Close cases should be resolved in favor of excusing the juror rather than leaving a doubt as to his or her impartiality." Sydleman v. Benson, 463 So.2d 533, 533 (Fla. 4th DCA 1985). In the instant case, juror Damato's initial comments should have sent up a red flag that she had no business sitting on a case in which the defendant was charged with an offense involving domestic violence. Since the defendant was later unable to excuse an objectionable juror whom he otherwise would have struck peremptorily, the court's failure to excuse juror Damato for cause constituted reversible error. See Trotter v. State, 576 So.2d 691, 693 (Fla. 1990); Hall, 682 So.2d at 209. Accordingly, we reverse and remand for a new trial.

213 F.3d 398 (7th Cir. 2000) Wal-Mart Stores, Incorporated Associates' Health and Welfare Plan; and Administrative Committee, administrator of the Plan, Plaintiffs-Appellees,v.Denise Wells, Defendant-Appellant. No. 99-2018 In the United States Court of Appeals For the Seventh Circuit Argued February 15, 2000 Decided May 17, 2000 Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.[Copyrighted Material Omitted] No. 97 C 422--Rudy Lozano, Judge. Before Posner, Chief Judge, and Easterbrook and Diane P. Wood, Circuit Judges. Posner, Chief Judge. 1 This is a suit by an ERISA welfare plan and its administrator (only the latter is a fiduciary and hence a proper plaintiff, ERISA sec. 502(a)(3), 29 U.S.C. sec. 1132(a)(3); Administrative Committee v. Gauf, 188 F.3d 767, 770 (7th Cir. 1999), but we'll ignore that detail), for reimbursement of $10,982.61 paid under the plan to a participant for medical expenses that she incurred because of an automobile accident. After receiving the money from the plan, she brought a personal injury suit against the driver of the other car involved in the accident and obtained from that driver's insurer a settlement of some $75,000, of which a third went to her lawyer. (Actually, the settlement was for claims by Wells and her husband, but as the parties make nothing of the husband's participation in the settlement, neither shall we.) The plan documents entitle the plan to reimbursement of 100 percent of any benefits paid to a participant to the extent of "any payment resulting from a judgment or settlement, or other payment or payments, made or to be made by any person or persons considered responsible for the condition giving rise to the medical expense or by their insurers." Wells claims that the plan should contribute a pro rata share of her attorneys' fees, since they were expended for the plan's benefit as well as her own. Her lawyer has a check from the insurer, payable to him as well as to Wells and her husband and to "Wal-Mart as subrogee of Denise Wells," for the entire $10,982.61 for which the plan seeks to be reimbursed. He refuses to endorse the check over to the plan. As well as seeking reimbursement, the plan asks that Wells be enjoined from continuing to violate the plan's rights by instructing or permitting her lawyer to withhold the insurer's check. It does not, however, seek interest--just the amount of the check. 2 We must consider whether the relief sought by the plan is equitable, because that is the only type of relief that ERISA authorizes a fiduciary to obtain. ERISA sec. 502(a)(3), 29 U.S.C. sec. 1132(a)(3); Mertens v. Hewitt Associates, 508 U.S. 248 (1993); Health Cost Controls of Illinois, Inc. v. Washington, 187 F.3d 703, 710 (7th Cir. 1999). We can set to one side the claim for an injunction, to which--were the claim legitimate--a claim for damages could ordinarily be appended under the "clean-up" doctrine of equity and, so appended, would be classified as itself equitable, e.g., Burns v. First National Bank, 985 S.W.2d 747 (Ark. 1999); American Appliance, Inc. v. Brady, 712 A.2d 1001 (Del. 1998); see also Medtronic, Inc. v. Intermedics, Inc., 725 F.2d 440, 442 (7th Cir. 1984); see generally 1 Dan B. Dobbs, Dobbs on the Law of Remedies: Damages--Equity--Restitution sec. 2.7, pp. 180-81 (2d ed. 1993)--though possibly not in an ERISA case. For the Supreme Court said in Mertens that only typical equitable relief is available under that statute. 508 U.S. at 255-57; see also Reich v. Continental Casualty Co., 33 F.3d 754, 756 (7th Cir. 1994). However that may be, a plaintiff cannot convert a claim of damages for breach of contract into an equitable claim by the facile trick of asking that the defendant be enjoined from refusing to honor its obligation to pay the plaintiff what the plaintiff is owed under the contract and appending to that request a request for payment of the amount owed. A claim for money due and owing under a contract is "quintessentially an action at law." Hudson View II Associates v. Gooden, 644 N.Y.S.2d 512, 516 (A.D. 1996); see also Atlas Roofing Co. v. Occupational Safety & Health Review Comm'n, 430 U.S. 442, 459 (1977). 3 But there is more here. Wells's lawyer is holding $10,982.61 to which the plan claims to be entitled. Wells wants the claim reduced to reflect the attorneys' fees she expended in obtaining the settlement of which the $10,982.61 is a part. But since she concedes that some (in fact the bulk) of this amount is rightfully the plan's, the lawyer's interception of the entire amount en route from the insurer to the plan is clearly wrongful. In Health Cost Controls of Illinois, Inc. v. Washington, supra, 187 F.3d at 710-11, a similar case, we held that the plan was seeking to impose on the money intercepted in transit a constructive trust--a classic form of equitable relief against someone (not necessarily a fiduciary, e.g., In re Estate of Cohen, 629 N.E.2d 1356, 1359 (N.Y. 1994); Schwartz v. Horn, 290 N.E.2d 816, 817-18 (N.Y. 1972); Pope v. Garrett, 211 S.W.2d 559, 561-62 (Tex. 1948)) who is holding property that is rightfully the plaintiff's. Clair v. Harris Trust & Savings Bank, 190 F.3d 495, 498-99 (7th Cir. 1999); Beatty v. Guggenheim Exploration Co., 122 N.E. 378, 386 (N.Y. 1919) (Cardozo, J.). In the Washington case the money was being held in escrow pending the resolution of the dispute between the plan and the participant. In this case the money is being held by a lawyer, presumably also in an escrow account (a lawyer is not permitted to commingle a client's funds with his own), and the question is whether the beneficial owner is Wells, by virtue of the settlement with the tortfeasor, or the plan, by virtue of its contract with Wells. 4 Some cases, including our own Administrative Committee v. Gauf, supra, 188 F.3d at 770-71, seem inclined to classify all claims of reimbursement by an ERISA plan as equitable, perhaps because of ERISA's very broad preemption clause, ERISA sec. 514, 29 U.S.C. sec. 1144; Jay Conison, Employee Benefit Plans in a Nutshell 302, 317-19 (2d ed. 1998), which might disable a plan from enforcing its rights to reimbursement if suits to enforce them were classified as legal. See also Blue Cross & Blue Shield of Alabama v. Sanders, 138 F.3d 1347, 1352-53 n. 5 (11th Cir. 1998); Southern Council of Industrial Workers v. Ford, 83 F.3d 966, 969 (8th Cir. 1996) (per curiam). The Ninth Circuit is at the opposite pole. See Reynolds Metals Co. v. Ellis, 202 F.3d 1246, 1247-49 (9th Cir. 2000); Cement Masons Health & Welfare Trust Fund v. Stone, 197 F.3d 1003 (9th Cir. 1999); FMC Medical Plan v. Owens, 122 F.3d 1258, 1260-62 (9th Cir. 1997). We need not consider in this case the outer bounds of ERISA's concept of equity, as a suit to impose a constructive trust nestles comfortably within them under any view. Owens, in contrast, was explicit in saying that the plan had not sought the imposition of a constructive trust. Id. at 1261. 5 So we have jurisdiction and can proceed to the merits. The language from the plan document that we quoted earlier seems clear, and clearly to favor the plan's claim. But contracts--which for most purposes ERISA plans are, Herzberger v. Standard Ins. Co., 205 F.3d 327, 330 (7th Cir. 2000); see also John H. Langbein, "The Contractarian Basis of the Law of Trusts," 105 Yale L.J. 625 (1995)--are enacted against a background of common-sense understandings and legal principles that the parties may not have bothered to incorporate expressly but that operate as default rules to govern in the absence of a clear expression of the parties' intent that they not govern. This principle has been applied to the interpretation of ERISA plans in a number of cases in this and other courts. See Cutting v. Jerome Foods, Inc., 993 F.2d 1293, 1297-99 (7th Cir. 1993); Waller v. Hormel Foods Corp., 120 F.3d 138, 141 (8th Cir. 1997); Cagle v. Bruner, 112 F.3d 1510, 1520-22 (11th Cir. 1997) (per curiam); Barnes v. Independent Automobile Dealers Ass'n, 64 F.3d 1389, 1394-96 (9th Cir. 1995). To read the Wal-Mart plan literally would allow the plan to free ride on the efforts of the plan participant's attorney, contrary to the equitable concept of "common fund" that governs the allocation of attorney's fees in cases in which the lawyer hired by one party creates through his efforts a fund in which others are entitled to share as well. Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980); Sprague v. Ticonic National Bank, 307 U.S. 161, 166 (1939); Davis v. Carl Cannon Chevrolet-Olds, Inc., 182 F.3d 792, 795 (11th Cir. 1999); 1 Dobbs, supra, sec. 3.10(2), pp. 393-98; John P. Dawson, "Lawyers and Involuntary Clients: Attorney Fees From Funds," 87 Harv. L. Rev. 1597 (1974). 6 It would also gratuitously deter the exercise of the tort rights of plan participants. For one can easily imagine a case in which, under the plan's interpretation, the participant (or nonparticipant beneficiary, such as a spouse or child) would lose part of her plan benefits simply by virtue of having exercised her right to bring a tort suit against a third party. Suppose Wells had obtained a settlement of $12,000 of which her lawyer got $4,000 pursuant to a standard contingent-fee contract, leaving her with $8,000. Since her settlement would be greater than $10,982.61, the plan under its theory would be entitled to that entire amount, leaving her worse off by $2,982.61 than she would have been had she not sued. This would be true even if she had sought no medical benefits, or any other benefits available under the plan, in that suit--it might have been a suit purely for damage to her car. This prospect might well deter a suit likely to result in a judgment or settlement not much larger than the benefits available under the plan--and in that event the language on which the plan relies would produce undercompensation for harms that were unrelated to the type of harm to which the benefits pertain. Wells would have been surprised to have been told when she signed onto this plan that as a result of it she might not be able to obtain compensation for tortiously inflicted property damage. The plan itself might well be worse off in the long run, as it would have to incur attorneys' fees in order to enforce its right of subrogation. See Blackburn v. Sundstrand Corp., 115 F.3d 493, 496 (7th Cir. 1997). 7 The plan documents neither advert to the anomaly just discussed nor expressly repudiate common- fund principles, and so they do not alter the background understanding of the allocation of attorneys' fees that is embodied in those principles. We interpolate those principles to avoid wreaking unintended consequences. United McGill Corp. v. Stinnett, 154 F.3d 168, 172-73 (4th Cir. 1998), and Bollman Hat Co. v. Root, 112 F.3d 113, 116-18 (3d Cir. 1997), are only superficially in conflict with this result. They refuse to invalidate a plan provision interpreted to bar the application of common-fund principles; we pose the issue as one not of validity but of sound application of principles of contract interpretation. More problematic is Walker v. Wal-Mart Stores, Inc., 159 F.3d 938 (5th Cir. 1998) (per curiam), which upheld a literal reading of identical language--but did so as a matter of deference to the interpretation by the plan's administrator. 8 That's a critical qualification. In cases in which the plan documents give the plan's administrator discretion to interpret the plans, our review is deferential. E.g., Mers v. Marriott International Group Accidental Death & Dismemberment Plan, 144 F.3d 1014, 1020 (7th Cir. 1998); Fuller v. CBT Corp., 905 F.2d 1055, 1058 (7th Cir. 1990). But the presumption is against deference, Herzberger v. Standard Ins. Co., supra, and has not been rebutted. For there is no reference to discretion in the part of the plan documents that deals with the plan's right to reimbursement--only in the part that deals with benefits determinations. Determinations of benefits, determinations that supervene on interpretation of key terms such as "disability," invite the exercise of discretion, being inescapably particularistic and fact-bound; determinations of issues related solely to the financial aspects of the plan do not. 9 An amendment in 1996 to the plan that was in force when Wells was injured and sought and received benefits explicitly refuses to pick up any part of the plan participant's attorneys' fees, as in Health Cost Controls v. Isbell, 139 F.3d 1070 (6th Cir. 1997), and Ryan v. Federal Express Corp., 78 F.3d 123, 124, 127 (3d Cir. 1996). The plan argues that the amendment is applicable to the claim of reimbursement because the claim was made in 1997, after the amendment took effect. This is an astonishing argument, implying as it does that the amending power can be used to force plan participants and beneficiaries to return benefits already received and spent. The logic of the argument is that if the plan were amended to abolish some class of benefits (say, reimbursement for the cost of treating mental disorders), the recipients could be forced to disgorge them even if they had received the benefits many years earlier. The argument was rejected in the very case that the plan mistakenly cites in support of it. Member Services Life Ins. Co. v. American National Bank & Trust Co., 130 F.3d 950, 957-58 (10th Cir. 1997). 10 Because the 1996 amendment is inapplicable to this case, we need not consider whether state "common fund" law, see Ind. Code. sec.sec. 34-53- 1-2, 34-51-2-19, is applicable at all, because either in terms, Ind. Code sec. 34-53-1-2, or as a matter of interpretation, Allstate Ins. Co. v. Smith, 656 N.E.2d 1156, 1158 (Ind. App. 1995); Standard Mutual Ins. Co. v. Pleasants, 627 N.E.2d 1327, 1330 (Ind. App. 1994), it is applicable only to insurers, and an ERISA plan is not deemed to be (and the Wal-Mart plan is not contended to be) an insurer. ERISA sec. 514(b)(2)(B), 29 U.S.C. sec. 1144(b)(2)(B); Stillmunkes v. Hy-Vee Employee Benefit Plan & Trust, 127 F.3d 767, 770 (8th Cir. 1997). We likewise need not consider whether, if the state's common fund law is otherwise applicable, it is preempted by ERISA. Although, as explained in Blackburn v. Sundstrand Corp., supra, 115 F.3d at 496, state laws of general applicability that affect ERISA plans no differently from similar economic activity are not preempted by ERISA, our decision in Administrative Committee v. Gauf, supra, 188 F.3d at 771, holds that when (unlike the situation in Blackburn) an ERISA plan is the plaintiff in a suit claiming reimbursement, its claim arises under and is governed by ERISA, or by federal common law created under the authority of ERISA. Whether Gauf and Blackburn can coexist is thus another issue we needn't try to resolve today; nor whether, if the state's common fund law is not preempted and is fully applicable, it can nevertheless be overridden by an express contractual provision, as intimated in Sell v. United Farm Bureau Family Life Ins. Co., 647 N.E.2d 1129, 1133 (Ind. App. 1995); nor whether if it is preempted it is preempted in favor of a similar federal common law doctrine, as implied by McIntosh v. Pacific Holding Co., 120 F.3d 911 (8th Cir. 1997), and Waller v. Hormel Foods Corp., supra, 120 F.3d at 141, but rejected in Harris v. Harvard Pilgrim Health Care, Inc., 208 F.3d 274, 278-79 (1st Cir. 2000), and if so whether that doctrine, too, can be overridden by an express provision in the plan, as implied by United McGill Corp. v. Stinnett, supra, 154 F.3d at 172-73; Health Cost Controls v. Isbell, supra; Bollman Hat Co. v. Root, supra, 112 F.3d at 116- 18, and Ryan v. Federal Express Corp, supra, 78 F.3d at 127. 11 Wells seeks not only a sharing of the attorneys' fees with the plan, to which she is entitled, but also a sharing of the reduction of her claim in the settlement by 25 percent to reflect her comparative fault. We are at a loss to understand how that reduction, unlike the expense of the lawyer who obtained the settlement, could be thought to have conferred a benefit on the plan for which it should contribute a part of the cost under common-fund principles. And while Indiana law, were it applicable, might provide the relief she is seeking, see Ind. Code sec. 34-51-2-19, she does not invoke that or any other provision of Indiana law, and so has waived the argument. Reversed

Case: 10-41098 Document: 00511515126 Page: 1 Date Filed: 06/21/2011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED June 21, 2011 No. 10-41057 Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. MANUEL RODRIGUEZ-SANCHEZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:10-CR-649-1 Before JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit Judges. PER CURIAM:* The Federal Public Defender appointed to represent Manuel Rodriguez- Sanchez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Rodriguez-Sanchez has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw * Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.  Case: 10-41098 Document: 00511515126 Page: 2 Date Filed: 06/21/2011 No. 10-41057 is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5 TH C IR. R. 42.2. 2 

135 F.3d 264 39 Fed.R.Serv.3d 1220 Sharon CAPPILLINO, individually and as parent and naturalguardian of Peter Cappillino, and PeterCappillino, Plaintiffs-Appellants,v.HYDE PARK CENTRAL SCHOOL DISTRICT; Lloyd Jaeger,individually and as Superintendent of the Hyde Park CentralSchool District; Donald Johnson, individually and asDirector of Pupil Personnel, 504 Officer, Coordinator of theSpecial Education of the Hyde Park Central School District;Natalie Johnson, individually and as Director of SpecialServices and as Chairperson of the Committee on SpecialEducation of the Hyde Park Central School District and SallyKuralt, individually and as Chairperson of the Committee onSpecial Education of the Hyde Park Central School District,Defendants-Appellees. Docket No. 97-7017. United States Court of Appeals,Second Circuit. Argued Sept. 11, 1997.Decided Jan. 30, 1998. Ben M. Arai, Bronx, New York City, for Plaintiffs-Appellants. Neal H. Rosenberg, New York City, for Defendant-Appellee. Before: WINTER, Chief Judge, FEINBERG, and NEWMAN, Circuit Judges. WINTER, Chief Judge: 1 Sharon Cappillino and her son, Peter, appeal from Judge Brieant's denial of their Fed R. Civ. P. 60(b) motion to set aside a stipulated settlement and to reopen their action brought under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq., and 42 U.S.C. § 1983. At the time of the stipulation, the district court made clear that if no party sought to reopen the action within 45 days, the settlement would be binding on the parties. Within the 45-day period, however, Sharon Cappillino wrote a letter to the court indicating that she was firing her lawyer because of her dissatisfaction with the settlement. The district court denied the subsequent Rule 60(b) request to set aside the settlement and reopen the case. We reverse. 2 The Cappillinos brought suit pursuant to the IDEA and 42 U.S.C. § 1983, alleging that appellees had denied Peter Cappillino a "free appropriate public education" and had violated the Cappillinos' due process rights. At a hearing on September 29, 1995, Russell Schindler, then counsel for the Cappillinos, informed the court that a tentative settlement had been reached, pending approval by the Hyde Park Central School District (the "School District") and its insurance carrier. After being informed of the settlement's terms, the court agreed to discontinue the action so that the necessary approval of the School District and its insurance carrier could be obtained. The court noted the tentative nature of the settlement, telling the parties that "[i]f the settlement falls through, you can reopen it" within the 45-day period. When Schindler inquired about the appropriate procedure for reopening the case within the 45 days, the court responded that a letter to the court, rather than a formal motion, would suffice. 3 On October 20, 1995, well within the 45-day period, Sharon Cappillino wrote the court a letter stating that she was firing Schindler as her attorney because "he [wa]s not allowing any input from his client's [sic] to reach a mutually agreeable settlement" and that she was electing to proceed with her case pro se until she could find suitable representation. In addition, she requested a conference with appellees "so as to expedite the case as quickly as possible." 4 On November 17, 1995, the court held a hearing and informed Ms. Cappillino that because the School District had ratified the settlement within the 45-day period, the court considered the case settled. Ms. Cappillino voiced her displeasure, complaining to the court that "[n]o one included me in the settlement" and that "I still yet have got my rights to be heard." She further informed the court of her plans to hire a new lawyer to "take [her] case."Eleven months later, on October 17, 1996, the Cappillinos, now represented by their current attorney, moved to vacate the order of discontinuance, to set aside the settlement agreement, and to reopen the case. The court denied the motion, ruling that the case had been settled. Although the court noted in passing that "[t]he parties had, by the form of the document, 45 days for either side to reject the settlement," it did not explicitly address whether Ms. Cappillino's letter was sufficient to serve as a rejection. This appeal followed. 5 We agree with appellants that they rejected the settlement within the 45-day period specified by the court. First, the 45-day disavowal period applied to both sides. Although the idea of the 45-day period arose because the School District and its insurance carrier needed time to approve the settlement, every indication given by the district court was that the settlement remained tentative as to all parties. The court stated to the parties that "[i]f the settlement falls through, you can reopen it" within the 45 days. In response to a question by the Cappillinos' attorney as to how to reopen the case, the court indicated that a letter would suffice. Similarly, the order of discontinuance signed by the court states that it is "subject to client approval." Finally, during the hearing on the Rule 60(b) motion the court stated that "[t]he parties had, by the form of the document, 45 days for either side to reject the settlement." 6 Second, Sharon Cappillino followed the court's suggested procedure for rejection of the settlement, mailing a letter to the court within the 45-day period. Although the letter did not expressly state that Ms. Cappillino wanted to reopen the case, it clearly was based on the premise that she did not feel that a satisfactory settlement had been reached. Indeed, the letter makes sense only if she had rejected the proposed settlement. Ms. Cappillino's explanation in the letter that she was firing her attorney because "[h]e is not allowing any input from his client's [sic] to reach a mutually agreeable settlement" is simply not consistent with her having approved the settlement. Similarly, the need for a conference with her adversaries indicates her rejection of the settlement. Essentially a pro se filing, the letter was sufficient to constitute a rejection of the settlement. 7 Appellees' argument that appellants are barred from challenging the settlement because of their delay in bringing the Rule 60(b) motion is unpersuasive. As noted above, appellants first expressed their dissatisfaction with the settlement within the 45-day period set by the court. Soon thereafter, during the proceedings on November 17, 1995, Sharon Cappillino expressed repeatedly to the court her intention to hire a lawyer to pursue her case. Appellees have offered no evidence that the length of time it took Ms. Cappillino to hire another attorney and to bring her Rule 60(b) motion constituted undue delay or caused any prejudice. 8 We therefore reverse the denial of the Rule 60(b) motion and remand for proceedings consistent with this opinion.

336 So.2d 824 (1976) STATE of Louisiana v. Christopher KENNER, Jr. No. 57457. Supreme Court of Louisiana. June 21, 1976. Rehearing Denied September 10, 1976. *826 Gary L. Newport, Berwick, for defendant-appellant. William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Walter J. Senette, Jr., Bernard E. Boudreaux, Jr., Asst. Dist. Attys., for plaintiff-appellee. MARCUS, Justice. Christopher Kenner, Jr. was indicted by the grand jury for the Parish of St. Mary for the crime of attempted aggravated rape. La.R.S. 14:27; La.R.S. 14:42. After trial by jury, he was found guilty as charged and was subsequently sentenced to serve eighteen years at hard labor. On appeal, he relies on ten assignments of error for reversal of his conviction and sentence. ASSIGNMENTS OF ERROR NOS. 2 AND 6 These assignments of error relate to the trial judge's denial of two motions for a continuance, one filed by defendant himself and the other by his court-appointed counsel. The motions were filed on the morning of trial. Defendant contends that he was not afforded sufficient time to consult with his counsel prior to trial and that his counsel did not have the opportunity to thoroughly review the case, interview witnesses, and properly prepare a defense in this matter. Defendant was indicted on February 13, 1975 (four days after his arrest). Initially, defendant requested the court not to appoint counsel for him as he desired to retain his own attorney. However, on March 21, 1975, pursuant to defendant's request for the appointment of counsel, the court appointed Peter P. Guarisco to represent him. On March 27, defendant was arraigned and pleaded not guilty. At arraignment, trial was fixed for June 9, 1975. As a result of parole revocation, defendant was transferred to the state penitentiary at Angola on April 11, 1975; he was returned to the parish jail on June 3, 1975. On June 9, 1975, the trial was continued until the next day (June 10) at which time defendant and his counsel filed separate motions for a continuance. Defendant avers in his motion for continuance that he had no opportunity to discuss the merits of his defense or the names and addresses of possible witnesses with his attorney as a result of his transfer to Angola. The motion further alleges that his attorney had filed no pretrial motions in his behalf. Defense counsel's motion for continuance sets out essentially the same allegations, claiming that he had conferred with his client on only two occasions prior to trial. The motion further avers that, although defendant had requested him to file several pretrial motions and had furnished him with the names of several prospective witnesses for his defense, he had not had time to prepare and file the motions or to locate the witnesses. The reason asserted for his lack of time to prepare for trial was his absence from the country for most of the period between arraignment and trial. It is claimed that he had only thirty-five working days during this period in which to prepare. At the hearing held on the motions for a continuance, defendant testified that his transfer to Angola prevented him from conferring with his attorney. He further stated that his attorney had failed to file *827 any pretrial motions in his behalf. Defendant's motion was denied. The motion for continuance filed by counsel was then called. Defense counsel offered no evidence in support thereof. An application for a continuance must allege specifically the grounds upon which it is based. La.Code Crim.P. art. 707. Under the provisions of article 709 of the Code of Criminal Procedure: A motion for a continuance based upon the absence of a witness must state: (1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial; (2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and (3) Facts showing due diligence used in an effort to procure attendance of the witness. A motion for continuance may be granted, in the discretion of the court, in any case if there is good ground therefor. La.Code Crim.P. art. 712. The grounds alleged in the motions for continuance are not supported by the record. Although it is alleged that there was inadequate time to prepare a defense, no showing was made that this was in fact the case. No continuance was sought until June 10, 1975, the morning of trial. Even excluding the time defense counsel claims he was out of the country, he admits that he had thirty-five working days in which to prepare for trial. No request was made for defendant's return from Angola nor did defense counsel make any attempt to contact or visit defendant at Angola. Moreover, defense counsel had ample time to consult with defendant prior to his departure and after his return from Angola. Defense counsel admitted that he did in fact consult with defendant on two occasions prior to trial. We do not find that there was inadequate time to prepare a defense under the facts here presented. While it is urged that a continuance was necessary in order to have time to secure witnesses, there was only a general allegation to this effect. The court was not furnished with a list of witnesses, nor did the motion state the facts to which they would testify, showing the materiality of their testimony and the necessity of their presence at trial. There was also no showing that a diligent effort had been made to procure attendance of the absent witnesses or that they would be available in the event the trial was deferred. Hence, there was no compliance with provisions of article 709 of the Code of Criminal Procedure. Likewise, the nature of the pretrial motions which defendant allegedly requested his counsel to file was not given. Under these circumstances, we are unable to say that the trial court abused its discretion in denying the motions for a continuance. No showing was made of any injustice or unfairness which resulted from the denial of the motions. Assignments of Error Nos. 2 and 6 are without merit. ASSIGNMENT OF ERROR NO. 3 During voir dire examination of a prospective juror (Alton Anderson), the district attorney stated: What we are going to do here, Mr. Anderson, is the State of Louisiana is going to put on certain evidence and perhaps the defendant, too; I don't know. What the jury's job is really is to apply the facts that are testified to, to apply those facts to the law as I just read it to you. Do you feel like you would be able to do that, sir? Although no objection or motion for mistrial was made at the time of occurrence, defendant urges on appeal that he was effectively deprived of the presumption of *828 innocence by the prosecutor's remarks and as such was denied due process of law. He further contends that the trial judge abused his discretion in not granting a mistrial under article 775(3) of the Code of Criminal Procedure.[1] An error cannot be availed of after verdict unless it was objected to at the time of occurrence. La.Code Crim.P. art. 841, as amended, La.Acts 1974, No. 297, § 1. No objection was made here. Also, defendant made no motion for mistrial as required by article 770 of the Code of Criminal Procedure. Moreover, the alleged error is not a legal defect as contemplated by article 775(3) of the Code of Criminal Procedure. In any event, the remarks were not a comment on the failure of defendant to take the stand, but only a statement that defendant might or might not present evidence. It has been held by this court that a prosecutor's statement that "the evidence . . . was uncontradicted and uncontroverted" was not an impermissible comment on the accused's failure to take the stand. State v. Singleton, 321 So.2d 509 (La.1975). Hence, we do not find that the prosecutor's remarks adversely affected defendant's due process rights in any way. This assignment of error is without merit. ASSIGNMENT OF ERROR NO. 4 During the impanelling of the jury, defense counsel asked the prospective jurors: "Would it influence your decision or your verdict in this case if the defendant did not take the stand or did nothing in his defense— did not testify in his defense?" At this point, the state requested the court to instruct the jury panel as to the law on the right of defendant to remain silent. The instruction was as follows: Ladies and gentlemen, under the Constitution of the United States and State of Louisiana, a person charged with a crime has the absolute right to remain silent, he need not take the stand and testify in his own behalf if he chooses not to and he need not give any reason or explanation for his failure to do so. He has the absolute right to remain silent and cannot be compelled to give any evidence against himself. If he chooses to exercise that right, the Court would instruct the jury that they cannot take that fact alone into consideration as any evidence of his guilt as to the charge. The defendant has the right to remain silent, he has the right not to give evidence against himself. Should be choose to exercise that right, the Jury cannot consider that fact alone as any indication of his guilt of these charges. The Court will so instruct the jury at the conclusion of the trial. Now, Mr. Guarisco, if you will repeat your question, they may answer. (Emphasis added.) Defendant did not object or move for a mistrial. On appeal, he asserts that the use of the underscored language created an impression in the minds of the jury that defendant's right to remain silent can be used in conjunction with other evidence. It thus undermines the presumption of innocence. Initially, defendant did not object or move for a mistrial at the time of the occurrence of the alleged error. Hence, nothing is presented for our review. In any event, there is no merit in defendant's contention. Defendant's interpretation of the language complained of is strained, unrealistic and taken out of context. We do not find that it leaves the impression asserted. Any doubt to the contrary is removed by the instruction as a whole and the final charge to the jury which recites: A defendant in a criminal case cannot be compelled to take the witness stand and to testify. He has the absolute right *829 not to testify, and the jury must not draw a presumption of guilt or any inference against the defendant because he did not testify. The defendant need not prove his innocence; he need not prove anything. Assignment of Error No. 4 is without substance. ASSIGNMENTS OF ERROR NOS. 5 AND 13 Defendant first contends that the district attorney attempted to present evidence in his opening statement which went beyond the scope set forth in article 766 of the Code of Criminal Procedure.[2] He further complains that the district attorney attempted to argue the case before the jury during the course of his opening statement. From our examination of the opening statement, we find no merit in this contention. The district attorney was merely detailing the testimony and explaining the evidence by which the state expected to prove its case as is authorized by law. La.Code Crim.P. art. 766. There was no attempt to argue the facts or the law. Defendant also contends that the district attorney referred in his opening statement to the fact that the victim felt a sharp object in her back and was told by the perpetrator the nature of this object. This is claimed to be a reference to evidence of another crime, i.e., armed robbery, in violation of State v. Prieur, 277 So.2d 126 (La.1973). Defendant was charged with the crime of attempted aggravated rape. The statute defining aggravated rape (R.S. 14:42) provides that the crime is committed where the victim resists the act to the utmost, but her resistance is overcome by force or where she is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution. Attempt (R.S. 14:27) covers any person who, having a specific intent to commit a crime, does or omits an act for the purpose of tending directly toward the accomplishment of his object. An attempt is a separate but lesser grade of the intended crime. Hence, presentation of evidence as to the force employed by the perpetrator on the victim is relevant to the material issue. Defendant's objection to the district attorney's reference in his opening statement to a sharp object is without merit. Assignments of Error Nos. 5 and 13 are without substance. ASSIGNMENTS OF ERROR NOS. 10 AND 11 These assignments relate to objections made during the testimony of two state witnesses, Detective Dossett, the officer who investigated the crime and later arrested defendant, and John Rankin, the witness who saw defendant running down the street near the scene of the crime after its commission. During the direct examination of Detective Dossett, he testified that he had arrested defendant at his residence. He was then asked if, while at defendant's home, he had looked at defendant's vehicle. The witness replied that he did. He was then asked to describe the vehicle. He answered: "It was a black vinyl over green." Defendant objected on the ground that a proper foundation had not been laid to show that this officer knew which vehicle belonged to defendant. The court then allowed the prosecutor to ask the witness if he knew that particular vehicle belonged to defendant. The witness answered that the defendant when arrested stated that it was in fact his vehicle. The witness additionally testified that the computer showed the *830 vehicle was registered in defendant's name at the time. While the original question asked this witness might have incorrectly assumed a fact not previously established, i.e., ownership of the vehicle, the error was cured by the testimony that followed. Moreover, no prejudice resulted from such questioning. Objection was made to the testimony of John Rankin that he had seen a man running down the sidewalk from the 900 block of Front Street toward St. Clair Street at about the same time as the commission of the crime. Defendant objected on the ground that there was nothing to connect this testimony to the scene of the crime. The objection was correctly overruled, as it had been established by previous testimony that the victim had been attacked in the vicinity of her residence located at 922 Front Street. In brief filed in this court, it is urged that the district attorney was allowed to propound leading questions to the witnesses. The record does not support this contention. We find no error in the rulings of the trial judge. Assignments of Error Nos. 10 and 11 are without merit. ASSIGNMENT OF ERROR NO. 12 Defendant objected to the introduction into evidence of a photographic array displayed to the victim on the day following the crime and from which she identified defendant. Defendant contends that the procedure employed was impermissibly suggestive and as such also affected the victim's in-court identification of defendant. We find no substance to this allegation. The description of the attacker was given by the victim to Detective Dossett on the evening of the crime. Dossett selected photographs of six persons with similar physical characteristics matching the description given to him by the victim. These photographs, which included one of the defendant, were presented to the victim on the next day. It was from this group of photographs that the victim selected defendant. We have reviewed the photographic display included in the record and find that it contains pictures of six men with similar physical characteristics. Even assuming arguendo that the out-of-court identification was tainted, it is settled that the in-court identification does not violate the accused's due process rights where it has a source independent of the out-of-court identification. State v. Price, 325 So.2d 780 (La.1976); State v. Newman, 283 So.2d 756 (La.1973). In the instant case, the victim testified that defendant knocked on her door on the afternoon in question. She opened the door about four inches, keeping the chain fastened. She observed defendant face to face as he stood in the well-lighted hallway outside her apartment. Defendant inquired about a vacant apartment but was informed by the victim that she knew nothing about such an apartment. The victim then closed the door. About an hour later, the victim left her home and went to a store on Front Street. Finding the store closed, she proceeded to walk back to her apartment. Just prior to reaching home, she was grabbed by a man who placed a towel over her face and dragged her into an alley where he attempted to rape her. He also demanded her wallet which she handed over to him. Because of her screams, two men in the area came to her aid, and her attacker fled. The victim testified that she clearly saw her attacker's face when she gave him her wallet and as he ran away. She immediately recognized him as the man who had earlier that afternoon knocked at her apartment door. The in-court identification clearly had a source independent of the out-of-court identification. Assignment of Error No. 12 is without merit. *831 ASSIGNMENT OF ERROR NO. 14 Defendant asserts that the trial judge erred in denying his motion for a new trial. He makes two arguments in support of this contention. First, two witnesses, who are presently available, would establish that defendant was elsewhere at the time the attack was perpetrated. Secondly, trial counsel was ineffective which prevented defendant from obtaining a fair trial. At the hearing on the motion for a new trial, no evidence was offered other than the testimony of defendant and his counsel. Argument of defense counsel was also presented to the court. Defendant's basic contention in this motion is the same as previously urged in his motion for a continuance, i.e., he was not afforded sufficient time to consult with his counsel prior to trial and that his counsel did not have the opportunity to thoroughly review the case, file pretrial motions, locate and interview witnesses and properly prepare a defense. The trial judge denied the motion stating that no showing was made that the witnesses alleged to be absent at the time of trial were presently available or as to the facts to which they would testify. He also found that defense counsel had ample time to communicate with his client before and after his return from Angola. He noted that defense counsel did not either move to have defendant returned from Angola to assist in preparation of his case, which motion would have been granted, or go to Angola in order to confer with him. He further observed that the motion for a continuance was not filed until the day of trial. We agree with the findings of the trial judge. Additionally, we find no merit to defendant's contention that defense counsel was ineffective at trial. A review of the record reveals that he examined prospective jurors, making objections and exhausting all peremptory challenges. At trial, the state witnesses were fully cross-examined and appropriate objections were made, many of which were sustained. Those objections overruled were available for designation as alleged errors to be urged on appeal. Two witnesses (defendant's mother and sister) were presented to establish an alibi for defendant at the time of the commission of the crime. It should be observed that the trial of this matter was relatively simple. The state produced four witnesses: the victim, her husband, an eyewitness who saw defendant running away from the scene of the crime and obtained his license number as he left in his speeding car, and the officer who investigated the case and arrested defendant. The only significant claims as to defense counsel's ineffectiveness at trial were his failure to file pretrial motions and to make a closing argument. The pretrial motions that defendant claims he requested defense counsel to file are: motion to suppress, recuse the judge and change of venue. No showing were made as to the possible merit of any of these motions or that any prejudice resulted from the failure of defense counsel to file same. Finally, we are unable to say under the facts of this case that the failure of counsel to make a closing argument deprived defendant of effective assistance of counsel. We do not find that the trial judge abused his discretion in denying defendant's motion for a new trial. Accordingly, this assignment of error is without substance. DECREE For the reasons assigned, the conviction and sentence are affirmed. DIXON, J., concurs with reasons. DENNIS, J., dissents with reasons. DIXON, Justice (concurring). I concur in the disposition of Assignment No. 14. The majority opinion finds *832 no merit in defendant's motion for a new trial in which he alleges he was deprived of his Sixth Amendment right to the effective assistance of counsel. At the beginning of trial counsel and defendant requested a continuance to provide time to prepare the case. The request was denied, and the following colloquy occurred: "BY THE DEFENDANT: I would also like to put on the record that Mr. Peter Guarisco denied to file any motions for me. He denied to file any motions. BY THE COURT: Now, let me tell you something right now, Kenner. You are not going to defend yourself in this trial, no. BY THE DEFENDANT: Yes, sir. BY THE COURT: I am not going to permit you to defend yourself. BY THE DEFENDANT: Yes, sir. I've got to defend myself. BY THE COURT: No, you are not. BY THE DEFENDANT: If I'm not, who's going to defend me? BY THE COURT: Mr. Guarisco is your lawyer. BY THE DEFENDANT: No, sir. He's not qualified. BY THE COURT: If you interrupt me one more time when I am talking, I am goint to have you bound and gagged." . . . . . . "BY THE COURT: Is the Defense ready for trial? BY MR. GUARISCO: No. The Defense is not ready for trial. BY THE COURT: Why not? BY MR. GUARISCO: The Defense Attorney has not had sufficient time to prepare a defense. BY THE COURT: Except for your reservation of rights under your motion for a continuance, are you ready for trial? BY MR. GUARISCO: No. BY THE COURT: For what other reason are you not ready for trial? BY MR. GUARISCO: I have not prepared a defense. BY THE COURT: Well, that is your fault and you and your client shall suffer the consequences, if consequences there be. Call the jury back in please." After the State's closing argument the following occurred: "BY MR. GUARISCO: The Defense has no closing argument. BY THE DEFENDANT: Defense do have a closing argument. Say anything. Say something. Put it on the record. BY THE COURT: Would you like a short recess? BY MR. GUARISCO: No, I would not. BY THE COURT: You have no closing argument? BY MR. GUARISCO: No, I have none." Defense counsel was appointed March 21, 1975, and arraignment was held March 27, 1975. On April 11, 1975 defendant was sent to Angola for violation of parole. From May 2, 1975 until May 29, 1975 defendant's appointed counsel was out of the United States attending a meeting of the Louisiana Bar Association. Defendant was returned from Angola June 3, 1975 and the trial commenced June 10, 1975. Thus, from the time of arraignment until trial defendant's court appointed attorney was available to him only nineteen days. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held the *833 Sixth Amendment right to counsel includes the right of a defendant to represent himself. This is what defendant in the case before us desired to do. The majority makes no reference to defendant's timely request to represent himself. But defendant has not expressly included this in his motion for a new trial, and it is not an error "discoverable by a mere inspection of the pleadings and proceedings." C.Cr.P. 920. Thus, State procedure prevents consideration of this contention on appeal. A state procedural default cannot prevent raising a federal constitutional right unless defendant has "knowingly waived" the right. Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1964). Defendant's proper remedy for this alleged deprivation of right now lies in habeas corpus. DENNIS, Justice (dissenting). Under the facts of this case as outlined by Mr. Justice Dixon in his concurring opinion, I think that the trial court committed grave error in failing to grant defendant's motion for a new trial. La.C.Cr.P. art. 851(5) provides: "The court, on motion of the defendant, shall grant a new trial whenever: * * * * * * "(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the defendant may not be entitled to a new trial as a matter of strict legal right." Defense counsel's unpreparedness for the trial and apparent lack of interest in defendant's cause demanded that a new trial be granted in the interest of justice. The trial court's failure to grant the motion was an abuse of discretion which amounted to an error of law, subject to this Court's review. State v. Randolph, 275 So.2d 174 (La.1973). I respectfully dissent. NOTES [1] A mistrial may be ordered under article 775(3) when: There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law. [2] Article 766 provides: The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.

156 Ga. App. 209 (1980) 274 S.E.2d 653 DOWNSIDE RISK, INC. v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY. 60417. Court of Appeals of Georgia. Argued September 3, 1980. Decided October 24, 1980. Frank Love, Jr., Jeffrey W. Kelley, Thomas D. Harper, for appellant. Charles N. Pursley, Jr., Robert A. Boas, for appellee. McMURRAY, Presiding Judge. Several years ago the City of Atlanta established by ordinance an area known as the Underground Atlanta Historic District or Park. The purpose was to renovate older buildings below viaducts and overpasses which had the effect of raising and forming streets above old streets and in particular Old Alabama Street which is parallel to railway tracks through the city. Underground Atlanta generally includes property bounded by state owned land leased to the Louisville & Nashville Railroad on the north; Central Avenue on the east; Martin Luther King, Jr. Drive on the south, and Broad Street on the west. In the early 1900's the area was formerly a portion of the central business district of Atlanta before the elevation of streets over the railroad. In the late 1960's Underground Atlanta, Inc. began redeveloping the area in an architectural motif characteristic of the late 1800's. The properties were then leased to various commercial establishments. Downside Risk, Inc., d/b/a W. D. Crowley's Steak and Lobster House and Bucket Shop, leased certain premises located on the south side of Old Alabama Street in Underground Atlanta and operated these two businesses. In 1971, the Metropolitan Atlanta Rapid Transit Authority (MARTA) referendum was passed by the people, approving the basic location and alignment of a rapid transit system and in particular through the downtown railroad gulch in the City of Atlanta. The alignment required the severance of the rear portions of the buildings on the north side of Old Alabama Street in Underground Atlanta. Between April, 1975, and April, 1976, MARTA engaged in the acquisition of the properties for the construction of its rapid transit *210 line. In August, 1976, it proceeded with the construction in the area and demolition of the buildings on the north side of Old Alabama Street in Underground Atlanta. MARTA agreed to preserve the facades of the demolished buildings in order to preserve the historic character of the area. Two new stairwells were to be installed and were installed in Underground Atlanta on Old Alabama Street from Alabama and Pryor Streets. By December of 1976 the demolition of the buildings was complete. The restoration of the facades of the buildings occurred from November, 1976, to July, 1977. The properties leased by Downside Risk, Inc., were across Old Alabama Street from where the demolition and restoration of the facades occurred. Ponders Alley, which was another entrance to Underground Atlanta from Plaza Park was closed, although MARTA contends it did not close it. It is noted here that this entrance is across the railroad crossing which had been fenced off by the railroad. The street ends and vacant lots in Underground Atlanta were walled in on the north side of Old Alabama Street to shield the rapid transit line from sight. This construction was carried out by MARTA. On April 17, 1977, Downside Risk, Inc., as plaintiff, brought an action in 6 counts naming as defendant Metropolitan Atlanta Rapid Transit Authority (otherwise known as MARTA), and as amended, sought compensation for its losses sustained as the result of the actions of the defendant and prayed that defendant be required to pay just and adequate compensation for the damages to its property in accordance with Code Ann. § 2-301 (Art. I, Sec. III, Par. 1 of the Constitution of Georgia of 1945 [now 1976]), including attorney fees. Plaintiff contends in Count 1 that Underground Atlanta is a unique subterranean entertainment and shopping area and, as such, each of the businesses located therein are mutually dependent upon one another for their success; that it acquired an implied easement or privilege in the other parts of Underground Atlanta by reason of its lease, as well as an equitable servitude upon the land upon which other diverse business establishments are situated and maintained so as to preserve the development scheme upon which plaintiff relied when acquiring its leasehold. It contends that by the taking of the land on the east side of Old Alabama Street, including the diverse commercial establishments located thereon, plaintiff has been deprived of a valuable property right for which it has not been paid just and adequate compensation in violation of the Constitution of Georgia of 1945 (Code Ann. § 2-301, supra). In Count 2 it contends that with the razing of the buildings on the east side of Old Alabama Street, now totally destroyed, plaintiff was deprived of a valuable stream of commerce provided by those businesses and its leasehold has been seriously diminished without *211 prior payment of just and adequate compensation as alleged in Count 1 in the damaging of private property for public purposes. In Count 3 it complains that by reason of the above facts and pursuant to its plans of development defendant MARTA began the construction of its massive rapid transit station nearby, and in the process of construction said facility has engaged in excavating and otherwise removing soil, rock, asphalt, and firmament in the area immediately adjacent to plaintiff's leasehold estate. As a consequence of such operations plaintiff's property has been subjected to the invasion of smoke, dust, dirt, fumes, odors, high decibal noise, vibrations, and other odious bombardments incidental to the use of large earth-moving machines, thereby greatly impairing and impeding plaintiff's physical use and enjoyment of its property. MARTA has closed Old Pryor Street at a point slightly east of its intersection with Old Alabama Street and has thereby wholly negated and impaired the use of said street by persons desiring to enter Underground Atlanta via Old Pryor Street from an easterly direction, thereby depriving plaintiff of a major artery of access to its premises and a valuable stream of commerce provided by said artery, thus taking and damaging private property without prior payment of just and adequate compensation. In Count 4 it contends that due to the negligent and improper manner in which said improvements have been and continue to be constructed defendant MARTA has created a blemish and eyesore directly in front of plaintiff's commercial establishment so as to amount to a present and continuing nuisance. Such injury and damages suffered by plaintiff will and have greatly and substantially exceeded injury and damages suffered by the public in general; hence, it has suffered losses by reason of the negligent activities and invasions for which it is entitled to be compensated. In Count 5 it contends that as a direct result of the aforementioned activities of the defendant MARTA, the easement of light, air, and scenic view to plaintiff's leasehold estate has been wholly negated to the great and substantial detriment of its property without prior payment of just and adequate compensation. In Count 6 it contends that by reason of the creation of the historic zone by public referendum and in reliance upon this public dedication plaintiff entered into the leasehold agreement with Underground Atlanta, Inc., and with the creation on March 17, 1975, by the City of Atlanta of the Historic Park Ordinance, so as to preserve the intrinsic beauty of Underground Atlanta and to insure the project's continued existence, plaintiff continued to occupy its leasehold and acquired an easement in the continued use of the dedicated property for park purposes. It contends that as a result of *212 the diversion of the park property to other uses by the defendant it suffered special damages to its property for which it has not been paid just and adequate compensation. Plaintiff prayed for judgment against the defendant on all counts "in an amount sufficient to compensate it fully for its' losses sustained as a result of the actions of the defendant." The defendant answered, in general denying the complaint, admitting only that it is a public body corporate created for the purpose of constructing, operating, and maintaining a rapid transit system for the metropolitan Atlanta area, and subject to the jurisdiction of the court. It also asserted defenses of estoppel, waiver, accord and satisfaction, laches, release, license and statute of frauds. After discovery, defendant moved for summary judgment on the ground that there was no genuine issue as to any material fact and it was entitled to judgment as a matter of law. Further discovery then occurred, and the defendant consented that the time within which plaintiff might respond to the motion for summary judgment be extended on numerous occasions. Plaintiff contends that by reason of its evidence and pleadings it is entitled to a jury trial on the issue of taking and damages resulting from the destructive interference with the use of its premises, its equitable servitude, the changes in pedestrian traffic flow and changes in the access to its property and by reason of the loss of special property rights as well as whether defendant's activities in Underground Atlanta constitute a nuisance to which it is entitled to an award of damages. It contends that this litigation is an inverse condemnation and nuisance action arising out of the construction of the rapid rail transit system through Underground Atlanta. Defendant contends that it did not physically take any property of the plaintiff, submitting numerous and voluminous affidavits and depositions with reference to the construction of the rapid transit rail line through Underground Atlanta, all of which was done pursuant to its lawful obligation to construct public improvements; and that the work was not done in an illegal manner. It offered affidavits of its expert construction personnel that the construction in Underground Atlanta and the adjacent areas was done in a competent manner according to the plans and specifications and was accomplished through the use of reasonable and prudent construction methods, generally accepted in the construction industry; that all reasonable and normal steps had been taken to minimize the impact of construction on adjacent property, and there has been no noise, dust, dirt, debris, blemish or eyesore created by the construction in the vicinity of the Underground Atlanta area "other than the necessary and normal consequences of normal construction," all of which was *213 "a normal, temporary inconvenience of construction of a public project," and none of these conditions will be a part of the "permanent improvement after the completion ..." The motion for summary judgment came on for hearing, and the court found defendant's activities were done pursuant to defendant's lawful obligation to construct public improvements; plaintiff's property was never physically touched or damaged in any way by the taking of any property or by the construction work done by defendant; general access to Underground Atlanta was not reduced; the wall construction did not in any way reduce the public's access to and from plaintiff's property; construction work was not conducted in any illegal manner, and the access from various parts of the Atlanta community to the property were as available after MARTA's taking of properties as it was before the taking of such properties. The court found no taking of plaintiff's property, no unlawful interference with plaintiff's property, and no unlawful activity by the defendant. Summary judgment was granted in favor of defendant. Plaintiff appeals. Held: 1. In general, damages caused by mere temporary inconvenience due to the construction of a public project is not a proper element for consideration in determining just and adequate compensation in a condemnation proceeding. See MARTA v. Datry, 235 Ga. 568, 580 (220 SE2d 905); State Hwy. Dept. v. Hollywood Baptist Church, 112 Ga. App. 857 (2) (146 SE2d 570); Dept. of Transp. v. Dent, 142 Ga. App. 94 (1) (235 SE2d 610). Indeed it has been held that a temporary obstruction is not a taking or damaging of property under the Constitution by eminent domain, and the temporary obstruction of right of ingress and egress does not deprive one of his private property. Brown v. City of Atlanta, 167 Ga. 416 (145 SE 855). 2. However, there is a broad distinction between the taking by deprivation (dominion and possession of private property) and the damaging of private property by public construction. See Brown v. City of Atlanta, 167 Ga. 416, 428, supra; Ga. Power Co. v. Jones, 122 Ga. App. 614, 616 (2) (178 SE2d 265), and cases cited such as McArthur v. State Hwy. Dept., 85 Ga. App. 500 (69 SE2d 781). Compare Moore v. City of Atlanta, 70 Ga. 611 (3) (4); Chambers v. Cincinnati and Ga. R. R., 69 Ga. 320. In such cases an independent suit for damages, such as here, is the proper method to seek recovery for such damages rather than in the condemnation suit. MARTA v. Datry, 235 Ga. 568, 580, supra; Ga. Power Co. v. Jones, 122 Ga. App. 614, 616 (2), supra. McArthur v. State Hwy. Dept., 85 Ga. App. 500, supra, and cases cited. 3. Where construction of a public project merely causes personal *214 inconvenience, annoyance and discomfort to the occupants of property, such property has not been compensably damaged. See Austin v. Augusta Terminal R. Co., 108 Ga. 671 (3), 685 (34 SE 852); Campbell v. The Metropolitan Street R. Co., 82 Ga. 320 (9 SE 1078); MARTA v. Datry, 235 Ga. 568, supra; State Hwy. Dept. v. Hollywood Baptist Church, 112 Ga. App. 857, supra. Absent a showing of special damages, that is, physical damage to property different from that kind suffered by the general public from dust, noise and debris flowing naturally from any major construction and which affect the general public no compensable damage is shown. See Tift County v. Smith, 219 Ga. 68, 72 (131 SE2d 527); Pause v. City of Atlanta, 98 Ga. 92 (2), 99-103 (26 SE 489); Southern R. Co. v. Leonard, 58 Ga. App. 574, 581 (199 SE 433). Thus actual damage must be shown in such a case as here. See Southern R. Co. v. Leonard, 58 Ga. App. 574, 581, supra, and cases cited. 4. Nuisance is generally applied to that class of wrongs that arise from the unreasonable, unwarranted or unlawful use of property. Wilson v. Evans Hotel Co., 188 Ga. 498, 504 (4 SE2d 155). In fact, a nuisance is defined as "anything that works hurt, inconvenience, or damage to another; and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance." Code § 72-101. However, that which the law authorizes to be done, if done as the law authorizes, is not a nuisance. See Elder v. City of Winder, 201 Ga. 511 (40 SE2d 659); Collins v. Lanier, 201 Ga. 527 (40 SE2d 424); Sou. R. Co. v. Leonard, 58 Ga. App. 574, supra. If a public project is legislatively sanctioned it cannot be adjudged a nuisance. Ga. R. &c. Co. v. Maddox, 116 Ga. 64 (42 SE 315); Wilson v. Evans Hotel Co., 188 Ga. 498, 504, supra. 5. It has been held that interfering with access to premises, by impeding or rendering difficult ingress or egress, is such a taking and damaging as entitles a party injured to compensation under a provision for compensation where property is damaged. Pause v. City of Atlanta, 98 Ga. 92, 101, supra; Mayor and Council of Macon v. Wing, 113 Ga. 90 (38 SE 392); City of Atlanta v. Dinkins, 46 Ga. App. 19 (166 SE 429). In Dougherty County v. Hornsby, 213 Ga. 114, 117 (1) (97 SE2d 300), in the construction of certain curbing "to and in front of petitioner's property which impaired the means of ingress and egress thereto, thereby depreciating its market value and damaging his property for public purposes without just and adequate compensation being first paid," has been held to entitle the injured party to a claim for damages. It was further held in that case in Division 2, at Page 118, that even though there is no duty upon the public authority (Dougherty County) to supply the petitioner with customers by furnishing a flow of traffic by his place of business, yet *215 "defendant is liable for any interference with the right of ingress and egress to the petitioner's property, and this allegation would be material in determining any diminution in the market value of the property by reason of such interference. City of Atlanta v. Atlas Realty Co., 17 Ga. App. 426 (2) (87 SE 698); Howard v. County of Bibb, 127 Ga. 291 ..." 6. The property owner has a right to seek damages against a public authority when such public authority is engaging in some form of inverse condemnation. Duffield v. DeKalb County, 242 Ga. 432 (249 SE2d 235); Pause v. City of Atlanta, 98 Ga. 92, supra. However, the case sub judice is not an original condemnation suit but a separate suit for damages resulting from alleged damages by a public corporation or authority. Plaintiff's evidence while contradicted by expert testimony of defendant's deponents established that among other elements of taking the destruction of the portion of Underground Atlanta complex lying north of Old Alabama Street had a severe destructive impact on plaintiff's use of its premises. The defendant contends that this was merely temporary, but it caused the plaintiff to cease its operations in the underground area in order to lessen the economic impact. It is quite clear that destruction of about 30% of the Underground Atlanta area forever altered the character of the complex and resulted in the loss of both of these businesses. See in this connection Griffin v. Wittfeld, 143 Ga. App. 485, 486 (2) (3) (238 SE2d 589), which requires that the burden is on the movant (the defendant in this case) to affirmatively negate plaintiff's claim and show plaintiff is not entitled to recover under any theory of the case, and the evidence must demand a finding in favor of the movant. See also First of Ga. Ins. Co. v. Josey, 129 Ga. App. 14, 15-16 (3) (198 SE2d 381); State Farm Mut. Auto. Ins. Co. v. Tucker, 130 Ga. App. 187 (202 SE2d 551). Indeed, until the movant has made a prima facie showing by evidence demanding a finding in its favor, there is no duty upon the opposing party to produce rebuttal evidence. See Henderson v. Atlanta Transit System, 133 Ga. App. 354, 356 (1) (210 SE2d 845) and cases cited therein. The petition here is in 6 counts, and the summary judgment motion is in general to the entire case, not to the various counts. The trial court in rendering its judgment in favor of the defendant did make findings as to the construction of the public improvements, the location of the property condemned, and it recited that the plaintiff's property was adjacent thereto across Old Alabama Street and was never physically touched by the construction work. However, the evidence was in conflict as to the consequences arising from the *216 destruction and construction. Nevertheless, issues of material fact remain as to all the various and sundry claims of damage. The trial court erred in granting the motion for summary judgment. See in this connection Brooks County v. Elwell, 63 Ga. App. 308 (11 SE 2d 82); MARTA v. Datry, 235 Ga. 568, 577, supra; Pause v. City of Atlanta, 98 Ga. 92, 99-100, supra; Duffield v. DeKalb County, 242 Ga. 432, supra; Holman v. Athens Empire Laundry Co., 149 Ga. 345 (100 SE 207); City of Gainesville v. Pritchett, 129 Ga. App. 475, 479 (199 SE2d 889). Judgment reversed. Smith and Banke, JJ., concur.

Matter of Dee v DiNapoli (2017 NY Slip Op 07026) Matter of Dee v DiNapoli 2017 NY Slip Op 07026 Decided on October 5, 2017 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: October 5, 2017 524487 [*1]In the Matter of JAMES DEE, Petitioner, vTHOMAS P. DiNAPOLI, as State Comptroller, et al. Respondents. Calendar Date: September 6, 2017 Before: Peters, P.J., Garry, Rose, Aarons and Rumsey, JJ. McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP, Bayshore (David Christopher Donohue of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (William E. Storrs of counsel), for respondents. Rose, J. MEMORANDUM AND JUDGMENT Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Comptroller denying petitioner's applications for accidental and performance of duty disability retirement benefits. Petitioner, a police officer, applied for accidental and performance of duty disability retirement benefits based upon work-related injuries to his right thumb. The applications were denied, and petitioner sought a hearing and redetermination. Following the hearing, the Hearing Officer denied the applications on the ground that petitioner had not established that he was permanently incapacitated from performing his duties because there is a reasonably safe surgical procedure that could resolve his right thumb disability. Respondent Comptroller adopted that decision and denied benefits, prompting this CPLR article 78 proceeding. We confirm. "An applicant for accidental disability retirement benefits bears the burden of proving that he or she is permanently incapacitated from performing his or her job duties" (Matter of Capraro v DiNapoli, 91 AD3d 1020, 1021 [2012] [citations omitted]; see Matter of Califano v DiNapoli, 147 AD3d 1177, 1177-1178 [2017]). Initially, we note that petitioner's description of his job duties at the hearing did not contain any requirements that could be [*2]considered outside of or in addition to the general duties of a police officer. Contrary to petitioner's contention, the record reflects that the Comptroller considered petitioner's actual job duties in determining whether he is permanently disabled (see Matter of O'Halpin v New York State Comptroller, 12 AD3d 771, 772 [2004], lv denied 5 NY3d 702 [2005]). As relevant here, "[i]n determining whether a person is permanently disabled, [the Comptroller] may consider whether proper medical treatment is reasonably and safely available to correct the disability" (Matter of Dingee v DiNapoli, 56 AD3d 876, 877 [2008]; accord Matter of Califano v DiNapoli, 147 AD3d at 1178). Further, "[t]his Court is not free to substitute its assessment of the medical evidence for that of [the Comptroller], whose determinations must be upheld when they are supported by substantial evidence" (Matter of King v DiNapoli, 75 AD3d 793, 796 [2010]). John Killian, an orthopedic surgeon who examined petitioner and reviewed his medical records on behalf of the New York State and Local Police and Fire Retirement System, opined that petitioner was currently disabled from performing his job duties as a police officer. Killian also opined, however, that the disability was not permanent, stating that there is a significant likelihood that a reasonably safe surgical procedure — a fusion of the metacarpal phalangeal joint of the thumb — would restore the strength, stability and function of petitioner's right hand so as to allow him to perform his job duties, including being able to carry and discharge a firearm and a pepper spray cannister, use a baton and handcuffs and make arrests. In contrast, Steven Puopolo, petitioner's treating orthopedic surgeon, opined that petitioner is permanently disabled from performing his job duties. Puopolo further opined that, although the fusion of the metacarpal phalangeal joint is a safe procedure, he would not recommend the surgery to petitioner because, in his opinion, it would not result in him being able to perform his duties as a police officer. "The Comptroller has the exclusive authority to resolve conflicting medical evidence and to credit one expert's opinion over another" (Matter of Pierce v DiNapoli, 137 AD3d 1349, 1351 [2016] [citations omitted]; see Matter of Del Peschio v DiNapoli, 139 AD3d 1298, 1299 [2016]). Inasmuch as Killian's opinion of a significant likelihood that further medical treatment would alleviate petitioner's disability was rationally based upon an examination of petitioner and his medical records, the Comptroller's determination that petitioner did not meet his burden of proving a permanent incapacity from performing his job duties is supported by substantial evidence and will not be disturbed (see Matter of Califano v DiNapoli, 147 AD3d at 1179; Matter of Cepeda v New York State Comptroller, 115 AD3d 1146, 1147 [2014], lv denied 23 NY3d 906 [2014]). Peters, P.J., Garry, Aarons and Rumsey, JJ., concur. ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

COURT OF APPEALS OF VIRGINIA Present: Judges Frank, McClanahan and Senior Judge Willis JAMES J. RIXNER MEMORANDUM OPINION* v. Record No. 0931-06-2 PER CURIAM AUGUST 15, 2006 RICHMOND (CITY OF) FIRE DEPARTMENT FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION (Jamie L. Karek; Geoffrey R. McDonald & Associates, P.C., on brief), for appellant. (Angela C. Fleming; Midkiff, Muncie & Ross, P.C., on brief), for appellee. James J. Rixner appeals a decision of the Workers’ Compensation Commission finding that he failed to prove the communication of an occupational disease on August 5, 2003. We have reviewed the record and the commission’s opinion and find that this appeal is without merit. Accordingly, we affirm for the reasons stated by the commission in its final opinion. See Rixner v. Richmond (City of) Fire Department, VWC File No. 215-42-36 (Mar. 15, 2006). We dispense with oral argument and summarily affirm because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process. See Code § 17.1-403; Rule 5A:27. Affirmed. * Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

180 F.Supp.2d 1295 (2001) Robert HUGHES, et al., Plaintiffs, v. SOUTHERN STATES COOPERATIVE INC., et al., Defendants. No. CIV.A.01-D-915-N. United States District Court, M.D. Alabama, Northern Division. October 16, 2001. *1296 *1297 Pike Farmers, Pro se. Joseph A. Morris, Morris Cary & Andrews LLC, Dothan, AL, W. Keith Watkins, Calhoun, Faulk, Watkins & Clower, Troy, AL, for Plaintiffs. Lisa B. Hansen, Vickers, Riis, Murray & Curran, L.L.C., F. Grey Redditt, Jr., Vickers, Riis, Murray & Curran, L.L.C., L. Thomas Styron, Vickers, Riis, Murray & Curran, L.L.C., Mobile, AL, for Defendants. MEMORANDUM OPINION AND ORDER DE MENT, District Judge. Before the court is Plaintiffs' Motion To Remand, filed August 15, 2001. Defendants filed a Brief in Opposition on August 30, 2001. Construing the facts in the light most favorable to Plaintiffs and having carefully considered the arguments and the record as a whole, the court finds that Plaintiffs' Motion To Remand is due to be granted. DISCUSSION Plaintiffs are residents of Alabama where they pursue a livelihood farming peanuts. They bring the present action seeking damages for the peanut crops of 1999 which were afflicted with a leaf spot disease, notwithstanding the fact that they had sprayed the crops with a fungicide designed to protect against this. Indeed, they allege that the Novartis Tilt/Bravo Fungicide ("fungicide") failed because it was mislabeled as to quantity. Specifically, the directions called for a mixture of 20 ounces of Tilt with 160 ounces of Bravo 720, but, in the course of using the fungicide, Plaintiffs discovered that the relevant receptacle contained only 16 ounces of Tilt rather than 20 ounces as marketed and labeled. Plaintiffs contend that, but for the subsequent chemical inaccuracy, their crops would have withstood the blight. The present action was brought in the Circuit Court of Pike County, Alabama, against the fungicide's manufacturer, packager, and retailers. Plaintiffs allege state law claims of fraud and misrepresentation, suppression, breach of warranty, negligence/willfulness/wantonness, and conspiracy. Of all the Defendants, *1298 only one of the retailers, Pike Farmers Cooperative, Inc. ("Pike"), is a resident of Alabama. The foreign Defendants removed the action to federal court on the basis of diversity, alleging that Pike was fraudulently joined.[1] Specifically, they allege that all state law claims against Pike are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. § 136(v) ("FIFRA").[2] FIFRA expressly allows Alabama to "regulate the sale or use of any federally regulated pesticide ... but only if and to the extent the regulation does not permit any sale or use prohibited by" FIFRA. 7 U.S.C. § 136(v)(a). This language has been limited by a broad interpretation of FIFRA's mandate that Alabama "shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required" by FIFRA. Id. at § 136(v)(b). Interpreting the term "requirements" to include common law suits for damages, the Eleventh Circuit has held that FIFRA preempts claims against manufacturers "to the extent that such actions are predicated on claims of inadequate labeling or packaging."[3]Papas v. Upjohn Co., 985 F.2d 516, 520 (11th Cir.1993). Defendants make a strong case that the present matter is so "predicated" since the gravamen of Plaintiffs' cause of action is that they were harmed because the fungicide vessel contained four ounces less than the label stated. Indeed, the federal regulations enacted under FIFRA require that labels include the net weight of the product, and that the net weight be consistent with that noted on the label. See 40 C.F.R. § 156.10(d)(6); see also 7 U.S.C. § 136(q)(2)(C)(iii) (defining as "misbranded" a label not clearly reading the net weight of the content). Before addressing the preemptive effect of such language upon each individual claim, however, some general discussion of preemption in the FIFRA context is warranted. Determining the scope of a statutory provision's preemptive effect is guided by two considerations. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996). The first is rooted in concerns of federalism. Even in statutes like FIFRA where a domain is expressly preempted, the Supreme Court has held that this domain should be construed *1299 narrowly in light of a "presumption against the pre-emption of state police power regulations." Id. (quoting Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)). The second concerns legislative intent. While the preemption statute should be construed narrowly, foremost in the analysis should be "the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law." Id. at 486, 116 S.Ct. 2240. This understanding, in turn, is driven by the language and overall framework of the statute, as well as the legislative history. Cipollone, 505 U.S. at 517-23, 112 S.Ct. 2608. FIFRA, originally enacted in 1947, was completely revised in 1972. The purposes identified on the bill at this time were to "(A) regulate the use of pesticides to protect man and his environment; and (B) extend Federal pesticide regulation to actions entirely within a single State." S.Rep. No. 92-838, at 1 (1972), reprinted in 1972 U.S.C.C.A.N. 3993, 3993. These purposes suggest both horizontal and vertical aspects of FIFRA's preemptive domain. As to the vertical aspect, the 1972 revision expanded a statutory domain which had previously been confined to interstate activities to now encompass even intrastate pesticide usage. Id. at 3998. Whatever the breadth of the preemptive domain, its depth was clear: states were now precluded from "impos[ing] or continu[ing] in effect any requirement for labeling or packaging." 7 U.S.C. § 136v(b) (emphasis added). The horizontal aspect, or the breadth of the "labeling or packaging" language, is given shape by the stated purpose of the statute, namely the "protection against any unreasonable adverse effects on the environment." Id. at § 136(x). In other words, Congress intended to provide uniform standards so as to avoid "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide." Id. at § 136(bb). In light of these considerations, the EPA is to make a determination as to whether a particular pesticide should be registered, and, if so, under what circumstances. See 1972 U.S.C.C.A.N. at 3996-97. The factors considered in this regard include whether it performs in accordance with the claims stated on the label, whether the label complies with the overall regulatory requirements, and whether the intended performance, in widespread usage, will adversely affect the environment. 7 U.S.C. § 136a(c)(5). In short, FIFRA is concerned with constraining the harmful risks that pesticides pose to the environment and to the health of those individuals who happen to come into contact with such pesticides. In the interest of overall uniformity, Congress deemed it proper to delegate all authority pertaining to the labeling of these harmful chemicals to one expert administrative body. It is in this vein that the Eleventh Circuit has concluded that when "a pesticide manufacturer places EPA-approved warnings on the label and packaging of its product, its duty to warn is satisfied." Papas, 985 F.2d at 519. Unlike the Papas action, however, Plaintiffs do not bring the present action asserting that Defendants have in any way harmed either the environment or their health. Indeed, the present action concerns mislabeling only in the loosest sense. No contention is made that the alleged mislabeling as to weight in any way made the fungicide more or less harmful to the environment. Plaintiffs do not even allege that the labels fail to comply with FIFRA regulations. Plaintiffs merely complain that Defendants affixed the wrong label to the product, and then represented that the *1300 label directed the appropriate usage of that product. Whether this be the result of fraud or negligence on the part of Defendants, it is not clear whether the EPA could have prevented the alleged harm. In this regard, the court finds apposite the reasoning of Roberson v. E.I. Dupont De Nemours & Co., 863 F.Supp. 929 (W.D.Ark.1994). Much like the present case, the Roberson plaintiffs brought a claim against the manufacturers of a fungicide alleging that the label misdirected the plaintiffs in their application of the fungicide, thereby causing their crops to suffer. Id. at 931. The court found that the defendants were estopped from asserting a preemption defense insofar as the labels approved by the EPA were based on false information. Id. at 932-33. The EPA is a passive agency, relying upon the information provided by pesticide manufacturers; the efficacy of the FIFRA registration process depends upon the relaying of truthful and accurate information. See id. Implicit in this argument is the idea that FIFRA preemption should not avail itself to actions over which the EPA regulatory role could not have prevented the alleged harm. Indeed, the present causes of action simply do not concern the quality of the language stated upon the label, but merely Defendants' failure to properly affix that label. This is the basis upon which the court draws a distinction between the precedent it is bound to follow in Papas. The Papas court recognized a rule from which the present court does not deviate: where a pesticide manufacturer faces liability for harm to the environment or to humans based upon an allegedly inadequate statement of the risks on its label, the claims brought therein are preempted by FIFRA. See Papas, 985 F.2d at 518 n. 2 ("Under FIFRA, a pesticide is misbranded if the label does not contain warnings or directions for use which, if complied with, are `adequate to protect health and the environment.'") (citing 7 U.S.C. § 136(q)(1)(F),(G)). In the present matter, however, the court merely finds that this rule does not extend to allegations of crop damage resulting from the misapplication of an EPA-approved label to a container. Distinguishing Papas in this manner is consistent with the Supreme Court's mandate that preemption statutes should be construed narrowly: the court finds that Congress intended for FIFRA to preempt mislabeling actions concerning harm to the environment or to people, but not actions concerning the misapplication of labels that affect the quality of fungicide performance. Such an interpretation in no way "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Medtronic, Inc., 518 U.S. at 507, 116 S.Ct. 2240 (Breyer, J., concurring) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). Indeed, "there is no general, inherent conflict between federal pre-emption of state warning requirements and the continued vitality of state common law damages actions." Cipollone, 505 U.S. at 518, 112 S.Ct. 2608. This is particularly true when the damages actions in no way relate to the warnings required under the federal statute. Although, as discussed above, the regulations require that the label accurately state the weight of a particular pesticide, the preemptive effect of this requirement should be narrowly construed as one aimed at health and environmental concerns rather than product performance. Courts have repeatedly drawn such a distinction in determining FIFRA's preemptive scope. See, e.g., Higgins v. Monsanto, 862 F.Supp. 751, 759 (N.D.N.Y.1994) (finding that rule of narrow construction in preemption context allows strict liability claim to survive FIFRA preemption); *1301 Bingham v. Terminix Int'l Co. L.P., 850 F.Supp. 516, 522 (S.D.Miss.1994) (finding that implied warranty of merchantability claim, unrelated to labeling, not preempted by FIFRA); Casper v. E.I. Du Pont De Nemours & Co., 806 F.Supp. 903, 909 (E.D.Wash.1992) (finding that FIFRA does not preempt claims relating to implied warranty of fitness). Since in the context of a motion to remand, it "should resolve all questions of fact and controlling law in favor of" Plaintiffs, Cabalceta v. Standard Fruit Co., 883 F.2d 1553, 1561 (11th Cir.1989), the court finds that none of the present claims brought against Pike are preempted. Plaintiffs may be able to demonstrate that Pike was aware of this problem, and thus is liable under a theory of fraud, or they may establish merely that Pike should have known that the products were mislabeled and, as such, is liable for negligence. Furthermore, the court finds that Plaintiffs might be able to demonstrate that Pike errantly warranted the propriety of a particular usage of the fungicide. Finally, there is a possibility, albeit a slim one, that the conspiracy claim is meritorious; at the very least, Defendants' only argument against such a claim is that the underlying claims have been preempted. Whether the facts will support a finding of liability against Pike is not a concern of the court. See Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998) ("[Plaintiffs] need not have a winning case against the allegedly fraudulent defendant; [they] need only have a possibility of stating a valid cause of action in order for the joinder to be legitimate.") (emphasis in original). For present purposes, it is enough for the court to conclude that Plaintiffs' claims against Pike are not preempted by FIFRA, and there is a possibility that at least one state claim is viable. Therefore, the court finds that Pike was not fraudulently joined, and that Defendants have failed to establish complete diversity as required under Strawbridge v. Curtiss, 3 Cranch 267, 7 U.S. 267, 2 L.Ed. 435 (1806). As such, the court finds that it lacks subject matter jurisdiction to proceed further on the present matter. ORDER For the above-stated reasons, it is CONSIDERED and ORDERED that Plaintiffs' Motion To Remand be and the same is hereby GRANTED, and that this action be and the same is hereby REMANDED to the Circuit Court of Pike County, Alabama, pursuant to 28 U.S.C. § 1447(c). The Clerk of Court is DIRECTED to take all steps necessary to effectuate said remand. NOTES [1] The parties do not contest that the amount in controversy exceeds $75,000, as required under 28 U.S.C. § 1332. [2] FIFRA does not completely preempt all state common law claims, and, as such, it does not provide a federal question basis for removal. E.g., Hart v. Bayer Corp., 199 F.3d 239, 243-46 (5th Cir.2000). Its preemptive effect, however, abrogates a private right of action. See Fiedler v. Clark, 714 F.2d 77, 79 (9th Cir.1983). The thrust of Defendants' argument is that, since FIFRA preemption abrogates all claims against Pike, Pike is an improper party to the present action and complete diversity exists. [3] Plaintiffs' contention that this rule applies only to manufacturers, thereby exempting Pike from its reach, is without merit. Certainly Papas concerned only the manufacturer of a pesticide, but the court sees no reason to limit its scope as such. Congress intended to regulate the labeling of pesticides, making no distinction between retailers and manufacturers. Indeed FIFRA explicitly prohibits "any person in any State to distribute or sell" pesticides which violate delineated requirements. 7 U.S.C. § 136j(a)(1). Furthermore, FIFRA requires any "wholesaler, dealer, retailer, or other distributor" to file reports with the EPA. Id. at § 136j(a)(2)(N). Therefore, the court follows the example of the Ninth Circuit, which held that, where "the distributor's liability is essentially predicated upon the language in the manufacturer's label, we apply FIFRA's preemption provision equally to manufacturers and distributors." Taylor AG Industries v. Pure-Gro, 54 F.3d 555, 562 (9th Cir.1995).

25 F.2d 642 (1928) In re JOHN G. GASTEIGER & CO., Inc. Ex parte FIDELITY & DEPOSIT CO. OF MARYLAND. No. 760. Circuit Court of Appeals, Second Circuit. April 9, 1928. *643 Frederick Behr, of New York City, for appellant. Harry H. Schutte, of Brooklyn, N. Y., for appellee. Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges. L. HAND, Circuit Judge (after stating the facts as above). When the amendment of 1926 was passed the time had long expired within which claims could be filed in this estate. The divisor for dividends had been therefore finally fixed, except in so far as any claims were in process of liquidation, of which, so far as appears, there were none. True, the assets may not have been fully collected, but that was irrelevant; the creditor's rights had been settled in accordance with the law as it then stood, and the appellant enjoyed no priority. We are to decide whether the change in section 64 (b) (7) is "practicable and applicable" in such a situation. The act of 1926 is an innovation in bankruptcy legislation, the amendments of 1903 (section 18 [11 USCA § 41]) and of 1910 (section 14 [11 USCA § 32]) being both expressly made prospective only. The canon is well settled which interprets statutes prospectively unless the language admits of no other construction (Chew Heong v. U. S., 112 U. S. 536, 559, 5 S. Ct. 255, 28 L. Ed. 770; Shwab v. Doyle, 258 U. S. 529, 42 S. Ct. 391, 66 L. Ed. 747, 26 A. L. R. 1454; Fullerton Co. v. Northern Pacific R. Co., 266 U. S. 435, 45 S. Ct. 143, 69 L. Ed. 367), and we are not sure that the clause, "so far as practicable and applicable," means to go further than to make the amendments "applicable" to pending proceedings in matters of procedure, though perhaps it may. Even if it does, it gives the courts a wide discretion in determining when it is "practicable" so to apply it, and by "practicable" we understand that we must decide whether it is just to disturb vested rights. There may be cases in which the occasion is so important that this will be tolerable, but we think that this is not one. There appears to us no paramount public interest in the priority of the United States among those who have taken the same risks and engaged in the same ventures as itself. Moreover, there would be an especial injustice in allowing it here, since the interest and the power are both its own. It had yielded a prerogative commonly asserted in such cases and during the period of its complaisance these rights attached. It is quite true that in this case the creditors could scarcely have relied upon their rights, because as the decision stood they had none until after the law of 1926 was passed; but in fact those rights existed, and that too only by the act of the United States itself. While it was free to resume its prerogative when it chose, we are not to suppose that it meant to take back what once it had given, unless there is no escape from the conclusion. The repugnance of most people to such changes in front does not arise alone from the fact that they *644 may disrupt settlements made on the faith of the earlier assurance. The mere inconstancy of a sovereign in respect of what has once been granted is itself a grievance, and seems an injustice to most men. For these reasons it seems to us that it is not "practicable" to apply retroactively section 64 (b) (7) to cases where the claims have all been filed and the rights all fixed. The cases, so far as they have yet construed section 18 are impliedly in accord. Dreyfuss Dry Goods Co. v. Morgan (C. C. A. 5) 23 F.(2d) 54; Morton v. Snider (C. C. A. 3) 20 F.(2d) 469; In re Wyatt (D. C.) 23 F. 350. Order affirmed.

113 F.3d 470 37 Fed.R.Serv.3d 1288 UNITED STATES of America,v.Robert G. EYER, Appellant. No. 96-7310. United States Court of Appeals,Third Circuit. Argued April 17, 1997.Decided May 14, 1997. David M. Barasch, United States Attorney, Theodore B. Smith, III (argued), Assistant U.S. Attorney, Harrisburg, PA, for Appellee. Cheryl J. Sturm (argued), Westtown, PA, for Appellant. Before GREENBERG, ALITO, and ROSENN, Circuit Judges. OPINION OF THE COURT GREENBERG, Circuit Judge. I. INTRODUCTION 1 Appellant, Robert G. Eyer, appeals from an order entered on April 11, 1996, denying his motion filed pursuant to 28 U.S.C. § 2255 ("section 2255"). On February 13, 1990, a grand jury returned a one-count indictment charging Eyer with using and carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)("section 924(c)(1)"). Eyer waived trial by jury, and was convicted at a bench trial on May 21, 1990. On August 10, 1990, the district court sentenced Eyer to a five-year custodial term followed by a three-year term of supervised release to be served consecutively to any sentence he then was serving. 2 On February 28, 1996, Eyer, through an attorney, filed a motion under section 2255 to vacate, set aside, or correct his sentence. The motion included a brief contending that in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the Supreme Court held that a defendant cannot be convicted of a violation of section 924(c)(1) unless he "actively employs the firearm in connection with the drug trafficking offense." The brief further asserted that "active employment" includes "brandishing, displaying, bartering, striking with, firing, attempting to fire, or referencing the firearm" but does not "include possession of a firearm at or near the site of a drug crime, storing a weapon near drug proceeds, or concealing a firearm nearby to be ready for imminent confrontation." 3 The brief quoted the presentence report which explained that a person cooperating with a drug task force placed an order with Eyer for an ounce of cocaine to be delivered to the purchaser's apartment. When Eyer arrived with the cocaine the officers arrested him and seized the automobile in which he was making the delivery. The officers then obtained a search warrant and searched the vehicle, finding a fully loaded Colt .380 caliber semi-automatic hand gun with a live round in its chamber located in the console between its front seats along with some cocaine. Not withstanding the location of the firearm, in his motion Eyer claimed that there was "no evidence that [he] actively employed the handgun." Thus, in his view, the government's proof could not support the conviction under section 924(c)(1) as construed in Bailey. Accordingly, Eyer requested that the district court vacate his conviction and sentence. 4 After the parties filed further pleadings, the district court, without holding a hearing, ruled on the section 2255 motion in a memorandum accompanying the order of April 11, 1996. The court pointed out that Bailey applied only to the "using" prong of section 924(c)(1) which speaks of a defendant who, in the disjunctive, "uses or carries a firearm" in relation to any crime of violence or drug trafficking crime. The court then held that Eyer was carrying the gun because he was transporting it by vehicle. The court cited several cases in support of this holding including United States v. Pineda-Ortuno, 952 F.2d 98, 103-04 (5th Cir.1992), and United States v. Freisinger, 937 F.2d 383, 387-88 (8th Cir.1991). Based on these conclusions, the district court denied the motion. 5 Eyer then appealed to this court and sought a certificate of appealability from both the district court and this court. On July 1, 1996, the district court granted a certificate of appealability. Its order, however, does not specify the issue or issues warranting granting the certificate notwithstanding that 28 U.S.C. § 2253(c)(3) ("section 2253(c)(3)") requires a certificate of appealability under 28 U.S.C. § 2253(c)(1) ("section 2253(c)(1)") to indicate the issues justifying its issuance. This court has not acted on Eyer's application to it for the certificate of appealability. The parties have briefed the case both on the procedural issues and on the merits and have argued orally. We exercise plenary review. II. DISCUSSION 6 a. Procedural issues 7 The first issue is whether the district court properly issued the certificate of appealability. The government contends that the district court could not do so because only a circuit justice or a circuit judge can issue a certificate of appealability. Thus, the government argues that unless we issue a certificate of appealability, we cannot decide this case on the merits. 8 Until the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), effective April 24, 1996, a petitioner in federal custody who was denied relief by a district court on a section 2255 motion could appeal to a court of appeals without obtaining a certificate of probable cause. By contrast, a petitioner challenging detention arising out of process issued by a state court could not appeal "unless the justice or judge who rendered the order or a circuit justice or judge issue[d] a certificate of probable cause." 28 U.S.C. § 2253 ("section 2253"). The AEDPA changed these procedures; in particular the Act replaced certificates of probable cause with certificates of appealability and required prisoners in federal custody to obtain a certificate of appealability to appeal from the denial of relief under section 2255. 9 Unfortunately, the AEDPA created an ambiguity with respect to the designation of the judges who can issue certificates of appealability. It amended section 2253 in pertinent part to read as follows: 10 (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken from-- 11 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 12 (B) the final order in a proceeding under section 2255. 13 When Congress enacted the AEDPA it deleted from section 2253 the provision that the "judge who rendered the order" could issue a certificate of probable cause, and thus there is no provision in section 2253, as amended by the AEDPA, providing that the judge who rendered the order may issue a certificate of appealability. This deletion casts doubt on the power of a district judge to issue a certificate of appealability, especially inasmuch as the reference in section 2253 prior to its amendment by the AEDPA to"circuit justice or judge" arguably meant "circuit justice" or "circuit judge." After all, the "judge who entered the order" ordinarily would have been a district judge and thus it would not have been necessary to read "judge" in "circuit justice or judge" to include district judges in order to authorize a judge denying the order to issue a certificate of probable cause. Accordingly, the government reasonably argues that the district court did not have the authority to issue the certificate of appealability to Eyer. 14 We reject the government's argument. Certainly the term "circuit justice or judge" is ambiguous as "circuit" might modify only the word "justice" or might modify both "justice" and "judge." Obviously, if "circuit" applies to "judge" then only a court of appeals judge or circuit justice can issue a certificate of appealability. We might reject this application of "circuit" to "judge" on the ground that "circuit" as applied to "justice" refers to the allocation of the Supreme Court justices to the various circuits pursuant to an order of the Supreme Court as authorized in 28 U.S.C. § 42. Under this reasoning, "circuit" as applied to "justice" refers to a judicial assignment and "circuit" should not be read to modify the word "judge" and thus be given a different meaning and refer to judges on the basis of their appointment, which in this case is to a court of appeals. 15 In the final analysis, however, we conclude on a different basis that a district judge can issue a certificate of appealability. In section 2253(c)(1), as amended by the AEDPA, the language that an appeal may not be taken unless a "circuit justice or judge" issues a certificate of appealability is followed by the two subparagraphs, which we quoted above: subparagraph A, relating to custody arising out of process by a state court, and subparagraph B, relating to proceedings involving federal prisoners under section 2255. These paragraphs appear in section 2253(c)(1) in the disjunctive. This configuration makes it difficult, if not impossible, to construe section 2253(c)(1) so that "circuit justice or judge" has a different meaning in the two subparagraphs. Yet we know that, unless we are willing to hold that Congress made an extraordinary mistake in drafting, a district judge must be able to issue a certificate of appealability in a case arising under subparagraph A. 16 This conclusion cannot be avoided because the AEDPA amended Fed.R.App.P. 22(b) to read in part as follows: 17 Certificate of Appealability.--In a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of appealability pursuant to section 2253(c) of title 28, United States Code. If an appeal is taken by the applicant, the district judge who rendered the judgment shall either issue a certificate of appealability or state the reasons why such a certificate should not issue. 18 Thus, at the very time that Congress amended section 2253 to remove the language providing that the "judge who rendered the order" could issue a certificate of probable cause, now a certificate of appealability, it provided in Rule 22(b) that a district judge in general, and the judge who rendered the judgment in particular, ordinarily, of course, a district judge, could issue a certificate of appealability. Furthermore, the AEDPA amendment to Rule 22(b) referred to section 2253(c) even though prior to the amendment Rule 22(b) did not mention section 2253 which at that time did not even have subsections. We also note that the amendment to Rule 22(b) appears conspicuously in Title I of the AEDPA, a short title dealing with habeas corpus reform. 19 In these circumstances, we must conclude that Congress deliberately amended Rule 22(b); we consequently hold that section 2253(c)(1) authorizes a district judge to issue a certificate of appealability in cases under subparagraph A and thus necessarily under subparagraph B as well. Our conclusion harmonizes Rule 22(b) and section 2253(c)(1), and thus we reject any suggestion that these provisions are inconsistent. Moreover, it would be strange to read section 2253(c)(1) to authorize district judges to issue certificates of appealability in state but not in federal cases involving custody of prisoners. If anything, one might expect that Congress, for reasons of comity, would be more restrictive in vesting the power to issue a certificate of appealability in district judges in state rather than federal cases.1 20 We have reached our determination through our own analysis. Nevertheless, we find it significant that other courts of appeals have reached the same result, though their reasoning may differ from ours. See Lozada v. United States, 107 F.3d 1011, 1016 (2d Cir.1997) ("We therefore uphold the authority of district judges to issue COAs, at least in section 2254 cases."); United States v. Asrar, 108 F.3d 217, 218 (9th Cir.1997); Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1066-73 (6th Cir.1997), cert. denied, --- U.S. ----, 117 S.Ct. 1724, 137 L.Ed.2d 845 (1997); Hunter v. United States, 101 F.3d 1565, 1573-77 (11th Cir.1996) (en banc), cert. denied, --- U.S. ----, 117 S.Ct. 1695, 137 L.Ed.2d 822 (1997). 21 Although we hold that the district court had the power to grant a certificate of appealability, we face additional procedural obstacles prior to deciding this appeal on the merits. First, the certificate of appealability in this case does not specify the issues that warrant its issuance as required by section 2253(c)(3). In an appropriate case, such an omission could lead us to remand the case for the district court to specify the issues. But we will not do so here for two reasons. First, because there was only one issue before the district court, the issue it determined warranted the issuance of the certificate is obvious. Second, at oral argument the government stated that if we concluded that the district court had the power to issue the certificate, we should decide the case on the merits without remanding the case to the district court. 22 The second procedural obstacle we face prior to reaching the merits of the appeal is more serious. 28 U.S.C. § 2253(c)(2) ("section 2253(c)(2)") provides that a certificate of appealability can issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Yet Eyer raises questions under Bailey involving issues of statutory construction. Therefore, it is possible that Eyer does not raise an issue involving a constitutional right. See Hohn v. United States, 99 F.3d 892 (8th Cir.1996). 23 Here, too, we avoid the procedural point because the government, though contending that we should not issue a certificate of appealability, does not contend that if we construe section 2253(c)(1) to authorize district courts to issue certificates of appealability, we should dismiss the appeal on the ground that Eyer does not raise an issue involving a constitutional right. Rather, at oral argument the government took the position that if the district court is empowered to issue certificates of appealability under section 2253(c)(1), we should decide this case on the merits. Thus, the determination of the meaning of "constitutional right" in section 2253(c)(2) is not necessary to the disposition of this appeal. 24 In reaching our result, we have not disregarded our practice of examining our jurisdiction before reaching the merits of an appeal, and we recognize the possibility that the procedural problems we have identified could be considered jurisdictional. Instead, we are applying the settled principle "that an appellate court, confronted by a difficult jurisdictional or quasi-jurisdictional question, may forego its resolution if the merits of the appeal are, as here, straightforward and easily resolved in favor of the party or parties to whose benefit the objection to jurisdiction would redound." In re DN Assocs., 3 F.3d 512, 515 (1st Cir.1993). See also Switlik v. Hardwicke Co., 651 F.2d 852, 856 n. 3 (3d Cir.1981) ("Because we conclude ... that the district court's judgment should be affirmed under well-settled principles of res judicata and collateral estoppel, assuming without deciding that we have jurisdiction permits a proper and lawful resolution of the dispute without facing the damages lurking in the murky waters surrounding the state action question."). 25 In this case, certainly at least as to the construction of section 2253(c)(2), difficult and far-reaching procedural questions potentially are presented. Nevertheless, as will be seen, we can affirm on the merits so that we will resolve the appeal in favor of the government, the party "to whose benefit [any] objection to jurisdiction would redound." In re DN Assocs., 3 F.3d at 515. Thus, we will decide the appeal on the merits. 26 Georgine v. Amchem Prods., Inc., 83 F.3d 610, 623-24 (3d Cir.1996), cert. granted, --- U.S. ----, 117 S.Ct. 379, 136 L.Ed.2d 297 (1996), is not inconsistent with the action we take. There we indicated that "[a]lthough we deem it wise not to decide most of the jurisdictional issues posed by this case, we are obliged to consider the threshold question whether we have appellate jurisdiction to review the propriety, under Federal Rule of Civil Procedure 23, of the district court's class certification." But Georgine is distinguishable because there we held that the class certification was improper. Thus, we vacated the district court order certifying the class, and remanded the case to the district court to decertify the class. Georgine, 83 F.3d at 635. Therefore, in Georgine we could not assume that we had jurisdiction because we were not deciding the case in favor of the parties to whose benefit the objection to jurisdiction would redound. 27 Of course, we add that this opinion should not be taken as an indication that in the future we will depart regularly from our usual practice of determining whether we have jurisdiction before reaching the merits of an appeal. To the contrary, ordinarily we will adhere to that practice. See Norton v. Mathews, 427 U.S. 524, 532-33, 96 S.Ct. 2771, 2775-76, 49 L.Ed.2d 672 (1976). Here, we decide the appeal on the merits because, unlike resolution of the difficult questions relating to the construction of section 2253(c)(2), consideration of this appeal on the merits yields an obvious result. Moreover, we can conceive of no procedural complications that will flow from an affirmance in this case as our order will terminate the section 2255 proceedings. Finally, and perhaps most significantly, the order from which the appeal has been taken is undoubtedly final and thus ordinarily would be appealable. Only the provisions relating to certificates of appealability cast doubt on our jurisdiction. Accordingly, we regard this appeal as presenting a special situation justifying our determination of the appeal on the merits even if questions relating to our jurisdiction are unsettled. 28 There is a final group of issues we must address before reaching the merits of the appeal. Eyer contends that the AEDPA is an ex post facto law when applied to crimes, such as his, committed before its effective date, April 24, 1996. In addition, he contends that the AEDPA unconstitutionally restricts the writ of habeas corpus and is void for vagueness. At oral argument we pointed out that notwithstanding these contentions, the district court granted the certificate of appealability so that it appeared that Eyer's constitutional arguments would be moot if we held that the district court properly issued the certificate. Eyer agreed with this observation. In fact, even if we sustained Eyer's constitutional arguments, he would been titled only to a determination of his appeal on the merits. We will make that determination and, accordingly, we need not consider his constitutional challenges to the AEDPA. 29 b. The merits of the appeal 30 Eyer argues that he is entitled to relief on the merits because this case was tried "based on the expansive definition of 'use' set forth in United States v. Theodoropoulos, 866 F.2d 587 (3d Cir.1989) which held that a firearm was 'used' if it was available for possible use during the drug transaction." Br. at 10. Eyer contends that in United States v. Price, 76 F.3d 526, 528 (3d Cir.1996), we recognized that Theodoropoulos did not survive Bailey. He also contends that the facts in this case could not justify a conviction under the "carry" prong of section 924(c)(1). 31 The government answers that the Supreme Court in Bailey, --- U.S. at ----, 116 S.Ct. at 509, recognized that its opinion did not affect the "carry" prong of section 924(c)(1) and that a "number of courts of appeals have held that possessing a firearm in an automobile during and in relation to a drug trafficking crime constitutes 'carrying' under" section 924(c)(1). Br. at 35. It cites a number of cases to support its conclusion on the point including United States v. Pineda-Ortuno, 952 F.2d at 103-04, and United States v. Freisinger, 937 F.2d at 387-88, both of which the district court cited. 32 We are not concerned with what disposition we would have made if this case had been tried to a jury because the district court clearly convicted Eyer for carrying the firearm. Accordingly, Bailey is not implicated here. Furthermore, the facts here compel the conclusion that Eyer was carrying the firearm. As we explained above, the handgun was loaded and was in a console between the two front seats, and was conveyed with the cocaine to the purchaser's apartment. Eyer's easy access to the handgun and its transportation convinces us that he was carrying it. Accordingly, we have no occasion to address the broad question of whether it always can be said that a defendant is carrying a firearm if he or she has the firearm in a car while committing a drug trafficking offense. III. CONCLUSION 33 In view of the aforesaid, we will affirm the order of April 11, 1996. We deny Eyer's application to us for a certificate of appealability as moot. 1 We agree with the Sixth Circuit that interpreting "circuit" as modifying only "justice" and not "judge" is a somewhat "tortured interpretation, but a possible one." Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1070 (6th Cir.1997), cert. denied, --- U.S. ----, 117 S.Ct. 1724, 137 L.Ed.2d 845 (1997). However, this interpretation provides the only plausible means of harmonizing section 2253(c)(1) and Fed.R.App.P. 22(b). Harmonization seems particularly appropriate here, since it appears that the arguably inconsistent language of these two provisions was not adopted inadvertently. See Hunter v. United States, 101 F.3d 1565, 1581-82 (11th Cir.1996) (en banc), cert. denied, --- U.S. ----, 117 S.Ct. 1695, 137 L.Ed.2d 822 (1997)

257 S.W.3d 630 (2008) LANDSTAR INVESTMENTS II, INC., Respondent, v. Kari E. SPEARS d/b/a White Glove Cleaning Service, Appellant. No. 28421. Missouri Court of Appeals, Southern District, Division Two. June 24, 2008. David M. Duree, St. Louis, for Appellant. No brief filed for Respondent. ROBERT S. BARNEY, Presiding Judge. Kari E. Spears d/b/a White Glove Cleaning Service ("Appellant") appeals the trial court's grant of summary judgment in favor of Respondent Landstar Investments II, Inc. ("Landstar").[1] Appellant alleges *631 four points of trial court error; however, we find her first point dispositive and need not discuss her other allegations of error. On January 10, 2006, Landstar filed a "Petition on Credit Agreement" in which it asserted Appellant "executed an application and was issued credit by [Landstar];" that Appellant then defaulted on that agreement; and that Appellant owes Landstar the principal sum of $35,557.87 "together with interest of 9 [percent] per annum from June 23, 2000, and for costs...." Also attached to Landstar's petition was a "Wells Fargo BusinessLine Acceptance Certificate" signed by "Kari E. Spears" as "president" of "White Glove Cleaning Svc.;" a letter from an "Account Representative" at Wells Fargo to "White Glove Cleaning Srvs." relating to changes in the terms of the line of credit; and an affidavit from Landstar's "Vice President" stating the specific amount owed to Landstar and that "the records of this account are maintained under [his] supervision...." The petition was served upon Appellant on January 13, 2006, and she failed to file any pleadings in response. On March 22, 2006, a "Default Judgment" was entered against Appellant in the amount of $61,924.37 "plus court costs" and interest. On April 20, 2006, Appellant, appearing pro se, filed a motion to set aside the default judgment, and her motion was granted by the trial court on October 11, 2000. On November 17, 2006, Landstar filed another "Motion for Default Judgment" and it also filed a "Motion for Summary Judgment" on December 6, 2006.[2] Appellant did not file responsive pleadings as to the foregoing motions. A hearing was held on March 7, 2007, on Landstar's motion for summary judgment and the trial court granted Landstar's motion for summary judgment on March 12, 2007. This appeal followed. Appellant's first point relied on asserts the trial court erred in granting summary judgment: in that the alleged credit agreement attached to the petition ... is not a contract to which [Landstar] is a party, and the petition and summary judgment motion do not otherwise establish any rights of [Landstar] in and to the alleged contract, which identifies Wells Fargo and White Glove Cleaning Service as the two parties. In determining whether the trial court properly granted summary judgment, we employ a de novo standard of review. ITT Comm'l Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We view the record in the light most favorable to the party against whom judgment was entered, and we accord that party the benefit of all inferences which may reasonably be drawn from the record. Reese v. Ryan's Family Steakhouses, Inc., 19 S.W.3d 749, 751 (Mo.App.2000). "`[T]he key to a summary judgment is the undisputed right to a judgment ... not simply the absence of a fact question.'" Birdsong v. Christians, 6 S.W.3d 218, 223 (Mo.App.1999) (quoting Southard v. Buccaneer Homes Corp., 904 S.W.2d 525, 530 (Mo.App.1995)). As such, a grant of summary judgment is appropriate when a moving party makes a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to a judgment as a matter of *632 law. See ITT Comm'l, 854 S.W.2d at 376; Rule 74.04.[3] Here, Appellant failed to file a response to Landstar's motion for summary judgment and "[by] reason of [her] failure to deny those statements in the manner specified in Rule 74.04(c)(2), those facts were admitted." Ford v. Cedar County, 216 S.W.3d 167, 170 (Mo.App.2006). Nevertheless, "for [Landstar] to be entitled to summary judgment, such facts must establish [Landstar's] right to judgment as a matter of law." Id.; see Rule 74.04(c)(6). With that being said, it has long been a tenet of basic contract law that "a contract generally binds no one but the parties thereto, and it cannot impose any contractual obligation or liability on one not a party to it." Continental Cas. Co. v. Campbell Design Group, Inc., 914 S.W.2d 43, 44 (Mo.App.1996). Here, the petition alleges Appellant owes a debt to Landstar based, however, on a line of credit agreement executed between Wells Fargo and Appellant. Landstar's name does not appear on any of the documentation affixed to the petition; nor is there any allegation in Landstar's petition that it had a legal right or interest in the line of credit issued by Wells Fargo. "Standing to sue ... exists when a party has an interest in the subject matter of the suit that gives it a right to recovery, if validated" and the "issue of standing cannot be waived." Midwestern Health Mgmt. v. Walker, 208 S.W.3d 295, 298 (Mo.App.2006); see C & W Asset Acquisition, LLC v. Somogyi, 136 S.W.3d 134, 140 (Mo.App.2004) (holding that where certain "documents show[ed] that Respondent entered into a credit agreement with [credit card company] and that [the] [r]espondent defaulted on that account ... the documents [did] not show that [the] [a]ppellant had the right to enforce that credit agreement"). The record does not establish that Landstar was a party to the contract between Wells Fargo and Appellant; thus, Landstar has failed to establish it had any rights or legal interest in the line of credit agreement which is the basis of its cause of action and, therefore, it lacks standing to sue. Landstar failed to make a prima facie case for summary judgment as a matter of law. The judgment of the trial court is reversed and remanded for further proceedings. LYNCH, C.J., and BURRELL, J., concur. NOTES [1] Landstar did not file a brief in this matter. See American Express Travel Related Servs. v. Mace, 26 S.W.3d 613, 615 n. 4 (Mo.App. 2000). [2] We note there is no notation in the trial court's docket sheet relating to a disposition of this motion for default judgment. [3] All rule references are to Missouri Court Rules (2006).

784 F.2d 1131 251 U.S.App.D.C. 327 Childressv.Northrop Corp. 85-5220 United States Court of Appeals,District of Columbia Circuit. 2/21/86 D.C.D.C., 618 F.Supp. 44 1 AFFIRMED *

82 So.3d 571 (2012) IN RE J.G. No. 2011-CA-0983. Court of Appeal of Louisiana, Fourth Circuit. March 7, 2012. McKAY, J. Decision Without Published Opinion Affirmed.

139 F.3d 1325 98 CJ C.A.R. 1434 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant,v.Monson Lee DURHAM, also known as Lee Durham,Defendant-Appellant Cross-Appellee.UNITED STATES of America, Plaintiff-Appellee,v.Danny Ray EVANS, also known as Danny Taylor, Defendant--Appellant. Nos. 96-5107, 96-5108 and 96-5118. United States Court of Appeals,Tenth Circuit. March 24, 1998. Jenine M. Jensen, Assistant Federal Public Defender (Michael J. Katz, Federal Public Defender with her on the briefs), Denver, CO, for Defendants--Appellants Durham and Evans. Allen J. Litchfield, Assistant United States Attorney (Stephen C. Lewis, United States Attorney and Ann P. Dooley, Assistant United States Attorney, on the Brief), Tulsa, OK, for Plaintiff--Appellee. Before TACHA, LUCERO and MURPHY, Circuit Judges. LUCERO, Circuit Judge. 1 Today we are asked to consider the requirements for waiver of a defective jury composition, what constitutes sufficient evidence of materiality under 18 U.S.C. § 1623, whether it is appropriate to issue a false exculpatory statement instruction when the defendant is charged with perjury, and whether it is misconduct for the government to request a modification to an official transcript without notifying the court or opposing counsel. In addition, we revisit our jurisprudence under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), to determine whether the erroneous "use" instruction in this case requires this court to reverse Danny Evans's conviction under 18 U.S.C. § 924(c)(1). 2 In addition to the § 924(c) appeal, Evans appeals his conviction for one count of conspiracy with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. Lee Durham appeals his convictions for participating in the same conspiracy and for four counts of perjury in violation of 18 U.S.C. § 1623. Durham claims that the government did not present sufficient evidence to support his convictions for perjury; that the district court erred in giving a false exculpatory statement jury instruction; that his trial was defective as a result of prosecutorial misconduct; and that he was tried before an improperly constituted jury. In addition to joining all grounds raised by Durham, Evans argues that the district court abused its discretion by refusing to sever his trial from Durham's; that the Supreme Court's decision in Bailey mandates reversal of his conviction under 18 U.S.C. § 924(c); and that the district court contravened his Sixth Amendment right to confront adverse witnesses by refusing to allow inquiry into prior assaults committed by Mark Montgomery, the government's key witness. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. 3 * Mark Montgomery began selling cocaine in Okmulgee, Oklahoma in 1989. Early in his career, Montgomery's great uncle informed him that he was paying too much for his cocaine from his Okmulgee sources. Soon thereafter, Montgomery developed alternative cocaine sources in both California and Texas. At trial, Montgomery testified he first obtained cocaine from Evans, a resident of Arlington, Texas, in either 1990 or 1991. From 1991 to 1994, he and Evans ran the cocaine venture as partners. 4 In early 1991, Montgomery enlisted Durham to broker his purchases of cocaine in Houston. Durham, a Houston native, would pick Montgomery's couriers up at one of the city's airports and provide them with a place to stay. He would then take their money, exchange it for cocaine, and transport them back to the airport. Durham was paid "small amounts of money" for his services as a "middle man." 13 R. at 1603-04. He never brokered any of Montgomery's drug transactions in other source cities. 5 Montgomery introduced Evans and Durham sometime before August 1991. Thereafter, Evans would contact Durham to arrange cocaine purchases without Montgomery's intervention. In mid-1992, Evans and Montgomery ceased employing Durham's services and there is scant evidence suggesting any contact between Durham and either Montgomery or Evans for the latter half of 1992 and all of 1993 and 1994. 6 In June 1994, Evans was stopped in Oklahoma for speeding. During that stop, an officer of the Oklahoma Highway Patrol found a nine millimeter pistol between the driver's and passenger's seats. In addition, the officer found $13,500 in three separate bundles. Because Evans admitted that the pistol was his, he was arrested for carrying a loaded weapon in violation of Oklahoma law. On the theory that the $13,500 represented the proceeds of drug transactions, Evans was subsequently charged with using or carrying a firearm during and in relation to a drug offense in violation of 18 U.S.C. § 924(c)(1). 7 Montgomery was arrested in October 1994 for illegal distribution of narcotics. In an attempt to limit the amount of prison time he would serve, he agreed to assist the government in obtaining evidence against other suspected drug dealers. He was therefore released on bond the following month. Initially, Montgomery had little success in contacting his former sources and he surmised that they suspected him of cooperating with the government. In March 1995, however, Montgomery successfully contacted Durham. In a taped conversation that was played for the jury, Durham agreed to locate a cocaine seller for Montgomery. Later that month, the government obtained an indictment against both Evans and Durham for conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. Montgomery was the government's key witness at the defendants' trial. II 8 Prior to trial, Durham's counsel moved the court to dismiss the indictment for improper venue or, in the alternative, to transfer the case pursuant to Rule 21(b) of the Federal Rules of Criminal Procedure. Durham testified at a hearing held on June 14, 1995 in support of this motion. His testimony prompted the government to file a superseding indictment that added four counts of perjury. The first perjury count was based on Durham's representation at the venue hearing that he had not been in Oklahoma since December of 1990, see 13 R. at 1631-32, 1640; the second, on his confirmation that he had "never taken any money from" Evans, see id. at 1632-33; the third, on his adoption of the statement that he had never sold drugs to Evans, see id. at 1633; and the final count, on his confirmation that he had never engaged in a drug transaction with Montgomery, see id. at 1641. 9 * Durham argues that all of his perjury counts must be reversed because the government did not produce sufficient evidence that his statements were "material" to the proceedings. "[I]n reviewing the sufficiency of the evidence to support a jury verdict, this court must review the record de novo and ask only whether, taking the evidence--both direct and circumstantial, together with the reasonable inferences to be drawn therefrom--in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. Voss, 82 F.3d 1521, 1524-25 (10th Cir.) (internal quotations omitted), cert. denied, --- U.S. ----, 117 S.Ct. 226, 136 L.Ed.2d 158 (1996). 10 Materiality is an element of the crime of perjury, which must be submitted to the jury and proven by the prosecution beyond a reasonable doubt. See 18 U.S.C. § 1623(a); United States v. Regan, 103 F.3d 1072, 1081 (2d Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2484, 138 L.Ed.2d 992 (1997); United States v. Keys, 95 F.3d 874, 877 (9th Cir.1996) (en banc); United States v. Littleton, 76 F.3d 614, 617 (4th Cir.1996); United States v. Kramer, 73 F.3d 1067, 1074 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 516, 136 L.Ed.2d 405 (1996); see also United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 2319-20, 132 L.Ed.2d 444 (1995) (conviction for making false statements on federal loan documents in violation of 18 U.S.C. § 1001 only sustainable if jury finds statements material beyond a reasonable doubt). To be material under § 1623(a), a false statement must have "a natural tendency to influence, or [be] capable of influencing, the decision ... required to be made." United States v. Girdner, 773 F.2d 257, 259 (10th Cir.1985) (quoting United States v. Moore, 613 F.2d 1029, 1038 (D.C.Cir.1979)); see also Gaudin, 515 U.S. at 509, 115 S.Ct. at 2313 (applying this same standard in prosecution under 18 U.S.C. § 1001). Because Durham made the disputed statements at a venue hearing, the government must prove the statements were material to the court's venue decision. See United States v. Allen, 892 F.2d 66, 68 (10th Cir.1989) ("The materiality test is determined at the time and for the purpose for which the allegedly false statement was made."). 11 Because "[v]enue is proper in conspiracy offenses in any district where the agreement was formed or an overt act occurred," United States v. Scott, 37 F.3d 1564, 1580 (10th Cir.1994) (citations omitted), Durham's testimony was material to the venue decision.1 The indictment in effect at the time of the venue hearing did not allege any specific overt acts. Rather, it merely charged Evans and Durham with conspiring to violate 21 U.S.C. § 841(a)(1) "in the Northern District of Oklahoma and elsewhere." 1 R., Doc. 2 at 1. It would be consistent with the charges in that indictment for the government to establish that the agreement was formed in Oklahoma but that all overt acts occurred outside of the state.2 It is for that reason that Durham's statements were material to the venue decision. 12 Durham's contentions that he had left Oklahoma before the alleged conspiracy was formed and had no contact with the principal alleged conspirators had the capacity to affect the district court's decision as to whether an agreement had occurred in Oklahoma. Moreover, Durham's motion before the court argued that he was inappropriately being tried in Oklahoma for acts that had allegedly taken place in Texas. If the court had credited Durham's testimony at the venue hearing, it might have concluded that no agreement was formed in Oklahoma and that the overt acts occurred outside of that state. Such findings could certainly have influenced the court's venue decision, and it is therefore reasonable for the jury to have found the statements material to that decision.3 B 13 Durham also claims that the government presented insufficient evidence to show that his claim not to have been in Oklahoma since 1990 was "knowingly" false. More specifically, he argues that his testimony as to when he left Oklahoma shows such confusion and equivocation that no jury could reasonably conclude he made a willful misstatement.4 We cannot agree. 14 A perjury conviction that rests on a defendant's responses to leading questions should be "strictly scrutinize[d] for fairness" to ensure that the statements are those of the witness and not the prosecutor. See United States v. Boberg, 565 F.2d 1059, 1063 (8th Cir.1977). In this case, however, the defendant testified that he left Oklahoma in 1990 not only during cross-examination but also in response to a question from his own attorney. See 13 R. at 1640. Drawing all inferences in favor of the government, see Voss, 82 F.3d at 1524-25, the evidence adduced at trial was sufficient to prove that Durham knew that he was making a false statement. III 15 Our review of this appeal is complicated by the government's improper submission of an altered transcript to the jury. To prove Durham perjured himself in testifying that he left Oklahoma in 1990, the prosecution read the following statement to the jury: 16 ANSWER: I left Oklahoma in December of '92, probably December of '90, I believe. 17 13 R. at 1628. But according to the court reporter who was present at the venue proceeding, the original transcript read as follows: 18 ANSWER: I left Oklahoma in December of '92--probably December of 2'90, I believe. 19 Supp. R. (Letter from Eldon R. Simpson, U.S. Court Reporter, to Patrick Fisher, Clerk of the 10th Circuit Court of Appeals, of 8/1/97, at 1). 20 The government tells us that the Assistant United States Attorney assigned to this case noticed what he believed to be an error in the original transcript of the venue proceeding and brought it to the attention of the court reporter, Eldon Simpson. According to the government, Mr. Simpson then "corrected the transcript" prior to filing it, but forgot to save the "corrections" on his computer, thus leaving the defense with an erroneously nonconforming copy of the transcript. Appellee's Br. at 22. The government's request to modify the official transcript was made without informing the court or opposing counsel. 21 Because neither defendant objected to the use of the altered transcript, we review the claim of prosecutorial misconduct for plain error. See United States v. Sands, 968 F.2d 1058, 1063 (10th Cir.1992). We may not correct the alleged error unless there is: (1) an error; (2) that is plain, and (3) that affects substantial rights. Johnson v. United States, 520 U.S. 461, ----, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997). Even if those conditions are met, we will only reverse and remand if the error "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. (internal quotations omitted). 22 There is no question but that the prosecutor acted inappropriately. Although the Federal Rules of Criminal Procedure provide that "[c]lerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time," Fed.R.Crim.P. 36 (emphasis added), nothing in the rule may be read to allow counsel to request modification of a transcript without informing the court or opposing counsel. It makes no difference that the transcript had not yet been filed. The potential for severe misconduct is such that all requests concerning an alteration of a transcript must be made through the court. 23 That said, we do not accept Durham's contention that such behavior requires reversal in the case before us because it did not "affect[ ] substantial rights." Johnson, 520 U.S. at ----, 117 S.Ct. at 1549. Indeed, upon review of the record, we see no possibility that the misconduct at issue affected the verdict. Both the original and modified transcripts indicate that Durham was initially confused about when he left the state of Oklahoma. In his testimony following the disputed section, however, Durham consistently maintained that the last time he had been in Oklahoma was in 1990. See 13 R. at 1631-32, 1640, 1641. To the limited extent that the jury may have been able to infer a higher degree of confusion from the unaltered transcript, the role of that single comment is not significant in light of Durham's subsequent, conclusive statements that he had not been to the state of Oklahoma since 1990. IV 24 Durham and Evans both appeal the district court's decision to instruct the jury that it could consider false exculpatory statements made by Durham as evidence of Durham's consciousness of guilt. The defendants claim that this instruction erroneously relieved the jury of its obligation to determine the falsity of Durham's statements. Thus, defendants contend, the instruction effectively directed a verdict on the perjury counts and tainted the conspiracy conviction by informing the jury that Durham's claim to have had no drug dealings with either Evans or Montgomery was false.5 We review jury instructions as a whole and apply a de novo standard of review to determine the propriety of an individual jury instruction to which objection was made at the time of trial. See United States v. Scarborough, 128 F.3d 1373, 1377 (10th Cir.1997) (citing United States v. Mullins, 4 F.3d 898, 900 (10th Cir.1993)). 25 To prove perjury, the government must establish beyond a reasonable doubt that: (1) the defendant made a declaration under oath before a federal court; (2) such declaration was false; (3) the defendant knew the declaration was false; and (4) the declaration was material. See 18 U.S.C. § 1623(a); United States v. Neal, 822 F.2d 1502, 1506 (10th Cir.1987) (citing Hale v. United States, 406 F.2d 476, 479 (10th Cir.1969)). The jury in this case was so instructed. See 3 R., doc. 108 at 48. The instruction on false exculpatory statements, which this court allows to prove consciousness of guilt, see United States v. Ingram, 600 F.2d 260, 262 (10th Cir.1979), does not require otherwise. This latter instruction merely informs the jury that it may infer consciousness of guilt from an exculpatory statement if, in the light of other evidence produced at trial, the jury determines that the defendant knew the statement was false when it was made.6 The instruction simply does not require the jury to consider any statement false.7 26 Yet defendants' argument is not entirely without merit. The statements made by Durham in which he denied participating in any drug transactions with Evans and Montgomery were essentially denials of the conspiracy charged in the indictment. The only way the jury could find that the statements at issue in this case were false would be to conclude that Durham was a member of Montgomery's cocaine distribution conspiracy. That conclusion would necessarily render irrelevant consciousness of guilt. This circularity problem recurs whenever a jury can only find an exculpatory statement false if it already believes other evidence directly establishing guilt. Under such circumstances, it is error to give a false exculpatory statement instruction. See United States v. Littlefield, 840 F.2d 143, 149 (1st Cir.1988). 27 Nevertheless, a faulty jury instruction only requires reversal if the error is prejudicial. See Dikeman v. National Educators, Inc., 81 F.3d 949, 955 (10th Cir.1996). Here, "[t]he instruction's effect could not be prejudicial because it [was] redundant." Littlefield, 840 F.2d at 150. By its own explicit terms, the false exculpatory statement instruction was of no relevance to the jury until it determined that the defendant knowingly made a false statement tending to establish his innocence. To make that determination, the jury must have already independently concluded that Durham was a member of Montgomery's drug conspiracy. The court's instruction that it could consider false exculpatory statements as evidence of Durham's consciousness of guilt only allowed the jury to "re-prove" what it had already found to begin with, that Durham was guilty of conspiracy. Consequently, the instructional error was harmless. V 28 The defendants claim that the use of a juror from outside of the district in which the trial occurred is constitutional and statutory error that requires this court to reverse their convictions. The Sixth Amendment provides that a criminal defendant is entitled to a trial "by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. amend. VI. The Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1878, also guarantees the right of a criminal defendant to a "petit jur[y] selected at random from a fair cross section of the community in the district or division wherein the court convenes." 28 U.S.C. § 1861. During the second week of trial, the district court became aware that one of the jurors on the panel had moved out of the Northern District of Oklahoma. Outside the presence of the defendants, the district judge informed counsel for the government and the defense that the juror would have to be replaced "unless you all waive the situation." 14 R. at 1798. Although it is unclear whether the defendants were consulted about the decision, all the attorneys waived the defect. See id. at 1802-03. 29 The defendants argue that their right to a properly constituted jury is fundamental and that any waiver that appears in the record is inadequate because there is no evidence that the defendants personally waived such rights. "Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake." United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993) (citing 2 Wayne R. LeFave & Jerold H. Israel, Criminal Procedure § 11.6 (1984)). Equating by analogy the vicinage requirement of the Sixth Amendment to the fundamental right to trial by jury, defendants argue their convictions must be reversed because the record does not demonstrate that the waivers were "knowing, intelligent, and voluntary at the time [they were] accepted by the district court." United States v. Robertson, 45 F.3d 1423, 1433 (10th Cir.1995) (holding that trial by jury is a fundamental right that can only be waived by defendant in person). 30 This analogy is misplaced. The issue here is not the deprivation of trial by jury, but the question of what constitutes a valid waiver to defective jury composition. When a defense attorney decides for reasoned strategic purposes not to make a constitutional or statutory objection to the composition of a petit jury, the defendant is bound even if the attorney fails to consult him or her about the choice. See United States v. Stewart, 700 F.2d 702, 704-05 (11th Cir.1983); Winters v. Cook, 489 F.2d 174, 176 (5th Cir.1973) (en banc); see also United States v. Spiegel, 604 F.2d 961, 965 n. 9 (5th Cir.1979) ("Only where there is evidence of fraud or gross incompetence by an attorney--which is not at issue here--or where an 'inherently personal right of fundamental importance is involved,' does the law require defendant to personally waive his or her rights." (quoting Winters, 489 F.2d at 178)). 31 As soon as the vicinage defect was discovered, the court brought the problem to the attention of trial counsel. Asked to consider the possibility of waiver, Evans's counsel announced that the decision would have to be made on "tactical" grounds. 14 R. at 1799. Having ascertained the identity of the alien juror, Evans's counsel stated: "[T]he alternate doesn't appear to have been taking notes and because of all of the inconsistencies in the testimony of the government's witnesses, the ones who took notes will be better for us to argue to, so we will waive." Id. at 1802. Durham's attorney waived immediately thereafter. See id. We have no doubt that counsels' decision to waive was made for sound reasons of trial strategy. 32 Although the better practice would be for the court to inform the defendant personally on the record of the nature of the right and the consequences of a waiver, an attorney need not consult with his client on every possible decision that has constitutional implications. See Estelle v. Williams, 425 U.S. 501, 508-09 n. 3, 96 S.Ct. 1691, 1695 n. 3, 48 L.Ed.2d 126 (1976) (noting that, although the courts require that the defendant make a knowing decision to forgo the fundamental right to the assistance of counsel, the Court does not engage "in this exacting analysis with respect to strategic and tactical decisions, even those with constitutional implications, by a counseled accused"). Here, trial counsel for both defendants made a considered, tactical decision to enhance the potential for acquittal. That decision served as a proper waiver of the defendants' constitutional and statutory rights to a jury comprised of citizens from the district in which the crime occurred. VI 33 Evans claims he was prejudiced by the trial court's refusal to sever his trial from Durham's after the government charged Durham with four counts of perjury. Keeping in mind that there is a "preference in the federal system for joint trials of defendants who are indicted together," see Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993), we review a district court's decision to grant or deny a severance for abuse of discretion, and we will not reverse absent an affirmative showing of prejudice. See United States v. Rodriguez-Aguirre, 108 F.3d 1228, 1233 (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 132, 139 L.Ed.2d 81 (1997). 34 We perceive no abuse of discretion. Evans advances nothing more than conclusory allegations concerning the existence of prejudice. Substantially the same evidence that was used to demonstrate the falsity of the statements made by Durham was used to demonstrate that Evans was part of the conspiracy. See United States v. Shorter, 54 F.3d 1248, 1258 (7th Cir.1995) ("Perjury counts may be tried with other offenses, ... especially if the perjury relates to the conduct underlying the other charges."). And, to the limited extent that the charges against Durham involved evidence that would not have been admitted against Evans had he been tried alone, Evans can do no more than speculate that the jury may have inferred his guilt from that evidence. Such conclusory "spillover" claims alone do not warrant severance so long as there is sufficient evidence in the record to convict without the "alleged perjury implication." Id. at 1259. VII 35 Evans also claims that the district court unconstitutionally refused to permit him to inquire into Montgomery's prior misdemeanor convictions for assault and battery in an effort to show how much prison time Montgomery was avoiding through his plea agreement. " '[T]he exposure of a witness'[s] motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.' " Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347 (1974)). The Confrontation Clause, however, does not prohibit the district court from imposing some limits on defense counsel's inquiry into the potential bias of a prosecution witness. Id. at 679, 106 S.Ct. at 1435. " '[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' " Id. (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294-95, 88 L.Ed.2d 15 (1985) (per curiam)). 36 Thus, a district court may impose "reasonable limits on such cross-examination based on ... interrogation that is repetitive or only marginally relevant." Id. In this case, the defense was permitted to question Montgomery in the following areas: (1) his motivation to achieve a reduced sentence for the crimes to which he had pled guilty by cooperating with the government, see 10 R. at 911, 1052; (2) his fear of imprisonment, see 10 R. at 915; (3) whether he had taken a lie detector test, see 10 R. at 1044; (4) documentary evidence that conflicted with Montgomery's testimony, see 928-29; (5) prior drug use and drug dealing, see 10 R. at 931-63, 977, 1036; (6) the terms of his plea agreement, see 10 R. at 989; (7) the profits he retained from his drug dealing, see 10 R. at 990; (8) his prior acts of bribery and attempted bribery, see 10 R. at 995-96, 1006; and (9) his general propensity to lie and use others in order to avoid trouble with the authorities, see 10 R. at 992, 1050, 1083, 1109. On the record before us, we conclude that the limits were reasonable and gave adequate opportunity to conduct an effective cross-examination. See Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435. VIII 37 Evans was charged with using and carrying a firearm, during and in relation to the charged drug conspiracy, in violation of 18 U.S.C. § 924(c)(1). He argues that his § 924(c) conviction must be reversed because the court's instruction on "use" of a firearm was erroneous in light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). We agree that the instructions were erroneous but find that such error does not require reversal of the jury's verdict in this case. 38 To prove use under Bailey, the government must show that the "firearm [was] an operative factor in relation to the predicate offense." See id. at 143, 116 S.Ct. at 505. Mere proximity and accessibility of the weapon to the defendant is insufficient to establish use. See id. Here, the district court instructed the jury that "[t]he phrase uses or carries a firearm means having a firearm available to assist or aid in the commission of the crime charged." 15 R. at 1977. Both sides therefore agree that the instructions do not comport with Bailey 's definition of use as "active employment." See Bailey, 516 U.S. at 143-45, 116 S.Ct. at 506. Moreover, the government correctly concedes that the evidence is insufficient to support a conviction on the basis of "use." Evans's semi-automatic pistol was found in between the driver's and passenger's seats of the truck Evans was driving when he was stopped for speeding. Despite the weapon's proximity to both the drug proceeds in the vehicle and to Evans himself, there is no indication that the weapon was actively employed in relation to the drug conspiracy charged. 39 Nevertheless, "an erroneous 'use' instruction does not require reversal of the conviction when the jury was also instructed without objection on 'carry,' the defendant did not dispute that the firearm was carried on his person or in his vehicle, and the jury verdict necessarily includes an inherent finding of 'carrying during and in relation to the drug crime.' " United States v. Holland, 116 F.3d 1353, 1359 n. 4 (10th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 253, 139 L.Ed.2d 181 (1997). We affirm if "convinced that it was impossible upon the evidence and instructions for the jury to have returned a 'use' conviction without finding all the elements of a 'carrying' violation as well." See id.; see also California v. Roy, 519 U.S. 2, ----, 117 S.Ct. 337, 339, 136 L.Ed.2d 266 (1996) (Scalia, J., concurring) ("The error ... can be harmless only if the jury verdict on other points effectively embraces this [element] or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well."). In this case, the jury was instructed without objection on the carry element and Evans does not dispute the presence of the firearm in his vehicle. Thus, the only issue before us is whether the jury's verdict necessarily incorporates all of the requisite findings to support a conviction under the "carry" prong of § 924(c). 40 Evans contends that the jury's verdict could not necessarily include the requisite findings because the district court administered an erroneous "carry" instruction when it failed to instruct the jury that it had to find that Evans had "transported" the weapon. See United States v. Spring, 80 F.3d 1450, 1465 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 385, 136 L.Ed.2d 302 (1996). We agree that the instruction was incomplete and, therefore, erroneous. See id. Under Holland, however, we look at the "instructions given and the nature of the evidence" to determine whether the jury's verdict is the "functional equivalent" of finding a "carry" violation. See 116 F.3d at 1359 n. 4. Thus, the failure to administer a complete instruction with respect to the "carry" prong of § 924(c) does not mandate reversal if the jury's verdict "necessarily embraced all of the elements of a 'carrying' violation." See id. 41 The "carry" prong involves two elements: "possession of the weapon through the exercise of dominion or control; and transportation of the weapon." See United States v. Spring, 80 F.3d 1450, 1465 (10th Cir.) (quoting United States v. Martinez, 912 F.2d 419, 420 (10th Cir.1990)), cert. denied, --- U.S. ----, 117 S.Ct. 385, 136 L.Ed.2d 302 (1996). Here, without distinguishing between "use" and "carry," the district court instructed the jury that it could convict under § 924(c) only if the government "prove[d] beyond a reasonable doubt a firearm was in a defendant's possession or under the defendant's control during and in relation to the commission of the drug trafficking crime." 15 R. at 1977. Thus, Evans's possession of the weapon during and in relation to the predicate offense was necessarily included in the jury's verdict. The question then becomes: could the jury have found that Evans was in possession of the firearm at the time of the traffic stop without also finding that he had transported it to that point? The answer is no. 42 The only firearm the jury considered was the nine millimeter semi-automatic found between the driver's and passenger's seats of the pickup truck being driven by Evans at the time of the traffic stop on June 21, 1994. At that time, Evans told the arresting officer that he had a gun in the truck; no other firearms were found during a subsequent search of the vehicle. We can see no way for the jury to have found that Evans was in possession of the firearm at the time of the stop without also finding that Evans had transported the firearm to that location in the first place. See United States v. Richardson, 86 F.3d 1537, 1548 (10th Cir.) (affirming conviction under "carry" prong in part because one firearm was found "in the truck on the seat next to [the defendant]"), cert. denied, --- U.S. ----, 117 S.Ct. 588, 136 L.Ed.2d 517 (1996); United States v. Miller, 84 F.3d 1244, 1259 (10th Cir.) (to convict under "carry" prong, "the government is required to prove only that the defendant transported a firearm in a vehicle and that he had actual or constructive possession of the firearm while doing so."), cert. denied, --- U.S. ----, 117 S.Ct. 443, 136 L.Ed.2d 339 (1996). Based on the evidence and the jury instructions in this case, the jury's finding that Evans was in possession of the firearm necessarily "embraces" the finding that Evans had transported the weapon. Roy, 519 U.S. at ---- - ----, 117 S.Ct. at 339-40. The jury's verdict therefore incorporated all of the findings necessary to convict under the "carry" prong of § 924(c)(1). IX 43 The sentencing court found that Durham's role in the conspiracy was that of a low-paid broker and, as such, he was less culpable than the "average participant." 17 R. at 2181. Consequently, the court found that Durham's role fell between that of a minor and a minimal participant under § 3B1.2 of the Sentencing Guidelines. His offense level was therefore decreased by three. See U.S.S.G. § 3B1.2. The government argues this adjustment was in error. 44 " 'A trial court's findings concerning a defendant's role in a particular offense are treated by an appellate court as factual findings, which are subject to deferential review under the clearly erroneous standard.' " United States v. Santistevan, 39 F.3d 250, 253 (10th Cir.1994) (quoting United States v. Chavez-Palacios, 30 F.3d 1290, 1295 (10th Cir.1994)). It is undisputed that Montgomery was the leader of the drug distribution organization that is the subject of this case and that Evans was his partner. Durham's role was limited to facilitating sales; proceeds from those sales went predominantly to conspirators other than Durham. Furthermore, Durham had no dealings with Evans or Montgomery for over two years prior to Montgomery contacting him pursuant to his agreement with the government. On the record before us, we conclude the sentencing court made no clear error. 45 AFFIRMED. 1 Durham objects that none of the disputed testimony was relevant to the convenience of holding trial in the Northern District of Oklahoma rather than in the Southern District of Texas, rendering it immaterial to the venue proceedings because past events could not have swayed the court's evaluation of present inconvenience. That objection is without merit because his motions to the court challenged the propriety of venue as well as the convenience of that forum. See 1 R., docs. 18 & 19; 13 R. at 1624 2 In fact, Durham's motion before the district court challenging the propriety of venue rested in part on the assertion that the "crimes alleged against ... Durham were committed in the Southern District of Texas." 1 R., Doc. 19, at 4 3 The jury was fully equipped to determine whether Durham's statements were material to the venue proceeding. It was aware that Durham was objecting to the propriety and convenience of the forum. See 13 R. at 1624. And, it received proper instructions on the legal standards for materiality, see 15 R. at 1978, and appropriate venue in a conspiracy case, see 15 R. at 1969 4 Durham also argues that the ambiguous nature of that testimony is aggravated by the alteration of the transcript that was presented to the jury. See infra Part III 5 The government argues that Evans failed to preserve this issue because he did not object to the instruction at trial. We need not, and therefore do not, reach this issue 6 The instruction submitted to the jury stated in part: When a defendant voluntarily offers an explanation or voluntarily makes some statement tending to show his innocence and it is later shown that the defendant knew that the statement or explanation was false, the jury may consider this as showing a consciousness of guilt on the part on the part of the defendant Monson Lee Durham, Jr .... since it is reasonable to infer that an innocent person does not usually find it necessary to invent or fabricate an explanation or statement tending to establish his innocence. 3 R., doc. 108 at 49-50 (emphasis added). This instruction was taken from the Devitt & Blackmar treatise. See 1 Edward J. Devitt et al., Federal Jury Practice and Instructions § 14.06 (4th ed.1992) 7 Although neither defendant raises this issue precisely, we also note that the instruction on false exculpatory statements does not direct a verdict on the "knowing" element of the crime of perjury. By its own terms, the instruction does not become relevant to the jury's deliberations until the jury has already found that the defendant knew that the statement was false when he made it. See 3 R., doc. 108 at 49-50

IN THE COURT OF APPEALS OF IOWA No. 13-2026 Filed December 24, 2014 GARY LENZ and ADVANCE DESIGNS, INC., Plaintiffs-Appellants, vs. HEIAR FENCING & SUPPLY, INC., Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge. Gary Lenz and Advance Designs, Inc. appeal the district court’s dismissal of their claim for breach of an oral contract. AFFIRMED. Jeffrey R. Tronvold and Matt J. Reilly of Eells & Tronvold Law Offices, P.L.C., Cedar Rapids, for appellants. Robert L. Sudmeier of Fuerste, Carew, Juergens & Sudmeier, P.C., Dubuque, for appellee. Considered by Danilson, C.J., and Doyle and Tabor, JJ.  2 DOYLE, J. This appeal involves a customer who is unhappy with the fence posts originally installed on his farm in the 1990’s by Heiar Fencing & Supply, Inc. The customer, Gary Lenz, and his business, Advance Designs, Inc. (hereinafter collectively “Lenz”), sued Heiar Fencing & Supply for breach of an oral contract, alleging Lenz and the owner of the fencing company, Doug Heiar (hereinafter collectively “Heiar”), orally agreed Heiar would replace defective posts in lieu of Lenz suing Heiar. The matter proceeded to trial, and, after the plaintiffs rested their case, the fencing company moved for a directed verdict, arguing the evidence presented by the plaintiffs was insufficient to support an oral agreement. The district court agreed, and it directed a verdict in favor of the fencing company and dismissed the plaintiffs’ petition. The plaintiffs challenge the court’s ruling. On our review, we agree the evidence presented by the plaintiffs was insufficient to support an oral agreement. We therefore affirm the district court’s ruling. I. Scope and Standards of Review. “A directed verdict is required only if there was no substantial evidence to support the elements of the plaintiff’s claim.” Pavone v. Kirke, 801 N.W.2d 477, 487 (Iowa 2011) (citations and quotation marks omitted). Thus, “[a] motion for directed verdict must be overruled if substantial evidence supports each element of each claim.” Fry v. Blauvelt, 818 N.W.2d 123, 134 (Iowa 2012). “Evidence is substantial when reasonable minds would accept the evidence as adequate to reach the same findings. Where reasonable minds could differ on an issue, a  3 directed verdict is improper and the case must go to the jury.” Pavone, 801 N.W.2d at 487 (internal citations, alterations, and quotation marks omitted). Our task on appeal is to determine whether the district court correctly determined there was insufficient evidence to submit the issue to the jury, and we review the court’s ruling for the correction of errors of law. See Fry, 818 N.W.2d at 134. “We review the evidence in the light most favorable to the nonmoving party, taking into consideration all reasonable inferences that could fairly be made by the jury, regardless of whether the evidence is contradicted.” Dorshkind v. Oak Park Place of Dubuque II, L.L.C., 835 N.W.2d 293, 300 (Iowa 2013); see also Iowa R. App. P. 6.904(3)(b). II. Background Facts and Proceedings. Viewing the evidence in the light most favorable to Lenz, we find the following relevant facts. In 1994, Lenz bought farm property and he decided to raise buffalo there. Approximately a year later, Lenz hired Heiar to install fencing to enclose his buffalo. Heiar informed Lenz of a new type of post that was coated with vegetable oil that was “outliving creosote posts” and were “a little more cheaper” than the creosote posts. Lenz agreed to go with these type of posts, and they were installed incrementally by Heiar. Lenz paid Heiar cash for the posts in an amount “over fifty and upwards of a hundred thousand” dollars. Within that first year, the posts began to rot and Lenz contacted Heiar about the problem. Heiar acknowledged the posts looked “like they’re going rotten.” Heiar “admitted [the posts] were going bad,” and he told Lenz the post manufacturer had gone bankrupt and went out of business. Lenz and Heiar talked about the failing posts, and Lenz told Heiar:  4 [T]hose posts have got to be taken care of. What are we going to do about that? And don’t yank them, just to go back and replace them at all. When something gets bad, you have to get down and take care of it, as soon as I phone you, which he did at first right away. When asked if Heiar agreed with Lenz after Lenz said that to him, Lenz testified: “Well, [Heiar] kept coming back, so I assume he agreed with it.” Based on that conversation and knowing Heiar was “young in business” and “something like this could break [someone] right at the beginning,” Lenz made the decision not to sue Heiar at that time. Lenz gave Heiar the option to “come and replace a lot of posts” but did not require they replace them “all at once.” Heiar starting coming to Lenz’s farm and replacing failed posts at no cost. The “first years,” Heiar replaced them within a couple of days after Lenz contacted him. As the years progressed and Heiar “was getting bigger and bigger,” Heiar “wasn’t coming back and fixing” Lenz’s repairs. By approximately 2010, Heiar stopped coming out to Lenz’s farm. In 2011, Lenz hired Kevin Noonan to replace fence posts that were bad, and Lenz decided to put in an all new fence because the cost was the same as repairing and replacing the bad posts. In 2012, Lenz filed his petition at law asserting Heiar breached an oral contract between the parties. His petition alleged that the parties agreed Lenz would forgo litigation against Heiar “provided that [Heiar] would replace posts as they failed without charge.” The petition stated that Heiar replaced posts over the years, but in 2010, Heiar refused to continue to replace the posts without cost, breaching the settlement agreement.  5 The matter proceeded to trial, and Lenz testified as to the facts set out above. Noonan, who replaced Lenz’s fence in 2011 testified in Lenz’s case-in- chief. Noonan testified wood fences by their nature will probably fail over time, and the life expectancy one could hope to have on the wood fence is anywhere from fifteen to twenty-five years. When he was replacing Lenz’s fence, approximately seventy-five percent of the old posts were broken or had rotted off. He testified the posts were sixteen to eighteen years old, and the remaining percentage of old posts “still had some life to them.” Noonan testified he replaced almost five hundred old posts. After Lenz rested his case, Heiar moved for a directed verdict on numerous grounds, including that there was no evidence of any oral agreement between Lenz and Heiar. Lenz resisted. Thereafter, the district court granted Heiar’s motion, directing a verdict in favor of Heiar and dismissing Lenz’s petition. Among other things, the court found “there was no evidence to support an oral agreement.” Lenz now appeals.1 III. Discussion. In order to succeed in a claim for breach of contract, the plaintiff must first prove the existence of a contract. Iowa Mortg. Ctr., L.L.C. v. Baccam, 841 N.W.2d 107, 111 (Iowa 2013). “[P]roof of a claimed oral contract must come from more than “loose and random conversations.” Passehl v. Passehl, 712 1 At the risk of sounding like a broken record, we once again note an all-too- frequently-observed violation of the rules of appellate procedure: failure to place a witness’s name at the top of each appendix page where that witness’s testimony appears. See Iowa R. App. P. 6.905(7)(c).  6 N.W.2d 408, 417 (Iowa 2006) (citation omitted). Rather, for a contract to be valid, the parties must express mutual assent to the terms of the contract. 2 Schaer v. Webster Cnty., 644 N.W.2d 327, 338 (Iowa 2002). Mutual assent is present when it is clear from the objective evidence that there has been a meeting of the minds. Id. To meet this standard, the contract terms must be sufficiently definite for the court to determine the duty of each party and the conditions of performance. See Seastrom v. Farm Bureau Life Ins. Co., 601 N.W.2d 339, 346 (Iowa 1999). “[A]ssent usually is given through the offer and acceptance.” Kristerin Dev. Co. v. Granson Inv., 394 N.W.2d 325, 331 (Iowa 1986). “An offer is a ‘manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.’” Anderson v. Douglas & Lomason Co., 540 N.W.2d 277, 285 (Iowa 1995) (quoting Restatement (Second) of Contracts § 24, at 71 (1981)). “[W]e look for terms with precise meaning that provide certainty of performance.” Id. “If an offer is indefinite, there is no intent to be bound.” Heartland Express, Inc. v. Terry, 631 N.W.2d 260, 268 (Iowa 2001) (citation and quotation marks omitted). Additionally, “the acceptance must conform strictly to the offer in all its conditions, without any deviation or condition whatever.” Shell Oil Co. v. Kelinson, 158 N.W.2d 724, 728 (Iowa 1968). Otherwise, there is no mutual assent and therefore no contract. Id. 2 We note that the same general principles of contract law apply to the creation and interpretation of settlement agreements, which are “essentially contracts.” Sierra Club v. Wayne Weber LLC, 689 N.W.2d 696, 702 (Iowa 2004). Consequently, it matters not whether we use the term “contract” or “settlement agreement” in this instance.  7 Here, viewing the evidence in the light most favorable to Lenz and affording him every legitimate inference that reasonably may be deduced from the evidence, we agree with trial court’s conclusion that the record does not contain substantial evidence from which the jury reasonably could have found the existence of an oral agreement. The terms of the alleged contract are not “sufficiently definite” in any way to determine what Heiar’s duty was and the required conditions of his performance. Lenz’s own testimony was that he made a statement to Heiar and assumed Heiar agreed because Heiar kept coming back. This does not evidence a meeting of the minds that Heiar would continue in perpetuity to replace, for free, fence posts he installed almost twenty-years ago. We agree with the district court that there was no evidence of any agreement from which a jury question as to the existence of an oral agreement could be engendered. Accordingly, we affirm the district court’s ruling directing a verdict in Heiar’s favor and dismissing Lenz’s petition. AFFIRMED.