Datasets:

timaeus

/

pile-freelaw

like 0

Follow

Timaeus 12

758 F.2d 649 Straderv.Allsbrook 84-6525 United States Court of Appeals,Fourth Circuit. 3/5/85 1 M.D.N.C. DISMISSED

The State of TexasAppellee/s Fourth Court of Appeals San Antonio, Texas May 13, 2014 No. 04-14-00302-CR Arturo Neri PRADO, Appellant v. THE STATE OF TEXAS, Appellee From the 216th Judicial District Court, Gillespie County, Texas Trial Court No. 4217 Honorable Stephen B. Ables, Judge Presiding ORDER On February 6, 2007, the trial court imposed on Arturo Neri Prado in open court a sentence of forty-three years confinement in the Texas Department of Criminal Justice— Institutional Division. On April 17, 2014, Appellant filed a “Motion for Belated Appeal,” which we will construe as a notice of appeal, with this court. We ORDER Appellant to SHOW CAUSE in writing within fifteen days of the date of this order why this appeal should not be dismissed for want of jurisdiction. If Appellant fails to show cause within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 43.2(f). All other appellate deadlines in this matter are suspended until further order of this court. _________________________________ Patricia O. Alvarez, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 13th day of May, 2014. ___________________________________ Keith E. Hottle Clerk of Court 

582 F.2d 942 UNITED STATES of America, Plaintiff-Appellee,v.Howard P. CARROLL, Robert C. Wilson, and Jerry A. McFarland,Defendants-Appellants. No. 77-5319. United States Court of Appeals,Fifth Circuit. Oct. 25, 1978. Charles F. Brega, Denver, Colo., for Carroll. Emmett Colvin, Dallas, Tex., for Wilson. Michael F. Linz, John A. Spinuzzi, Dallas, Tex., for McFarland. Kenneth J. Mighell, U. S. Atty., Fort Worth, Tex., Shirley Baccus-Lobel, William O. Wuester, III, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee. Appeals from the United States District Court for the Northern District of Texas. Before CLARK, FAY and VANCE, Circuit Judges. VANCE, Circuit Judge. 1 Howard Carroll and Robert Wilson were convicted on charges of making fraudulent and misleading statements in the offer and sale of securities, and with having aided and abetted in using the United States mails to further the fraud. 15 U.S.C. §§ 77q(a), 77x; 18 U.S.C. §§ 2, 1341. In addition, those appellants, along with co-defendant Jerry McFarland, were found guilty under a count alleging a conspiracy to commit enumerated offenses in violation of 18 U.S.C. § 371. The convictions involve acts committed during the public sale of stock in Coal Creek Mining Company, which was controlled by appellants. Prospective investors were told that the proceeds would be used to develop mining properties for the production of coal. Instead, the $212,741 raised by the stock offering was used to purchase real estate, to run a trucking firm owned by McFarland, and to pay Carroll, Wilson and McFarland for various expenses incurred. None of the funds were ever used for the stated purpose. 2 On appeal Carroll and Wilson present a multitude of contentions, including claims that there was insufficient evidence to sustain the convictions, improper voir dire of the jury, as well as error in the jury instructions.1 Carroll further argues that the trial judge abused her discretion in denying his motion for continuance. The sole issue presented by McFarland is whether plain error resulted from the trial court's sua sponte amendment of Count 1, the conspiracy count. We affirm as to appellants Carroll and Wilson. The conviction of McFarland is reversed. Jury Instructions as to Count 1 3 Count 1 is the only count under which McFarland was convicted. It alleges a conspiracy to violate federal securities2 and postal3 laws. The trial court incorrectly instructed the jury that the offenses which defendants were charged with conspiring to commit included not only the two stated in the indictment but also violation of 18 U.S.C. § 2314 prohibiting the interstate transportation of fraudulently obtained money.4 Count 1 does not charge McFarland with conspiracy to violate that particular section. 4 The fifth amendment guarantees "(n)o person shall be held to answer for (an) . . . infamous crime, unless on (an) . . . indictment of a Grand Jury . . . ." The central purpose of this requirement is 5 to limit (the accused's) jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. 6 Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273, 4 L.Ed.2d 252 (1960). Accord, United States v. Cox, 342 F.2d 167 (5th Cir.), Cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). By describing the crime charged, the indictment also insures that the accused will be adequately informed of the charges against him and that he will be protected against double jeopardy. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), United States v. Fischetti, 450 F.2d 34 (5th Cir. 1971), Cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 (1972); United States v. Haldeman, 181 U.S.App.D.C. 254, 559 F.2d 31 (1976). 7 These essential functions are so fundamental that the procedure used to obtain an indictment must be strictly followed in order to insure a fair trial for the accused. The requirement is not met where, as here, an instruction has the effect of amending5 the indictment by charging an extraneous crime in a conspiracy count. In Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), the Supreme Court proscribed amending an indictment by any means other than through the grand jury itself: 8 (I)f it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists. 9 Id. at 13, 7 S.Ct. at 788. See Stirone v. United States, supra. 10 Although McFarland had an absolute right to have the jury instructed solely on charges contained in the indictment, he did not seasonably object to the improper instruction as is required by Fed.R.Crim.P. 30. That rule, however, is modified by Rule 52(b), which provides that "(p)lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." 11 The government concedes that the challenged instruction was erroneous, but urges that in the face of what it contends to be overwhelming evidence of guilt and in the absence of a timely objection there was no fundamental unfairness which would warrant our setting the conviction aside. We conclude, however, that the trial court's error in instructing the jury that they may find McFarland guilty of conspiracy to violate section 2314 requires our intervention. Although errors that are constitutional in nature may not be plain error per se, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Bates, 512 F.2d 56 (5th Cir. 1975), "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless . . . ." 386 U.S. at 23, 87 S.Ct. at 827-28. The right of a defendant to be tried under an indictment presented solely by a grand jury is one such right. Ex Parte Bain excluded the notion of a non-prejudicial amendment to the indictment, and since that time, the concept of harmless error has not been applied to amendments. Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061 (1969). Because the trial court committed plain error in instructing the jury with respect to the only charge of which he was found guilty, we reverse as to McFarland. Denial of Continuance 12 Appellant Carroll complains of prejudice resulting from the trial court's denial of his motions for continuance. Disposition of such motions is vested in the sound discretion of the trial court. Its ruling will not be disturbed on appeal, except upon a clear showing of abuse. Avery v. Alabama,308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); United States v. Uptain,531 F.2d 1281 (5th Cir. 1976); United States v. Moriarty, 497 F.2d 486 (5th Cir. 1974). Whether such abuse will be found is to be decided on a "case by case basis in light of the circumstances presented." 531 F.2d at 1285. The reviewing court will especially examine the reasons for continuance given at the time the request is denied. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); McKinney v. Wainwright, 488 F.2d 28 (5th Cir.), Cert. denied, 416 U.S. 973, 94 S.Ct. 1998, 40 L.Ed.2d 562 (1974). 13 Two grounds were asserted by Carroll to support his motion for continuance: insufficient time for full and adequate preparation of the defense, and a conflict in the commitments of Carroll's attorney, who was scheduled to try a case in a Colorado state court on an unrelated matter the same day appellant's trial was to have begun in Dallas. 14 This court has established several factors to be considered in evaluating claims of inadequate preparation time. Some of them include the amount of time available for preparation, the likelihood of prejudice resulting from denial, the complexity of the case, and the adequacy of the defense actually provided at trial. United States v. Uptain, supra, at 1286. 15 Applying these criteria to the present case, we find that the denial of continuance did not constitute an abuse of discretion. From the time that his firm was first contacted by Carroll, counsel had almost six weeks to get ready for trial. There were also numerous recesses granted during trial which extended actual preparation time. Carroll shows no area which he would have investigated further or in which his counsel would have been better prepared had he been allowed additional time for preparation. 16 Carroll's attorney revealed a conflicting commitment for the first time six days before trial, and was allowed to withdraw. Withdrawal, however, was predicated upon Carroll's having counsel at trial, and permitted with the understanding that the withdrawal would not delay the proceedings. See generally, United States v. Dilworth, 524 F.2d 470 (5th Cir. 1975); United States v. Sexton, 473 F.2d 512 (5th Cir. 1973). The attorney was ordered to appear on behalf of Carroll when it became apparent that such defendant otherwise would be unrepresented at trial. In Uptain we held, "(W)here there is a substantial basis for a continuance, the attorney should present the claim as early as possible." 531 F.2d at 1290-1291. When the conflict in question was first mentioned in defendant's second motion for continuance, the government witnesses had been subpoenaed, and at least one of the co-defendants, McFarland, was ready to proceed. 17 Despite the denial of the motions for continuance, Carroll was ably and effectively represented at trial. The record discloses that his attorney was well acquainted with the facts of the case, and thoroughly cross-examined the witnesses. He clearly met the standard for effective assistance of counsel mandated by the sixth amendment. See United States v. Simpson, 460 F.2d 1321 (5th Cir. 1972). 18 We are unable to conclude that the ruling of the district court was not a "reasonable resolution of the various factors confronting (it)." 531 F.2d at 1291. We therefore must uphold the lower court's action even though we may view its ruling as a harsh one. Sufficiency of Evidence 19 Wilson and Carroll contend that the evidence is insufficient to sustain convictions on the conspiracy, securities fraud, and mail fraud counts of the indictment. The test for sufficiency is whether "reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused's innocence." United States v. Warner, 441 F.2d 821, 825 (5th Cir.), Cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). On appeal the determination is to be made in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). 20 It was not unreasonable for a jury to find appellants guilty as charged. Carroll and Wilson were responsible for forming the mining corporation and arranging for the public sale of its stock. Together they selected Harry Niles to run the corporation as a "front man," while they retained actual control of the company.6 Appellants contacted the underwriter for the public offering of the corporate stock and caused a circular to be made to promote the sale. This prospectus, which was distributed through the United States mails, contained several misstatements of fact. In particular, the circular represented that the Securities and Exchange Commission and the corporation's shareholders would be notified of the facts and circumstances surrounding any proposed use of uncommitted corporate funds prior to actual disposition. Such notification was never given, even though uncommitted funds were used to purchase real estate in Texas. At least one investor testified that he purchased shares in the mining company in reliance on that representation. Additionally, appellants arranged for their names not to appear in the circular as promoters of the corporation, and represented that Mr. Niles was the majority stock owner when in fact Carroll and Wilson were the true owners. 21 These acts support a guilty verdict not only on the substantive counts, but also on the conspiracy charge. Although appellants complain there was no hard evidence of the conspiracy agreement, direct proof is not required. United States v. Netterville, 553 F.2d 903 (5th Cir. 1977), Cert. denied, 434 U.S. 1009, 98 S.Ct. 719, 54 L.Ed.2d 752 (1978). Complicity may be inferred from the circumstances. United States v. Warner, supra. The circumstantial evidence produced at trial overwhelmingly supports a finding that appellants conspired to commit securities and mail fraud. Voir Dire 22 Appellants Carroll and Wilson also assign as error the trial judge's refusal to examine prospective jurors on questions submitted by defense counsel and her failure to voir dire the venire individually. This is another area in which the trial court has considerable discretion and with respect to which its decision will not be lightly overturned. United States v. Rojas, 537 F.2d 216 (5th Cir. 1976), Cert. denied, 429 U.S. 1061, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977); United States v. Eastwood, 489 F.2d 818 (5th Cir. 1973); United States v. Bearden, 423 F.2d 805 (5th Cir.), Cert. denied, 400 U.S. 836, 91 S.Ct. 73, 27 L.Ed.2d 68 (1970); Pinkney v. United States, 380 F.2d 882 (5th Cir. 1967), Cert. denied, 390 U.S. 908, 88 S.Ct. 831, 19 L.Ed.2d 876 (1968). 23 The trial judge in this case refused to give each of the inquiries submitted by defense counsel. She covered substantially all of the proposed questions, however, and indicated that she would reconsider any omitted question brought to her attention. Refusal under such circumstances could not have affected the basic fairness of appellant's trial. See Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973); Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931); United States v. Eastwood, supra; United States v. Gassaway, 456 F.2d 624 (5th Cir. 1972). 24 We perceive no basis for concluding that the trial court abused its discretion in refusing to examine each potential juror individually. Appellants have shown no prejudice resulting from the procedure used, and we have found none. 25 Instruction Concerning Guilt of Participants in Fraudulent Sale 26 Finally, Carroll and Wilson argue that the district court improperly instructed the jury that a person may be guilty of securities fraud if he Participated in the offer and sale of the stock. They contend that only offerors and sellers may be found guilty under the statute. The charge given was not erroneous. Section 77q(a) of title 15 U.S.C. states that it is unlawful for Any person in the offer and sale of securities to defraud or to obtain money through material misrepresentations. Clearly the section is not limited solely to offerors and sellers, but extends also to those who are parties to the fraud. This result was reached in Buie v. United States, 420 F.2d 1207 (5th Cir. 1969), Cert. denied, 398 U.S. 932, 90 S.Ct. 1830, 26 L.Ed.2d 97 (1970). There, this court found that "participation alone is sufficient to sustain a conviction for mail and securities fraud . . . ." Id. at 1209. 27 Having fully considered Wilson and Carroll's contentions and finding no error, we affirm their convictions. 28 AFFIRMED AS TO CARROLL AND WILSON, REVERSED AS TO McFARLAND. 1 Appellants also raise as errors the failure to grant a motion for severance, the failure of the government to make exculpatory evidence available, and various evidentiary irregularities. We have considered each of these contentions but find them to be without merit 2 15 U.S.C. §§ 77q(a), 77x 3 18 U.S.C. 1341 4 In addition to the oral instructions, the charge in written form apparently was sent with the jury into the jury room during its deliberations 5 An amendment to the indictment is to be distinguished from a mere variance between the indictment and proof adduced An Amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A Variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment. Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061, 1071 (1969) (emphasis in original). 6 Control was usurped by Niles and a third party for a short period of time. Appellants ultimately regained control

521 F.Supp.2d 650 (2007) In re FORECLOSURE CASES. Nos. 3:07CV043, 07CV049, 07CV085, 07CV138, 07CV237, 07CV240, 07CV246, 07CV248, 07CV257, 07CV286, 07CV304, 07CV312, 07CV317, 07CV343, 07CV353, 07CV360, 07CV386, 07CV389, 07CV390, 07CV433. United States District Court, S.D. Ohio, Western Division, at Dayton. November 15, 2007. *651 *652 Kevin L. Williams, Manley Deas Kochalski LLC, Columbus, OH, Timothy R. Billick, Metropolitan Savings Bank of Cleveland, Hudson, OH, for Citibank, N.A., HSBC Mortgage Services, Inc., Household Realty Corp., Indymac Bank, F.S.B., Deutsche Bank Trust Company Americas Formerly Known as Agent of Banker's Trust Company, Wells Fargo Bank, NA, LaSalle Bank National Association, Saxon Mortgage Service, Inc. Colette S. Carr, Montgomery County Prosecuting Attorney's Office, Dayton, OH, for Montgomery County Treasurer. Deborah F. Perkins, Miamisburg, OH, Pro se. Betty A. Lowry, Brookeville, OH, Pro se. Lucas Chambers Ward, Columbus, OH, for State of Ohio Department of Taxation. Scott D. Schockling, Champaign County Prosecutor's Office, Urbana, OH, for Champaign County Treasurer. Dennis Edward Stegner, Allen M. Lehmkuhl Co., L.P.A., Springfield, OH, for Douglas M. Morris. Michael Edmond Foley, Greene County Prosecutors Office, Xenia, OH, for Greene County Treasurer. OPINION AND ORDER THOMAS M. ROSE, District Judge. The first private foreclosure action based upon federal diversity jurisdiction was filed in this Court on February 9, 2007. Since then, twenty-six (26) additional complaints for foreclosure based upon federal diversity jurisdiction have been filed. STANDING AND SUBJECT MATTER JURISDICTION While each of the complaints for foreclosure pleads standing and jurisdiction, evidence submitted either with the complaint or later in the case indicates that standing and/or subject matter jurisdiction may not have existed at the time certain of the foreclosure complaints were filed. Further, only one of these foreclosure complaints thus far was filed in compliance with this Court's General Order 07-03 captioned "Procedures for Foreclosure Actions Based On Diversity Jurisdiction." *653 Standing Federal courts have only the power authorized by Article III of the United States Constitution and the statutes enacted by Congress pursuant thereto. Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). As a result, a plaintiff must have constitutional standing in order for a federal court to have jurisdiction. Id. Plaintiffs have the burden of establishing standing. Loren v. Blue Cross & Blue Shield of Michigan, 505 F.3d 598, 606-07 (6th Cir.2007). If they cannot do so, their claims must be dismissed for lack of subject matter jurisdiction. Id (citing Central States Southeast & Southwest Areas Health and Welfare Fund v. Merck-Medco Managed Care, 433 F.3d 181, 199 (2d Cir.2005)). Because standing involves the federal court's subject matter jurisdiction, it can be raised sua sponte. Id. (citing Central States, 433 F.3d at 198). Further, standing is determined as of the time the complaint is filed. Cleveland Branch, NAACP v. City of Parma, Ohio, 263 F.3d 513, 524 (6th Cir.2001), cert. denied 535 U.S. 971, 122 S.Ct. 1438, 152 L.Ed.2d 382 (2002). Finally, while a determination of standing is generally based upon allegations in the complaint, when standing is questioned, courts may consider evidence thereof. See NAACP, 263 F.3d at 523-30; Senter v. General Motors, 532 F.2d 511 (6th Cir.1976), cert. denied, 429 U.S. 870, 97 S.Ct. 182, 50 L.Ed.2d 150 (1976). To satisfy Article III's standing requirements, a plaintiff must show: (1) it has suffered an injury in fact that is concrete and particularized and 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. Loren, at 606-07. To show standing, then, in a foreclosure action, the plaintiff must show that it is die holder of the note and the mortgage at the time the complaint was filed. The foreclosure plaintiff must also show, at the time the foreclosure action is filed, that the holder of the note and mortgage is harmed, usually by not having received payments on the note. Diversity Jurisdiction In addition to standing, a court may address the issue of subject matter jurisdiction at any time, with or without the issue being raised by a party to the action. Community Health Plan of Ohio v. Mosser, 347 F.3d 619, 622 (6th Cir.2003). Further, as with standing, the plaintiff must show that the federal court has subject matter jurisdiction over the foreclosure action at the time the foreclosure action was filed. Coyne v. American Tobacco Company, 183 F.3d 488, 492-93 (6th Cir.1999). Also as with standing, a federal court is required to assure itself that it has subject matter jurisdiction and the burden is on the plaintiff to show that subject matter jurisdiction existed at the time the complaint was filed. Id. Finally, if subject matter jurisdiction is questioned by the court, the plaintiff cannot rely solely upon the allegations in the complaint and must bring forward relevant, adequate proof that establishes subject matter jurisdiction. Nelson Construction Co. v. U.S., 79 Fed.Cl. 81, 84-85 (Fed.Cl.2007) (citing McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)); see also Nichols v. Muskingum College, 318 F.3d 674, (6th Cir.2003) ("in reviewing a 12(b)(1) motion, the court may consider evidence outside the pleadings to resolve factual disputes concerning jurisdiction . . . "). *654 The foreclosure actions are brought to federal court based upon the federal court having jurisdiction pursuant to 28 U.S.C. § 1332, termed diversity jurisdiction. To invoke diversity jurisdiction, the plaintiff must show that there is complete diversity of citizenship of the parties and that the amount in controversy exceeds $7000. 28 U.S.C. § 1332. Conclusion While the plaintiffs in each of the above-captioned cases have pled that they have standing and that this Court has subject matter jurisdiction, they have submitted evidence that indicates that they may not have had standing at the time the foreclosure complaint was filed and that subject matter jurisdiction may not have existed when the foreclosure complaint was filed. Further, this Court has the responsibility to assure itself that the foreclosure plaintiffs have standing and that subject-matter-jurisdiction requirements are met at the time the complaint is filed. Even without the concerns raised by the documents the plaintiffs have filed, there is reason to question the existence of standing and the jurisdictional amount. See Katherine M. Porter, Misbehavior and Mistake in Bankruptcy Mortgage Claims 3-4 (November 6, 2007), University of Iowa College of Law Legal Studies Research Paper Series Available at SSRN: http://ssrn.com/abstract-1027961 ("[H]ome mortgage lenders often disobey the law and overreach in calculating the mortgage obligations of consumers. . . . Many of the overcharges and unreliable calculations . . . raise the specter of poor recordkeeping, failure to comply with consumer protection laws, and massive, consistent overcharging.") Therefore, plaintiffs are given until not later than thirty days following entry of this order to submit evidence showing that they had standing in the above-captioned cases when the complaint was filed and that this Court had diversity jurisdiction when the complaint was filed. Failure to do so will result in dismissal without prejudice to refiling if and when the plaintiff acquires standing and the diversity jurisdiction requirements are met. See In re Foreclosure Cases, No. 1:07CV2282, et al., 2007 WL 3232430 (N.D.Ohio Oct. 31, 2007) (Boyko, J.) COMPLIANCE WITH GENERAL ORDER 07-03 Federal Rule of Civil Procedure 83(a)(2) provides that a "local rule imposing a requirement of form shall not be enforced in a manner that causes a party to lose rights because of a nonwillful failure to comply with the requirement." Fed.R.Civ.P. 83(a)(2). The Court recognizes that a local rule concerning what documents are to be filed with a certain type of complaint is a rule of form. Hicks v. Miller Brewing Company, 2002 WL 663703 (5th Cir.2002). However, a party may be denied rights as a sanction if failure to comply with such a local rule is willful. Id. General Order 07-03 provides procedures for foreclosure actions that are based upon diversity jurisdiction. Included in this General Order is a list of items that must accompany the Complaint.[1] Among the items listed are: a Preliminary Judicial Report; a written payment history verified by the plaintiff's affidavit that the amount in controversy exceeds $75,000; a legible copy of the promissory note and any loan modifications, a recorded *655 copy of the mortgage; any applicable assignments of the mortgage, an affidavit documenting that the named plaintiff is the owner and holder of the note and mortgage; and a corporate disclosure statement. In general, it is from these items and the foreclosure complaint that the Court can confirm standing and the existence of diversity jurisdiction at the time the foreclosure complaint is filed. Conclusion To date, twenty-six (26) of the twenty-seven (27) foreclosure actions based upon diversity jurisdiction pending before this Court were filed by the same attorney. One of the twenty-six (26) foreclosure actions was filed in compliance with General Order 07-03. The remainder were not.[2] Also, many of these foreclosure complaints are notated on the docket to indicate that they are not in compliance. Finally, the attorney who has filed the twenty-six (26) foreclosure complaints has informed the Court on the record that he knows and can comply with the filing requirements found in General Order 07-03. Therefore, since the attorney who has filed twenty-six (26) of the twenty-seven (27) foreclosure actions based upon diversity jurisdiction that are currently before this Court is well aware of the requirements of General Order 07-03 and can comply with the General Order's filing requirements, failure in the future by this attorney to comply with the filing requirements of General Order 07-03 may only be considered to be willful. Also, due to the extensive discussions and argument that has taken place, failure to comply with the requirements of the General Order beyond the filing requirements by this attorney may also be considered to be willful. A willful failure to comply with General Order 07-03 in the future by the attorney who filed the twenty-six foreclosure actions now pending may result in immediate dismissal of the foreclosure action. Further, the attorney who filed the twenty-seventh foreclosure action is hereby put on notice that failure to comply with General Order 07-03 in the future may result in immediate dismissal of the foreclosure action. This Court is well aware that entities who hold valid notes are entitled to receive timely payments in accordance with the notes. And, if they do not receive timely payments, the entities have the right to seek foreclosure on the accompanying mortgages. However, with regard the enforcement of standing and other jurisdictional requirements pertaining to foreclosure actions, this Court is in full agreement with Judge Christopher A Boyko of the United States District Court for the Northern District of Ohio who recently stressed that the judicial integrity of the United States District Court is "Priceless." NOTES [1] The Court views the statement "the complaint must be accompanied by the following" to mean that the items listed must be filed with the complaint and not at some time later that is more convenient for the plaintiff. [2] The Sixth Circuit may look to an attorney's actions in other cases to determine the extent of his or her good faith in a particular action. See Capitol Indemnity Corp. v. Jellinick, 75 Fed.Appx. 999, 1002 (6th Cir.2003). Further, the law holds a plaintiff "accountable for the acts and omissions of [its] chosen counsel." Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 397, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993).

833 F.2d 1014 Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.UNITED STATES of America, Plaintiff-Appellee,v.Jon Thomas CUMMINS, Defendant-Appellant. No. 87-2065. United States Court of Appeals, Sixth Circuit. Nov. 26, 1987. Before KEITH, MILBURN and DAVID A. NELSON, Circuit Judges. ORDER 1 Defendant Cummins appealed from the district court's order of October 20, 1987, which ordered him detained pending trial. The government responded in opposition. 2 Cummins is scheduled to go on trial November 30, 1987 on charges of receipt and possession of unregistered firearms, being a felon in receipt and possession of firearms and using threats and intimidation to influence another in connection with an official proceeding. The United States magistrate conducted a hearing pursuant to 18 U.S.C. Sec. 3142(f) and ordered Cummins detained pending trial. The district court, by order of October 20, 1987, affirmed, finding that Cummins presented a threat to the safety of other persons and to the community and a risk of flight if released. Cummins timely appealed. 3 Cummins contends that he should have been released pending trial upon the conditions that he refrain from the use of alcohol and narcotic drugs, avoid contact with witnesses and be monitored by the appropriate agencies to guarantee his compliance. To detain him upon a determination of dangerousness, he contends, is an unconstitutional punishment before trial. He also maintains that he is not a risk of flight. 4 We will not disturb the factual findings of the district court and magistrate in pretrial hearings unless we determine those findings to be clearly erroneous. See United States v. Hazime, 762 F.2d 34, 37 (6th Cir.1985). Based upon the evidence presented in the hearing specifically authorized by section 3142(f), it does not appear to us that it was clearly erroneous for the district court and magistrate to determine that the facts are such as to warrant detention of Cummins pending trial. Pretrial detention under the Bail Reform Act of 1984 is regulatory in nature, moreover, and does not constitute punishment before trial in violation of the Due Process Clause of the Fifth Amendment. United States v. Salerno, --- U.S. ----, 107 S.Ct. 2095 (1987). Accordingly, 5 It is ORDERED that the October 20, 1987 order of the district court is affirmed.

October 30, 2012 JUDGMENT The Fourteenth Court of Appeals ANGELICA MARTINEZ, Appellant NO. 14-11-00869-CV V. FALLAS PAREDES AND J&M SALES OF TEXAS, L.L.C., Appellees ________________________________ This cause, an appeal from the judgment in favor of appellees, FALLAS PAREDES AND J&M SALES OF TEXAS, L.L.C., signed, July 8, 2011, was heard on the transcript of the record. We have inspected the record and find no error in the judgment. We order the judgment of the court below AFFIRMED. We order appellant, Angelica Martinez to pay all costs incurred in this appeal. We further order this decision certified below for observance. 

324 F.Supp. 691 (1971) Martin P. MARSTON v. R. M. OLIVER, Superintendent of the Virginia State Farm. No. 272-69-R. United States District Court, E. D. Virginia, Richmond Division. March 10, 1971. *692 James L. Sanderlin, Richmond, Va., for petitioner. Overton P. Pollard, Asst. Atty. Gen., of Virginia, Richmond, Va., for respondent. MEMORANDUM MERHIGE, District Judge. Martin Marston petitions this Court for a writ of habeas corpus relieving him from the effects of a judgment of the Circuit Court of Chesterfield County. When he filed the petition, Marston was confined in the Virginia State Farm by the respondent. Pertinent facts about his criminal conviction have been stipulated: On February 24, 1969, Martin P. Marston, on a plea of guilty, was found guilty of driving on a suspended operator's license by the County Court of Chesterfield County, Virginia, and sentenced to one year imprisonment and $1,000 fine. From this sentence, Marston appealed and requested assistance of counsel on the appeal to the Circuit Court of Chesterfield County, Virginia. This request was denied. On May 27, 1969, on a plea of not guilty, Marston was found guilty by a jury and sentenced to 12 months in jail and a $100 fine. During the period of his imprisonment Marston filed a petition for habeas corpus challenging the denial of counsel. Thereafter on October 23, 1969, Marston was released from state custody. Subsequently, on January 6, 1970, Marston was barred from operating a vehicle on the highways of the State of Virginia for a period of ten years, having come under the provisions of Virginia Code § 46.1-387.1 et seq., as a result of the conviction in the Circuit Court of Chesterfield County, Virginia, on May 27, 1969. In addition to the factual stipulation, a plenary hearing revealed his indigency at the time of his request to the state court for assistance of counsel. The question presented is whether the petitioner's sentence to imprisonment for twelve months cannot stand by reason of the refusal to afford him appointed counsel. Mootness The case is not moot. Marston is now released from detention, but his conviction has given rise to the very real civil disability of ten years' withdrawal of his driving permit. In the record is the prosecutor's information which initiated the proceedings which resulted in this disability. One of the convictions listed in support of the claim that the petitioner is an "habitual offender" is that of May 27, 1969, attacked herein. Collateral prejudicial consequences, therefore, actually flow from the judgment here contested. Consequently the petitioner's release during the pendency of these proceedings does not moot his case. Sibron v. New York, 392 U.S. 40, 50-58, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Wood v. Ross, 434 F.2d 297 (4th Cir. 1970); Hewett v. State of North Carolina, 415 F.2d 1316, 1320-1322 (4th Cir. 1969). Exhaustion of state remedies Marston did not take any direct appeal, nor have any collateral proceedings been initiated in state courts. For two reasons, however, he is not obliged to seek relief in such forums. First, the state habeas corpus procedure is not currently available to him. The Virginia Supreme Court of Appeals recently ruled that a prisoner whose sentences expired before a decision could be reached on his habeas corpus petition no longer presented the court with a litigable case: Our habeas corpus statutes are designed to provide relief in the form of the "discharge" (Code § 8-603) from the "person in whose custody" (Code § 8-598) a petitioner is "detained without lawful authority" (Code § 8-596). * * * * * * *693 The petitioner is no longer detained and there is no custody from which to discharge him. To pass upon the merits of his claims would be to render an advisory opinion — a function our habeas corpus statutes neither provide for nor permit. This court, therefore, is without jurisdiction further to entertain the case, and the appeal will be dismissed. Blair v. Peyton, 210 Va. 416, 171 S.E.2d 690, 691 (1970). There is no indication that the petitioner has deliberately bypassed state procedures by his failure to file a state habeas case while he was confined. Assuming that some prisoner might ever be so resolute in his efforts to avoid state procedures as to file only a federal petition and then await the expiration of his term to press for a ruling, this has not been Marston's strategy. That no intentional forfeiture of known avenues of relief has been made is plain if one considers the second reason for which exhaustion is not now necessary. Whether or not Virginia courts might now afford Marston a forum to litigate his constitutional claims, recent actions of the state's highest court make it manifest that the prevailing constitutional doctrine in the state system is not in accord with his claims. Resort to state courts would be futile. In such circumstances it is not required. Ralph v. Warden, 438 F.2d 786 n. 1 (4th Cir. 1970); Rowe v. Peyton, 383 F.2d 709 (4th Cir. 1967) affirmed, Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 420 (1968); Patton v. North Carolina, 381 F.2d 636 (4th Cir. 1967), cert. denied, 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871 (1968); Evans v. Cunningham, 335 F.2d 491 (4th Cir. 1964). Recently the Virginia Supreme Court of Appeals denied two original petitions for habeas corpus by misdemeanor convicts who went to trial without counsel. In Hackette v. Royster, R 9863, mem. decis. (Va.Sup.Ct.App., June 19, 1969), a habeas petitioner had been tried for two violations of Va.Code § 6.1-115 (1966 Repl.Vol.), the offense of passing bad checks, which carries a maximum sentence of twelve months, Va.Code §§ 18.1-101, 18.1-9 (1960 Repl.Vol.). The state supreme court appointed counsel to brief the issues, which principally involved denial of the right to appeal and refusal to appoint counsel. It is clear, therefore, that the original habeas petition was considered on its merits, as the Supreme Court of Appeals does on occasion. Va.Code § 17-97 (1960 Repl. Vol.); Burgess v. Cunningham, 205 Va. 623, 139 S.E.2d 110 (1964); see Taylor v. Cox, No. 14, 108, mem. decis. (4th Cir., Apr. 22, 1970); McLaughlin v. Royster, Civil Action No. 5667-R, mem. decis. (E.D.Va. Jan. 13, 1971). Hackette's request for counsel's aid allegedly had been denied in the court not of record where he was tried. He pleaded guilty and allegedly sought to appeal. The guilty plea would not, under Virginia law, have precluded his contesting all issues in the de novo trial in a court of record afforded to appellants. Va.Code § 16.1-132 (1960 Repl.Vol.). His attorney specifically argued the applicability of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) to Hackette's case. A procedural question arose as to whether the Supreme Court of Appeals should or could remand to a lower court for the determination of unrecorded matters of fact raised in the pleadings. See Va.Code §§ 8-596, 8-598 (1957 Repl.Vol., Supp.1970). The respondent had not denied, however, that the petitioner was not represented by counsel nor was he offered court-appointed counsel. Under Virginia pleading principles, allegations not denied are accepted as true. Morris v. Smyth, 202 Va. 832, 120 S.E.2d 465 (1961). Whether or not conclusive court records were available to settle the factual issues of offer or waiver of counsel's assistance, and whether or not a hearing to determine those questions could be conducted, it would appear that the state of the pleadings in Hackette left no facts material to the issue in dispute, and that the legal question of the duty to provide counsel *694 in cases such as Hackette's alone remained. The dismissal of the petition consequently constituted a ruling on the merits adverse to the petitioner. Rowe v. Peyton, supra, offers a close analogy: [Rowe's] petition was rejected by the Supreme Court of Appeals of Virginia without an opinion, but in light of the factual allegations of the petition, that rejection must have been upon the procedural ground that Rowe was not presently serving the sentence he seeks to attack. Thacker should not be required to travel the same road through the state courts to present a question which the Virginia Supreme Court of Appeals has so recently decided, when there is no indication that it is now prepared to depart from the former course of its decisions. Rowe v. Peyton, supra, 383 F.2d at 711 (footnotes omitted). Carter v. Gathright, R 9840, mem. decis. (Va.Sup.Ct.App., June 17, 1969), is a similar case. Carter alleged that he asked the sheriff for an attorney before his county court trial. His request was denied. Responsive pleadings made no denial but stated ambiguously that "petitioner being tried for misdemeanors was not entitled as a matter of right * * * to counsel of his own choosing." The writ was denied in this case as well. Carter had faced two misdemeanor charges, each of which carried a maximum penalty of a year's confinement. In view of these recent rulings of the state's highest court resolving the very issue which Marston raises here adversely to his contentions, it would be senseless, even if a state forum would consider his claim on the merits, to require him to seek relief there. Right to counsel Marston was, at the time of his trial in the court not of record and at the time of his de novo retrial, financially unable to retain counsel. He had $35.00 available for his use in the first instance and no money at all the second time. The circuit court made no inquiry as to his financial status, despite that he did request counsel's aid. In view of Marston's request for counsel, it is obvious that he did not waive whatever rights he had. Nor did the petitioners who sought relief from the state supreme court in original habeas cases, for it has long been the law that a failure to request a lawyer's aid does not constitute an effective waiver: The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights, and the guaranty would be nullified by a determination that an accused's ignorant failure to claim his rights removes the protection of the Constitution. Johnson v. Zerbst, 304 U.S. 458, 465, 58 S. Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The United States Supreme Court has not yet held that a defendant charged with a misdemeanor is entitled to counsel at state expense when he cannot afford his own. Opportunities for such a decision have arisen, but the Court has not found it appropriate, in those instances, to resolve the issue. DeJoseph v. Connecticut, 385 U.S. 982, 87 S.Ct. 526, 17 L.Ed.2d 443 (1966), cert. denied; Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137 (1966), cert. denied; but see Patterson v. Warden, Maryland Penitentiary, 372 U.S. 776, 83 S.Ct. 1103, 10 L.Ed.2d 137 (1963). Of course no significance as to the merits of a particular contention can be attributed to a denial of certiorari. Despite the lack of a Supreme Court holding in point, the opinion in Gideon v. Wainwright, supra, which involved a felony conviction, is not qualified by language restricting it to felony prosecutions, or to cases wherein the defendant faces or receives a particular penalty: Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless *695 counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. Gideon v. Wainwright, supra, 372 U.S. 344, 83 S.Ct. 796 (emphasis supplied). Gideon, whether it establishes a constitutional right to counsel in all criminal cases or a right which exists only when an indigent defendant faces something over a certain minimum penalty, requires that defendants in Marston's position be afforded counsel's assistance. In this instance the criminal charge was not complex. From the prosecutor's point of view it might have been a case almost impossible to lose. The facts of the case might, however, have raised issues concerning the suspended status of Marston's license or his knowledge thereof. Counsel would have been necessary to identify and explore these issues. This Court does not rely, however, on any particular finding of prejudice, any "special circumstances" which imposed upon the state court the duty of appointing counsel for this indigent. For one thing, it is all too easy for the bench and the bar to dismiss certain cases as simple ones; we fail to perceive the judicial process as do laymen with less or different education. "That which is simple, orderly, and necessary to the lawyer — to the untrained layman — may appear intricate, complex, and mysterious." Johnson v. Zerbst, supra, 304 U.S. at 463, 58 S.Ct. at 1022. The material facts of a case may be simple, but the means to establish them may be beyond the lay defendant. Untutored in the law of evidence, he may forfeit a valid defense by neglecting to summon the requisite witnesses or present the proper documentary proof. Furthermore, approaching the issue with utmost realism, the Court believes that the greatest service which counsel may render in many cases is that of negotiating with his opposite number for a guilty plea to a reduced charge. "In many, or even most, cases, the only defense available is the determination and nerve of the defense attorney," Brown v. Peyton, 435 F.2d 1352 (4th Cir. 1970). A lay defendant cannot be expected to embark on such dealings unaided. Plea bargaining requires open discussion of the strengths and weaknesses of each side's case and a confident awareness of the consequences of alternative strategies. Without a lawyer, a defendant may be unconscious even of the opportunity to commence such discussions, and he certainly will be constrained in his conduct thereof. "Counsel, or effective waiver thereof, is a sine qua non of permissible plea bargaining." Grades v. Boles, 398 F.2d 409 (4th Cir. 1968). To deny an indigent a legal representative is effectively to deny him the power to bargain at all. Moreover, in nearly every context in which courts have concluded that counsel's services are essential to due process, they have abandoned any requirement that prejudice be specifically *696 shown. This reflects the realistic view that a lawyer's function is to discover legal and factual issues and to use available procedures to further the interests of his client at each stage of the prosecution, and that it is nearly impossible to reconstruct after the fact the likely course of a trial, had counsel played a role. A defendant wrongly denied counsel normally, then, is given the opportunity in a new trial to demonstrate how counsel would have served him, concurrently with a redetermination of his guilt. Prejudice from the prior denial is presumed. Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Gideon v. Wainwright, supra; Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Hewett v. State of North Carolina, supra, 415 F.2d 1325; compare Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). Our court of appeals has held that when a defendant has been denied the aid of a lawyer loyal exclusively to his interests, "the possibility of harm is sufficient to render his conviction invalid." Sawyer v. Brough, 358 F.2d 70, 73 (4th Cir. 1966). This Court has concluded that at least when a layman faces possible imprisonment for twelve months, whatever the label of his offense, due process requires that he have the opportunity to defend himself by counsel. The distinction between felonies and misdemeanors is only a matter of designations applied by state law; federal constitutional rights do not hinge on such superficialities. The consequences of a misdemeanor conviction may well be more serious than those flowing from many felony convictions. Imprisonment under conditions similar to those to which felons are subjected may ensue. Any incarceration of over thirty days, more or less, will usually result in loss of employment, with a consequent substantial detriment to the defendant and his family. The essential nature of the right to counsel in other nonfelony cases where such substantial consequences are possible has received recognition. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). No logical justification exists for drawing any distinction between Marston's misdemeanor case and that of an indigent felony defendant. In other circuits indigent misdemeanor defendants have been held entitled to counsel when arraigned or tried. The Fifth Circuit so ruled as early as 1965 in Harvey v. State of Mississippi, 340 F.2d 263 (5th Cir. 1965), a case involving a 90 day day jail term. A district court in the Second Circuit held in 1966 that one faced with a one year term was tried for an offense carrying a "substantial prison sentence" and therefore was due counsel under Gideon, Arbo v. Hegstrom, 261 F.Supp. 397 (D.Conn. 1966). The Eighth Circuit likewise has ruled that at least in some circumstances a misdemeanant must have a lawyer's aid; particularly important to that court in considering whether due process so requires is the possible penalty the defendant faces. Beck v. Winters, 407 F.2d 125 (8th Cir. 1969). See also, Shepherd v. Jordan, 425 F.2d 1174 (5th Cir. 1970); James v. Headley, 410 F.2d 325 (5th Cir. 1969); Goslin v. Thomas, 400 F.2d 594 (5th Cir. 1968); Wilson v. Blabon, 370 F.2d 997 (9th Cir. 1967); McDonald v. Moore, 353 F.2d 106 (5th Cir. 1965); Brinson v. Florida, 273 F. Supp. 840 (S.D.Fla.1967); Rutledge v. Miami, 267 F.Supp. 885 (S.D.Fla.1967). Recently the West Virginia Supreme Court of Appeals ruled that the assistance of counsel was required, under Gideon, for an indigent misdemeanor defendant facing a possible jail term of six months. Moats v. Janco, 8 Cr.L. Rptr. 2285 (Jan. 14, 1971) (opinion subsequently withdrawn on rehearing, 180 S.E.2d 74 (1971)). This Court will not attempt now to fashion a standard determining exceptions, if any, to the duty to appoint counsel in cases involving lesser potential penalties than that which Marston faced. The Supreme Court has been able to fix *697 guidelines, in terms of possible sentence, establishing the applicability of the sixth amendment right to jury trial. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The right to counsel may, however, be considered essential to due process even in cases where the right to jury trial does not attach. It seems plain, however, that the thrust of Gideon leaves only one possible factor of significance in determining whether a right to the services of counsel exists: whether the offense carries "the possibility of a substantial prison sentence." Gideon v. Wainwright, supra, 372 U.S. at 351, 83 S.Ct. at 801 (Harlan, J., concurring). "The Court has come to recognize, in other words," Mr. Justice Harlan notes elsewhere, "that the mere existence of a serious criminal charge constituted in itself special circumstances requiring the services of counsel at trial. In truth the Betts v. Brady [316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942)] rule is no longer a reality." Id. The extent of any minimum potential penalty which might invoke the Gideon rule is matter for later decision. At this time it is necessary only to decide that, under the unqualified language of Gideon as well as Mr. Justice Harlan's interpretation of that holding, due process required that Marston be granted a lawyer's assistance at critical stages of his case. The Court is aware of the existence of a divergent ruling in this district, Hackette v. Royster, Misc. No. 359-60-N, mem. decis. (E.D. Va. May 22, 1970), but notes its respectful dissent, for the reasons stated, from the view that particular prejudice must be shown to have flowed from the lack of counsel. Apropos of the precept expressed in Hackette, supra, it appears to this Court that the lack of counsel at the very least tends to deter one from exercising the right of trial by jury. Laymen undoubtedly are, in most instances, at a disadvantage in their ability to deal with the selection of a jury encompassing their right of challenge for cause, etc. The lack of procedural knowledge may in itself give rise to a chilling effect in the exercise of a basic constitutional right. In addition, as a practical matter, judges trained to separate the inadmissible from the admissible of necessity are less lenient in evidentiary rulings when a jury sits than when the fact finding burden falls upon them. This fact, it seems to the Court, assuming the defendant overcomes the initial chilling effect arising from the need to select a jury without, except in rare instances, any knowledgeable conception of the entire procedure, gives rise to the probability of a defendant being prejudiced by his inability to propound questions and to testify in such a way as to conform to the rules concerning the fact finding inquiry. Because Marston has been released from his jail term, the Court, guided by Hewett v. State of North Carolina, supra, 415 F.2d at 1325, shall issue the writ declaring the conviction invalid. The petitioner should have no difficulty, the Court assumes, in hereafter gaining relief from such collateral consequences as have flowed in part from his invalid conviction. Because his sentence is fully served, Marston may not be further incarcerated for the acts for which he was tried and convicted. Because the state has a substantial interest, however, in imposing disabilities on those who may have committed such offenses as Marston was charged with, it would be inappropriate for the Court to bar a retrial, if conducted within a reasonable time. Compare Wood v. Ross, supra, 434 F.2d at 300. An order shall issue consistent with this opinion.

619 F.2d 82 Wardv.Kraftco Corp. No. 78-3482 United States Court of Appeals, Fifth Circuit 5/30/80 1 N.D.Ga. 2 AFFIRMED*** *** Opinion contains citation(s) or special notations

285 F.2d 703 John Franklin TAYLOR, Appellant,v.UNITED STATES of America, Appellee. No. 16726. United States Court of Appeals Ninth Circuit. Dec. 12, 1960. J. B. Tietz, Los Angeles, Cal., for appellant. Laughlin E. Waters, U.S. Atty., Robert John Jensen, Wm. Bryan Osborne, Asst. U.S. Attys., Los Angeles, Cal., for appellee. Before CHAMBERS, STEPHENS, POPE, BARNES, HAMLEY, HAMLIN, JERTBERG, MERRILL and KOELSCH, Circuit Judges. BARNES, Circuit Judge. 1 This appeal has been determined in part by a unanimous court. Reference is hereby made to the general discussion and recital of facts, and to the first four questions common to all defendants and determined in that decision entitled Johnson v. United States, 9 Cir., 285 F.2d 700. We incorporate the portion of that opinion applicable to the appellant Taylor in this opinion. We consider here the two questions peculiar to the Taylor appeal alone. 2 The first is the board's failure to reopen the matter of Taylor's classification. 3 Taylor sent the draft board information that he had become a 'vacationpioneer' which is part-time ministerial work and which may lead to full-time ministerial work. Taylor did not request that the classification be reopened. He advised, but did not request. The point has already been decided adversely to appellant by our ruling in Shaw v. United States, 9 Cir., 1959,264 F.2d 118. We decline to overrule that decision. 4 The next question raised by Taylor alone is alleged error in sentencing procedure. 5 Appellant Taylor urges that Rule 32(a), Fed.R.Crim.P., 18 U.S.C.A., was not followed in his case. This rule, in material part, reads: 6 'Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment.' 7 There is a difference of opinion in the several circuits as to whether the word 'shall' in this rule means 'must.' In Couch v. United States, 1956, 98 U.S.App.D.C. 292, 235 F.2d 519, 521, the District of Columbia Circuit held it was the better practice to advise the convicted person of his right to make a personal statement in his own behalf, but applied their interpretation prospecitively only, refusing to reverse the conviction. And see Gadsden v. United States, 1955, 96 U.S.App.D.C. 162, 223 F.2d 627. 8 The First Circuit in Green v. United States, 1 Cir., 1959, 273 F.2d 216, 217, refused to follow the District of Columbia Circuit. But it is noted that the First Circuit did it on the facts of that case, where counsel had had full oppotunity to speak 'and has spoken at length for his client in mitigation of punishment.' Id., 273 F.2d at page 217. Certiorari granted April 18, 1960, 362 U.S. 949, 80 S.Ct. 867, 4 L.Ed.2d 867. 9 Other circuits have refused to follow the rule literally where there has been waiver by counsel, Kennedy v. United States, 5 Cir., 1958, 259 F.2d 883, 886, certiorari denied 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982, or where nothing can be accomplished by allocution. United States v. Galgano (United States v. Carminati), 2 Cir., 1960, 281 F.2d 908. And see Yaich v. United States, 9 Cir., 1960, 283 F.2d 613 (petition for rehearing denied). 10 The government urges that Taylor was 'represented at every stage of the proceedings' by counsel of his choice; that a defendant must choose between having representation or 'handling matters completely on his own.' 11 We cannot agree. The words 'shall afford the defendant an opportunity to make a statement in his own behalf' seem to connote a different and more extensive procedure than exists when 'a defendant' moves, requests or acts, under the other rules. Cf. Fed.R.Crim.P. 15(a), 16, 17(b), 21(a), 21(b), 24(b), 28, 29(a) and 31(d). A lawyer may ordinarily act for a defendant (and, for example, waive the polling of a jury, or a peremptory challenge of a prospective juror) without any showing of a waiver by a defendant. But here we think either the defendant, or counsel of his choice, in defendant's presence, can waive. If a defendant has any objection to his counsel's waiver made in his presence, he can then express himself. And cf. People v. Rogers, Cal.App.1960, 8 Cal.Rptr. 843. 12 That defendant is entitled to representation of counsel at all stages of the proceedings, including sentencing, does not necessarily mean he cannot speak 'in his own behalf * * * in mitigation of punishment.' 13 The record is bare of any statement made 'in his own behalf * * * in mitigation of punishment.' Plenty was said by his counsel in attempting to establish his lack of guilt. 14 Nor can we clearly find a waiver here, as existed in Yaich v. United States, supra. It is true Mr. Tietz (counsel for appellant Taylor) stated: 15 'I can say no more * * * I fear that anything I might say now might not help my client. I have said everything I can.' 16 Had this been said after conviction and at time of sentence after some argument in mitigation had been made by counsel for appellant, we would not hesitate to find a waiver. But here the record discloses no statement of any kind in mitigation had been made by counsel, or by his client. Thus Mr. Tietz's reference to 'having said everything I can' may very well have referred to what had been said by counsel in his client's defense before the adjudication of guilt. 17 We therefore hold the findings and adjudication of guilt in the Taylor case are correct, but the sentence is vacated. The judgment of conviction entered under Rule 32(b), which is interwoven with the sentence heretofore imposed, should be re-entered concurrently with resentencing. The matter is remanded to the district court in order that a sentence may be correctly imposed under Rule 32 after a hearing in which the appellant Taylor has the opportunity to make a statement on his own behalf and to present information in mitigation of punishment, should he so desire. His counsel can do this for Taylor, or Taylor can waive his right of allocution, either by his own statement, or the statement of counsel of his choice, made in his, the appellant's, presence. 18 We recognize this remand may well be an idle act, but we are satisfied that without such remand, there is no sufficient proof of compliance with the provisions of Rule 32(a), mandatory in the absence of waiver. 19 HAMLEY, Circuit Judge, with whom Circuit Judges STEPHENS, POPE and MERRILL join (concurring in part and dissenting in part). 20 I concur in that part of the majority opinion which rejects Taylor's argument concerning the board's failure to reopen the matter of classification. I also concur in that part of the majority opinion in which the findings and adjudication of guilt are upheld, the sentence is vacated, and the matter is remanded to the district court for resentencing. I dissent from that part of the majority opinion in which the view is expressed that the right of allocution given Taylor under rule 32(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., may be waived by the statement of Taylor's counsel if made in Taylor's presence. 21 I am aware of the fact that in an opinion filed on August 2, 1960, in Yaich v. United States, 9 Cir., 283 F.2d 613, a panel of this court held that a defendant's right of allocution can be so waived. A petition for rehearing is pending in that case and accordingly the mandate has not yet issued. Yaich therefore does not have the precedent status of a decided case of this court and does not require overruling in order to reach a contrary result here. 22 In discussing the allocution question the majority makes this statement, with which I entirely agree: 23 '* * * The words 'shall afford the defendant an opportunity to make a statement in his own behalf' seem to connote a different and more extensive procedure than exists when 'a defendant' moves, requests or acts, under the other rules. Cf. Fed.R.Crim.P. 15(a), 16, 17(b), 21(a), 21(b), 24(b), 28, 29(a) and 31(d).' 24 But in making this statement, the majority has, in my view, established the invalidity of its own further conclusion on the question of waiver. Wherein has the majority under its interpretation of rule 32(a) preserved for defendants a 'different and more extensive' procedure than when a defendant moves, requests or acts under the other described rules? Under these other rules an attorney is permitted to act of waive for his client, and the majority holds that this is also true under rule 32(a). The proviso of the majority, that in order to have waiver by counsel under rule 32(a) the defendant must be present in court, adds no procedure which is 'different or more extensive' than in the case of the other rules. Except in the rare noncapital case where a defendant voluntarily absents himself during the trial, he is always present in court. See rule 43, Federal Rules of Criminal Procedure, 18 U.S.C.A. 25 The majority correctly notes a division of opinion among the circuits on the question under consideration. Three cases supporting the view that waiver of allocution can be by counsel are cited by the majority. In the first of these, Green, certiorari has been granted and the question is now pending before the Supreme Court. 362 U.S. 949, 80 S.Ct. 867, 4 L.Ed.2d 867. A later opinion was rendered in Green involving other questions, 274 F.2d 59, and certiorari was again granted. 363 U.S. 839, 80 S.Ct. 1621, 4 L.Ed.2d 1724. In Kennedy the court's ruling was expressed in part of one sentence of the opinion, no reasons or citation of authority being given. In Galgano & Carminati it was pointed out that Carminati was given the minimum sentence which was possible under the statute and hence anything said in mitigation of punishment would have been futile. 26 The case of People v. Rogers, Cal.App.1960, 8 Cal.Rptr. 843, 845, is cited by the majority as bearing upon the right of counsel to waive for his client. The court, however, was not dealing with the allocution question and in fact stated: '* * * The record, however, shows that he was properly asked by the court if he had any legal cause to show why judgment should not now be pronounced against him; that he replied he had none * * *'. 27 The one court of appeals which has dealt exhaustively with the historical background of the rule has expressed the view that the right of allocution can be waived only by the defendant personally. In his concurring opinion in Couch v. United States, 98 U.S.App.D.C. 292, 235 F.2d 519, 521, Judge Fahy, with Chief Judge Edgerton and Circuit Judges Bazelon and Washington joining, in addition to his interesting narrative of the history of the right of allocution makes some emphatic statements as to the meaning and operation of rule 32(a). Judge Fahy stated: 28 'Rule 32(a) * * * has the force of law. * * * We think the Rule means, as it says, that before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present information in mitigation of punishment. He may respond through counsel if he desires, or he may remain silent. But the opportunity afforded must be personal, and it is not when, as here, the judge asks only counsel if counsel has anything to say. * * * We think that where the procedure prescribed by the Rule is not followed the error is not to be ignored as harmless. * * * 29 'An opportunity afforded to counsel ordinarily is an opportunity afforded to his client. It is essential to maintain this relationship of counsel to court and to client in order to preserve counsel's vital role in the administration of justice. But there are exceptions, and the one under consideration has long been established. A prisoner at the bar is placed apart so as to be able to speak for himself at the moment immediately preceding sentence, when he is faced with deprivation of liberty or with a fine, or both, and is about to be adjudged a criminal. He may then speak personally to the judge before the judge imposes sentence. In ancient times this procedure became known as allocution or allocutus, clearly embodied in modern times in Rule 32(a).' 30 It will be noted that Judge Fahy says that the defendant about to be sentenced may respond through counsel if he desires. With that statement I agree. But the expression of that desire to waive must come directly from him in open court and be shown in the record of the proceedings and cannot be implied merely from or by virtue of any statement made by counsel. The declaration of Judge Fahy, the last paragraph of his opinion on page 524, should be followed by this court: 31 'Rule 32(a) now extends the ancient procedure to all criminal cases in the federal courts. * * * For we think the Rule has now become a command upon the federal courts. To permit a departure from this command to go uncorrected in a particular case, assuming the question to be properly before us, in our view would be to permit a practice which violates the Rule to supersede a rule of law prescribed by the Supreme Court under authority of Congress after centuries of development in the common law.' 32 The fact that in Couch the court gave only prospective application to its ruling is of no consequence. The explanation for using this judicial technique may be that the question arose in a section 2255 proceeding rather than on direct appeal as in this case. 33 The right of allocution provided for by rule 32(a) is designed to require direct communication between judge and defendant after the trial with all of its complexities has ended, and the judge is at last required to exercise his own discretion and judgment in fixing the penalty. Up to that point direct communication is not especially important-- but now it is. If a defendant wishes to forego that right, he may freely do so. He may do so by standing mute as well as by speaking. But he cannot do so unless the judge makes direct inquiry of him thereby affording him the right to speak or to indicate by word or silence that he waives the right or desires his attorney to speak for him. 34 The doctrine of waiver by counsel with which the right of allocution is now to be diluted will plague us in the future. Trial judges are now being told that they need not inquire of defendants whether they wish to be heard if their attorneys make statements dealing with mitigation of punishment. Thus, when the question is raised on future appeals we must on an ad hoc basis analyze such statements of counsel, or notations in the clerk's minutes, or recitals in the judgment, to determine whether there has been an effective waiver of the defendant's personal right in this curious manner. 35 Unless there is a transcribed report of the attorney's statement this inquiry must be limited to a review of the clerk's minutes and the form of judgment. How inadequate or incorrect for such a purpose minute notations may be in a particular case is sufficiently evidenced by the only relevant notation made in this case: 36 'Neither side having anything further to offer and neither side deserving to make further argument * * *.' 37 The judgment and sentence in this case was filled in on a printed form. Among the printed recitals is this: '* * * and the court having asked the defendant whether he has anything to say why judgment should not be pronounced.' It is conceded that Taylor was not asked this question, yet the printed recital was not stricken. There is no recital to the effect that Taylor's counsel was called upon by the trial judge or what response the attorney gave. This demonstrates that not even the form of judgment provides a reliable source of information in determining, under the majority test, whether a defendant's attorney said enough to constitute a 'waiver' of the right of allocution. 38 I would reverse and remand for resentencing with directions to the trial judge to make direct inquiry of Taylor whether he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.

Case: 13-15872 Date Filed: 10/06/2014 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-15872 Non-Argument Calendar ________________________ D.C. Docket No. 8:09-cr-00585-SCB-TBM-2 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MARIAN I. MORGAN, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida ________________________ (October 6, 2014) Before HULL, MARCUS and FAY, Circuit Judges. PER CURIAM:  Case: 13-15872 Date Filed: 10/06/2014 Page: 2 of 6 Marian Morgan appeals for substantive unreasonableness her 405-month imprisonment sentence, imposed at the high end of the applicable Sentencing Guidelines range. We affirm. I. BACKGROUND In May 2011, a federal grand jury returned a superseding indictment charging Morgan with one count of conspiracy to defraud the United States, in violation of 18 U.S.C. § 371; seven counts of wire fraud, in violation of 18 U.S.C. § 1343; five counts of transfer of funds taken by fraud, in violation of 18 U.S.C. §§ 2314, 2; six counts of money laundering, in violation of 18 U.S.C. §§ 1957, 2; and three counts of making false statements on income tax returns, in violation of 26 U.S.C. § 7206(1), 18 U.S.C. § 2. Morgan’s husband, John Morgan, along with Stephen Bowman and Eli Hecksher, 1 also were charged in the scheme. Bowman pled guilty to Count 1 (conspiracy to defraud the United States) and Count 12 (transfer of funds taken by fraud), pursuant to a plea agreement, in exchange for the dismissal of the remaining counts. The district judge sentenced Bowman to 51 months of imprisonment. Similarly, John Morgan pled guilty to Count 1 and Count 16 (money laundering). John Morgan was sentenced to 121 months of imprisonment. Morgan pled not guilty, proceeded to trial, and was found guilty of all 22 counts. 1 Hecksher resides in Denmark and has not yet been extradited. 2  Case: 13-15872 Date Filed: 10/06/2014 Page: 3 of 6 At sentencing, the district judge determined Morgan’s offense level was 43, which included a two-level enhancement under U.S.S.G. § 3B1.3 for Morgan’s abuse of a position of trust. Her total offense level of 43 and criminal history category of I resulted in a Sentencing Guidelines range of life imprisonment. Because the Guidelines range exceeded the maximum statutory penalty of 264 years of imprisonment, her advisory range became 264 years of imprisonment. The judge sentenced Morgan to 420 months (35 years) of imprisonment, well below the advisory range of 264 years. Morgan appealed her conviction and sentence. We affirmed her conviction but vacated her sentence, because the two- level enhancement for abuse of a position of trust was improper. United States v. Morgan, 530 F. App’x 908 (11th Cir. 2013) (per curiam), cert. denied, 134 S.Ct. 1045 (2014). During the resentencing proceeding, the district judge subtracted two levels from Morgan’s offense level for the erroneous abuse-of-trust enhancement and determined Morgan’s correct Guidelines range was 324 to 405 months of imprisonment. After hearing arguments from the parties, the judge sentenced Morgan to 405 months of imprisonment, at the top of the correct Guidelines range. The judge stated nothing had changed in the case other than the enhancement for abuse of a position of trust. The offense conduct involved millions of dollars and numerous victims. The judge stated Morgan had not accepted any responsibility. 3  Case: 13-15872 Date Filed: 10/06/2014 Page: 4 of 6 The judge also noted a 405-month sentence was appropriate, regardless of Morgan’s life expectancy. The judge said she had considered the 18 U.S.C. § 3553(a) factors, including the need to protect the public, and the sentence was sufficient but not greater than necessary. Morgan objected to the sentence as substantively unreasonable and appealed. II. DISCUSSION On appeal, Morgan argues her 405-month imprisonment sentence is substantively unreasonable. She also argues her sentence creates an unwarranted sentencing disparity between her and her codefendants. A district judge must impose a sentence that is both procedurally and substantively reasonable. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597 (2007). We review the reasonableness of a sentence “under a deferential abuse-of-discretion standard.” Id. at 41, 128 S. Ct. at 591. The party, who challenges the sentence, bears the burden of establishing that it is unreasonable. United States v.Dougherty, 754 F.3d 1353, 1361 (11th Cir. 2014). We examine whether a sentence is substantively reasonable in view of the totality of the circumstances and the § 3553(a) factors. Gall, 552 U.S. at 51, 128 S. Ct. at 597. The § 3553(a) factors to be considered by a sentencing court include (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of 4  Case: 13-15872 Date Filed: 10/06/2014 Page: 5 of 6 the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need to protect the public from further crimes of the defendant; and (4) the applicable Sentencing Guidelines range. 18 U.S.C. § 3553(a). A sentencing judge also must consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). But “defendants who cooperate with the government and enter a written plea agreement are not similarly situated to a defendant who provides no assistance to the government and proceeds to trial.” United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009). A sentence is substantively unreasonable if it “does not achieve the purposes of sentencing stated in § 3553(a).” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (citation and internal quotation marks omitted). In addition, a sentence may be substantively unreasonable if a district judge unjustifiably relied on any one § 3553(a) factor, failed to consider pertinent § 3553(a) factors, selected the sentence arbitrarily, or based the sentence on impermissible factors. Id. at 1191–92. Morgan’s 405-month sentence is substantively reasonable under the totality of the circumstances and the § 3553(a) factors. Her numerous offenses involved more than 80 victims and a loss of over $17.5 million. Morgan never accepted responsibility for her actions and does not dispute that she lied on the stand during 5  Case: 13-15872 Date Filed: 10/06/2014 Page: 6 of 6 trial. Although she argues the district judge erroneously continued to view her as one who had abused a position of trust with the victims, the record shows otherwise. At the resentencing hearing, the judge acknowledged the abuse-of-trust enhancement no longer applied and focused on the amount of loss, the number of victims, and Morgan’s complete lack of remorse. The judge also addressed the need to protect the public from future crimes by Morgan. Morgan went to trial, lied on the stand, and was convicted of all 22 offenses. John Morgan and Bowman, on the other hand, each pled guilty to only two offenses and cooperated with the government. Therefore, Morgan is not similarly situated to John Morgan and Bowman, and her substantially higher sentence is warranted. Docampo, 573 F.3d at 1101. AFFIRMED. 6 

2019 IL App (3d) 170185 Opinion filed July 11, 2019 _____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT 2019 THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-17-0185 v. ) Circuit No. 16-CF-264 ) WILLIAM GRANT, ) The Honorable ) John P. Vespa, Defendant-Appellant. ) Judge, presiding. ____________________________________________________________________________ JUSTICE CARTER delivered the judgment of the court, with opinion. Presiding Justice Schmidt and Justice Lytton concurred in the judgment and opinion. _____________________________________________________________________________ OPINION ¶1 After a jury trial, defendant, William Grant, was convicted of home invasion (720 ILCS 5/19-6(a)(1) (West 2016)) and was sentenced to 24 years in prison. Defendant appeals his conviction and sentence, arguing that the trial court erred in (1) granting the State’s midtrial request to remove the lone African American juror from the jury for cause and (2) considering a fact inherent in the crime of which defendant was convicted as a factor in aggravation in defendant’s sentencing. We affirm the trial court’s judgment. ¶2 I. BACKGROUND ¶3 In April 2016, defendant, who is African American, was charged with home invasion (two counts), attempted aggravated criminal sexual assault, and certain other related offenses for allegedly breaking into a home in Peoria, Illinois, and attempting to sexually assault a person who was staying at the residence. Four months later, in August 2016, defendant’s case proceeded to a jury trial. The jury was selected with one African American juror, Juror B., on the jury. ¶4 Following opening statements, outside the presence of the jury, the trial court noted that two of the jurors were starting to fall asleep. The trial court stated: “Okay. I’m gonna make a record of this then too. It’s 10:00 in the morning. At 9:40, less than one half an hour of—of time being on the—being in the jury box I noticed a juror starting to nod off, starting to fall asleep, and I told the lawyers about it, indicated which juror it is, and it is Juror [B.]. And I see his eyelids going more and more towards closing, and as—as that’s happening, his head starts lowering. That whole thing is only maybe five seconds, and I cannot say that he ever fell asleep. And, in fact, I don’t think he did ever fall asleep, but I’m thinking at 9:30 in the morning he’s like that, it worries me then about his ability to stay awake the entire morning. And by the way, the juror sitting right in front [Juror C.] was doing the same thing, but nowhere near as much as [Juror B.] so I’m gonna be keeping my eye on—on both of them.” ¶5 After the testimony of the State’s first witness, the alleged victim of the attempted sexual assault, the trial court took a recess. Outside the presence of the jury, the prosecutor informed the trial court that he had asked a victim witness advocate who was employed by the Peoria County -2-  State’s Attorney’s Office to watch Juror B. during the victim’s testimony. According to the prosecutor, the advocate indicated that Juror B. was sleeping for a large and significant portion of the victim’s testimony. The trial court stated that it had been “keeping an eye” on Juror B. during the testimony but it had not noticed him sleeping. The advocate told the trial court that Juror B. was nodding off and that he had lowered his head down and jolted awake during the testimony. The advocate stated further that Juror B.’s tablet had slid off his lap onto the floor two or three times and had attracted the attention of other jurors. Defendant’s attorney indicated that he did not see Juror B.’s conduct because he was paying attention to the witness and commented that, before the trial court considered removing Juror B., it was important for the court to actually establish that Juror B. was sleeping. The trial court stated repeatedly that it had complete faith in the advocate’s credibility and noted that there easily could have been times where Juror B. had done what the advocate claimed but the trial court had not seen it because the trial court was watching the witness testify a lot of the time and was also watching the lawyers and all of the jurors. The trial court checked to see if the courtroom security cameras had recorded the complained-of conduct but was told that the security cameras did not record the jurors. After some further discussion, the trial court found that Juror B. had been sleeping. ¶6 On the State’s motion and over defendant’s objection, the trial court dismissed Juror B. from the jury for cause. Defendant moved for a mistrial, and the trial court denied that request. In denying defendant’s request for a mistrial, the trial court stated that, based upon its own observations coupled with the observations of the advocate, it had concluded that Juror B. was sleeping and that it had removed Juror B. from the jury for that reason. ¶7 Defendant reminded the trial court that Juror C. had been falling asleep as well. The trial court commented that Juror C. “was only doing the eyelids getting heavy thing, nowhere near the -3-  extent that [Juror B.] was doing” but stated that it was worried about Juror C. and that it was going to instruct the jurors that they should all stay awake. When the jury was brought back into the courtroom, the trial court instructed the jurors that it expected the jurors to stay away during the trial. The trial then proceeded, and defendant was eventually found guilty of home invasion. 1 ¶8 A presentence investigation report (PSI) was ordered, and the case was scheduled for a sentencing hearing. Prior to the sentencing hearing, defendant filed two posttrial motions. One motion was filed by defense counsel; the other was filed by defendant pro se. In the motions, defendant (defendant and defense counsel) argued, among other things, that defendant was denied a fair trial when the trial court granted the State’s motion to remove the lone African American juror from the jury and that the trial court applied a double standard in doing so. After a hearing, the trial court denied defendant’s posttrial motions. In doing so, the trial court commented on Juror B. falling asleep during the trial and stated that there was a big difference in what the court had observed between Juror B. and any other juror. ¶9 Defendant’s PSI showed that defendant was 48 years old and had a lengthy criminal history that spanned over 30 years. Defendant had seven prior felony convictions—four for the Class 4 felony offense of failing to register or to report address change as a sex offender (1998, 2000, 2000, 2002), one for the Class 3 felony offense of failing to report address change as a sex offender (2009), one for the Class 2 felony offense of aggravated domestic battery (2006), and one for the Class X felony offense of aggravated criminal sexual assault (1987). Defendant also had approximately 18 prior misdemeanor convictions (not including traffic offenses), many of which were for resisting a police officer or correctional employee. 1 Defendant was actually found guilty of two counts of home invasion. A mistrial was declared on a remaining charge because the jury was unable to reach a verdict on that charge. -4- ¶ 10 A sentencing hearing was held in December 2016. During the sentencing hearing, the State recommended to the trial court that defendant be sentenced to the maximum sentence of 30 years in prison because of defendant’s criminal record; the circumstances of the offense (breaking into a person’s home, holding a knife to a woman’s throat in her own bedroom, and demanding that the woman take her clothes off); the need to deter others from committing the same offense; and the need to protect the community from defendant. In addition, the State suggested to the trial court that defendant’s conduct had threatened serious harm in that the victim awoke to find defendant on top of her and that defendant had held a knife to the victim’s throat in her own bedroom. Defense counsel argued that, while defendant had a number of previous convictions, his record did not warrant the harsh sentence advocated by the State and asked the court to consider a sentence in the lower portion of the sentencing range. Defense counsel pointed out to the court that five of defendant’s seven prior felony convictions were for registration offenses, that defendant’s prior Class X felony conviction was for an offense that took place a long time ago, and that defendant had already been punished for his prior offenses. Defense counsel also noted that defendant had obtained his General Education Development certificate, had a significant work history, and had struggled through some difficulties in his life. ¶ 11 After listening to the arguments of the attorneys, the trial court announced its sentencing decision. The trial court stated that it found three factors in aggravation: (1) that “defendant’s conduct caused or threatened serious harm with the holding [of] the knife to the throat *** of the victim in this case,” (2) that defendant had a history of prior criminal activity, and (3) that the sentence was necessary to deter others from committing the same crime. The trial court commented further about defendant’s criminal history, stating: -5-  “Seven prior felonies is a lot to overlook, to be asked to overlook even if only figuratively asked that. Seven prior felonies. One is a [sic] aggravated criminal sexual assault, a Class X. Another is aggravated domestic battery, Class 2. The others are failures to report. I count failures to report. The legislature counts them and insists that I count them. This [‘]only failures to report,[’] what do you mean only I would say? Definitely do not rise to the level of an aggravated domestic battery or a [sic] aggravated criminal sexual assault.” The trial court ultimately sentenced defendant to 24 years in prison. 2 ¶ 12 Defendant filed a motion to reconsider sentence and argued that the sentence imposed upon him was excessive. A hearing was later held on the motion. When defense counsel finished his argument on the motion and before the State responded, the trial court commented: “Sentencing range was six to 30 years. Day-for-day good time applies. I did not have the option of probation. Defendant had seven prior felony convictions, just for everybody’s information.” After the State made its argument on the motion, the trial court announced its ruling—that it was denying defendant’s motion to reconsider sentence. In doing so, the trial court stated: “I said what I said between the two lawyers speaking for a reason, laying out a foundation for my ruling which is to deny the Motion to Reconsider the Sentence. Six-to-30-year range and you get 24 when you’ve got seven prior felonies. And the situation I’ve [sic] presented with on file 16 CF 264, the one that the sentencing was about, looking at my trial notes, and 24 is a fine sentence that I can easily defend. So Motion to Reconsider is denied.” 2 The trial court imposed sentence on defendant on only one of the two home invasion convictions (count I) and did not impose sentence upon defendant for the other home invasion conviction (count II). -6- ¶ 13 Defendant appealed. ¶ 14 II. ANALYSIS ¶ 15 A. Midtrial Removal of Juror for Cause ¶ 16 As his first point of contention on appeal, defendant argues that the trial court erred in granting the State’s midtrial request to remove the lone African American juror from the jury for cause. Defendant asserts first that the disparate treatment of the lone African American juror amounted to unconstitutional discrimination that denied defendant equal protection of the law because the African American juror (Juror B.) was treated differently than the other similarly situated juror (Juror C.) who was not African American. Second, defendant asserts that he was denied due process of law when the trial court granted the State undue, outsized influence over the composition of the jury during defendant’s trial by granting the State’s request to remove Juror B. from the jury for cause without any factual support and without conducting an inquiry. According to defendant, there was no independent evidence to support a finding that Juror B. had fallen asleep or that he had missed any testimony. Defendant also claims that the trial court did not recognize that it had the discretion to reopen voir dire and conduct an independent investigation of the State’s allegation of juror misconduct. Instead, defendant maintains, the trial court essentially delegated its authority to the State and merely adopted the State’s victim witness advocate’s representations that Juror B. had fallen asleep during the testimony, even though those representations were contrary to the trial court’s own observations. For all of the reasons stated, defendant asks that we reverse his conviction and that we remand this case for further proceedings, presumably a new trial. ¶ 17 The State argues first that defendant has forfeited this claim of error on appeal by failing to specifically raise it in the trial court. In the alternative, the State argues that the trial court’s -7-  ruling was proper and should be upheld. As for defendant’s equal protection claim, the State asserts that the trial court’s ruling did not deprive defendant of equal protection of the law because Juror B. and Juror C. were not similarly situated, as the trial court noted that Juror B.’s conduct was far worse than Juror C.’s. Thus, the State contends that Juror B. was properly dismissed for race-neutral reasons—because he was falling asleep during the presentation of the evidence. As for defendant’s due process claim, the State asserts that defendant’s claim should be rejected because it is based upon unsubstantiated statements and selective quotes from the record. According to the State, a fair reading of the record shows that the trial court exercised its discretion and made a finding, which is entitled to deference on appeal, that Juror B. was sleeping during the trial. Thus, the State contends, defendant was not deprived of due process of the law. For all of the reasons set forth, the State asks that we affirm the trial court’s judgment. ¶ 18 In reply, defendant asserts that he sufficiently raised this claim of error in the trial court to prevent the issue from being forfeited on appeal. Alternatively, defendant asserts that this court should reach the issue, nevertheless, as a matter of second-prong plain error. ¶ 19 We need not address plain error because we agree with defendant that he properly preserved this claim of error for appellate review. See People v. Lovejoy, 235 Ill. 2d 97, 148 (2009) (stating that the issue raised by a litigant on appeal does not have to be identical to the objection raised at trial and that a court will not find that a claim has been forfeited when it is clear that the trial court had the opportunity to review essentially that same claim). Even though defendant may not have specifically referred to equal protection or due process, he raised essentially the same claims in the trial court when he argued that the trial court erred in granting the State’s request to remove Juror B. for cause, that the trial court applied an unfair double standard, and that he was deprived of a fair trial as a result of the trial court’s ruling. We find, -8-  therefore, that the forfeiture rule does not apply, and we will now address the merits of defendant’s first claim of error. ¶ 20 The question of whether a defendant was denied equal protection or due process by the trial court is a question of law that is subject to de novo review on appeal. See People v. Hollins, 366 Ill. App. 3d 533, 538 (2006) (stating that because an equal protection claim is a constitutional question, the standard of review on appeal is de novo); People v. Williams, 2013 IL App (1st) 111116, ¶ 75 (stating that whether a defendant’s due process rights have been denied is an issue of law that is subject to de novo review on appeal). The equal protection clause of the fourteenth amendment to the United States Constitution prohibits the exclusion of any individual juror from a jury on account of his or her race. See U.S. Const., amend. XIV; Powers v. Ohio, 499 U.S. 400, 404 (1991); Hollins, 366 Ill. App. at 538. Although a defendant has no right to a jury composed in whole or in part of persons of his own race, he does have the right to be tried by a jury whose members are selected using nondiscriminatory criteria. Powers, 499 U.S. at 404. Because the fourteenth amendment protects an accused throughout the proceedings used to bring him to justice, the State may not draw up its jury lists pursuant to neutral procedures but then resort to discrimination in other parts of the selection process. Id. at 409. An equal protection claim arises when a charge is made that similarly situated individuals were treated differently without a rational relationship to a legitimate State purpose. Kaltsas v. City of North Chicago, 160 Ill. App. 3d 302, 305-06 (1987). To establish a claim of racial discrimination in jury selection, a purpose to discriminate must be present, “which may be proven by systematic exclusion of eligible jury persons of the proscribed race or by unequal application of the law to such an extent as to show intentional discrimination.” Akins v. Texas, 325 U.S. 398, 403-04 (1945). The burden is on the defendant to establish discrimination. Id. at 400. -9- ¶ 21 The due process clauses of the United States and Illinois Constitutions protect individuals from the deprivation of life, liberty, or property without due process of law. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2; People v. One 1998 GMC, 2011 IL 110236, ¶ 21; People v. Pollard, 2016 IL App (5th) 130514, ¶ 29. Under the case law, there are two distinct branches of due process analysis: substantive due process and procedural due process. Pollard, 2016 IL App (5th) 130514, ¶ 29. When a violation of substantive due process is alleged, such as in the present case, the appropriate inquiry is whether the individual has been subjected to the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice. Id. Substantive due process requires, among other things, that there be an overall balance—a level playing field—between the prosecution and the defense in a criminal trial. See United States v. Harbin, 250 F.3d 532, 540 (7th Cir. 2001); Tyson v. Trigg, 50 F.3d 436, 441 (7th Cir. 1995); In re Detention of Kortte, 317 Ill. App. 3d 111, 115-16 (2000). Substantive due process, however, does not mandate that the rights or advantages granted to the prosecution and the defense be in absolute symmetry at every stage of a criminal proceeding, only that the overall total balance between each side be designed to achieve the goal of a fair trial. See Harbin, 250 F.3d at 540; Tyson, 50 F.3d at 441. Nevertheless, a shift at just one stage of a criminal trial as to the rights or advantages granted to each side might so skew the balance of rights or advantages in favor of the prosecution that it deprives the defendant of the right to a fair trial. See Harbin, 250 F.3d at 540; Tyson, 50 F.3d at 441. ¶ 22 After having reviewed the record in the present case, we find that the trial court did not deprive defendant of equal protection or due process by granting the State’s midtrial request to remove Juror B. from the jury for cause. The record clearly shows that a race-neutral reason existed for the removal of Juror B.—Juror B. had fallen asleep during the presentation of the - 10 -  evidence. Although defendant points to Juror C. as a similarly situated juror who was not removed, the record abundantly shows that Juror B. and Juror C. were not similarly situated. In fact, the trial court specifically noted that Juror C.’s level of “nodding off” was nowhere near as bad as Juror B.’s. Furthermore, we are not persuaded by defendant’s suggestion that the trial court failed to conduct a proper inquiry as to whether Juror B. had fallen asleep during the first witness’s testimony. The trial court obtained input from the State, the defendant’s attorney, and the victim advocate; checked to determine whether the jurors’ actions had been recorded by the security cameras; and considered its own observations before ultimately making a specific finding that Juror B. had fallen asleep during the testimony of the witness. Contrary to defendant’s assertion on appeal, there is no indication that the trial court was unaware of its ability to inquire further into the factual circumstances surrounding Juror B.’s conduct during the trial if the trial court chose to do so. Moreover, the facts in the present case do not in any way indicate that the trial court gave the State an improper, unfair, or outsized amount of control over the composition of the jury at any time during the course of the trial. Rather, the facts show that the trial court was required to make a difficult decision and to remove a juror for cause after that juror had fallen asleep during an important part of the trial. We, therefore, find defendant’s argument on this issue to be without merit. ¶ 23 In reaching that conclusion, we note that we are not persuaded that a different result is mandated by the decisions in Harbin (cited above) or People v. Brown, 2013 IL App (2d) 111228—the two main cases cited by defendant in support of his argument on this issue. Both Harbin and Brown involved the prosecutions’ midtrial use of a peremptory challenge (see Harbin, 250 F.3d at 537; Brown, 2013 IL App (2d) 111228, ¶ 1), which is not the situation before the court in the present case. Indeed, in both of those cases, the courts recognized, - 11 -  although somewhat implicitly, that the result might have been different if the juror at issue had been removed for cause, rather than pursuant to a peremptory challenge. See Harbin, 250 F.3d at 539; Brown, 2013 IL App (2d) 111228, ¶ 31. ¶ 24 B. Possible Consideration of an Improper Factor in Sentencing ¶ 25 As his second point of contention on appeal, defendant argues that the trial court erred in considering a fact inherent in the crime of which defendant was convicted as a factor in aggravation in defendant’s sentencing. More specifically, defendant asserts that the trial court improperly found that the threat of force underlying the incident was a factor in aggravation at sentencing (that the conduct caused or threatened serious harm), even though that fact was an element of the offense of home invasion. Defendant acknowledges that he did not properly preserve that claim of error for appellate review but asks that this court review the error, nevertheless, under the second prong of the plain error doctrine. For all of the reasons stated, defendant asks that we vacate his sentence and remand this case for a new sentencing hearing. ¶ 26 The State argues that the trial court did not commit plain error in sentencing defendant in this case and that defendant’s sentence was appropriate based upon the offense and defendant’s criminal history. In support of that argument, the State asserts first that even though the trial court mentioned the allegedly improper factor in sentencing defendant, a remand for resentencing is not required because the record clearly shows that the trial court did not give significant weight to the improper factor. Second and in the alternative, the State asserts that although consideration of that factor would be improper in some circumstances, it was not improper under the circumstances of the present case where the trial court considered the factor when it was considering the nature and circumstances of the offense and the degree of harm. For - 12 -  all the reasons set forth, the State asks that we honor defendant’s forfeiture of this issue and that we affirm defendant’s sentence. ¶ 27 The plain error doctrine is a very limited and narrow exception to the forfeiture or procedural default rule that allows a reviewing court to consider unpreserved error if either one of the following two circumstances is present: (1) a clear or obvious error occurred and the evidence in the case was so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and the error was so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. People v. Walker, 232 Ill. 2d 113, 124 (2009); People v. Piatkowski, 225 Ill. 2d 551, 565 (2007); People v. Herron, 215 Ill. 2d 167, 177-87 (2005); Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). Under either prong of the plain error doctrine, the burden of persuasion is on the defendant. Walker, 232 Ill. 2d at 124. If the defendant fails to satisfy that burden, the forfeiture or procedural default of the issue must be honored. Id. The first step in any plain error analysis is to determine whether an error occurred. Id. at 124-25. To do so, a reviewing court must conduct a substantive review of the issue. Id. at 125. ¶ 28 Whether the trial court relied on an improper factor in sentencing a defendant is a question of law that is subject to de novo review on appeal. People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 8. In general, although a trial court has broad discretion when imposing a sentence, it may not consider a factor that is inherent in the offense of which defendant has been convicted as an aggravating factor in sentencing defendant for that offense. Id. ¶ 9; People v. Phelps, 211 Ill. 2d 1, 11-12 (2004). Doing so would constitute an improper double enhancement. See Phelps, 211 Ill. 2d at 12. The rule prohibiting such double enhancements is based on the - 13 -  rationale that the legislature obviously already considered the factors inherent in the offense when setting the range of penalties for that offense and that it would be improper, therefore, to consider those factors once again as a justification for imposing a greater penalty. Id. The defendant bears the burden to establish that a sentence was based on an improper consideration. Abdelhadi, 2012 IL App (2d) 111053, ¶ 9. On appeal, a reviewing court will not vacate a sentence that was based upon an improper factor and remand for resentencing if the reviewing court can determine from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence. See People v. Heider, 231 Ill. 2d 1, 21 (2008). ¶ 29 In the present case, we need not determine whether the trial court improperly considered a factor inherent in home invasion when it sentenced defendant for that offense because we find that, even if the trial court did so, defendant’s sentence should still be affirmed because the record clearly shows that the trial court gave insignificant weight to that allegedly improper factor. 3 Although the trial court mentioned the factor as being one of the three factors it was considering in aggravation, it is clear from the trial court’s comments, especially those that the trial court made in denying defendant’s motion to reconsider sentence, that the trial court’s focus on the aggravating factors in sentencing was upon defendant’s criminal history and his prior 3 Although the State agreed that the trial court considered a factor inherent in the offense, we make no such determination in this case because we have found it unnecessary to do so. We have made no ruling upon whether the threat of force, which may be an element of home invasion depending on how the offense is charged, is the same as the factor in aggravation—that defendant’s conduct caused or threatened serious harm. While not a determinative factor in our decision in this case, we note that our supreme court has indicated that it is permissible for a trial court to consider the force employed and the physical manner in which a victim’s death was brought about (but not the end result—the fact of the victim’s death) in applying the statutory aggravating factor that defendant’s conduct caused serious harm to the victim when sentencing a defendant for voluntary manslaughter, an offense in which serious bodily harm was implicit in the offense. See People v. Saldivar, 113 Ill. 2d 256, 271 (1986). - 14 -  felony convictions. We, therefore, reject defendant’s argument on this issue and uphold the sentence imposed. ¶ 30 III. CONCLUSION ¶ 31 For the foregoing reasons, we affirm the judgment of the circuit court of Peoria County. ¶ 32 Affirmed. - 15 -  No. 3-17-0185 Cite as: People v. Grant, 2019 IL App (3d) 170185 Decision Under Review: Appeal from the Circuit Court of Peoria County, No. 16-CF-264; the Hon. John P. Vespa, Judge, presiding. Attorneys James E. Chadd, Peter A. Carusona, and Matthew Lemke, of for State Appellate Defender’s Office, of Ottawa, for appellant. Appellant: Attorneys Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino, for Thomas D. Arado, and Richard T. Leonard, of State’s Attorneys Appellee: Appellate Prosecutor’s Office, of counsel), for the People. - 16 - 

434 F.2d 617 3 Fair Empl.Prac.Cas. 69, 3 Empl. Prac. Dec. P 8029D. F. Glover, p/laintiff-Appellant,v.Harold T. DANIEL, etc., et al., Defendants-Appellees. No. 29253. United States Court of Appeals, Fifth Circuit. Nov. 5, 1970. Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., Conrad K. Harper, Jack Greenberg, James M. Nabrit, III, New York City, for plaintiff-appellant. Johnnie L. Caldwell, Richard T. Bridges, Donald A. Page, Thomaston, Ga., for defendants-appellees. Before JOHN R. BROWN, Chief Judge, and DYER and INGRAHAM, Circuit judges. PER CURIAM: 1 This is an appeal from an order of the District Court for the Northern District of Georgia, denying injunctive relief, salary payments, and attorney's fees sought by appellant following the school district's refusal to reemploy him as a principal for the 1969-70 school year. Appellant Glover instituted this action on May 2, 1969, against school superintendent Harold T. Daniel and his employer, the Pike County, Georgia, Board of Education. The action was brought pursuant to 28 U.S.C. 1343(3); 42 U.S.C. 1981, 1983, 2000d et seq.; 45 CFR 80.4 and 181 et seq.; the Thirteenth and Fourteenth Amendments. The complaint asserted that the board's refusal to rehire appellant principal was racially motivated in violation of his federal statutory and constitutional rights. 2 The case was tried to the court without a jury on a single issue: Whether the failure to rehire the plaintiff as principal of the Pike County schools for the 1969-70 school year was or was not for racial reasons in violation of his civil rights. 3 A full plenary hearing was conducted. Eleven witnesses, including plaintiff and defendant Daniel, were interrogated on both direct and cross examination. 4 Plaintiff Glover testified in his own behalf that he is 42 years of age, a member of the black race, holding a position with a county school system during the past year as principal of Pike Consolidated School. He testified that he holds an A. B. Degree, M. A. Degree, and a six-year certificate from the State Department of Education, having received his A. B. Degree from Ft. Valley State College and his Masters Degree from the Atlanta University. He testified further that he had been a principal for 13 years, having served five years at East Pike Elementary School in Zebulon and eight years at Pike Consolidated School, Concord, Georgia. Before that he was a teacher in the Pike County System at Zebulon and at Concord. As a teacher, his principal subject was Social Science. He testified that he improved the average daily attendance and lunchroom attendance, and used a self-study system, using evaluative criteria to upgrade the curriculum of the school. This self-study criteria was testified to be a group of standards got together by experts from all over the country. The purpose was to apply this system against his school and see where it fell short. This happened prior to his going over to Pike County Consolidated School. He testified that he did similar things at the Pike County Consolidated School. 5 The only testimony he gave, bearing directly on the question as to why he thought his discharge was racially motivated, was to the effect that he had given 19 years of good service, that he was professionally trained, and that he could think of no other reason for his discharge other than race. He did testify that the superintendent told him that he 'talked too much' at the principals' meetings and that on one occasion, after his discharge, when the County Board met to reconsider its action, one board member said he wouldn't vote to rehire Glover because none of the white folks wanted him. However, the statement imputed to a board member was made at a meeting called to reconsider their action in not extending him a contract, and was after the original action had been taken not to rehire Glover. 6 The other witnesses called by Glover testified basically and generally to his good character, with little or no evidence upon the issue of racial discrimination. 7 Considering the record as a whole, we hold that plaintiff Glover failed to discharge his burden of proof to substantiate his claims by a preponderance of the evidence. His claims are based upon speculation and suspicion. 8 The district court denied relief, stating that the plaintiff had not shown that his failure to be rehired was racially motivated. The findings of the district court are supported by evidence and are not clearly erroneous. Glover v. Daniel et al., 318 F.Supp. 1070 (N.D.Ga.1969). 9 Affirmed.

673 F.Supp.2d 588 (2009) TITAN TIRE CORPORATION OF BRYAN, Plaintiff, v. LOCAL 890L, UNITED STEELWORKERS OF AMERICA, Defendant. Case No. 3:08 CV 2957. United States District Court, N.D. Ohio, Western Division. December 11, 2009. *589 Thomas A. Dixon, Heidi N. Eischen, Eastman & Smith, Toledo, OH, Gene R. Lasuer, Davis Hockenberg Wine Brown Koehn & Shors, Des Moines, IA, for Plaintiff. John G. Adam, Martens, Ice, Klass, Legghio, Israel & Gorchow, Royal Oak, MI, for Defendant. MEMORANDUM OPINION AND ORDER JACK ZOUHARY, District Judge. Background This Court entered judgment in this case on October 26, 2009, 673 F.Supp.2d 582, 2009 WL 3426571 (N.D.Ohio 2009), upholding an arbitration award in favor of Defendant United Steelworkers of America, Local 890L ("the Union") (Doc. Nos. 24, 25). That award reversed Plaintiff Titan Tire's decision to discharge Grievant *590 Linda Tracy who, following a workplace accident, tested positive for marijuana use. Instead of discharge, the arbitrator ordered Tracy suspended for ninety days and returned to work. On November 20, Titan filed a Notice of Appeal (Doc. No. 26). This matter is now before the Court on the Union's Motion to Enforce Judgment (Doc. No. 27), and on Titan's Motion for Stay pending appeal (Doc. No. 28). Both parties filed respective Oppositions (Doc. Nos. 29, 33), and Titan filed a supplemental brief upon this Court's request (Doc. No. 32). Titan does not dispute that it has yet to comply with the arbitration award and this Court's Judgment. However, Titan argues it is entitled to a stay pending resolution of its appeal by the Sixth Circuit. In considering whether to grant a stay under Federal Civil Rule 62(c), this Court must consider four factors: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay. Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991); see also Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987) (noting that the factors are the same under Federal Appellate Rule 8(a)). These factors are not separate elements that a movant must satisfy, but are "interrelated considerations that must be balanced together." Griepentrog, 945 F.2d at 153. Furthermore, "the probability of success that must be demonstrated is inversely proportional to the amount of irreparable injury [movant] will suffer absent the stay." Id. Applying these factors, this Court finds that a stay is not warranted in the instant case. Likelihood of Success on Appeal Overturning an arbitration award "should be the rare exception, not the rule." Mich. Family Res., Inc. v. Serv. Employees Int'l Union Local 517M, 475 F.3d 746, 753 (6th Cir.2007). This Court noted the exceedingly deferential standard of review for arbitration awards in its Memorandum Opinion (Doc. No. 24, p. 3-4). With this deference and with these facts, this Court believes reversal of its decision and the arbitration award is unlikely. Titan merely "refers the Court to prior briefs" and asserts that it has raised "serious legal issues for the Sixth Circuit to examine" (Doc. No. 32, p. 3). This bald conclusion fails to convince this Court that Titan is likely to prevail on appeal. Harm to Titan Titan argues it would sustain irreparable harm if Tracy returned to work, because its drug policy might be viewed with skepticism by other employees. This concern was addressed by the terms of the arbitration award, which imposed the significant penalty of a ninety-day suspension on Tracy. Titan also argues that it is currently at minimum staffing levels, and returning Tracy to work would result in a disruption in flow in the workforce. That may be true, but that is simply the necessary cost of complying with the arbitration award. Cf. In re Dist. No. 1-Pacific Coast Dist., Marine Engineers' Beneficial Assoc. (AFL-CIO), 723 F.2d 70, 78 (D.C.Cir.1983) ("It can hardly be claimed that the cost of complying with the terms of an agreedupon arbitration procedure is irreparable harm."). In sum, this Court finds that Titan has failed to show that it will suffer the substantial irreparable harm needed to overcome its low likelihood of success on the merits. *591 Harm to Union and Tracy In contrast, Tracy would suffer substantial harm if this Court issued a stay. Tracy has been out of work since March 2008 and, according to the Union, she is not receiving wages, health insurance, or other benefits. Further deprivation of wages and benefits during the lengthy pendency of an appeal would result in direct and immediate harm to Tracy, even if she is eventually awarded back pay.[1] Public Interest While the public has a serious interest in maintaining workplace safety, this Court is unconvinced that returning Tracy to work would compromise safety at Titan's facility. The arbitrator, well-acquainted with Titan's drug policy and the specific facts of this case, concluded that a ninety-day suspension was sufficient punishment. That punishment would serve the specific objective of impressing upon Tracy the dangers of working under the influence of drugs, as well as reinforce the importance of the drug policy on Titan's entire workforce. Balancing the Factors The two cases cited by Titan in support of issuing a stay are distinguishable. In Exxon Corp. v. Esso Worker's Union, Inc., 963 F.Supp. 58, 60 (D.Mass. 1997), the court issued a stay pending appeal on the review of an arbitration award which had reinstated an employee terminated for testing positive for cocaine. The court found that the appeal raised "serious and difficult questions of law," the potential harms to the parties balanced one another, and the public interest favored a stay. Id. The court put particular emphasis on the public interest prong, because the employee worked as a petroleum tanker truck driver, a job with severe public safety implications. Id. In Ohio Edison Co. v. Ohio Edison Joint Council, 771 F.Supp. 1476 (N.D.Ohio 1990), the court also confronted the issue of a stay pending appeal of an arbitration award reinstating an employee after a drug suspension. The court first found that there was a serious legal question about the applicability of a particular Sixth Circuit case, id. at 1490-91, a finding that was validated by the Sixth Circuit's, later reversal on the merits, see Ohio Edison Co. v. Ohio Edison Joint Council, 947 F.2d 786 (6th Cir.1991). In addition, the court found that there would be harm to the employer in reinstating the employee, because the employee admittedly had an "ongoing problem" with marijuana addiction. Id. at 1491-92. The court also found that the employee would not suffer "substantial injury" and that resolution of the import of "last chance agreements" on appeal was in the public interest. Id. at 1492-93. The balance of factors, different in the instant case than in either Exxon Corp. or Ohio Edison, does not warrant a stay. There is a low likelihood of success on appeal, the balance of harms favors the Union and Tracy, and the public's interest in workplace safety is adequately protected by the terms of the arbitration award. Conclusion For the foregoing reasons, Titan's Motion for Stay Pending Appeal (Doc. No. 28) is denied. The Union's Motion to Enforce *592 Judgment pending appeal (Doc. No. 27) is granted. The Union's request for a finding of contempt is denied. IT IS SO ORDERED. NOTES [1] During a phone conference on December 2, 2009, counsel for Titan raised the possibility of Tracy posting a bond for wages and insurance premiums she receives from Titan while the appeal is pending (Doc. No. 30). Neither party addressed this issue in subsequent briefs, and this Court is aware of no authority that would require a prevailing party to post a bond pending appeal.

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 995 KA 10-00808 PRESENT: SCUDDER, P.J., SMITH, LINDLEY, VALENTINO, AND WHALEN, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER JUAN C. MEDINA, DEFENDANT-APPELLANT. CHARLES J. GREENBERG, AMHERST, FOR DEFENDANT-APPELLANT. CINDY F. INTSCHERT, DISTRICT ATTORNEY, WATERTOWN (NICOLE L. KYLE OF COUNSEL), FOR RESPONDENT. Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.), rendered March 15, 2010. The judgment convicted defendant, upon his plea of guilty, of attempted promoting prison contraband in the first degree. It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Jefferson County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted promoting prison contraband in the first degree (Penal Law §§ 110.00, 205.25 [2]). The record of the plea proceeding establishes that County Court failed to apprise defendant, a noncitizen, that deportation was a potential consequence of his guilty plea. As defendant contends and the People correctly concede, the case should be remitted to afford defendant “the opportunity to move to vacate his plea upon a showing that there is a ‘reasonable probability’ that he would not have pleaded guilty had the court advised him of the possibility of deportation” (People v Fermin, 123 AD3d 465, 466, quoting People v Peque, 22 NY3d 168, 198). We therefore hold the case, reserve decision, and remit the matter to County Court for that purpose. Defendant further contends that counsel was ineffective in failing to inform him that deportation was a potential consequence of the plea (see Padilla v Kentucky, 559 US 356). Inasmuch as that contention is based upon matters outside the record, it must be raised in a motion pursuant to CPL 440.10 (see People v Drammeh, 100 AD3d 650, 651, lv denied 20 NY3d 1098). Entered: October 9, 2015 Frances E. Cafarell Clerk of the Court 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 01-6081 DARRYL A. BABB, Petitioner - Appellant, versus JOHN B. TAYLOR, Warden; ATTORNEY GENERAL OF THE COMMONWEALTH OF VIRGINIA (Mark Earley), Respondents - Appellees. Appeal from the United States District Court for the Eastern Dis- trict of Virginia, at Alexandria. T.S. Ellis, III, District Judge. (CA-00-1499-AM) Submitted: April 27, 2001 Decided: May 4, 2001 Before LUTTIG and MOTZ, Circuit Judges, and HAMILTON, Senior Cir- cuit Judge. Dismissed by unpublished per curiam opinion. Darryl A. Babb, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Darryl A. Babb seeks to appeal the district court’s order denying relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 2000). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we deny Babb’s motion to proceed in forma pauperis, deny a certificate of appealability, and dismiss the appeal on the reasoning of the district court. Babb v. Taylor, No. CA-00-1499-AM (E.D. Va. filed Nov. 20, 2000; entered Nov. 21, 2000). In addition, we deny Babb’s motion for leave to file his habeas corpus petition out of time. See Harris v. Hutchinson, 209 F.3d 325, 328-31 (4th Cir. 2000). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED 2 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT MICHAEL EDWARD ASUNCION, Plaintiff-Appellant, v. THE CITY OF GAITHERSBURG, MARYLAND; DAVID HUMPTON, No. 95-1159 Gaithersburg City Manager; CITY COUNCIL OF GAITHERSBURG; A. P. YOKLEY, Officer; UNKNOWN POLICE OFFICERS OF THE CITY OF GAITHERSBURG, MARYLAND, Defendants-Appellees. Appeal from the United States District Court for the District of Maryland, at Greenbelt. J. Frederick Motz, Chief District Judge. (CA-93-46-JFM) Submitted: September 20, 1995 Decided: January 3, 1996 Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL Gary Howard Simpson, Bethesda, Maryland, for Appellant. Paul T. Cuzmanes, Cynthia L. Ambrose, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, Baltimore, Maryland, for Appellees. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Michael Asuncion filed a complaint alleging that Officer A.P. Yok- ley, the City of Gaithersburg, Maryland, and others (collectively, the City) violated his civil rights.1See 42 U.S.C. § 1983 (1988). The alleged violation stems from the arrest and prosecution of Asuncion for disorderly conduct after he was stopped for a routine traffic viola- tion. Asuncion argued before the district court that summary judg- ment on his § 1983 claim was improper because a material issue of fact existed as to whether Yokley had probable cause to arrest him and as to whether the prosecutor had probable cause to prosecute him. Because Maryland law dictates that a prosecution is presumed conclu- sively to be made with probable cause if an arrestee subsequently is convicted, even if that conviction is later reversed, see Zablonsky v. Perkins, 187 A.2d 314, 316 (Md. 1963), the district court granted summary judgment in favor of the City. On appeal, Asuncion argues for the first time that he falls under an exception to this rule. For the reasons discussed below, we affirm. I. On December 11, 1991, Yokley stopped Asuncion and issued him a citation for driving through a red light. After completing the cita- tion, Yokley asked Asuncion to sign the document. Beyond this junc- ture, the parties' stories diverge widely. Yokley contends that Asuncion became agitated and began acting irrationally, creating a disturbance that distracted other drivers on the road, while Asuncion claims that Yokley began to harass him verbally and physically with- out provocation. The conflicting versions of the arrest need not con- _________________________________________________________________ 1 Asuncion does not appeal the district court's grant of summary judg- ment to the City on his state law claims of assault, battery, false arrest, intentional infliction of emotional distress, and malicious prosecution. 2 cern us; the germane fact is that the encounter resulted in Yokley's arrest of Asuncion for disorderly conduct. After a bench trial before the Montgomery County District Court, Asuncion was convicted of disorderly conduct. On appeal, a jury found Asuncion not guilty in a trial de novo in the Montgomery County Circuit Court. See Md. Code Ann., Cts. & Jud. Proc. § 12- 401(f) (Supp. 1995) (providing that certain criminal appeals from the state district court are tried de novo before the circuit court). Asun- cion subsequently brought this action, asserting false arrest and mali- cious prosecution as the bases for his claim that the City violated his civil rights. II. Rule 56(c) of the Federal Rules of Civil Procedure requires the dis- trict court to enter summary judgment against a party who, "after ade- quate time for discovery . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). To prevail on a motion for summary judgment, the City must establish that:"(1) there is no genuine issue as to any material fact; and (2) it is entitled to judgment as a matter of law." Harleysville Mut. Ins. Co. v. Packer, 60 F.3d 1116, 1119 (4th Cir. 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If Asuncion fails to offer proof of an essential element of his case, all other facts are rendered immaterial, there is no genuine issue as to any material fact, and the City is enti- tled to judgment as a matter of law. See Celotex , 477 U.S. at 323. We review a grant of summary judgment de novo. Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995). To prove his claim under § 1983, Asuncion must show a malicious prosecution under Maryland law that resulted in a deprivation of his constitutional rights. See Goodwin v. Metts, 885 F.2d 157, 160 n.1 (4th Cir. 1989) (stating the same for South Carolina law), cert. denied, 494 U.S. 1081 (1990). Under Maryland law, the tort of mali- cious prosecution consists of the following elements: (a) a criminal proceeding instituted or continued by the defendant against the plaintiff, (b) termination of the pro- 3  ceeding in favor of the accused, (c) absence of probable cause for the proceeding, and (d) malice, or a primary pur- pose in instituting the proceeding other than that of bringing an offender to justice. Brewer v. Mele, 298 A.2d 156, 159 (Md. 1972). Because Asuncion is unable to prove the absence of probable cause, an essential element of the tort, we affirm the district court's grant of summary judgment in favor of the City.2 Under Maryland law, a conviction determines conclusively the existence of probable cause, regardless of whether the judgment is later reversed in a subsequent proceeding. Zablonsky, 187 A.2d at 316. Thus, Asuncion's conviction in the Montgomery County District Court precludes his establishing the absence of probable cause for the disorderly conduct charge, even though the jury later found him not guilty in a subsequent trial de novo in the circuit court. See Quecedo v. DeVries, 321 A.2d 785, 791 (Md. Ct. Spec. App. 1974) (reaching the same conclusion under similar factual circumstances). Because Asuncion cannot prove an essential element of malicious prosecution under Maryland law, he cannot establish his claim under § 1983. See Bussard v. Neil, 616 F. Supp. 854, 856-57 (M.D. Pa. 1985) (granting summary judgment to defendant on plaintiff's § 1983 claim based on malicious prosecution where plaintiff failed to prove absence of prob- able cause because of an earlier conviction that was later reversed). On appeal, Asuncion argues for the first time that his case falls within a narrow exception to the Maryland rule that a conviction determines conclusively the existence of probable cause: if a convic- tion is "`obtained by fraud, perjury or other corrupt means,'" the con- viction loses its conclusive effect. Zablonsky , 187 A.2d at 316 (quoting Restatement of Torts § 667 (1938)). Asuncion contends that his disorderly conduct conviction was obtained through the perjured _________________________________________________________________ 2 The probable cause inquiry with respect to the false arrest claim is essentially the same as the probable cause inquiry with respect to the malicious prosecution claim because all of the evidence of the crime of disorderly conduct used to prosecute Asuncion was before the arresting officer. Accordingly, because we find that there was probable cause to prosecute Asuncion, there was necessarily probable cause for the arrest. 4 testimony of Yokley, and therefore he should be allowed to prove the absence of probable cause. Asuncion's argument is meritless. We first note that we are not required to address this argument on appeal because Asuncion failed to argue and raise it in the proceedings before the district court. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) ("It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below."). Second, in any event, Asuncion's mere recitation of factual inconsistency is insuffi- cient to demonstrate perjury by Yokley during the trial before the state district court. See United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987) (holding that inconsistencies in testimony create, at most, a credibility question for the jury; they do not establish perjury). Thus, we reject Asuncion's argument. III. Because we find no genuine issue of material fact concerning the existence of probable cause and because we find Asuncion's belated perjury argument unavailing, we affirm the district court's grant of summary judgment in favor of the City. AFFIRMED 5 

459 S.E.2d 151 (1995) 194 W.Va. 40 Jessica DUNN and Jason Dunn, et al., Plaintiffs, v. KANAWHA COUNTY BOARD OF EDUCATION, et al., Defendants. No. 22550. Supreme Court of Appeals of West Virginia. Submitted February 28, 1995. Decided May 19, 1995. *153 Guy R. Bucci, Robert C. Chambers, Bucci, Chambers & Willis, L.C., Charleston, and James T. Cooper, Henry R. Glass, III, Lovett, Cooper & Glass, Charleston, and Carl S. Kravitz, David N. Webster, Caplin & Drysdale, Washington, DC, for plaintiffs. David L. Shuman, Shuman, Annand & Poe, Charleston, and Avrum Levicoff, Brown, Levicoff & McDyer, Beckley, and Michael Fisher, Offutt, Eifert, Fisher, Duffield & Nord, Huntington, and William J. Cooper, Jacobson, Maynard, Tuschman & Kalur, Charleston, for amicus, WV General & Plastic Surgeons. Arden J. Curry, II, Pauley, Curry, Sturgeon & Vanderford, Charleston, for amicus, The Builders Supply Ass'n of WV. Jeffrey M. Wakefield, William L. Ballard, Christine Fox, Richard D. Jones, Tracy L. Webb, Flaherty, Sensabaugh & Bonasso, Charleston, for defendant, Kanawha County Bd. of Educ. Paul M. Friedberg, David Johnson, Lewis, Friedberg, Glasser, Casey & Rollins, Charleston, and Donald W. Fowler, Joe G. Hollingsworth, Katharine R. Latimer, Bruce J. Berger, Spriggs & Hollingsworth, Washington, DC, for defendant, Velsicol. Charles R. McElwee, Robinson & McElwee, Charleston, for amicus, The WV Hosp. Ass'n. Anita R. Casey, Renatha S. Garner, Meyer, Darragh, Buckler, Bebenek & Eck, Charleston, for amicus, CSM Systems, Inc. A.L. Emch, Anthony Majestro, William D. Esbenshade, Jackson & Kelly, Charleston, for amicus, WV Retailers Ass'n. Cheryl A. Eifert, Blake Benton, Offutt, Eifert, Fisher, Duffield & Nord, Huntington, *154 for amicus, American Medical Ass'n and West Virginia State Medical Ass'n. *152 FOX, Judge:[1] We accepted this certified question from the Circuit Court of Kanawha County, West Virginia, to consider whether a good faith settlement between a plaintiff and a defendant in a multiparty lawsuit extinguishes the rights of non-settling defendants to seek indemnification from the settling defendant. The sixty-seven plaintiffs from three consolidated lawsuits are students, parents, teachers, and others who allege injuries resulting from exposure to toxic substances at Andrew Jackson Junior High School, in Cross Lanes, West Virginia. One of the toxic substances was a termiticide known as chlordane. The plaintiffs initially asserted numerous theories of liability against various defendants, including negligence, willful, wanton, and reckless misconduct, breach of warranty, strict product liability, and deliberate intent to injure an employee. However, the focus of this certified question is the plaintiffs' product liability claim against Velsicol Chemical Corporation. Velsicol is the only United States manufacturer of technical chlordane, which is chlordane in its purest form and is used to make other chlordane-containing compounds.[2] In addition to suing Velsicol, the plaintiffs are pursuing product liability claims against others in the chain of distribution, including distributors and applicators of chlordane. Defendants Kanawha County Board of Education and Robert Klatzkin, a former principal at Andrew Jackson Junior High School (hereinafter referred to collectively as the BOE), contend the defendant manufacturer Velsicol is ultimately responsible for damages caused by its defective product. On 1 April 1994, the plaintiffs agreed to dismiss all claims against Velsicol in exchange for a substantial monetary settlement. Pursuant to court order, the amount of the settlement remained confidential, but non-settling defendants were informed and given the opportunity to challenge its reasonableness. Velsicol intends for this settlement, reached prior to a judicial determination of liability, to extinguish all potential claims arising from this lawsuit, including claims for implied indemnity. However, because Velsicol's settlement agreement did not include therein a release from liability, the non-settling defendants in the chain of distribution want to be able to seek indemnification from Velsicol if they are subsequently made to pay damages to the plaintiffs for injuries they contend Velsicol was solely responsible for as the manufacturer of the defective product. On 22 April 1994, the plaintiffs and Velsicol jointly requested that the circuit court find their settlement was in good faith in order to extinguish any potential claims against Velsicol for both contribution and indemnification. The non-settling defendants potentially affected by this settlement objected on the grounds that (1) a factual determination of good faith was premature, and (2) a finding of a good faith settlement does not extinguish claims for implied indemnity.[3] Following a hearing, the circuit court tentatively found the settlement was in good faith but deferred *155 its ruling on the settlement's effect on any cross-claims against Velsicol. After a second hearing on 6 May 1994, the circuit court concluded the settlement was negotiated in good faith and it barred claims for contribution against Velsicol. However, the circuit court ruled that claims for implied indemnity would not be extinguished by the good faith settlement. On 24 May 1994, the plaintiffs and Velsicol moved for reconsideration of the 6 May 1994 ruling on the implied indemnification issue. The circuit court denied the motion for reconsideration on 31 May 1994, and an order certifying the indemnification issue to this Court was entered on 8 July 1994. On 12 October 1994, this Court granted the joint petition for review of the following certified question: Whether a good faith settlement by a defendant extinguishes rights of non-settling defendants and others for implied indemnity against the settling defendant under West Virginia law? The Circuit Court of Kanawha County, West Virginia, the Honorable Paul Zakaib, Jr., presiding, answered the question in the negative, finding there is a legal and factual distinction between claims of implied indemnification and claims for contribution. Relying primarily on language found in Smith v. Monongahela Power Co., 189 W.Va. 237, 429 S.E.2d 643 (1993), the plaintiffs and Velsicol now contend the 6 May 1994 circuit court ruling was erroneous, and argue this Court's prior decisions establish that their good faith settlement extinguishes all contribution and indemnification claims the non-settling defendants might wish to assert against Velsicol. However, the BOE argues the plaintiffs and Velsicol have confused the issues by treating contribution and indemnification as identical legal concepts, when, in fact, "the concept of indemnification plays a unique role and is clearly distinct from contribution in product liability cases." We agree. Indemnification and contribution are separate and distinct legal concepts. "The idea of indemnity implies a primary or basic liability in one person, though a second person is also for some reason liable with the first, or even without the first, to a third person. Discharge of the obligation by the second person leaves him with a right to secure compensation from the one who, as between themselves, is primarily liable."[4] There are two types of indemnity. Express indemnity is based upon a written agreement between the parties, while implied indemnity is based upon the relationship between the parties. In syllabus points 1 and 2 of Sydenstricker v. Unipunch Products, Inc., 169 W.Va. 440, 288 S.E.2d 511 (1982), this Court explained: 1. "The general principle of implied indemnity arises from equitable considerations. At the heart of the doctrine is the premise that the person seeking to assert implied indemnity—the indemnitee—has been required to pay damages caused by a third party—the indemnitor. In the typical case, the indemnitee is made liable to the injured party because of some positive duty created by statute or the common law, but the actual cause of the injury was the act of the indemnitor." Syllabus Point 2, Hill v. Joseph T. Ryerson & Son, Inc., 165 W.Va. 22, 268 S.E.2d 296 (1980). 2. Implied indemnity is based upon principles of equity and restitution and one must be without fault to obtain implied indemnity. "Very broadly, contribution is the right of one who owes a joint obligation to call upon his fellow obligors to reimburse him if compelled to pay more than his proportionate share of the obligation. Limiting this definition to the tort context, contribution is a method to promote an equitable distribution of loss among those who are jointly and severally liable for a given wrong."[5] Contribution *156 was distinguished from indemnity in syllabus point 4 of Sydenstricker: The doctrine of contribution has its roots in equitable principles. The right to contribution arises when persons having a common obligation, either in contract or tort, are sued on that obligation and one party is forced to pay more than his pro tanto share of the obligation. One of the essential differences between indemnity and contribution is that contribution does not permit a full recovery of all damages paid by the party seeking contribution. Recovery can only be obtained for the excess that such party has paid over his own share. The doctrine of contribution and the effect of a good faith settlement between a plaintiff and one of multiple joint tortfeasors on the rights of non-settling joint tortfeasors to contribution were discussed at length by this Court in Board of Education of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990). In syllabus point 2, we explained: A defendant in a civil action has a right in advance of judgment to join a joint tortfeasor based on a cause of action for contribution. This is termed an "inchoate right to contribution" in order to distinguish it from the statutory right of contribution after a joint judgment conferred by W.Va.Code, 55-7-13 (1923). Further, in syllabus point 6 of Zando, this Court explained that contribution rights are terminated by a good faith settlement, stating that "[a] party in a civil action who has made a good faith settlement with the plaintiff prior to a judicial determination of liability is relieved from any liability for contribution." However, whether a good faith settlement terminates a non-settling defendant's right to seek implied indemnification against the settling defendant is an issue that has not been addressed by this Court until now. The principles of Zando regarding contribution rights among joint tortfeasors were reiterated in Smith, supra, an opinion in which this Court set forth specific criteria to aid in determining whether a settlement is in fact made in good faith. As we noted above, the plaintiffs and Velsicol now rely upon language found in Smith to support their contention that the law in West Virginia is that any indemnification claims a non-settling defendant might wish to assert against the settling defendant are also extinguished by a good faith settlement. In Smith, John Q. Hutchinson was electrocuted when he was working on a truck manufactured by Dico which came into contact with a power line owned and operated by Monongahela Power Company. Dennis Dwight Smith, as administrator of Hutchinson's estate, sued Monongahela Power for negligence, and Monongahela Power filed a third-party complaint against manufacturer Dico for contribution, alleging that defective truck design was a proximate cause of Hutchinson's death. Smith, 429 S.E.2d at 646. Dico settled with the Hutchinson estate before trial. After the verdict, Monongahela Power and the estate reached a settlement, under which Monongahela Power reserved its right to pursue contribution claims from others, including Dico. Dico moved to dismiss Monongahela Power's claim on the grounds that its settlement with the estate insulated it from Monongahela Power's claims for contribution. The trial court granted Dico's motion. Id. at 647. The issue in Smith was whether a settlement entered into between a nonparty (Dico) and a claimant (Smith) prior to the instigation of a lawsuit would discharge the nonparty (Dico) from further obligation to either the claimant (Smith) or the nonparty's joint tortfeasor (Monongahela Power). This Court agreed with the lower court's finding that Monongahela Power's right to seek contribution from nonparty/joint tortfeasor Dico was extinguished by the good faith settlement between Dico and Smith. In the case now before us, the plaintiffs and Velsicol rely heavily on Smith because of the following language contained in the opinion: "Accordingly, we find Monongahela Power's right to seek contribution or indemnification from Dico was extinguished by the settlement between the Hutchinson estate and Dico, provided that the settlement was in *157 good faith." Id. at 649 (emphasis added). Despite this reference to indemnification, the facts indicate quite clearly that Smith was only about a claim for contribution.[6] This single reference to indemnification was unnecessary in the context of the opinion.[7] Smith is also distinguishable from the case now before us because the relationship between Monongahela Power and Dico did not give rise to a right of implied indemnity. Monongahela Power and Dico were joint tortfeasors. Dico settled with the claimant before trial, and Monongahela Power settled afterwards. The issue was whether Monongahela Power had a right to pursue a contribution claim against Dico, not an indemnification claim. A non-settling defendant's right to seek indemnification from the settling defendant following a good faith settlement in a product liability case is the only issue now before this Court. Reliance upon Smith as precedent is pointless, because although that case addressed a similar question, the issue was raised in the context of contribution claims. To argue that both contribution and implied indemnity claims should be extinguished by a good faith settlement is to ignore the substantive differences between the two legal concepts. "While contribution permits one tortfeasor to shift a part of the loss to another, the purpose of indemnity is to shift the whole loss."[8] As we noted above, a fundamental distinction between indemnity and contribution is the absence of fault on the part of the party who seeks indemnification. Contribution claims involve joint tortfeasors who share some degree of fault; their liability is premised upon independent negligent acts. However, the only real tortfeasor in an implied indemnity action is the indemnitor, who commits the tort which causes injury. In product liability cases, the manufacturer is often the culpable tortfeasor as a result of conduct associated with designing or manufacturing a defective product. Product liability law in this State permits a plaintiff to recover where the plaintiff can prove a product was defective when it left the manufacturer and the defective product was the proximate cause of the plaintiff's injuries. Morningstar v. Black & Decker Mfg. Co., 162 W.Va. 857, 253 S.E.2d 666, 677 (1979). Strict liability in tort relieves the plaintiff from proving the manufacturer was negligent, and instead permits proof of the defective condition of the product as the basis for liability. Because the product manufacturer is not always accessible to the plaintiff, strict liability extends to those in the product's chain of distribution. Thus, an innocent seller can be subject to liability that is entirely derivative simply by virtue of being present in the chain of distribution of the defective product. Extending liability to those in the chain of distribution in this manner is meant to further the public policy that an injured party not have to bear the cost of his injuries simply because the product manufacturer is out of reach. The liability of a party in the chain of distribution is based solely upon its relationship to the product and is not related to any negligence or malfeasance. For this reason, this Court acknowledged the right of *158 implied indemnity in note 22 of Morningstar, supra. In syllabus point 1 of Hill v. Joseph T. Ryerson & Son, 165 W.Va. 22, 268 S.E.2d 296 (1980), we held that "[a] seller who does not contribute to the defect in a product may have an implied indemnity remedy against the manufacturer of the product, when the seller is sued by the user." "[I]n the field of product liability, the concept underlying allowance of indemnity is that the indemnitee has been rendered liable because of a nondelegable duty arising out of common or statutory law, but the actual cause of the injury has been the act of another person." Hill, 268 S.E.2d at 301. The remedy of implied indemnity provides an innocent seller, or indemnitee, with the means to seek restitution from the actual wrongdoer, or indemnitor. Again, we emphasize that the right to seek implied indemnity belongs only to a party who is without fault. If a seller in some way contributes to a product defect, the seller and manufacturer are jointly responsible for damages the product causes, and the seller has no right to seek implied indemnity. Instead, because of the shared fault, the rules of contribution would apply. However, the rules of both contribution and indemnity could apply where a seller does not contribute to a defect in a product, but commits an independent act of negligence or is at fault in some other manner. Indemnification is a remedy available to innocent parties who have been held strictly liable and made to pay for injuries caused by others. It would defeat all notions of fairness and equity to deprive an innocent party of the means to seek reimbursement from a culpable manufacturer simply because that manufacturer reached a "good faith" settlement with the injured plaintiff. Velsicol now complains that: "Notwithstanding Velsicol's good faith, its payment of substantial proceeds to plaintiffs, and its motivation to buy peace, Velsicol has not obtained peace. Velsicol has instead bought only the risk of continued liability via implied indemnification claims and the burden of having to continue to defend its products." However, we believe if Velsicol truly wanted to "buy peace," then, as the manufacturer of the allegedly defective product, Velsicol should have included lesser defendants in the chain of distribution within the terms of the settlement agreement, thereby eliminating its own risk of continued liability via implied indemnification claims. If chlordane is determined to be a defective product, and it is also determined the non-settling defendants did nothing independently wrong or in no way contributed to the defect, then equity demands that Velsicol indemnify the non-settling defendants if they are ultimately found liable for damages caused by its product. Therefore, our answer to the certified question is negative: In a multiparty product liability lawsuit, a good faith settlement between the plaintiff(s) and the manufacturing defendant who is responsible for the defective product will not extinguish the right of a non-settling defendant to seek implied indemnification when the liability of the non-settling defendant is predicated not on its own independent fault or negligence, but on a theory of strict liability. In fact, it is arguable that basic fairness and sound public policy dictate that a settlement by a plaintiff with the manufacturing defendant solely responsible for the defective product covers all damages caused by that product and extinguishes any right of the plaintiff to pursue others in the chain of distribution who did not make the product, contribute in any way to the defect, or commit any independent acts of negligence or fault. However, this issue was not raised by this certified question, and we leave its resolution for a later time. Certified question answered. Justice BROTHERTON did not participate. Judge FOX sitting by temporary assignment. NOTES [1] Pursuant to an administrative order entered by this Court on 18 November 1994, the Honorable Fred L. Fox, II, Judge of the Sixteenth Judicial Circuit, was assigned to sit as a member of the West Virginia Supreme Court of Appeals commencing 1 January 1995 and continuing through 31 March 1995, because of the physical incapacity of Justice W.T. Brotherton, Jr. On 14 February 1995 a subsequent administrative order extended this assignment until further order of said Court. [2] The defendant BOE states that in October 1987 the EPA issued a Final Cancellation Order prohibiting all sale, use, or distribution of chlordane after 15 April 1988. [3] The non-settling defendants who objected to the settlement were the Kanawha County Board of Education and Robert Klatzkin, Bruce Terminex of West Virginia, Inc., Terminex International Company, L.P., and Forshaw Distribution, Inc. According to the defendant BOE, Forshaw Distribution, Inc., a distributor of chlordane, was sued because it sold chlordane to a commercial applicator. Forshaw and other defendants have since settled. The Board, Alford Termite & Pest Control (which has not participated in the defense of this case), and General Exterminating (which has not entered an appearance in this case) are remaining defendants. [4] Leflar, Robert A., Contribution and Indemnity Between Tortfeasors, 81 U.Pa.L.Rev. 130, 146 (1932). [5] Stoneking, James B., Beyond Bradley: A Critique of Comparative Contribution in West Virginia and Proposals for Legislative Reform, 89 W.Va.L.Rev. 167, 170 (1986). [6] Although indemnification and contribution are separate and distinct legal concepts, leading commentators have noted that these terms are sometimes incorrectly treated as interchangeable: There is an important substantive difference between, first, an order distributing loss among tortfeasors by requiring others each to pay a proportionate share to one who has discharged their "joint" liability and, second, an order requiring another to reimburse in full one who has discharged a common liability. In the prevailing usage, the first is referred to as contribution; the second, as indemnity. Because of either confusion or deliberate departure from prevailing usage, however, there are decisions in which full reimbursement has been allowed under the name of contribution, or some form of distribution has been allowed under the name of indemnity. W. Page Keeton, et al., Prosser and Keeton on Torts, § 51 (5th ed.1984) (footnotes omitted). [7] We realize this language could again be cited to support the proposition that a good faith settlement between a plaintiff and defendant in a multiparty litigation extinguishes a non-settling defendant's right to seek indemnification from the settling defendant. We believe, however, that the inclusion of "or indemnification" in the Smith case was mere surplusage and, therefore, should be disregarded. [8] Stoneking, supra, note 9, at 168.

634 F.Supp.2d 201 (2009) Luis Alfredo SANTIAGO-SEPULVEDA, et al., Plaintiffs, v. ESSO STANDARD OIL COMPANY (PUERTO RICO), INC., et al., Defendants. Civil Nos. 08-1950 (CCC)(JA), 08-1986(CCC)(JA), 08-2025(CCC)(JA), 08-2032(CCC)(JA), 08-2044(CCC)(JA). United States District Court, D. Puerto Rico. June 23, 2009. *203 Juan H. Saavedra-Castro, Juan H. Saavedra Castro Law Office, Manuel L. Correa-Marquez, Xana M. Connelly, Correa, Collazo, Herrero & Fortuno, Carlos E. Montanez, Carlos E. Montanez Law Office, Ana M. Nin-Torregrosa, Lourdes M. Santos-Gutierrez, Nin & Rodriguez Law Office, Roberto Buso-Aboy, Buso Aboy Law Office, Gerardo Pavia, Pavia & Diaz Garcia, San Juan, PR, for Plaintiffs. PHV Mark Andrew Klapow, Howrey, LLP, Washington, DC, Luis G. Parrilla-Hernandez, Sepulvado & Associates, Jenyfer Garcia-Soto, Jorge A. Galiber-Sanchez, Lee Sepulvado-Ramos, Sepulvado & Maldonado, PSC, Angel E. Rotger-Sabat, Maymi, Rivera & Rotger, P.S.C., San Juan, PR, for Defendants. OPINION AND ORDER JUSTO ARENAS, United States Chief Magistrate Judge. This matter is before the court on motions by defendants Total Petroleum Puerto Rico Corporation ("Total") and Esso Standard Oil (Puerto Rico), Inc. ("Esso"). *204 On April 29, 2009, Total filed a motion to preclude further participation of plaintiffs in cases 08-1950, 08-1986, and 08-2025. (Docket No. 247.) On May 8, 2009, Esso moved for an entry of final judgment in its favor as to all claims in cases 08-1950, 08-1986, 08-2025, 08-2032, and 08-2044. (Docket No. 248.) Plaintiffs from cases 08-1950, 08-1986, and 08-2025 ("Group I plaintiffs") filed their opposition to the motions filed by Esso and Total on May 11, 2009. (Docket No. 249.) On May 18, 2009, those plaintiffs filed an informative memorandum in further support of their opposition. (Docket No. 252.) Plaintiffs from case 08-2044 and 08-2032 ("Group II plaintiffs") filed oppositions to the entry of final judgment on May 21, 2009 and May 23, 2009, respectively. (Docket Nos. 256, 260.) On June 3, 2009, Total filed a reply[1] to plaintiffs' opposition to the entry of final judgment, and moved to strike plaintiffs' informative motion in further support of their existing opposition motion. (Docket Nos. 267, 268.) For the reasons set forth below, Total's motion is GRANTED and Esso's motion is GRANTED in part and DENIED in part. I. PROCEDURAL AND FACTUAL BACKGROUND The facts of this case have been recounted multiple times. See Santiago-Sepulveda v. Esso Standard Oil Co. (P.R.), 582 F.Supp.2d 154, 156-174 (D.P.R.2008); (Docket Nos. 118, 145, 149, 228.) In March 2008, Esso announced that it would terminate its Puerto Rico gasoline retail franchises, effective September 30, 2008. Id. at 156. The company later changed the effective termination date to October 31, 2008. (Docket No. 41.) On August 26, 2008, a large group of Esso franchisees filed a complaint under the Petroleum Marketing Practices Act ("PMPA") (15 U.S.C. § 2801, et seq.) to enjoin Esso from terminating the franchises. (Docket No. 2.) Four other complaints were subsequently filed in four separate cases, all of which were consolidated into this one. (Docket No. 46.) On September 4, the retailer plaintiffs in the consolidated case (Civil No. 08-1950) moved for a preliminary injunction to prevent Esso from terminating their franchises. (Docket No. 7.) Total moved to intervene in the consolidated cases on September 9, 2008, as the motion for preliminary injunction posed a threat to Total's plans to purchase the gasoline retail stations whose franchises Esso sought to terminate. (Docket No. 10.) On September 17, 2008, this case was referred to me, and on October 9, 2008, I granted Total's motion to intervene. (Docket Nos. 30, 91.) On October 7, 2008, I issued an order acknowledging an agreement between the Group II plaintiffs and the defendants, and retaining supervision and jurisdiction over the parties until final resolution of the matter. (Docket No. 81.) On October 18, 2008, I issued an opinion and order denying plaintiffs' motion for preliminary injunction. (Docket No. 118.) On October 29, 2008, plaintiffs in case 08-1986 announced that they had agreed to accept the franchise agreements offered by Total. (Docket No. 146.) Between that date and October 31, 2008, all but two plaintiffs signed agreements with Total. (Docket No. 157, at 5, ¶ 2.) In the time since that date, the parties appear to have been adhering to their *205 mutual obligations under the contract. Esso and Total now contend that this court has already deemed them compliant with the PMPA. Thus, Esso argues for entry of final judgment and Total moves for "an order precluding [Group I plaintiffs] to [sic] appear in any further proceedings....." (Docket No. 247, at 7.) Plaintiffs, however, argue that the court has decided only that a permanent injunction will not issue against Total and Esso. (Docket No. 249, at 2.) They contend that they are still entitled to a ruling on the legality of the franchise contracts, which Total offered to them on a "take it or leave it" basis. (Docket No. 155, at 3.) In plaintiffs' view, final judgment may not be entered before such a ruling. The franchise agreement offered to plaintiffs by Total consists of three separate contracts: a Lease Contract, a Franchise Contract for Total's convenience store enterprise known as "Bonjour," and a Sale and Supply Contract. (Docket Nos. 155, at 3, 155-4.) Plaintiffs have argued that the following provisions of those contracts are illegal and should not be imposed upon them: Paragraph 2 of Article 4.1 of the Lease Contract: The Retailer [plaintiffs] expressly acknowledges that the Company shall be entitled to lease to third parties parts or portions of the lands or structures where the Station is located, and that the Retailer shall have no right to discounts or credits of any kind as a consequence of the above. (Docket No. 108-3, at 3.) Article 4.4 of the Lease Contract: [T]he parties agree that the Minimum Rent may be increased to account for any additional investment the Company [Total] may make ... at any time while this Contract is in effect ... at its sole and absolute discretion. (Docket No. 108-3, at 4.) Article 11.2 of the "Bonjour" Franchise Contract: The Retailer agrees to purchase for sale at the store only those Products and Services of the type, brand and quality recommended and/or approved by the Company.... The Retailer agrees to purchase only from those suppliers and providers authorized by the Company.... The retailer must refrain from selling any product or service that is not authorized by the Company.... (Docket No. 155-4, at 15.) Article 9.3 of the "Bonjour" Franchise Contract-Non-Competition Agreement: The Retailer agrees, for the duration of the Contract, and for an additional period of twelve (12) months after its termination or expiration, not to engage in or acquire any interest, directly or indirectly, in a convenience store type of business within the territorial jurisdiction of the municipality where the BONJOUR Franchise object of this agreement is located, or any adjoining municipality. The Retailer will be deemed to be engaged in such business indirectly if he is an employee, officer, director, trustee, agent or partner of a person, firm, corporation, association, partnership, trust, or any other legal entity that is engaged in such a business within the aforementioned area. The above shall not be understood as a prohibition from having any interest in a corporation or entity for investment purposes without intending to acquire control or majority interest in securities traded in a recognized stock market. (Docket No. 155-4, at 11.) Article 8.1 of the Sale and Supply Contract—Discontinuation, Substitution of Products: *206 The Company shall have the absolute right to discontinue or subtitute [sic] any engine fuel, petroleum product or any of the Total Products object of this Contract for industrial reasons, inventory reasons, world-wide supply of materials, or for marketing or competition decisions, and the retailer agrees to acquire the substitute products as long as the Company sells them within the Territory instead of the substituted product. (Docket No. 155-5, at 8.) Each of the three contracts also contains language relating to the interpretation of the contracts themselves: This Contract shall be interpreted consistent with and governed by the laws of the Commonwealth of Puerto Rico. (Lease Agreement, Article 19.1, Docket No. 108-3, at 21; Franchise Contract, Article 17.1, Docket No. 155-4, at 24; Sale and Supply Contract, Article 23.1, Docket No. 155-5, at 23.) All three contracts also provide for the severability of contract terms under certain circumstances: The intention of the parties appearing herein is for all provisions on this Contract to be complied with in their entirety as allowed by law. Therefore, should a court with jurisdiction find that the scope of some of the provisions is too broad to be complied with as written, the intention of the parties is that the court must modify such provision until its scope is one that the court finds may be enforceable. However, should any provision in this Contract be found to be unlawful, invalid, or unenforceable under present or future laws, said provisions shall be nullified; this Contract shall be interpreted and governed as if said unlawful, invalid or unenforceable provision had never been a part thereof, and the rest of the provisions in this Contract shall remain in force and will not be affected by the unlawful, invalid or unenforceable provision or its elimination. (Lease Agreement, Article 20.10, Docket No. 108-3, at 23; Franchise Contract, Article 18.3, Docket No. 155-4, at 25; Sale and Supply Contract, Article 24.3, Docket No. 155-5, at 24.) II. DISCUSSION A. Prior Rulings The first issue is the extent to which I may order relief to plaintiffs in light of prior rulings in this case. Total suggests that final judgment has already been issued in this case. (Docket No. 268, at 4, ¶ 15.) It has not. Nowhere in any opinion or order issued by the court in this case has there appeared an order for entry of judgment. Nor has any judgment been entered into the civil docket under Rule 79(a). Fed.R.Civ.P. 58(c)(1)-(2) (judgment is only entered when "the judgment is entered in the civil docket under Rule 79(a)."). Indeed, if judgment had already issued, Esso would not be moving for entry of final judgment. (Docket No. 248.) See Total Petroleum P.R. Corp. v. Torres-Caraballo, 631 F.Supp.2d 130 (D.P.R. 2009). Both parties suggest that judgment is appropriate because the decisions already made by the court leave nothing left to rule upon. It is true that I held in the opinion and order issued on October 18, 2008 that "Esso has complied with the notice requirements under the PMPA, and Total's offering of nondiscriminatory franchise contracts generally complies with Esso's obligation to assure that its franchisee is offered a non-discriminatory contract...." Santiago-Sepulveda v. Esso Standard Oil Co. (P.R.), 582 F.Supp.2d at 185. I have acknowledged that "Esso and Total ... had complied with the requirements of the Petroleum Marketing Practices Act...." (Docket No. 197, at 2; see *207 also Docket No. 228, at 20-21.) Those holdings remain effective. Plaintiffs are correct, however, that my denial of plaintiffs' motion to enjoin the termination of their franchises was not the same as a declaration that all terms of the franchise agreements are valid. See Riverdale Enter., Inc. v. Shell Oil Co., 41 F.Supp.2d. 56, 68 (D.Mass.1999) (finding franchisor justified in terminating franchise under the PMPA despite a finding that at least one term of replacement franchise offer was impermissible); Coast Vill. Inc. v. Equilon Enter., LLC, 163 F.Supp.2d 1136, 1180-1181 (C.D.Cal.2001) (same). Indeed, the only controlling issue in the October opinion was "whether a permanent injunction will issue." Santiago-Sepulveda v. Esso Standard Oil Co. (P.R.), 582 F.Supp.2d at 185. While I did tangentially discuss some specific contractual provisions, I concluded only that "[t]he proposed Total terms are not subject to court-ordered modification at this time." Santiago-Sepulveda v. Esso Standard Oil Co. (P.R.), 582 F.Supp.2d at 182 (emphasis added). Accordingly, the issue of whether the terms of Total's franchise offers are acceptable has been reserved to this point. Even if I had made a finding on the legality of certain contract terms, this would not constrain my power to modify such a finding. Federal Rule of Civil Procedure 54(b) provides that "any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating all the claims...." Fed.R.Civ.P. 54(b). Moreover, "the law of the case doctrine does not prevent a judge from changing his mind, so long as there was an explanation and the court took into account justified reliance." City of Bangor v. Citizens Commc'ns Co., 532 F.3d 70, 100 (1st Cir. 2008) (citing Fiori v. Truck Drivers, Local 170, 354 F.3d 84, 90 (1st Cir.2004)). Here, neither party has indicated that it has placed any detrimental reliance on the contractual provisions at issue. I am therefore not prevented from addressing the legality of the contractual provisions about which plaintiffs complain. B. Section 2805(f) of the PMPA The next issue is whether the PMPA provides a basis for relief if any of Total's terms are found illegal. Section 2805(f) of the PMPA provides: No franchisor shall require, as a condition of entering into or renewing the franchise relationship, a franchisee to release or waive ... any right that the franchisee may have under any valid and applicable State law. 15 U.S.C. § 2805(f)(1)(B). There is some question as to whether section 2805(f) provides an independent remedy under the PMPA, especially where, as here, the franchisee has already accepted the franchisor's offer. The First Circuit has yet to interpret section 2805(f) explicitly, but it has found that the Act "requires that franchisees faced with objectionable contract terms refrain from ratifying those terms by executing the contracts (even `under protest') and operating under them" if they wish to be protected under the PMPA. Marcoux v. Shell Oil Prods. Co. LLC, 524 F.3d 33, 49 (1st Cir.2008), cert. granted by Mac's Shell Serv. v. Shell Oil Prod. Co. LLC, 2009 WL 1650201 (U.S. Jun.15, 2009) and cert. granted by Shell Oil Prod. Co. LLC v. Mac's Shell Serv., Inc., 2009 WL 1650202 (U.S. Jun.15, 2009). That holding parallels a Seventh Circuit ruling explicitly interpreting section 2805(f): if a "statutory `franchise' has been renewed, [the] franchisee must seek redress at the state level to enforce its contract rights under the franchise agreement—i.e., violations of § 2805(f)(1) that do not constitute a non-renewal under the *208 PMPA but are instead ordinary contract disputes." Dersch Energies, Inc. v. Shell Oil Co. & Equilon Enter., Inc., 314 F.3d 846, 865-66 (7th Cir.2002). In this case, all but two plaintiffs ratified the terms of Total's offer over seven months ago. There is therefore reason to question plaintiffs' right to contest contractual terms at this stage in the litigation. This case, however, differs materially form Marcoux and Dersch. Whereas "[t]he stumbling block" for plaintiffs in Marcoux and Dersch was that they did not "insist on receiving notices of [franchise] nonrenewal," Marcoux v. Shell Oil Prod. Co. LLC, 524 F.3d at 49, before signing new agreements, plaintiffs in this case received notices of franchise termination in March, 2008 and filed suit before the effective termination date. Santiago-Sepulveda v. Esso Standard Oil Co. (P.R.), 582 F.Supp.2d at 156. Whereas there was neither actual franchise termination nor constructive nonrenewal in Marcoux and Dersch, there was actual franchise termination here. Where there was no jurisdiction under section 2802 of the PMPA in those cases, there is in this case. Accordingly, Marcoux and Dersch do not operate to preclude recovery for plaintiffs under section 2805(f). Given that this court has jurisdiction under the PMPA, there is no reason not to apply a plain reading of section 2805(f). Thus, plaintiffs may have a remedy under section 2805(f) if they can demonstrate the illegality of any of Total's contractual terms. C. Legality of Terms 1. Leases to Third Parties Article 4.1 of the Lease Agreement permits Total to lease portions of the leased premises to third parties, and provides that plaintiffs "shall have no right to discount or credits of any kind as a consequence...." (Docket No. 108-3, at 3.) "Under Puerto Rico law, three elements characterize a lease contract: (1) the thing; (2) temporal duration; and (3) a price." Pico Vidal v. Ruiz Alvarado, 377 B.R. 788, 794 (D.P.R.2007) (citing In re Daben Corp., 469 F.Supp. 135, 148 (D.P.R. 1979)). "Unlike the common law, the civil law allows that a leased thing not be entirely defined." In re Daben, 469 F.Supp. 135 at 148. "The enjoyment and use of the [leased] premises," however, is "the essence of the lease agreement." Nolla v. Joa Co. of Fla., 102 D.P.R. 428, 2 P.R. Offic. Trans. 538, 541 (1974) (finding lessee was entitled to compensation from a third party that had taken possession of validly leased premises during the lease period). Article 4.1 borders on the unconscionable. Under the Article's terms, Total would have the right to lease 99% of a given gasoline retail station to a third party while still charging the franchisee 100% of the rent expense. While Puerto Rico law does not require that the "leased thing" be entirely defined, it must still be at least identifiable. Article 4.1 simply leaves too much room for arbitrary or discriminatory actions by Total. See Avramidis v. Atl. Richfield Co., 623 F.Supp. 64, 67 (D.Mass.1985) ("[W]ithout stated standards, [the franchisor] could apply the [pricing scheme] in an arbitrary, or even discriminatory[ ] manner...."). Moreover, Article 4.1 defies the spirit, if not the letter of Puerto Rico's Department of Consumer Affairs Rental Regulation Number 2823, Section 6, Article 10,[2] which limits the rent charged in connection with a lease of a gasoline station to 10% of the market value of the station to be rented. If "the station to be rented" includes only *209 that portion of the premises occupied the franchisee, the fair market value of that "station" could become quite small if Total leases a significant portion of the premises to a third party. In that situation, the full rental price charged by Total may come to exceed 10% of the market value of the remaining area occupied by plaintiffs. This would contravene Regulation 2823. Accordingly, I find that Article 4.1 requires the franchisees to waive existing rights under state law and is therefore impermissible under section 2805(f) in its present form. Total is within its rights to lease portions of its station to third parties, but it may not insist that "the Retailer shall have no right to discounts or credits of any kind as a consequence" of such third party leases. 2. Additional Rent Article 4.4 of the Lease Agreement provides that the rent "may be increased to account for any additional investment [Total] may make ... at its sole and absolute discretion." (Docket No. 108-3, at 4.) In Puerto Rico, "[t]he rules for determination of price in purchase and sales agreements are applicable to leases." In re Daben Corp., 469 F.Supp. at 148. The rules for determination of price in purchase and sales agreements provide that "[t]he determination of the price can never be left to the judgment of one of the contracting parties." P.R. Laws Ann. tit. 31, § 3745. Here, the determination of rent is explicitly and exclusively left to the judgment of Total. Under Article 4.4, if Total wishes to increase the rent charged to the retailer, it may do so unilaterally by an additional investment in the retail station. The retailer would have no say in the matter. There is no law prohibiting Total from investing in its service stations or from negotiating with its franchisees for a fair contribution to absorb the associated cost. Article 4.4 of the Lease Agreement is, however, invalid to the extent it allows Total to take these actions "at its sole and absolute discretion." 3. Restrictions on Products and Services Purchased Article 11.2 of the Franchise Contract provides that "[t]he Retailer agrees to purchase only from those suppliers and providers authorized by the Company...." (Docket No. 155-4, at 15.) Law No. 77 of June 25, 1964, created Puerto Rico's Office of Monopolistic Affairs, and vested it with the power "[t]o promulgate... such rules and regulations as may be necessary and proper for the enforcement of [the legislative Act on Monopolies and Restraint of Trade]." P.R. Laws Ann. tit. 10, § 272(5). The rules and regulations of the Office of Monopolistic Affairs "have the force of law" once approved. Id. Article 4(e) of Regulation I (Number 994) of the Office of Monopolistic Affairs was approved on August 19, 1965, in conformity with Law No. 77. It is still effective.[3] Article 4(e) provides that it is illegal, in a gasoline franchise relationship, "to compel or attempt to compel the retailers to sell products manufactured, distributed, endorsed, or in any way favored by the distributors."[4] Total is thus proscribed from requiring plaintiffs to sell the products it endorses or favors. To the extent it does so, Article 11.2 of the Franchise Contract is illegal. *210 4. Non-Compete Agreements Article 9.3 of the Franchise Contract prohibits the retailer from engaging in "a convenience store type of business within the territorial jurisdiction of the municipality where the Bonjour Franchise object of [the] agreement is located, or any adjoining municipality" for "an additional period of twelve (12) months" after the contract's expiration. (Docket No. 155-4, at 11.) Under Puerto Rico law, noncompetition clauses are subject to four conditions. Arthur Young & Co. v. Vega III, 136 D.P.R. 157, 275, 1994 P.R.-Eng. 909262 at 15 (1994). "First, the employer must have a legitimate interest in [the] agreement, that is, if the employer were not protected by a noncompetition clause, his business could be seriously affected." Arthur Young & Co. v. Vega III, 136 D.P.R. at 175, 1994 P.R.Eng. 909262 at 15-16. Here, Total has a valid commercial interest in protecting its brand and its trade secrets, which are in the midst of a delicate transition phase in the Puerto Rico market. "Second, the scope of the prohibition must fit the employer's interest, insofar as object, time, and place of the restriction or clients is concerned.... The noncompetition term should not exceed twelve months...." Arthur Young & Co. v. Vega III, 136 D.P.R. at 175, 1994 P.R.-Eng. 909262 at 16. Here, the Total's term is for exactly twelve months, and the clause circumscribes the restrictions on the retailers to "convenience store type of business." (Docket No. 155-4, at 11.) "Third, the employer shall offer a consideration in exchange for the employee signing the noncompetition covenant." Arthur Young & Co. v. Vega III, 136 D.P.R. at 176, 1994 P.R.-Eng. 909262 at 17. In the employment context, such "consideration could even be that a candidate gets the position he wished for in the company." Id. Analogizing this rule to the present franchise relationship context, I find that it is sufficient that the franchisees got "the position [they] wished for" as franchisees of the Total brand. Finally, the fourth requirement of Arthur Young—that the non-compete agreement be reduced to writing—has also been satisfied here. Id. Accordingly, I find that the non-compete agreement is valid under Puerto Rico law. 5. Non-Branded Gasoline. Article 8.1 of the Sale and Supply Contract reserves for Total the right to discontinue or substitute any engine fuel, petroleum product or any of the Total Products for other products under a variety of enumerated reasons. (Docket No. 155-5, at 8.) I have addressed the issue of unbranded gasoline at length in my most recent opinion and order at Docket No. 287. The ruling of that decision was based on plaintiffs' request for an injunction against the use of allegedly unbranded gasoline; it did not address the legality of Article 8.1. The law and the reasoning I applied in that decision are nonetheless equally availing here, and I incorporate that opinion and order herein, mutatis mutandis. Under the PMPA, there is no requirement that Total provide only gasoline refined by Total itself. Accordingly, there is nothing illegal about Article 8.1. D. Severability Given that Articles 4.1 and 4.4 of the Lease Contract and Article 11.2 of the Franchise Contract all violate section 2805(f) of the PMPA to some extent, the next issue is what remedy to afford plaintiffs. I find that each of these clauses is severable to the extent they are declared invalid above. Each of the three contracts offered by Total contains an explicit severance or "savings clause." "[S]hould any provision in [the] Contract be found to be unlawful, invalid, or unenforceable under present or future laws, said provisions shall be nullified," and the contract should be treated as if the violative provision never *211 existed. (Docket No. 108-3, at 23, art. 20.10.) "[T]he rest of the provisions in [the] Contract shall remain in force...." (Id.) The First Circuit approves the use of a standard "savings clause:" A "savings clause" preemptively resolves conflicts between contract language and applicable law in order to preserve the remaining, non-conflicting contract language. "Savings clause" is somewhat of a misnomer. The contractual language in conflict with applicable law is not saved. The non-conflicting language is saved. In the absence of a savings clause, the decision maker, be it an arbitrator or a court, decides the remedy for resolving a conflict between contract language and applicable law. That remedy, driven by an assessment of the intent of the parties, could be as small as severance of the offending contract language, or it could extend to outright non-enforcement of portions of the contract that include the offending contract language or the contract in its entirety. In essence, a savings clause serves as an expression of the intent of the parties that limits the remedies an arbitrator or court may use in situations of conflict between contract terms and applicable law. Kristian v. Comcast Corp., 446 F.3d 25, 48 n. 16 (1st Cir.2006) (severing a portion of arbitration agreement where the savings clause in question "emphasize[d] the use of severance as a remedy," and declaring the remainder of the contract valid); see Cherena v. Coors Brewing Co., 20 F.Supp.2d 282, 286 (D.P.R.1998) (doing the same with regard to a non-competition covenant); see also Coast Vill. v. Equilon Enter., LLC, 163 F.Supp.2d at 1180 (citing Graham Oil Co. v. ARCO Prods. Co., 43 F.3d 1244, 1248-49 (9th Cir.1994)) ("[T]he Ninth Circuit has expressly held that invalidation under Section 2805(f) does not lead to invalidation of the entire agreement so long as the term(s) are severable from the rest of the agreement."). It is true that "a `contract is entire, and not severable, when, by its terms, nature, and purpose, it contemplates and intends that each and all of its parts, and material provisions are common to the other, and interdependent.'" Graham Oil Co. v. ARCO Prods. Co., 43 F.3d at 1248 (quoting Hudson v. Wylie, 242 F.2d 435, 446 (9th Cir.1957)). Here, however, the clear intent of the parties as expressed in the contract is that any invalid terms be severed from the contract in order to save the remainder of the agreement. The essence of the agreement—the existence of a franchise relationship—remains in tact in the absence of the three severable clauses. Accordingly, those contract provisions that violate Puerto Rico law are to be severed, while the remainder of the three contracts is binding and enforceable. III. SUMMARY Esso and Total have complied with the PMPA. Total's franchise agreements with the Group I plaintiffs are valid with the exception of the following provisions, which are hereby PROHIBITED from appearing in any contract between the parties: • Those portions of Article 4.1 of the Lease Contract that permit Total to lease to third parties parts or portions of the lands or structures where the station is located without allowing plaintiffs the right to discounts or credits. (See Article 4.1 of the Lease Contract, Docket No. 108-3, at 3.) • Those portions of Article 4.4 of the Lease Contract that permit Total to increase the minimum rent to account for any additional investment Total may make at its sole and absolute discretion. (See Article 4.4 of the Lease Contract, Docket No. 108-3, at 4.) • Those portions of Article 11.2 of the Franchise contract that require the retailer *212 to purchase only those products and services manufactured, distributed, endorsed, or an any way favored by Total. (See Article 11.2 of the Franchise Contract, Docket No. 155-4 at, 15.) Finally, it is hereby ORDERED that partial, final, appealable judgment be entered in cases 08-1950, 08-1986, and 08-2025, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 54(b). Such a judgment "as to fewer than all the claims [or parties] in a multi-claim action [is permissible] `upon an express determination that there is no just reason for delay.'" Quinn v. City of Boston, 325 F.3d 18, 26 (1st Cir.2003) (quoting Fed. R.Civ.P. 54(b)). The First Circuit bears a "long-settled and prudential policy against the scattershot disposition of litigation," Quinn v. City of Boston, 325 F.3d at 26 (quoting Spiegel v. Trs. of Tufts Coll., 843 F.2d 38, 42 (1st Cir.1988)), but it will nonetheless tolerate such a disposition where a district court "make[s] specific findings and set[s] forth its reasoning," Quinn v. City of Boston, 325 F.3d at 26 (citing Spiegel v. Trs. of Tufts Coll., 843 F.2d at 42), or where "the record, on its face, makes it sufficiently apparent that the circumstances support an appeal from a partial judgment." Quinn v. City of Boston, 325 F.3d at 26 (approving of partial final judgment where the claims upon which partial judgment was entered were distinct from the remaining claims, and where public interest favored immediate appeal) (citing Spiegel v. Trs. of Tufts Coll., 843 F.2d at 43 n. 4). Here, cases 08-1950, 08-1986, and 08-2025 were filed to enjoin Esso from terminating its Puerto Rico gasoline retail stations. I have denied such an injunction, have concluded that Total and Esso are compliant with the PMPA, and have invoked the severance provisions of Total's franchise contracts in three instances. As to those three cases, there is no just reason for delay because all issues of any substance have now been ruled upon. The public interest would best be served by the rapid resolution of any outstanding points of contention upon immediate appeal. I abstain from entering final judgement in cases 08-2032 and 08-2044 because the parties in those cases reached an agreement in October 2008, over which I am to retain supervision and jurisdiction. (Docket No. 81.) IV. CONCLUSION Total's motion (Docket No. 247) is GRANTED. Esso's motion (Docket No. 248) is GRANTED to the extent it requests final judgment as to cases 08-1950, 08-1986, and 08-2025; it is DENIED to the extent it requests final judgment as to cases 08-2032 and 08-2044. Total's motion to strike plaintiffs' informative memorandum (Docket No. 268) is DENIED. There being no just reason for delay, the Clerk is ORDERED to enter partial final judgment as to cases 08-1950, 08-1986, and 08-2025 dismissing them in their entirety. SO ORDERED. NOTES [1] Caveat. Rule 7.1(e) of the Local Rules for the District Court of Puerto Rico provides that "[a]ll memoranda shall be ... in a font size... no less than twelve (12) points." Local Rules of the U.S. District Court for the District of P.R., Rule 7.1(e) (2004). Counsel for Total violated this rule by submitting a reply in a nine (9) point font. Local Rule 7.1(e) is "unambiguously clear." Ortiz v. Hyatt Regency Cerromar Beach Hotel, Inc., 422 F.Supp.2d 336, 339 (D.P.R.2006). [2] This regulation is listed as current on the Microjuris legal database. Microjuris database, microjuris.com (last visited Jun. 16, 2009). [3] The regulation is listed on the website of the Puerto Rico Department of Justice, http://www.justicia.gobierno.pr/rs_template/v2/Asu Mon/asumon_reg.html # 0994 (last visited Jun. 15, 2009). It is listed as current on the Microjuris legal database. Microjuris database, microjuris.com (last visited Jun. 15, 2009). [4] The court's translation.

902 F.Supp. 199 (1995) WHITECO METROCOM DIVISION OF WHITECO INDUSTRIES, INC., a Corporation, Plaintiff, v. YANKTON SIOUX TRIBE, Defendant. No. CIV 94-4259. United States District Court, D. South Dakota, Southern Division. October 12, 1995. *200 Jack Gunvordahl, Gunvordahl & Gunvordahl, Burke, SD and Stanley E. Whiting, Winner, SD, for Plaintiff. Charles Thomas Abourezk, Abourezk Law Offices, Rapid City, SD, for Defendant. MEMORANDUM OPINION AND ORDER PIERSOL, District Judge. Plaintiff brought suit against the Defendant Tribe for breach of contract pursuant to seven contracts entered into between Plaintiff and the Tribe's Ft. Randall Casino for billboards to be placed along public highways in an effort to generate business for the Casino. The contracts were signed by the general manager of the Casino on June 4 and September 10 of 1993, and approximately six months later, the Tribe informed Plaintiff that the Yankton Sioux Tribe Business and Claims Committee had not approved the contracts prior to signing, and, therefore, the contracts were "terminated." Doc. 7 at Ex. B. Plaintiff brought the instant action for monies owed under the contracts. Doc. 1. The Tribe moves for dismissal on the grounds of sovereign immunity. Doc. 3. The Tribe's Motion to Dismiss raises two jurisdictional questions for the Court. First, whether this Court or a tribal court must hear this issue and, second, whether this action is barred by the doctrine of sovereign immunity. DISMISSAL PURSUANT TO RULE 12(b)(1) Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action whenever the court lacks jurisdiction over the subject matter. The Eighth Circuit has distinguished between facial and factual 12(b)(1) motions, stating the standards applicable to motions to dismiss in each instance. In this case, we are concerned with a factual motion: Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction — its very power to hear the case — there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional *201 claims. Moreover, the plaintiff will have the burden of proof that jurisdiction does in fact exist. Osborn v. United States, 918 F.2d 724, 730 (8th Cir.1990); Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993). SUBJECT MATTER JURISDICTION Federal Courts have original jurisdiction in cases "arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331, and in cases in which there is diversity of citizenship and the matter in controversy exceeds the statutory amount, 28 U.S.C. § 1332. Plaintiff argues that this Court has jurisdiction in this contract dispute pursuant to 28 U.S.C. § 1332 and 25 C.F.R. Part 11. Diversity jurisdiction does not exist. Section 1332 requires that the parties be "citizens of different states." Although Plaintiff has attempted to demonstrate diversity by alleging in its Complaint that Plaintiff is incorporated in Nebraska and that "Defendant is an Indian Tribe with its principal place of business in South Dakota," Doc. 1 at ¶ 4, it is well settled that "Indian tribes are not citizens of any state for purposes of diversity jurisdiction." Gaines v. Ski Apache, 8 F.3d 726, 729 (10th Cir.1993) (citations omitted). Additionally, the Tribe pleads it is organized pursuant to Section 16 of the Indian Reorganization Act, 25 U.S.C. § 476, and has never incorporated under 25 U.S.C. § 477.[1] Doc. 4 at 1. As a "Section 16" entity, the Tribe is not a citizen of any state for purposes of diversity jurisdiction. Standing Rock Sioux Indian Tribe v. Dorgan, 505 F.2d 1135, 1140 (8th Cir.1974); Gaines, 8 F.3d at 729; Veeder v. Omaha Tribe of Nebr., 864 F.Supp. 889, 898-901 (N.D.Iowa 1994). Plaintiff bases its second argument for federal jurisdiction on 25 C.F.R. § 11.104(b). National Farmers Union Ins. Co. v. Crow Tribe holds that questions of tribal court jurisdiction over non-Indians should first be addressed in tribal court. 471 U.S. 845, 856, 105 S.Ct. 2447, 2454, 85 L.Ed.2d 818 (1985). Plaintiff argues that it cannot bring suit in the tribal forum because § 11.104(b) requires a Tribe with a C.F.R. court to pass a resolution permitting the Tribe to be sued in that court, and the Yankton Sioux Tribe has never passed such a resolution. Therefore, Plaintiff argues it must pursue its rights in the federal forum because the tribal forum is closed to it. The Tribe's response to the argument that there is no tribal forum is that "The Yankton Sioux Tribe converted its tribal court system from a `CFR Court' to a tribal court of general jurisdiction in June of 1994." Doc. 4 at 2. This assertion, standing alone and unsupported by any evidence, is an insufficient defense to Plaintiff's claim that jurisdiction does not exist in a tribal forum. Federal regulations provide: The regulations in this part shall continue to apply to tribes listed under § 11.100(a) until a law and order code which includes the establishment of a court system has been adopted by the tribe ... and the Assistant Secretary — Indian Affairs ... has received a valid tribal enactment identifying the effective date of the code's implementation, and the name of the tribe has been deleted from the listing of Courts of Indian Offenses under § 11.100(a). *202 25 C.F.R. § 11.100(c) (1994). The Tribe has made no showing that it has met the requirements of § 11.100(c) and, as of this date,[2] 25 C.F.R. § 11.100(a)(2) retains "Yankton Sioux Tribe (South Dakota)" as one of the tribes to whom the regulations governing Courts of Indian Offenses apply. The Tenth Circuit has defined one narrow exception[3] to the tribal court exhaustion doctrine of National Farmers Union, 471 U.S. at 856, 105 S.Ct. at 2454. In Dry Creek Lodge, Inc. v. Arapahoe & Shoshone Tribes, the court assumed jurisdiction over plaintiffs' constitutional claims because diversity was lacking and plaintiffs had been denied access to the tribal C.F.R. court. 623 F.2d 682, 685 (10th Cir.1980), cert. denied, 449 U.S. 1118, 101 S.Ct. 931, 66 L.Ed.2d 847 reh'g denied, 450 U.S. 960, 101 S.Ct. 1421, 67 L.Ed.2d 385 (1981) (Dry Creek II). The court stated: There has to be a forum where the dispute can be settled.... There must exist a remedy for parties in the position of plaintiffs to have the dispute resolved in an orderly manner. To hold that they have access to no court is to hold that they have constitutional rights which have no remedy. Id. The Court declines to follow the Dry Creek exception. This is a simple contract dispute and raises no issues of constitutional magnitude. See Gila River Indian Community v. Henningson, Durham & Richardson, 626 F.2d 708, 714-15 (9th Cir.1980) (finding no federal jurisdiction for simple breach of contract claim brought by Tribe), and Mescalero Apache Tribe v. Martinez, 519 F.2d 479, 481 (10th Cir.1975) (same). It is doubtful that the Dry Creek exception is the law in this Circuit under any circumstances, but that remains to be determined. Plaintiff also argues that federal question jurisdiction exists for any contract dispute under the Indian Gaming Regulatory Act [IGRA], 25 U.S.C. § 2701 et seq. IGRA does not create a private cause of action for individuals. Tamiami Partners, Ltd. v. Miccosukee Tribe, 63 F.3d 1030, 1049 (11th Cir. 1995). Because I find the Court has no original or diversity jurisdiction in this matter, I do not reach the question of whether the Tribe may utilize the defense of sovereign immunity, except to comment briefly. The Eighth Circuit has held that nothing except an express waiver will satisfy the Supreme Court's mandate in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 1677, 56 L.Ed.2d 106 (1978), stating that a waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." American Indian Agric. Credit Consortium v. Standing Rock Sioux Tribe, 780 F.2d 1374, 1375 (8th Cir.1985). If this Court had jurisdiction, and if the Tribe was a private party, the facts of this case would create a strong case for the application of the doctrine of estoppel. The misrepresentations on the Credit Application which was signed by the general manager, that the Casino was incorporated by the State of South Dakota and that the general manager had authority to enter into contracts on behalf of the Casino would give support to an estoppel argument by a private party. However, the mandate of Santa Clara Pueblo is clear, and even if the facts supporting a finding of estoppel are present, as presupposed for purposes of this motion, estoppel is an insufficient basis from which to find that the Tribe expressly waived its sovereign immunity. I find that this Court does not have diversity jurisdiction over this contract dispute *203 and that there is no independent federal question jurisdiction. The dismissal of this action for lack of subject matter jurisdiction is without prejudice to the right of Plaintiff to pursue an action in the state courts of South Dakota as may be allowed by the applicable gaming compact between the Tribe and the State of South Dakota. Accordingly, IT IS ORDERED: that Defendant's Motion to Dismiss, Docket No. 3, is granted. JUDGMENT In accordance with the Memorandum Opinion and Order filed this date with the Clerk, IT IS ORDERED, ADJUDGED AND DECREED that Defendant's motion to dismiss is granted, and judgment shall be entered for Defendant and against Plaintiff, without prejudice. NOTES [1] Plaintiff states that the Tribe has apparently not formally organized under either Section 16 or Section 17 of the Indian Reorganization Act, and the documentation provided to Plaintiff, and, in turn, to the Court, does not contradict that statement. Doc. 7 at 5, Ex. F. Section 17 of the Indian Reorganization Act, 25 U.S.C. § 477, permits tribes to incorporate, and these corporate entities are then considered citizens of the state of their principal place of business for diversity purposes. Gaines v. Ski Apache, 8 F.3d 726, 729 (10th Cir.1993). Plaintiff argues that the Tribe should be estopped from making its case that the Tribe is not a corporation and not a citizen of a state for diversity purposes. Plaintiff argues that the Casino's general manager represented to Plaintiff on the Credit Application which was completed at the same time as the first contracts were executed that the Casino was a South Dakota corporation. Doc. 7 at Ex. C. Plaintiff argues that because Plaintiff relied upon the representation that the Casino was incorporated in South Dakota and Plaintiff's belief that, therefore, "the contracts could be enforced" at the time they completed the contracts, the Tribe should be estopped from using the defense that it is not a corporation. Doc. 7 at 6. [2] Pursuant to a Westlaw search of currently effective CFR sections. [3] The Tenth Circuit has further narrowed the Dry Creek II exception by applying it only "where plaintiff's rights had been egregiously violated and tribal remedies were wrongfully denied," Seneca-Cayuga Tribe of Okla. v. State, 874 F.2d 709, 715 n. 6 (10th Cir.1989), and basing its application "on the finding that no tribal court forum existed for the non-Indian party." Bank of Okla. v. Muscogee (Creek) Nation, 972 F.2d 1166, 1170 (10th Cir.1992). The Eighth Circuit has addressed the Dry Creek II decision only in passing. In Shortbull v. Looking Elk, the circuit court affirmed the district court's grant of summary judgment on the grounds that there is no private cause of action under the Indian Civil Rights Act. 677 F.2d 645, 650 (8th Cir.1982). The court merely compared the fact that the plaintiff had no remedy to the lack of a remedy in Dry Creek II. Id.

254 F.Supp.2d 174 (2003) Richard J. THOMAS, Petitioner v. UNITED STATES of America, Respondent No. 02-31-B-S. United States District Court, D. Maine. April 14, 2003. *176 Richard J. Thomas, Bangor, ME, Pro se. Stephen J. Turanchik, U.S. Department of Justice, Washington, DC, for Respondent. ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE SINGAL, Chief Judge. The United States Magistrate Judge filed with the Court on February 18, 2003 her Recommended Decision. The Petitioner filed his objection to #20 of the Recommended Decision on March 23, 2003 and Respondent filed its objections to Petitioner's Objection and to #20 of the Recommended *177 Decision on April 4, 2003. I have reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record; I have made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; and I concur with the recommendations of the United States Magistrate Judge for the reasons set forth in her Recommended Decision, and determine that no further proceeding is necessary. 1. It is therefore ORDERED that the Recommended Decision of the Magistrate Judge is hereby AFFIRMED. 2. The Court ORDERS as follows: Petitioner's Motions to Quash, Docket Nos. 3, 4, and 8 are DENIED. Petitioner's Motions to Quash, Docket No. 16 and so much of Docket No. 4 as relates to First Citizens Bank and United Kingfield Bank are DISMISSED based upon lack of jurisdiction. The United States' Motion to Dismiss (Docket No. 5) is DISMISSED as moot. The United States' Motion to Dismiss (Docket No. 17) relating to Jacy Richardson is GRANTED. The United States' Motions for Partial Enforcement (as to all entities except Trent Jones and the Ichabod Trust) are GRANTED (Docket Nos. 12 and 14). RECOMMENDED DECISION KRAVCHUK, United States Magistrate Judge. Internal Revenue Service ("IRS") Special Agent Debra Sousa is conducting an investigation into the federal income tax liabilities of Richard J. Thomas for the tax years 1995 through 2001. In due course Sousa issued summonses to various entities in furtherance of the investigation. Those summonses directed the third party record keepers to produce any and all records they held relating to Richard Thomas and all related entities, including Joan M. Thomas, Center for Natural Healing, Trent R. Jones, Trustee, Ichabod Trust, Three Crows Corporation, and Richard Thomas. Thomas has objected to those summonses by filing motions to quash the IRS summonses. The United States has responded to the motions to quash with both its objection thereto and its own motions to enforce the summonses and to dismiss petitioner's motions. I will provide a scorecard: Thomas's Motions to Quash Court File No. Date Filed Parties Served Docket No.3 September 16, 2002 Bangor FCU Bangor Savings Bank Banknorth NA Docket No.4 September 18, 2002 First Citizens Bank United Kingfield Bank Oppenheimerfunds First Albany Corp. Docket No.8 October 18, 2002 Sallie General Motors Acceptance Universal Card MBNA *178 Docket No. 16 November 29, 2002 Jacy Richardson The Government's Motions to Partially Enforce Summons and to Dismiss Motions to Quash[1] Court File No. Date Filed Involved Parties Docket No. 12 November 22, 2002 Sallie Mae General Motors Acceptance Universal Card MBNA Docket No. 14 November 22, 2002 Bangor FCU Bangor Savings Bank Banknorth NA First Citizens Bank United Kingfield Bank Oppenheimerfunds First Albany Corp. Docket No. 17 December 10, 2002 Jacy Richardson Motion to Dismiss only I now recommend that the Court Deny petitioner's motions to quash the summonses (Docket Nos. 3, 4, 8, & 16). I further recommend that the Court Grant the Internal Revenue Service's motions to partially enforce the summonses (Docket Nos. 12 & 14) and Grant its motion to dismiss the motion to quash relating to the summons issued to Jacy Richardson (Docket No. 17). I. The Motions to Quash[2] The United States concedes that the Internal Revenue Code (IRC) §§ 7609(b)(2)(A) and (c)(2)(E) generally permit a taxpayer to bring a proceeding to quash an IRS summons issued by a Special Agent pursuant to IRC § 7602 to a third-party record keeper. This court's jurisdiction to hear such a petition is found at § 7609(h). Section 7609(b)(2) which allows a proceeding such as this one has been construed as a waiver of sovereign immunity. Stringer v. United States, 776 F.2d 274, 275 (11th Cir.1985). Where a statutory scheme authorizes a claim against the United States and sets a time limit for filing that claim, the tribunal in which the claim is filed has jurisdiction only if the claim is filed within the time allowed. Clay v. United States, 199 F.3d 876, 879-81 (6th Cir.1999). Under § 7609(b)(2)(A) a taxpayer must "begin a proceeding to quash [the] summons not later than the 20th day after the day ... notice is given." Petitioner received notice of the summons to First Citizens Bank and United Kingfield Bank by certified mail to the *179 petitioner on August 27, 2002. He had twenty days, or until September 16, 2002, to file his motion. He filed it September 18, two days late, and this court therefore lacks jurisdiction to hear his motion as to First Citizens or United Kingfield Banks. As to those two entities the motion to quash should be dismissed for lack of jurisdiction. However, even if the court had jurisdiction to entertain the motions, they would fail for the same reasons as the motions to quash fail as to the other nine third-party record keepers. Thomas's three primary motions to quash all raise similar grounds. They are all captioned "Petition to Quash Third Party Summons Controverted by counter affidavit." The pleading itself, signed by Thomas under affirmation, is set forth in sixteen separate sections, ranging from a jurisdictional statement (HI) to a request for recovery of costs (1116). Sandwiched in between are fourteen separate claims that the IRS violated regulations, used improper forms, acted beyond its authority, and otherwise failed to comply with applicable statutory provisions and regulatory schemes. Thomas concludes with the affirmation "[a]ggrieved Party further states that Aggrieved Party has never operated in a regulated excise taxable source activity or industry." The United States has distilled nine separate and distinct arguments from Thomas's motions. In his reply to the United States' response Thomas does not dispute the United States characterization of his primary arguments but merely attempts to raise some new issues pertaining to Debra Sousa's Declaration filed in support of the motions seeking partial enforcement of the summonses. Therefore I will accept that the issues are as framed by the United States in its response (Docket No. 12 at 4; Docket No. 14 at 8). For the reasons set forth by the United States at pages 5 through 12(Docket No 12) and pages 9 through 15 (Docket No. 14), none of these arguments has any merit whatsoever. I see no need to rehash the points made therein. I do note that the gist of Thomas's various motions appears in large measure to rest upon his contention that the IRS has somehow exceeded its enforcement authority because he and his various business entities have never been involved in any activity relating to items that would be taxable under the Alcohol, Tobacco, and Firearms Division of the Treasury Department. That fact appears to be the genesis of his affirmation under oath. He argues that because there are regulations governing the issuance of summonses that are lodged under the authority of the Bureau of Alcohol, Tobacco, and Firearms of the Department of the Treasury, the IRS has no authority to issue summonses when conducting investigations of matters not related to alcohol, tobacco, or firearms. Thomas's argument is not novel and it has been rejected by numerous courts in the past. See, e.g., United States v. Streett, 791 F.Supp. 563, 568 (D.Md. 1992) ("The patent flaw in the argument is that the cited ATF regulations are not the exclusive source of the government's authority to issue summonses under § 7602 of the Code."). The IRS has both statutory and regulatory authority to issue summonses and the statutory authority granted by § 7602 extends to "any person." Id.; see also United States v. Stoecklin, 848 F.Supp. 1521, 1525 (M.D.Fla., 1994) (rejecting subject matter jurisdiction challenge mounted by a petitioner asserting that failure to promulgate specific regulations regarding summons pertaining to income tax was fatal and declaring "[regulatory embellishment is unnecessary because enforcement procedure is clearly set forth in the statutes," citing 26 U.S.C. § 7602 et seq.). It appears to me that in all material *180 respects the United States complied with the required statutory procedures. The motion to quash as to nine of the third party record keepers enumerated above should be denied and it should be dismissed as to two of the entities because it is not timely. II. The Motions to Enforce The IRS requests that this court issue an order compelling the enforcement of the summonses for the records relating to Richard Thomas, Joan Thomas, Center for Natural Healing and Three Crows Corporation.[3] To obtain judicial enforcement of a summons the IRS must establish: (1) the investigation is being conducted for a legitimate purpose; (2) the inquiry may be relevant to that purpose; (3) the information sought is not already in the IRS's possession; and (4) the administrative steps required by the IRC have been followed. United States v. Powell, 379 U.S. 48, 57 -58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964). To establish a prima facie case for enforcement, the IRS need do no more than file an affidavit of an agent involved in the investigation setting forth good faith compliance with the Powell requirements. See United States v. Dynavac, Inc., 6 F.3d 1407, 1414 (9th Cir.1993); United States v. Medlin, 986 F.2d 463, 466 (11th Cir.1993); Hintze v. IRS, 879 F.2d 121, 126 (4th Cir.1989), overruled on other grounds by Church of Scientology of Col. v. United States, 506 U.S. 9, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992); accord United States v. Gertner, 65 F.3d 963, 966 (1st Cir.1995) ("[T]he IRS must make a prima facie showing that it is acting in good faith and for a lawful purpose. This burden is not taxing, so to speak. Courts repeatedly have confirmed that an affidavit of the investigating agent attesting to satisfaction of the four Powell elements is itself adequate to make the requisite prima facie showing."). The First Circuit explained in Gertner: "Once this minimal showing has been made, the burden shifts to the taxpayer to rebut the good-faith presumption that arises in consequence of the government's prima facie case." 65 F.3d at 967. The taxpayer is not required to conclusively disprove the prima facie case, but he must cite some significant facts or otherwise bring to light some serious weaknesses in the government's proffer before the court will hold an evidentiary hearing or otherwise be called upon to weigh the facts and draw the appropriate inferences. Id. If the taxpayer does not raise these substantial questions in the court's mind, the government's affidavit will carry the day. Id. Applying the Powell framework to the case before me, it becomes readily apparent that the IRS is entitled to an order enforcing its summonses. The affidavit of Debra Sousa, special agent for the IRS, filed in support of the IRS motion, is a classic example of compliance with the barebones requirements, albeit in a conclusory fashion. However, the affidavit does establish all of the necessary prerequisites. Sousa explains that she is conducting an investigation of Thomas connected with the administration or enforcement of the internal revenue laws for the tax years in question and there has been no Justice Department referral for the tax years in question, that is, its investigation is being conducted for a proper purpose. She further advises that the records she seeks are for Thomas and his related family member and/or business entities and that she has served the summons on his creditors or other third parties with whom he has had *181 financial dealings, that is, the information sought may be relevant to the investigation. Sousa averred in H 15 that the IRS did not already have in its possession the information sought by the summons, satisfying the third of the Powell requirements. Finally Sousa maintains that all of the procedural requirements of the IRC have been met, with the exception that notice of the summonses was not provided to Trent R. Jones or the Ichabod Trust and enforcement is not sought as to those entities, thus satisfying the fourth and final Powell requirement. In his answer to the motion to dismiss Thomas has attempted to meet his burden and rebut the showing made in the affidavit. (Docket No. 19.) He claims that Debra Sousa has failed to produce any bona fide evidence that she is in fact a special agent. To the contrary she has produced such evidence through her affidavit. He also complains of perceived procedural irregularities and reiterates his unsupported claim that Sousa must spell out in her affidavit exactly what facts she intends to uncover. He also claims that some of the years sought may be beyond applicable statutes of limitation. Assuming such is the case, the requirement is that the information sought be relevant and there is no reason given as to why the records from those years would not be relevant to a determination of tax liability. Mystifyingly, Thomas also suggests that "the IMFOLT indicates that there is a criminal investigation. (Exhibit "E") The Transaction Code 914 indicates such investigation." I gather that this statement is in opposition to Sousa's sworn statement denying a referral to the Justice Department. A couple of problems arise: (1) Thomas's averment is not by way of affidavit; (2) his supporting documentation (Exhibit "E") consists of eight pages of printed out data identified as an IMF Tax Module and completely indecipherable to me; and (3) the significance of transaction code 914 is an unknown. Thomas has not met the burden of producing any significant facts that would raise a substantial question in my mind about the validity of agent Sousa's stated purpose. I would recommend that the court grant the IRS's motion for partial enforcement. I would further recommend that to the extent the IRS requests that the order granting partial enforcement be reduced to a particular form, it should be required to submit a proposed order or orders within ten days of the entry of an order affirming this recommended decision, if such an affirmation issues. III. The Jacy Richardson Summons On November 18, 2002, Special Agent Debra Sousa served an IRS summons on Jacy Richardson seeking records relating to Three Crows Corporation. Neither Three Crows Corporation nor Jacy Richardson have ever entered an appearance in this court. Richard Thomas filed a motion to quash the subpoena served on Jacy Richardson, using the same format and raising the same arguments as in his earlier motions to quash. (Docket No. 16). The United States responded by filing a motion to dismiss asserting that Thomas lacked standing to bring such a motion. (Docket No. 17.) The United States' argument was grounded on the notion that Jacy Richardson is not a third-party record keeper within the statutory definition and therefore Thomas lacked standing to bring a motion to quash and the court lacks jurisdiction to quash the summons. Pursuant to 26 U.S.C. § 7603(b)(2)(A)-(J) there are ten categories of entities that are identified as "third-party recordkeepers." These entities include banks and credit unions, attorneys, accountants, securities brokers, and developers of computer software source code, among others. The predominant characteristic *182 of these third-party record keepers is that they all keep records involving transactions between the taxpayer and parties other than the third-party recordkeeper. Upton v. IRS, 104 F.3d 543, 546-47 (2nd Cir.1997). Other entities that may have information pertaining to a taxpayer, such as employers or academic institutions, do not fall within any of the statutorily enumerated categories. The significance of being a third-party recordkeeper is that a taxpayer is only entitled to notice and given the right to intervene and prevent disclosure under § 7609 when records are sought from a third-party recordkeeper. There is no right to sue the United States in the absence of a waiver of its sovereign immunity and the statute waiving that immunity has no applicability if the summons was not issued to a third-party recordkeeper. Gilmartin v. IRS, 174 F.Supp.2d 117,119 (S.D.N.Y.2001). Mercifully the United States does not move for the enforcement of this summons. The unfortunate corollary is that there is no affidavit or other indication in the file to assist me in determining who Jacy Richardson is and what she has to do with this case. I can make an educated guess that she might be a clerk of the Three Crows Corporation based upon the fact that the summons requests corporate records. I also know that she is a notary because she acknowledged Thomas's signature on his pleadings. However, those facts do not confer standing on Thomas to proceed under § 7609 nor do they give this court jurisdiction to proceed pursuant to § 7609 and Thomas invokes this court's jurisdiction pursuant to that provision. (Docket No. 16 at 2). Based upon these circumstances I recommend that the court grant the United States' motion to dismiss. Conclusion In summary I recommend that the court dispose of the eight pending motions as follows: Petitioner's Motions to Quash, Docket Nos. 3, 4, and 8 are DENIED. Petitioner's Motions to Quash, Docket No. 16 and so much of Docket No. 4 as relates to First Citizens Bank and United Kingfield Bank are DISMISSED based upon lack of jurisdiction. The United States' Motion to Dismiss (Docket No. 5) is DISMISSED as moot. The United States' Motion to Dismiss (Docket No. 17) relating to Jacy Richardson is GRANTED. The United States' Motions for Partial Enforcement (as to all entities except Trent Jones and the Ichabod Trust) are GRANTED (Docket Nos. 12 and 14). If the United States requests that the order[s] granting partial enforcement be reduce to a specific form, they should be required to file a proposed order within ten days of the court's decision on this matter.[4] NOTICE A party may file objections to those specified portions of a magistrate judge's report or proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought, together with a supporting memorandum, within ten (10) days of being *183 served with a copy thereof. A responsive memorandum shall be filed within ten (10) days after the filing of the objection. Failure to file a timely objection shall constitute a waiver of the right to de novo review by the district court and to appeal the district court's order. February 14, 2003. NOTES [1] In addition to these motions, the United States also filed an earlier Motion to Dismiss (Docket No. 5). That motion, unaccompanied by any memorandum of law, relates to an earlier motion to quash filed by Thomas. (Docket No. 1.) The issues raised by those pleadings were resolved by the Court by order dated November 15, 2002. (Docket No. 11.) Therefore Docket No. 5 is DISMISSED as moot. [2] In this portion of the recommended decision I address only the first three of the motions to quash. The fourth motion to quash relates to the Jacy Richardson summons and it is addressed separately in Part III of this decision. [3] The United States is not, at this time, seeking enforcement of the summonses as they relate to Trent R. Jones or the Ichabod Trust because Jones did not receive notice of the summons. [4] I include this proviso because in some of the cases granting enforcement the court has directed the government to submit a proposed order. See, e.g., United States v. Streett, 791 F.Supp. 563 (D.Md.1992). It is unclear to me why the District Court's memorandum of decision and order would not be sufficient to accomplish the necessary enforcement of the summons, but to the extent an additional and supplemental order is required, the government should submit its proposal with the necessary explanation.

10-2797-ag Wu v. Holder 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 12th day of January, two thousand twelve. PRESENT: DENNIS JACOBS, Chief Judge, JON O. NEWMAN, PIERRE N. LEVAL, Circuit Judges. _______________________________________ XIU QIN HUANG v. HOLDER,1 08-5530-ag A077 958 016 _______________________________________ YAO LING WANG, XIAO GAO v. HOLDER, 10-291-ag A088 378 231 A088 378 232 _______________________________________ XUE QIN LIN v. U.S. DEP’T OF JUSTICE, ERIC H. HOLDER, JR., 10-321-ag A099 083 219 1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted as respondent where necessary. 09262011-1-28 ZHONG LIN JIANG v. HOLDER, 10-460-ag A099 697 058 _______________________________________ YUE JIN LIU v. HOLDER, 10-843-ag A088 530 507 _______________________________________ QIN LIN v. HOLDER, 10-923-ag A088 377 936 _______________________________________ YING WANG v. HOLDER, 10-947-ag A088 378 141 _______________________________________ JIAN XIN GAO v. HOLDER, 10-1022-ag A089 253 260 _______________________________________ XIU QIN CHEN v. HOLDER, 10-1031-ag A098 480 124 _______________________________________ XIAO JING XIA, CHANG GUANG DONG v. HOLDER, 10-1036-ag A098 973 227 A098 902 360 _______________________________________ YIN YING CAO v. HOLDER, 10-1171-ag A099 927 142 _______________________________________ MEI RU LIN v. HOLDER, 10-1268-ag A098 279 231 ___________________________ XIU FANG CHEN, A.K.A. JIN FANG CHEN v. HOLDER, 10-1291-ag A088 380 456 _______________________________________ 09262011-1-28 -2- MEI ZHU LIN v. HOLDER, 10-1292-ag A093 396 857 _______________________________________ ZHU CHAO WANG v. HOLDER, 10-1293-ag A089 253 373 _______________________________________ QIN PING LIN, FEI GUAN v. HOLDER, 10-1422-ag A090 347 257 A090 347 258 _______________________________________ LIN FEI XIE v. HOLDER, 10-1424-ag A099 683 978 _______________________________________ AI QIN SHI, A.K.A. XI LEI YANG, YONG JIE LIU v. HOLDER, 10-1837-ag A089 252 403 A089 252 404 _______________________________________ XIU JIANG HUANG v. HOLDER, 10-1895-ag A088 524 966 _______________________________________ YU PING BAO v. HOLDER, 10-1902-ag (L); A098 419 779 11-843-ag (Con) _______________________________________ YONG CHEN v. HOLDER, 10-1998-ag A070 898 117 _______________________________________ XUE M. ZHENG v. HOLDER, 10-2013-ag A088 530 523 _______________________________________ XIAODAN XU v. HOLDER, 10-2249-ag A099 424 976 _______________________________________ 09262011-1-28 -3- QIAO RONG LIN v. HOLDER, 10-2400-ag A099 927 241 _______________________________________ SAIHU WANG v. HOLDER, 10-2656-ag A096 808 755 _______________________________________ JIANDAN WU, ZHIXIANG CHENG v. HOLDER, 10-2797-ag A088 552 425 A099 186 862 _______________________________________ QIU YUN NI v. HOLDER 10-3336-ag A089 253 069 _______________________________________ UPON DUE CONSIDERATION of these petitions for review of Board of Immigration Appeals (“BIA”) decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petitions for review are DENIED. Each of these petitions challenges a decision of the BIA either affirming the decision of an immigration judge (“IJ”) denying asylum and related relief or reversing the IJ’s decision granting relief. Some of the petitioners2 also challenge decisions of the BIA denying motions to remand or reopen. The applicable standards of review are well- 2 The Petitioners in Zhong Lin Jiang v. Holder, No. 10-460-ag; Qin Lin v. Holder, No. 10-923-ag; and Yu Ping Bao v. Holder, Nos. 10-1902-ag (L), 11-843-ag (Con). 09262011-1-28 -4- established. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 157- 58, 168-69 (2d Cir. 2008). Petitioners, all natives and citizens of China, sought relief from removal based on their claims that they fear persecution because they have had one or more children in violation of China’s population control program. For largely the same reasons as this Court set forth in Jian Hui Shao, 546 F.3d 138, we find no error in the agency’s decisions. See id. at 158-72. While the petitioners in Jian Hui Shao were from Fujian Province, as are most of the petitioners here, some petitioners3 are from Zhejiang Province. Regardless, as with the evidence discussed in Jian Hui Shao, the evidence they have submitted relating to Zhejiang Province is deficient either because it does not discuss forced sterilizations or because it references isolated incidents of persecution of individuals who are not similarly situated to the petitioners. See id. at 160-61, 171-72. 3 The petitioners in Xiao Jing Xia, Chang Guang Dong v. Holder, No. 10-1036-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Saihu Wang v. Holder, No. 10-2656-ag; and Jiandan Wu, Zhixiang Cheng v. Holder, No. 10-2797-ag. 09262011-1-28 -5-  Some of the petitioners4 argue that the BIA erred by improperly conducting de novo review of determinations made by an IJ. Many of them rely on a decision of the Third Circuit, ruling, in the context of a claim under the Convention Against Torture (“CAT”), that, although the BIA may review de novo conclusions of law as to whether the facts found satisfy a particular legal standard, it must employ a clear error standard in reviewing findings of fact, including predictions of future events. See Kaplun v. Attorney General, 602 F.3d 260 (3d Cir. 2010). Their claims lack merit. The BIA has not reviewed de novo any of the IJs’ factual findings. Instead, the BIA has concluded, on de novo review, that the factual findings do not meet the legal standard of an objectively reasonable fear of persecution, in these cases, a fear of forced sterilization or economic persecution. That approach is entirely consistent with the applicable regulation, 8 C.F.R. § 1003.1(d)(3). See Jian Hui Shao, 546 F.3d at 162-63 (concluding that the BIA did not erroneously conduct de novo 4 The petitioners in Zhong Lin Jiang v. Holder, No. 10-460-ag; Yue Jin Liu v. Holder, No. 10-843-ag; Yin Ying Cao v. Holder, No. 10-1171-ag; Xiu Fang Chen v. Holder, No. 10-1291-ag; Mei Zhu Lin v. Holder, No. 10-1292-ag; Qin Ping Lin, Fei Guan v. Holder, No. 10- 1422-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Ai Qin Shi, Yong Jie Liu v. Holder, No. 10-1837-ag; Xiu Jiang Huang v. Holder, No. 10-1895-ag; Yu Ping Bao v. Holder, Nos. 10-1902-ag (L), 11-843-ag (Con); Yong Chen v. Holder, No. 10-1998-ag; and Qiu Yun Ni v. Holder, No. 10-3336-ag. 09262011-1-28 -6- review of the IJ’s factual findings by making “a legal determination that, while [petitioners’] credible testimony was sufficient to demonstrate a genuine subjective fear of future persecution, more was needed to demonstrate the objective reasonableness of that fear”). Some of the petitioners5 argue that the BIA failed to give sufficient consideration to the statement of Jin Fu Chen, who alleged that he suffered forced sterilization after his return to China based on the births of his two children in Japan. A prior panel of this Court has remanded a petition making a similar claim so that Jin Fu Chen’s statement (which was submitted to the BIA after a remand) could be considered by the IJ. See Zheng v. Holder, No. 07-3970-ag (2d Cir. Jan. 15, 2010). Since the remand in Zheng, the BIA has repeatedly concluded that Jin Fu Chen’s statement does not support a claim of a well-founded fear of persecution. Accordingly, it is clear that further consideration of the statement in cases 5 The petitioners in Xiu Qin Huang v. Holder, No. 08-5530-ag; Zhong Lin Jiang v. Holder, No. 10-460-ag; Yue Jin Liu v. Holder, No. 10-843-ag; Xiao Jing Xia, Chang Guang Dong v. Holder, No. 10- 1036-ag; Yin Ying Cao v. Holder, No. 10-1171-ag; Xiu Fang Chen v. Holder, No. 10-1291-ag; Mei Zhu Lin v. Holder, No. 10-1292-ag; Zhu Chao Wang v. Holder, No. 10-1293-ag; Qin Ping Lin, Fei Guan v. Holder, No. 10-1422-ag; Lin Fei Xie v. Holder, No. 10-1424-ag; Ai Qin Shi, Yong Jie Liu v. Holder, No. 10-1837-ag; Xiu Jiang Huang v. Holder, No. 10-1895-ag; Yong Chen v. Holder, No. 10-1998-ag; and Qiao Rong Lin v. Holder, No. 10-2400-ag. 09262011-1-28 -7- in which the IJ or the BIA failed to consider it would not change the result. See Shunfu Li v. Mukasey, 529 F.3d 141, 150 (2d Cir. 2008). Furthermore, the agency’s conclusion concerning the probative force of the statement was not in error. Similarly, contrary to the argument raised in five of these cases,6 it would be futile to remand for further consideration of the statements of Mei Yun Chen and Jiangzhen Chen, women claiming to have been forcibly sterilized in Fujian Province for violating the family planning policy with the birth of their second children in Romania and Japan respectively, because the BIA has reasonably found that neither woman is similarly situated to Chinese nationals returning to China with U.S. citizen children. See id.; see also Jian Hui Shao, 546 F.3d at 155, 161, 171-72. We are without jurisdiction to consider two of the petitions7 to the extent they seek review of the agency’s pretermission of petitioners’ applications for asylum as untimely. See 8 U.S.C. § 1158(a)(3). 6 In Yue Jin Liu v. Holder, No. 10-843-ag; Zhu Chao Wang v. Holder, No. 10-1293-ag; Qin Ping Lin, Fei Guan v. Holder, 10-1422- ag; Ai Qin Shi, Yong Jie Liu v. Holder, No. 10-1837-ag; and Yong Chen v. Holder, No. 10-1998-ag. 7 The petitions in Qin Lin v. Holder, No. 10-923-ag; and Ying Wang v. Holder, No. 10-947-ag. 09262011-1-28 -8-  In Xiu Qin Huang v. Holder, No. 08-5530-ag, the agency reasonably relied on 2006 and 2007 U.S. Department of State reports as opposed to the outdated 1997 Tantou Town Family Planning Temporary Regulations petitioner submitted. See Jian Hui Shao, 546 F.3d at 166. Moreover, it does not appear that the Tantou Town Regulations were material to petitioner’s case because the record evidence indicated that she resided and feared persecution in Hunan Town and not Tantou Town. Although petitioner refers to Tantou Town as her “hometown” in her brief, unsworn statements in a brief are not evidence. See Kulhawik v. Holder, 596 F.3d 296, 298 (2d Cir. 2009). In Zhong Lin Jiang v. Holder, No. 10-460-ag, the BIA did not err in declining to address the evidence petitioner submitted for the first time on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv); see also Matter of Fedorenko, 19 I. & N. Dec. 57, 74 (BIA 1984). Regardless, the evidence submitted was largely cumulative of the evidence in the record and not materially distinguishable from the evidence discussed in Jian Hui Shao. In Qin Lin v. Holder, No. 10-923-ag, the BIA similarly did not err when it denied petitioner’s motion to remand based on her failure to establish her prima facie eligibility for relief. See Li Yong Cao v. U.S. Dep’t of 09262011-1-28 -9- Justice, 421 F.3d 149, 156 (2d Cir. 2005); see also Jian Hui Shao, 546 F.3d at 165, 172. In Ying Wang v. Holder, No. 10-947-ag, the agency reasonably found speculative the petitioner’s claimed fear that she would face persecution based on her intent to join an unregistered church in China. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005); see also Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). In Mei Ru Lin v. Holder, No. 10-1268-ag, we do not consider petitioner’s unexhausted past persecution claim. See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004). In Zhu Chao Wang v. Holder, No. 10-1293-ag, the IJ did not abuse his discretion by declining to admit petitioner’s late-filed evidence because that evidence pre-dated the hearing at which he closed the record. See Dedji v. Mukasey, 525 F.3d 187, 191 (2d Cir. 2008). In Yu Ping Bao v. Holder, Nos. 1902-ag (L), 11-843-ag (Con), the BIA did not err in finding that the petitioner failed to establish her prima facie eligibility for relief based on her newly commenced practice of Falun Gong in the United States because she did not submit evidence that authorities in China are aware of or likely to become aware of her activities in the United States. See Hongsheng Leng, 528 F.3d at 143. 09262011-1-28 -10-  Finally, in Jiandan Wu, Zhixiang Cheng v. Holder, No. 10- 2797-ag, petitioners assert the BIA, in ruling that they failed to satisfy the exceptional and extremely unusual hardship requirement, erroneously minimized the impact their removal would have on their U.S. citizen children. The contention is both ineffective and moot. It is ineffective because the challenged decision was discretionary and did not involve a question of law or constitutional claim; our court is therefore without jurisdiction to review it. See Mendez v. Holder, 566 F.3d 316, 319-23 (2d Cir. 2009) (citing 8 U.S.C. § 1252(a)(2)(B); Barco-Sandoval v. Gonzales, 51 6 F.3d 35, 39 (2d Cir. 2008). The contention is in addition moot because the agency also dispositively denied cancellation of removal, which decision petitioners have not challenged (and which we, in any event, would lack jurisdiction to review because it was a discretionary decision not involving a question of law or constitutional claim. See id.). For the foregoing reasons, these petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral 09262011-1-28 -11- argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). FOR THE COURT: Catherine O’Hagan Wolfe, Clerk 09262011-1-28 -12- 

891 F.2d 279 Bank of America National Trust and Savings Associationv.Hotel Rittenhouse Associates, Wolgin (Jack L.), Jack L.Wolgin Associates, Inc., Wolgin (Muriel) NO. 89-1502 United States Court of Appeals,Third Circuit. NOV 22, 1989 Appeal From: E.D.Pa., Broderick, J. 1 AFFIRMED.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-4961 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus JOSEPH DOUGLAS WEBB, JR., Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry F. Floyd, District Judge. (7:05-cr-00972) Submitted: March 22, 2007 Decided: March 28, 2007 Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. David W. Plowden, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. Elizabeth Jean Howard, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joseph Douglas Webb, Jr., pled guilty to being a felon in possession of a firearm. He was sentenced to thirty-seven months in prison. On appeal, Webb’s attorney has filed an Anders* brief, stating that there are no meritorious issues for appeal, but questioning whether Webb’s sentence was reasonable. Although Webb was informed of his right to file a pro se supplemental brief, he has not done so. Before determining a sentence, the district court is required to calculate and consider the appropriate guideline range, as well as the factors set forth in 18 U.S.C. § 3553(a) (2000). United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). We will affirm a sentence if it is both reasonable and within the statutorily prescribed range. Id. at 546-47. Here, the district court calculated a guideline range of 37-46 months, to which Webb had no objection. The court then heard from counsel, Webb, and Webb’s fiancee regarding Webb’s success in school, his work history, his drug problems, and his family responsibilities. After stating that it had considered the guideline range and the relevant statutory sentencing factors, the district court imposed a sentence well below the statutory maximum and at the bottom of the guideline range. We find that the sentence was reasonable. * Anders v. California, 386 U.S. 738 (1967). - 2 -  In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm Webb’s conviction and sentence. This court requires that counsel inform his client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on the client. 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 - 

NO. 07-10-00476-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D -------------------------------------------------------------------------------- AUGUST 19, 2011 -------------------------------------------------------------------------------- IN THE INTEREST OF S.J.P.P., A CHILD -------------------------------------------------------------------------------- FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY; NO. 2010-551,141; HONORABLE JUDY C. PARKER, JUDGE -------------------------------------------------------------------------------- Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Bill, appeals from the trial court's order terminating his parental rights to his child, S.J.P.P. He presents two issues. We will overrule his issues and affirm the judgment of the trial court. Background Bill and Daniele were married and had a son, S.J.P.P, born in May 2003. The parties divorced in January 2005. At that time, Bill was named possessory conservator, was not ordered to pay child support, and had visitation at any time mutually agreed by the parties. At the time of the divorce, both parties were incarcerated for forgery of the same check. Daniele was sentenced to one year and Bill to 15 years. On April 13, 2010, Daniele filed a petition to terminate Bill's parental rights and to change the child's name. In that petition, Daniele alleged Bill's parental rights should be terminated under subsections (F), (H) and (Q) of Family Code § 161.001(1). Tex. Fam. Code Ann. § 161.001(1)(F), (H), (Q) (West 2009). A hearing was held on the petition on October 5, 2010. Bill's request for a bench warrant to attend the hearing was denied but he participated via telephone. At the hearing, the court heard testimony that Daniele took S.J.P.P. to see Bill while he was in prison but the visits ended when the child was five months old. Since then, Bill has continually written to his son, making effort to stay in contact with him. He also took several educational and behavior modification classes while incarcerated, including a gang renouncement class, parenting classes, anger management classes, and four substance abuse classes. He also became a certified painter, estimator and appraiser and worked toward an associate's degree in business administration. He has a job prospect when he is released that will earn him $3000 per month. In April 2010, he was required to, and did take, a "Changes One" class. This class is a prerequisite for being released on parole and, according to Bill, may be taken only when release is expected within two years. The court concluded the hearing without ruling and later issued a letter ruling, followed by an order, terminating Bill's parental rights under § 161.001(1)(Q). It is from that order Bill now appeals. Analysis By his two issues on appeal, Bill argues the evidence presented at the hearing was legally and factually insufficient to support termination of his parental rights under Family Code § 161.001(1)(Q) because he presented evidence showing he would be paroled before the expiration of that subsection's two-year period and showing he would be able to care for S.J.P.P. during his incarceration. The natural right that exists between parents and their children is one of constitutional dimension. In re J.W.T., 872 S.W.2d 189, 194-95 (Tex. 1994). A parent's right to "the companionship, care, custody and management" of his children is a constitutional interest "far more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982) (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)). Therefore, in a case terminating parental rights, the proceedings are strictly scrutinized, and the involuntary termination statutes are strictly construed in favor of the parent. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Termination of parental rights is a drastic remedy and is of such weight and gravity that due process requires the petitioner to justify termination by "clear and convincing evidence." Spangler v. Texas Dept. of Prot. & Reg. Servs., 962 S.W.2d 253, 256 (Tex. App.-- Waco 1998, no pet.). This standard is defined as "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Id.; Tex. Fam. Code Ann. § 161.001 et. seq (West 2010). In a proceeding to terminate the parent-child relationship brought under section 161.001 of the Texas Family Code, the movant must establish by clear and convincing evidence two elements: (1) one or more acts or omissions enumerated under subsection (1) of section 161.001 and (2) that termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (West 2010); Swate v. Swate, 72 S.W.3d 763, 766 (Tex.App.-- Waco 2002, pet. denied). The factfinder must find that both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Swate, 72 S.W.3d at 766. In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In this context, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. In determining a factual-sufficiency point, the higher burden of proof in termination cases also alters the appellate standard of review. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). "[A] finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance." Id. at 25. In considering whether evidence rises to the level of being clear and convincing, we must consider whether the evidence is sufficient to reasonably form in the mind of the factfinder a firm belief or conviction as to the truth of the allegation sought to be established. Id. We consider whether disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. "If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient." Id. Subsection 161.001(1)(Q) allows termination of parental rights when a parent knowingly has engaged in criminal conduct, resulting in the parent's conviction of an offense, and the parent is both incarcerated and unable to care for the child for at least two years from the date the termination petition was filed. Tex. Fam. Code Ann. § 161.001(1)(Q) (West 2010). Incarceration and a parent's inability to provide care are separate requirements for termination of parental rights under subsection 161.001(1)(Q)(ii). In re E.S.S., 131 S.W.3d 632, 639 (Tex. App.-- Fort Worth 2004, no pet.); In re B.M.R., 84 S.W.3d 814, 818 (Tex. App.-- Houston [1st Dist.] 2002, no pet.). Subsection Q's two-year time period applies prospectively. In re A.V., 113 S.W.3d 355, 360 (Tex. 2003). That Bill knowingly engaged in criminal conduct and was convicted and incarcerated is not disputed. Bill's challenge focuses on the evidence his incarceration will continue for at least two years from the date the termination petition was filed, that is, until April 13, 2012, and that he will be unable to care for his son during that time. Tex. Fam. Code Ann. § 161.001(1)(Q). Bill testified he would be considered for parole in July 2011. He also acknowledged he was denied parole in July 2010 and his long-term projected release date is March 5, 2018. A letter from the Texas Department of Corrections was admitted into evidence, confirming this information. As noted, Bill testified he participated in a pre-release class in which only inmates expected to be released within two years may participate. He attributed his denial of parole in July 2010 to the fact he then had not yet completed the pre-release class. Evidence of the availability of parole is relevant to determine whether the parent will be released within two years of the date the termination petition was filed. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006) (per curiam). However, mere introduction of parole-related evidence does not prevent a fact-finder from forming a firm conviction or belief that the parent will remain incarcerated for at least two years. Id. Parole decisions are inherently speculative, and while all inmates doubtless hope for early release and can take positive steps to improve their odds, the decision rests entirely with the parole board. Id. Evidence of participation in a pre-release program available to inmates within two years of parole does not preclude a finding the parent will remain incarcerated. Id. While the evidence illustrated the possibility of Bill's release prior to April 13, 2012, as the court determined on a similar record in H.R.M., such evidence did not prevent the trial court from forming a firm belief or conviction he would remain incarcerated after that date. H.R.M., 209 S.W.3d at 109. The trial court was free to credit and give greater weight to the facts Bill was serving a 15-year sentence, had once been denied parole, and had a projected release date of March 5, 2018. Id. Viewing the evidence under the proper standards, we find the evidence before the trial court was sufficient to permit the court to form a firm conviction or belief Bill would remain incarcerated until at least April 13, 2012. We find the evidence similarly sufficient that Bill would be unable to care for his son during his incarceration. We note initially that the requirement of showing an inability to care for a child is not met by evidence of incarceration alone. In re Caballero, 53 S.W.3d 391, 396 (Tex.App. -- Amarillo 2001, pet. denied) (addressing term "care" in subsection (Q)). At the same time, evidence that the child resides with his mother does not preclude a finding Bill is unable to provide for him. See H.R.M., 209 S.W.3d at 110 (absent evidence non-incarcerated parent agreed to care for child on behalf of incarcerated parent, merely leaving child with non-incarcerated parent does not constitute ability to provide care). Courts have determined that the factors to be considered when deciding whether an incarcerated parent is unable to care for a child include the availability of financial and emotional support. See, e.g., In re B.M.R., 84 S.W.3d 814, 818 (Tex.App. -- Houston [1[st] Dist.] 2002, no pet.). Holding that subsection Q applies prospectively rather than retroactively, the court in A.V., described its aim as ensuring "that the child will not be neglected," because a parent "will be unable to provide for" the child during incarceration. A.V., 113 S.W.3d at 360. Daniele testified Bill never provided support to S.J.P.P. She testified she alone supported their son and Bill was not ordered to pay child support. Bill acknowledges that until he is released, he has neither the means to provide financial support to his son nor anyone willing to care for S.J.P.P. in his stead. Bill has not seen his child since S.J.P.P. was five months old. Bill argues on appeal, however, that he stayed in contact with S.J.P.P. by writing letters to him and thus provided him emotional support. He highlights his effort to maintain contact, including filing a motion for enforcement at one point, seeking to obtain a mailing address for his son. While Bill is correct that emotional support is an important element of care for a child, the concept of "care" in subsection Q clearly involves more than emotional support. Caballero, 53 S.W.3d at 396. The evidence to which Bill points speaks not at all, for example, to how S.J.P.P. will be fed, clothed, sheltered, or educated until Bill is released, or how the boy will be ensured the presence of nurturing adults. See In re E.S.S., 131 S.W.3d at 640 (incarcerated parent proposed mother and brother as possessory conservators with visitation rights). We overrule Bill's challenges to the sufficiency of the evidence termination was warranted under Family Code § 161.001(1)(Q). As noted, Bill does not challenge the court's finding that termination was in his son's best interest. Accordingly, we affirm the judgment of the trial court. James T. Campbell Justice

98 Cal.App.3d 745 (1979) 159 Cal. Rptr. 762 CITY OF LOS ANGELES et al., Plaintiffs and Respondents, v. AL SILVER et al., Defendants and Appellants. Docket No. 56317. Court of Appeals of California, Second District, Division Two. November 14, 1979. *747 COUNSEL Jonathan K. Golden for Defendants and Appellants. Burt Pines, City Attorney, William B. Burge, Assistant City Attorney, and Claudia McGee Henry, Deputy City Attorney, for Plaintiffs and Respondents. OPINION ROTH, P.J. In July of 1977, appellant began operation of an amusement center known as "Rock City" located at 7001 Hollywood Boulevard in the City of Los Angeles, part of an area designated for zoning purposes as "C4." At its inception, the center's business inventory consisted of some 28 coin-operated game machines of the pinball or *748 electronic variety. Within days of its opening, the Los Angeles Department of Building and Safety issued its order to discontinue the venture's operation because it was in contravention of Los Angeles Municipal Code (L.A.M.C.) section 12.16.[1] When the order was not complied with, a criminal complaint was filed against appellants on September 14, 1977, for violation of the section, and on May 25, 1978, they were found guilty of the charge. By this time more than 60 machines of the type described had been installed and that number increased to some 118 operating on a 24-hour day, 7 days a week, basis by July 13 the same year, when respondent city filed its complaint below for an injunction against continued code violation.[2] On September 12, 1978, a preliminary injunction was issued by the trial court which provided: "IT IS ORDERED that during the pendency of this action or until further order of the Court, defendants Al Silver and Kathryn Silver, their agents, officers, employees, and representatives, and all persons acting in concert with or participating with them are hereby enjoined from engaging in, or performing any and all of the following: a) Maintaining the amusement enterprise known as "Rock City," located at 7001-03 Hollywood Boulevard (hereafter called premises) in the City of Los Angeles, in violation of any provisions of law. b) Using the premises for the maintenance and operation of a penny arcade, to wit an amusement center where coin operated devices for entertainment are made available to members of the public; c) Using the premises for the maintenance and operation of games of skill and science including any games where consideration is paid by a player for the right to play or participate in a game; pinball machines; football game machines; electronic games; and any other coin operated amusement games; and d) Using the premises in violation of the provisions of Section 12.16 of the Los Angeles Municipal Code." *749 After the injunction likewise was ignored, appellant Al Silver was adjudged guilty of contempt at a hearing held for that purpose on November 7, 8 and 9, 1978, and he was sentenced to 45 days in jail, with the proviso that if after serving 5 days he agreed to cause cessation of the activity described in the injunction the remainder of the sentence would be suspended. When that agreement failed to be entered upon and the business continued as before, the trial court on December 22 the same year, following notice and hearing, issued its order restating the provisions of the preliminary injunction and further directing the Los Angeles Police Department to remove "all coin operated devices for entertainment which are made available on the [business] premises to members of the public." That directive was executed and the items referred to were seized. Both the order granting the initial preliminary injunction and that which revised it in the fashion described are the subjects of this appeal. For the purposes of our disposition herein, the issues are: 1. Whether the coin-operated game machines at Rock City are games of "skill and science" within the meaning of L.A.M.C. section 12.16. 2. Whether Rock City is a "penny arcade" under the same section. 3. Whether the order directing removal of the machines was properly granted. (1), (2) Respondents advance pertinent legal propositions reiterated by Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 460, [202 P.2d 38, 7 A.L.R.2d 990], which are not controverted by appellants, namely, that: "It is well settled that a municipality may divide land into districts and prescribe regulations governing the uses permitted therein, and that zoning ordinances, when reasonable in object and not arbitrary in operation, constitute a justifiable exercise of police power. (Wilkins v. City of San Bernardino, 29 Cal.2d 332, 337 [175 P.2d 542]; Acker v. Baldwin, 18 Cal.2d 341, 344 [115 P.2d 455]; see Skalko v. City of Sunnyvale, 14 Cal.2d 213, 215 [93 P.2d 93].) In enacting zoning ordinances, the municipality performs a legislative function, and every intendment is in favor of the validity of such ordinances. (Jardine v. City of Pasadena, 199 Cal. 64, 72-73 [248 P. 225, 48 A.L.R. 509].) It is presumed that the enactment as a whole is justified under the police power and adapted to promote the public health, safety, morals, and *750 general welfare. (See Wilkins v. City of San Bernardino, 29 Cal.2d 332, 338 [175 P.2d 542].)" (3) It is likewise pointed out that municipal regulation through zoning specifying permissible locations of entertainment and amusement enterprises has long been recognized judicially. (Sunset Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64 [101 Cal. Rptr. 768, 496 P.2d 840], app. dism. (1973) 409 U.S. 1121 [35 L.Ed.2d 254, 93 S.Ct. 940] [skating rinks]; Carolina Lanes, Inc. v. City of Los Angeles (1967) 253 Cal. App.2d 831 [61 Cal. Rptr. 630] [strip tease]; Francis v. County of Stanislaus (1967) 249 Cal. App.2d 862 [57 Cal. Rptr. 881] [commercial card rooms]; In re Lawrence (1942) 55 Cal. App.2d 491 [131 P.2d 27] [pinball machines].) (4) Finally, it is noted it is within a legitimate province of a city to legislatively declare violation of its zoning ordinances to be a public nuisance subject to abatement by injunction (see City and County of San Francisco v. Padilla (1972) 23 Cal. App.3d 388 [100 Cal. Rptr. 223]) and that the City of Los Angeles has done so. (L.A.M.C. § 11.00(m).) Based upon the foregoing respondents maintain the trial court was justified in deciding the injunctions herein should issue. There is no doubt that contention is well taken, provided only that the Rock City enterprise is such as to fall within the excepted activities enumerated in L.A.M.C. section 12.16. (See fn. 1.) Appellants urge that is not the case. They maintain, first, their coin-operated machines are not, under the city's own definition, "games of skill and science." Thus they point out L.A.M.C. section 103.116 defines such a game to be: "(a) Definitions. As used in this Article: 1. `GAME OF SKILL AND SCIENCE' means any game of amusement, but not including athletic sporting events, which is participated in by one or more players for any prize, gift or award of anything of value where or when any charge is made by the person conducting, operating or maintaining such game, or any consideration is paid by any player for the right to play or participate in any such game, and the dominating factor in determining the result of such game is dependent upon the skill of the player or players and not upon chance; provided, that in any case where the result of such game may be dependent to some extent upon the judgment, intelligence or adroitness of the player, but nevertheless the dominating factor in determining the result of such game is chance, *751 such a game shall not be considered as a game of skill and science, but shall be considered as a game of chance." (Italics added.) Similarly, appellants maintain they were not operating a "penny arcade" as that term must be understood for the purpose, and that they may not constitutionally be found in violation of section 12.16 under its "other similar uses" phraseology. (5a) In our view, whatever are the merits of appellants' arguments respecting the first and last of these contentions,[3] it cannot fairly be said the designation "penny arcade," though not otherwise defined, is such as to fail to embrace within its meaning those activities engaged in at Rock City or to be constitutionally offensive as either vague or ambiguous. (6) As in other instances where it has been necessary to test against a constitutional scale the import of language admittedly subject to dispute regarding definition, (see e.g., Rose v. Locke (1975) 423 U.S. 48 [46 L.Ed.2d 185, 96 S.Ct. 243]; County of Nevada v. MacMillen (1974) 11 Cal.3d 662 [114 Cal. Rptr. 345, 522 P.2d 1345]; In re J.T. (1974) 40 Cal. App.3d 633 [115 Cal. Rptr. 553]), what is required is only that interpretation proceed in accordance with what would commonly be understood by the language employed. (See People Younger v. Superior Court (1976) 16 Cal.3d 30 [127 Cal. Rptr. 122, 544 P.2d 1322].) (5b) Here the trial court concluded that by the term "penny arcade" as used in the ordinance in question what was meant was "an amusement center where coin operated devices for entertainment are made available to members of the public." That interpretation accords not only with ordinary understanding of the language but as well with the administrative construction of the term expressed in an opinion promulgated by the Los Angeles City Attorney in 1974.[4] We are persuaded the meaning arrived at was correctly determined. *752 We are likewise of the view there was no error respecting the trial court's action in ordering seizure of the proscribed devices in order to enforce its otherwise valid directives in the face of what clearly amounted to a persistent, obstinate and unlawful refusal by appellants to abide by them. (7) "Every court has power to compel obedience to its judgments and orders (Code Civ. Proc., §§ 128, subd. 4, 177), and a court of equity retains inherent jurisdiction to oversee and enforce execution of its decrees. ([4] Witkin, Cal. Procedure (2d ed. 1970) Judgments, § 79, p. 3240; see, e.g., Lesser & Son v. Seymour. 35 Cal.2d 494, 500 ...; Green Trees Enterprises v. Palm Springs Alpine Estates, 66 Cal.2d 782, 788 ... Vallelunga v. Gomes, 102 Cal. App.2d 374, 382...." (8) (See fn. 5.) (Brown v. Brown (1971) 22 Cal. App.3d 82, 84 [99 Cal. Rptr. 311].)[5] The orders appealed from are affirmed. Compton, J., and Beach, J., concurred. A petition for a rehearing was denied December 14, 1979, and appellants' petition for a hearing by the Supreme Court was denied January 8, 1980. NOTES [1] "SEC. 12.16. `C4' COMMERCIAL ZONE: The following regulations shall apply in the `C4' Commercial Zone: "A. USE — No building, structure or land shall be used and no building or structure shall be erected, structurally altered, enlarged, or maintained, except for the following uses, and when a "Supplemental Use District" is created by the provisions of Article 3 of this Chapter, for such uses as may be permitted therein: ".... .... .... .... . . "2. Any use permitted in the `C2' Zone except: (a) The following amusement enterprises: ... (1) boxing arena; (2) games of skill and science; (3) merry-go-round, ferris wheel or carousel; (4) penny arcade; (5) shooting gallery; (6) skating rink; (7) taxi dance hall; (8) strip tease show; (9) billiard or pool hall; (10) bowling alley; and other similar uses." [2] In the face of the Department of Building and Safety's order and of the criminal complaint, appellant entered into a renewal of his lease agreement covering the business premises for an additional four-year term at a total rental of $240,180, for the express purpose of conducting thereon "an arcade and for no other purpose." [3] We note in passing that the definition of "Game of Skill and Science" set out above is limited to the article in which it appears; that that article does not contain section 12.16; and that section 103.116 is concerned essentially with whether or not a police permit is required by the operator of the game. For a similar but less restrictive understanding of what constitutes a game of skill, see Cossack v. City of Los Angeles (1974) 11 Cal.3d 726 at page 732 [114 Cal. Rptr. 460, 523 P.2d 260]. [4] "Section 12.16A2(a)(4) of the Los Angeles Municipal Code does not permit a `penny arcade' enterprise in a C-4 commercial zone. "While `penny arcade' is not defined for zoning purposes in the Municipal Code, Webster's Third New International Dictionary states that a `penny arcade' is an amusement center where each device for entertainment may be operated for a penny. The fact that a penny may not be used today to operate these devices has no effect on the basic definition. We would interpret a `penny arcade,' for zoning purposes, to mean a place of business devoted primarily or in some substantial degree to maintaining coin-operated amusement machines and devices for the purpose of providing public entertainment." [5] Appellants' further contention the trial court's order of police enforcement constituted a mandatory injunction which should have been stayed pending appeal is also without merit, since the directive was no more than in aid of the preliminary injunction and was not an order directing appellants to do anything. (See Kettenhofen v. Superior Court (1961) 55 Cal.2d 189 [10 Cal. Rptr. 356, 358 P.2d 684].)

36 Mich. App. 211 (1971) 193 N.W.2d 412 PEOPLE v. RODGERS Docket No. 8675. Michigan Court of Appeals. Decided October 1, 1971. Leave to appeal granted December 16, 1971. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people. Samuel A. Turner, for defendant on appeal. Before: J.H. GILLIS, P.J., and R.B. BURNS and LEVIN, JJ. Leave to appeal granted December 16, 1971, 386 Mich 776. J.H. GILLIS, P.J. Defendant, Larry Douglas Rodgers, appeals his conviction by a jury of the offense of robbery armed.[1] The offense occurred on March 7, 1969, at approximately 8:40 p.m. in the City of Ecorse, Michigan. The victim testified that while he was driving his automobile it was bumped from behind by another vehicle. The complainant observed that the car which struck him had no lights on and he immediately pulled to the curb. The other car pulled *215 parallel to complainant's car. Mr. Walker, the complainant, rolled down the window and noticed that the other car was occupied by five or six men. One man, sitting in the right front seat of the striking vehicle, said "We don't think there is much damage". Mr. Walker got out of his car to inspect the damage; he left his vehicle running and the lights on. Mr. Walker stated that one of the occupants of the striking automobile ran past him just as he reached the rear of his car to inspect the damage. This individual got into Mr. Walker's car, and when Mr. Walker rushed back this person leaped out with a gun in hand. The gun wielder pointed it at Mr. Walker saying, "I got a gun, I got a gun". The complainant testified that the remaining occupants of the striking vehicle got out of their car and began "working me over", and one of them took the complainant's wallet from his back right pocket. Mr. Walker identified the person with the gun as defendant, Larry Douglas Rodgers, and testified that the defendant pointed the gun at complainant's face and struck him with it. The assailants attempted to force Mr. Walker into his own automobile, but Mr. Walker ran from them at his first opportunity. After he traveled about 25 or 30 feet, he was shot in the back. The bullet struck about an inch from the spine at belt level. Mr. Walker ran to the nearest house where the occupants summoned police. Patrolman Ohannasian of the Melvindale Police Department testified that on the morning of March 8, 1969, at approximately 12:45 a.m., he and his partner drove into a White Castle restaurant parking lot where he observed the complainant's automobile parked.[2] Officer Ohannasian testified that *216 the car was empty, and thus the officers drove out of the parking lot to a point nearby where continued surveillance could be made. The officer testified that he observed defendant and a young lady enter the car. At that moment the officers drove back into the lot and parked behind the automobile in question. Defendant was placed under arrest. At trial, the victim identified defendant as the assailant who held the gun on him. The defense was alibi. Defendant claimed he was at a high school basketball game at the time the robbery was committed. The defense produced several witnesses to substantiate this argument. One of those who testified on defendant's behalf was Samuel King. On direct examination Mr. King stated that he met the defendant at a basketball game and that they were together for the remainder of the evening. Later in the course of the trial, the prosecution recalled the investigating officer, Detective Taylor, who read, over defendant's objection, a statement he allegedly took from witness King at the time Taylor interviewed him:[3] "The witness [Detective Taylor]: This is the statement of Samuel King taken by Detective Charles Taylor at 2249 South Electric, Detroit, Michigan. Time: 1:30 a.m. Saturday, June 14, 1969: `I went to the game that night. I saw Larry there but it wasn't until after the game. Anyway, the game was over I don't know what time it was but Larry did not go to the Castle with me. We were parked in the Castle parking lot. Larry might have come over sometime during the time he was at the Castle and got in my car and got right back out but he didn't go to the Castle with me. They told me *217 to say that he was with me but I told them I wasn't going to lie for them and I didn't want to get involved.' "This is what he told me." The court overruled the objection following the prosecutor's explanation that the evidence was being introduced solely for impeachment purposes. The statement was not read to prove the truth or falsity of witness King's prior testimony. Instead, it was read to contradict the prior testimony. The statement is not hearsay information as that term is evidentially understood. "Testimony, the truth of which is not to disprove the crime but which if believed would tend to discredit the witnesses, cannot be classed as hearsay." Smith v. United States (CA6, 1960), 283 F2d 16, 20, cert den 365 US 847 (81 S Ct 808, 5 L Ed 2d 811). In accord: United States v. 88 Cases, More or Less, Containing Bireley's Orange Beverage (CA3, 1951), 187 F2d 967, 974; Carantzas v. Iowa Mutual Insurance Co. (CA5, 1956), 235 F2d 193, 196; Young v. State Farm Mutual Automobile Insurance Co. (CA4, 1957), 244 F2d 333, 337. Nor is the use of witness Taylor's memorandum statement an example of present memory improperly refreshed. For unlike present memory refreshed, the document referred to by the testifying witness was not set aside. People v. Thomas (1960), 359 Mich 251; People v. Redman (1969), 17 Mich App 610. Instead, this document was read into the record. The memorandum now in question allegedly is Detective Taylor's verbatim transcription of his interview with witness King. Its contents, if actually stated by witness King and accurately recorded *218 by Detective Taylor, constitute a prior inconsistent out-of-court statement. To introduce such a prior inconsistent statement, the laying of a proper foundation is required. Osborne v. United States (CA9, 1967), 371 F2d 913, cert den 387 US 946 (87 S Ct 2082, 18 L Ed 2d 1335); People v. Keller (1933), 261 Mich 367. The foundation was laid when Mr. King, on cross-examination, was challenged with the information he allegedly gave Detective Taylor: "Q. Do you know this man right here sitting in front of me? "A. I don't know him. "Q. You don't know him? "A. No. "Q. Do you know who he is? "A. I know he is a detective. "Q. Do you know what his name is? "A. Taylor. "Q. Taylor? "A. Yeah. "Q. All right. Is today the first day you ever saw him? "A. No. "Q. Did he come to see you over the weekend? "A. Yes. "Q. Did you talk to him over the weekend? "A. Yes. "Q. Did you tell him anything different than you told us here today? "A. No. "Q. Did you tell Detective Taylor, when he came to see you this weekend, that this man had never been in your car on that evening and wasn't riding with you that evening? "A. No, I didn't. "Q. And you hadn't been with him a whole year at that time? "A. No. *219 "Q. Did you tell the detective that? "A. No. "Q. You didn't? "A. No. "Q. You are sure about that, huh? "A. Yes." Witness King denied ever telling Detective Taylor anything which was inconsistent with his trial testimony. When the prosecution recalled Detective Taylor to refute this, he testified: "Q. Did you take a written statement from Mr. King? "A. I wrote it down and Mr. King was talking. "Q. As Mr. King was talking to you, you wrote it down? "A. Yes, exactly word for word what he said. "Q. All right, I'm going to show you a piece of paper and ask you if you can identify that. "A. Yes. "Q. All right, can you tell me what it represents to you? "A. That is a statement Mr. King given [sic] to me by him." Detective Taylor also testified that Mr. King declined to sign this statement because he "did not want to get involved". Detective Taylor's memorandum was introduced solely to impeach Mr. King's prior in-court testimony. It is generally held that a witness may be impeached by showing that his testimony upon a material matter is inconsistent with a prior statement made by him. 3A Wigmore on Evidence, §§ 1017-1022, pp 993-1018; McCormick on Evidence § 36, pp 66-67. A witness may be impeached by producing written statements which are inconsistent with the testimony given at the trial. 1 Underhill's *220 Criminal Evidence (5th ed), § 230, p 531. Michigan courts have traditionally allowed written statements made at the direction of the witness to be later used to impeach the witness's prior testimony. People v. Kennedy (1895), 105 Mich 434; People v. Tice (1897), 115 Mich 219; People v. Dellabonda (1933), 265 Mich 486; People v. DeBeaulieu (1944), 308 Mich 173. Witness King allegedly told witness Taylor what he knew. The memorandum, written in the hand of witness Taylor, represents the summary of that interview. Whether it is a verbatim transcription or the conclusions of witness Taylor is for the finder of fact to determine. However, in either instance it represents an alleged contradictory position to witness King's in-court testimony, and for the purposes of impeachment, was admissible. People v. Nemeth (1932), 258 Mich 682. Furthermore, the trial court correctly instructed the jury that they could only consider this evidence for impeachment purposes. People v. Durkee (1963), 369 Mich 618. The court advised the jury that they could not consider the statement of King as recited by witness Taylor for the purpose of its truth nor could it be considered as substantive evidence. He further advised the jury that they could consider this testimony only for the purpose of testing the credibility of the witness. We find no error in this regard. Other questions raised on appeal have been considered, and we find no reversible error. Affirmed. R.B. BURNS, J., concurred. LEVIN, J. (dissenting). I am in full agreement with my colleagues that the people were entitled to *221 impeach the credibility of a witness who testified in support of the defendant's alibi by showing that the witness told a different story to a detective than the one he related at the trial. Plainly, incontrovertibly, that is the law. The real issue — not touched on in the majority opinion — concerns the manner in which the people were allowed to prove the prior inconsistent statement. Over the objection of the defendant's lawyer, the trial judge allowed the detective to read a written statement he wrote out at the time of his conversation with the alibi witness; the witness had refused to sign the statement. The judge ruled that the detective could read the statement under the exception to the hearsay rule for past recollection recorded. In that ruling the judge erred on the facts of this case. I. The defendant was convicted of committing the offense of armed robbery. The defense was alibi.[1] The defendant claimed that he was at a high school basketball game at the time of the robbery. Sixteen of his friends, among them, Samuel King, supported various time sequences of his alibi. *222 The trial commenced on a Thursday and ended the following Wednesday. On the intervening Saturday King was interviewed by a detective. King testified on Monday. On direct examination, King said that he met the defendant at the game at halftime, was with him during the second half and left the game with him and other persons in King's automobile. The group made two stops and then proceeded to the drive-in restaurant where the defendant, a short time afterwards, was arrested. During cross-examination, King denied having given the detective a different account. Specifically, King denied telling the detective that the defendant was not in King's automobile during the evening the crime was committed. The people called the detective as a rebuttal witness. He testified that when he interviewed King on the intervening Saturday he wrote down what King said but King refused to sign the writing. The defendant's lawyer objected to the introduction or reading of the writing on the ground that it was hearsay.[2] The judge overruled the objection saying *223 that the detective's testimony was admissible as past recollection recorded. The detective then read the statement as follows: "This is the statement of Samuel King taken by Detective Charles Taylor at 2249 South Electric, Detroit, Michigan. Time: 1:30 a.m. Saturday, June 14, 1969: `I went to the game that night. I saw Larry there but it wasn't until after the game. Anyway, the game was over I don't know what time it was but Larry did not go to the Castle with me. We were parked in the Castle parking lot. Larry might have come over sometime during the time he was at the Castle and got in my car and got right back out but he didn't go to the Castle with me. They told me to say that he was with me but I told them I wasn't going to lie for them and I didn't want to get involved.' "This is what he told me." II. The majority ignore the judge's ruling that the statement was admissible under the exception for past recollection recorded and affirm his ruling admitting the statement on the ground that "the statement is not hearsay information as that term is evidentially understood." We will, of course, ordinarily sustain on appeal a ruling by a judge who reaches the right result even though the grounds for decision stated by him are erroneous.[3] In this case the judge reached the wrong *224 result — the unsigned written memorandum was not shown to be admissible. It is also true that a prior inconsistent statement of a witness, admissible to impeach his credibility, is not regarded as admissible as an exception to the hearsay rule. It is admissible on the tenet that it is not hearsay because it is not offered as substantive evidence to prove the truth of the statement attributed to the witness but to prove that he said it. In theory at least the trier of fact is not being asked to accept the substance of the prior statement as the true account of the matter but rather to discount the witness's at-trial testimony because on an earlier occasion he gave a different account. However, merely because the statement made by King to the detective when offered to impeach King's credibility is not hearsay, does not grant free license to introduce it by any means. Whether the earlier statement is, as here, oral or is written, the fact that it was made must be proved. If the earlier statement is written, the witness's handwriting or signature must be proved. If the earlier statement is oral the impeaching witness must be able to testify that the inconsistent statement was in fact made. Just as an impeaching witness could not testify, in the name of impeachment, that Frank told him that Joe told Frank that Sara remarked to Bill that the chief defense witness had told her that the defendant had threatened the victim, so, too, an out-of-court written memorandum of an oral statement allegedly made by the witness to be impeached may be used to prove the fact that the statement was made only if that fact — the fact that the witness made the statement — is provable by means of such a memorandum. *225 Although the inconsistent statement, when admissible to impeach credibility, is not hearsay, the written memorandum of the statement, unsigned by the witness being impeached, is hearsay and therefore admissible, if at all, only under an exception to the hearsay rule.[4] A written memorandum of an oral statement made by another person, not signed by that person, necessarily reflects two statements; one written, the other oral: (1) it is the written statement of the writer of the memorandum that (2) the other person made the oral statement attributed to him. Since the written memorandum, not signed by the other person, is an out-of-court statement made by the writer that the other person said what is contained in the writing, the writing itself is hearsay without regard to whether the statement recorded in it is offered as substantive evidence or solely to impeach credibility. The rules of evidence concerning the proof of facts do not evaporate upon utterance of the magic word "impeachment".[5] *226 III. A witness who does not have a present recollection of the facts may refer to a written memorandum. *227 If the memorandum refreshes his recollection, "when he speaks from a memory thus revived, his testimony is what he says, not the writing".[6] Accordingly, the general rule is that a party who uses a memorandum to refresh the memory of a witness may not introduce it in evidence or have it read to the jury.[7] In this case the witness did not claim that his recollection was refreshed by reading the writing — he read the writing itself. This was not a case of testimony from refreshed recollection. Nor, contrary to the ruling of the judge, did the prosecution make out a case for introduction of the writing as past recollection recorded. The exception for past recollection recorded may be availed of only in a case where it is claimed that the witness has no present recollection of the facts and, upon reference to the document, his memory is not refreshed.[8] When a witness testifies based on past recollection recorded it is the writing, not refreshed recollection, that is the evidence. It is most difficult to cross-examine a witness who is allowed to "testify" based on past recollection *228 recorded. In allowing him to read the writing, the judge finds that he now has no present recollection of what was said when the writing was made and that his memory cannot be revived by reference to the writing; when cross-examined, such a witness is bound to retreat behind the writing. The written word has a way of carrying greater weight than the spoken word. The law, therefore, wisely limits the use of past recollection recorded to those situations where the just mentioned preconditions to admissibility have been satisfied. Dispensing with the requirement that the witness not have "sufficient recollection to enable him to testify fully and accurately" would, as stated in the commentary accompanying the Revised Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates, "encourage the use of statements carefully prepared for purposes of litigation under the supervision of attorneys, investigators or claim adjusters". (Emphasis supplied.)[9] *229 The detective was not asked whether he had any present recollection of what King told him on Saturday — three days before he testified — or whether his recollection would be refreshed by reference to the writing. It is doubtful whether, if the detective had been so questioned, he would have claimed both that he had no recollection and that his recollection could not be refreshed from a writing he made just three days before he testified. IV. The admission of this inadmissible testimony could not properly be said to be harmless. There was a close question for resolution by the trier of fact. Although the defendant was seen, just a few hours after the robbery, entering the stolen automobile at the drive-in restaurant by police officers who had staked out the automobile, that did not establish that the defendant was one of the assailants. There were a number of assailants and what was done with the automobile between the time of the robbery and the time the defendant was apprehended was *230 not shown. The defendant's act of entering the automobile was at best circumstantial evidence, implicating him but not pointing assuredly to his guilt. This left the identification testimony of the victim. His identification was not certain; he conceded that it was possible — although not probable — that he was mistaken. In this connection it is noteworthy that, although the defendant was in custody, the police showed a photograph to the victim the day he was released from the hospital.[10] The victim had not theretofore given the police a description of any of his assailants. He was not asked to view the defendant in a lineup. He did not view the defendant after he was arrested until the defendant was brought into the courtroom for the preliminary examination. The resolution of the factual issue depended on the jury's evaluation of the victim's identification testimony and the contradictory testimony of the alibi witnesses. The detective's rebuttal testimony discrediting alibi witness King tended to discretit not only King's testimony but also the testimony of the other alibi witnesses who said they saw the defendant when he was with King. The detective's rebuttal testimony was especially damaging to the defendant because of the statement attributed to King that "they told me to say that he was with me but I told them I wasn't going to lie for them and I didn't want to get involved". (Emphasis supplied.) It is doubtful whether the quoted words were admissible on any basis. They purport to be a statement by King as to what other *231 unidentified people — "them" — told him; triple hearsay: (1) the writing was hearsay, (2) the statement by King to the detective was hearsay (although when offered to impeach credibility it is not), and (3) the statement attributed to "them" was hearsay. It is well nigh impossible for a party to respond to a hearsay statement attributed to "them". "Them" are not identified; King denied making the statement — he, therefore, could not or would not identify "them". Who among "them" could the defendant call to answer the charge that "them" asked King to lie? We could not properly declare that the detective's inadmissible testimony did not contribute to or affect the result. NOTES [1] MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). [2] Identification of the automobile in question was made by observing its license plate. The plate number was traced to this vehicle. [3] The trial commenced on a Thursday and ended the following Wednesday. Witness King testified on Monday. On the intervening Saturday, he was interviewed by Detective Taylor. [1] The facts are set forth at some length in the majority opinion. In summary, the people's evidence was as follows: The victim testified that while he was driving his automobile it was bumped from behind by another automobile. After he had alighted to inspect the damage, one of the five or six occupants of the other automobile confronted him with a gun. The man with the gun and his companions struck the victim and took his wallet. The victim broke away and ran toward a nearby house and was shot in the back. He obtained aid and survived. Four hours after the robbery the victim's automobile was sighted by police officers at a drive-in restaurant. They staked it out and a short time thereafter the defendant and a young lady entered the automobile. The defendant was arrested. At the trial, the victim identified the defendant as the occupant of the automobile who held the gun on him. See footnote 10 and accompanying text. [2] Hileman v. Indreica (1971), 385 Mich 1, 10, shows that our Supreme Court does not require absolute precision in voicing objections in order to preserve for review the propriety of a trial judge's ruling concerning the admissibility of evidence where the judge fails to see all the aspects of a multi-faceted problem of admissibility. The defendants in that case contended successfully in our Court (see Hileman v. Indreica [1969], 15 Mich App 662, 664, 665) "that plaintiff did not state to the trial judge that she sought to use the deposition [of a witness] to refresh the recollection of the witness and to induce her to correct her testimony, but rather sought to have the trial judge declare the witness hostile in order to impeach her testimony" (emphasis supplied). The judge had ruled that the deposition could not be used because the witness was not hostile and plaintiff could not impeach her own witness. On appeal the Supreme Court reversed and held that the deposition could be used to refresh the witnesses' recollection saying that the judge had erroneously "looked upon the effort of counsel [emphasis added] solely as an attempt to impeach [the witness], or as an effort to have her judged `hostile'". (Last emphasis added by the Court.) Implicit in the judge's ruling that the statement was admissible under an exception to the hearsay rule is recognition on the judge's part that the writing itself was hearsay. See footnote 4 infra and accompanying text. [3] 2 Michigan Law & Practice, Appeal, § 282. [4] See 3 Wigmore on Evidence, § 754a; McCormick on Evidence, §§ 276, 278. [5] I have found no authority holding that the fact that an inconsistent statement was made may be proved by the use of a memorandum of the statement not signed by the witness to be impeached without a showing that the person who made the memorandum cannot testify from present memory refreshed. See discussion in Part III of this opinion infra. The question can arise whenever a stenographic transcript is offered to prove a prior inconsistent statement. Understandably in that kind of case, where it is obvious that the stenographer could not possibly recall the testimony or truly refresh his recollection by reading it and must testify based on past recollection recorded, no point is sometimes made about a failure to prove inability to testify from refreshed recollection. See St. Louis, S.F. & T.R. Co. v. Williams (Tex Civ App, 1937), 104 SW2d 103, 105; People v. Sherman (1950), 97 Cal App 2d 245 (217 P2d 715, 721). Nevertheless in other cases the governing principle has been recognized, the courts stating that the stenographer could read a transcript of shorthand notes because he could not testify from refreshed or revised present recollection. See State v. Polan (1956), 80 Ariz 129 (293 F2d 931, 933); Hudlow v. Langerhans (1936), 230 Mo App 1160 (91 SW2d 629); Klepsch v. Donald (1894), 8 Wash 162 (35 P 621, 623). Similarly see Stahl v. City of Duluth (1898), 71 Minn 341 (74 NW 143, 146); Cooper v. Hoeglund (1946), 221 Minn 446 (22 NW2d 450, 455). Cf. Robertson v. M/S Sanyo Maru (CA5, 1967), 374 F2d 463, holding that a purported copy of a statement signed by a witness and offered for impeachment purposes was improperly admitted since it had not been authenticated and the best evidence rule had not been complied with. See, also, Boulch v. John B. Gutmann Construction Company, Inc. (Mo App, 1963), 366 SW2d 21, 36. In this case, the statement was not taken down by a stenographer. It does not purport to be a verbatim report of the questions and answers. It is a brief memorandum of a conversation. There is an obvious difference between a stenographic transcript prepared by a court reporter and a memorandum prepared by an investigator for one of the litigants. The cases cited by the majority are distinguishable: People v. Kennedy (1895), 105 Mich 434, 436, dealt not with out-of-court statements but with depositions made by a witness at a preliminary examination. The court held that the statements were "admissible as original evidence". It was sought to introduce the depositions through the testimony of the deputy clerk who recorded them at the preliminary examination. The court approved use of the written record only to refresh the memory of the witness. In People v. Tice (1897), 115 Mich 219, no writing was involved and the testimony was solely from memory. No question of past recollection recorded was, therefore, presented. In People v. Dellabonda (1933), 265 Mich 486, the earlier written statement sought to be introduced for impeachment purposes had been written by the witness being impeached. Again, no question of past recollection recorded was presented. In People v. Nemeth (1932), 258 Mich 682, the prosecutor read to the jury statements made to the police by defense witnesses. The opinion does not indicate that the witnesses denied having made the statements or that the statements were not signed by the witnesses. Furthermore, there is no discussion of what foundation, if any, was laid for their admission. Finally, People v. DeBeaulieu (1944), 308 Mich 173, 177, rather than supporting the position taken by the majority, held that a writing, signed by the witness sought to be impeached but prepared by another, was properly excluded where it appeared that the witness was unaware of what she had signed. The Court cited 6 Jones, Commentaries on Evidence (2d ed), § 2406, p 4746, for the proposition that "in order to serve as in itself a contradiction a writing must be shown to have been made by the witness himself, or by someone under his direction, or to have been approved and adopted by the witness as his own act and deed." [6] McCormick, Law of Evidence, § 9, p 15; 58 Am Jur, Witnesses, § 579. [7] 29 Am Jur 2d, Evidence, § 876. [8] See People v. Hobson (1963), 369 Mich 189, 190-192; People v. Blakes (1966), 4 Mich App 13, 16; People v. Bracy (1967), 8 Mich App 266, 276; Jaxon v. City of Detroit (1967), 379 Mich 405, 413 (per T.E. BRENNAN, J.); 58 Am Jur, Witnesses, § 588. Additional pre-conditions to admissibility are a showing that the document was prepared at some prior and rather remote date (People v. Hobson, supra), that the document is an original memorandum made by the witness from personal observation contemporaneously with or near the time of the transaction recorded (People v. Hobson, supra; Jaxon v. City of Detroit, supra) and that the substance recorded is not otherwise admissible (Jaxon v. City of Detroit, supra). And, since in a case of past recollection recorded, in contrast with refreshed recollection, the writing, not revived recollection, is the evidence, most courts hold that the writing may be introduced in evidence in connection with the witness' testimony during his direct examination. See 29 Am Jur 2d, Evidence, § 877, p 978. [9] Text writers argue that the evidence should be admissible without regard to whether the witness remembers the event recorded (3 Wigmore on Evidence [Chadbourn Rev, 1970], § 738, p 91), but their views have not been accepted by most courts. Indeed, the very argument advanced by these writers points up the danger of allowing use of past recollection memoranda indiscriminately. Just as they are of the opinion that the memoranda is likely to be more accurate than the witness' recollection, so, too, the trier of fact is likely to be under that impression. It is to guard against the indiscriminate creation, without any necessity, of "better" evidence that most courts have restricted the use of past recollection recorded writings. The following appears in the commentary accompanying the Revised Draft of Proposed Rules of Evidence for the United States District Courts and Magistrates (March, 1971), Rule 803, p 111, exception 5 (51 FRD 315, 425): "The principal controversy attending the exception has centered, not upon the propriety of the exception itself, but upon the question whether a preliminary requirement of impaired memory on the part of the witness should be imposed. The authorities are divided. If regard be had only to the accuracy of the evidence, admittedly impairment of the memory of the witness adds nothing to it and should not be required. McCormick § 277, p 593; 3 Wigmore § 738, p 76; Jordan v. People (1962), 151 Colo 133 (376 P2d 699), cert den 373 US 944 [83 S Ct 1553, 10 L Ed 2d 699]; Hall v. State (1960), 223 Md 158 (162 A2d 751); State v. Bindhammer (1965), 44 NJ 372 (209 A2d 124). Nevertheless, the absence of the requirement, it is believed, would encourage the use of statements carefully prepared for purposes of litigation under the supervision of attorneys, investigators, or claim adjusters. Hence the example includes a requirement that the witness not have `sufficient recollection to enable him to testify fully and accurately.' To the same effect are California Evidence Code § 1237 and New Jersey Rule 63(1) (b), and this has been the position of the federal courts. Vicksburg & Meridian R.R. v. O'Brien (1886), 119 US 99 [7 S Ct 118, 30 L Ed 299]; Ahern v. Webb (CA10, 1959), 268 F2d 45; and see N.L.R.B. v. Hudson Pulp & Paper Corp. (CA5, 1960), 273 F2d 660, 665; N.L.R.B. v. Federal Dairy Co. (CA1, 1962), 297 F2d 487. But cf. United States v. Adams (CA2, 1967), 385 F2d 548." In all events, the Michigan Supreme Court appears to have aligned itself with the view that the writing is not admissible if the witness can independently recall the event or can refresh his recollection from the writing. See cases cited in fn 8. [10] See People v. Rowell (1968), 14 Mich App 190, 198 (LEVIN, J., concurring); People v. Adams (1969), 19 Mich App 131, 133, n 1; United States v. Zeiler (CA3, 1970), 427 F2d 1305, 1307; Commonwealth v. Whiting (1970), 439 Pa 205 (266 A2d 738).

76 Ariz. 390 (1953) 265 P.2d 447 STATE ex rel. JONES, Atty. Gen. v. LOCKHART. No. 5857. Supreme Court of Arizona. December 26, 1953. *391 Ross F. Jones, Atty. Gen., in pro. per. A.M. Crawford and Thaddeus G. Baker, Asst. Attys. Gen., for plaintiff. Ruffo Espinosa, Nogales, for defendant. Parker & Muecke, and Robt. L. Myers, Phoenix, amici curiae. UDALL, Justice. The State of Arizona upon the relation of Ross F. Jones, Attorney General, brings this original action in quo warranto, asking that this court adjudge defendant Lynn Lockhart not entitled to hold or enjoy the office of state senator from Apache County, and that judgment of ouster be entered against him. *393 The undisputed facts are that on March 30, 1953, there was filed with the secretary of state a regularly adopted Senate concurrent resolution proposing an amendment to the Constitution of Arizona relating to the legislature, and directing that said amendment be submitted to the qualified electors at the next regular general election or at a special election called for that purpose. Thereafter, by the provisions of Chapter 123, Laws 1953, the legislature called a special election, to be held September 29, 1953, for the purpose of submitting the above and other proposed constitutional amendments to a vote of the people. The election was held, and when the official returns were canvassed it appeared the amendment in question had carried by a majority of 444 votes. Thereupon His Excellency, Governor Howard Pyle, in obedience to Article IV, Part 1, Section 1, subsection (13) of the Constitution, issued a proclamation declaring said amendment to be law. The amendment is an amendment of Article IV, Part 2, Section 1, subsection (1) of our Constitution, Laws 1953, p. 360, and provides in part as follows: "2. The Legislature "(1) The Senate shall consist of two members from each county elected at large. "Beginning with the Twenty-second Legislature the House of Representatives shall be composed of not to exceed eighty members, to be apportioned to the counties according to the number of ballots cast in each county at the preceding general election for governor in the manner herein provided. * * *" (Then follows a complicated apportionment formula, presently based upon each 3520 ballots cast for Governor, which will freeze the House membership at the maximum above prescribed.) At all times prior to the adoption of the foregoing amendment, the state senate had been composed of nineteen members, the apportionment by enumeration of counties being as follows: two senators each from Cochise, Gila, Maricopa, Pima, and Yavapai counties, and one senator from Apache County and each of the other eight counties of the state. The governor evidently considered that with adoption of the amendment, in the nine counties having but one senator under the old provisions of the Constitution, there was a newly-created additional office of state senator, and that there was a vacancy in the term thereof. The parties to this case seem to agree, and we think properly so, that Chapter 37, Laws 1923, which appears in Article 11 of Chapter 55, A.C.A. 1939, providing for special election to fill vacancies in the legislature, has no application to the instant situation, wherein there has never been an incumbent of the *394 office. That law obviously provides only for the filling of vacancies caused by death, resignation or removal of a person who is already serving a term in the legislature. However, Article 5, Section 8, of our Constitution provides: "When any office shall, from any cause, become vacant, and no mode shall be provided by the constitution or by law for filling such vacancy, the governor shall have the power to fill such vacancy by appointment." Believing that this section did apply to the situation, that a term existed and there was a vacancy in the office, and that he was by law empowered to fill the same, the Governor on October 31, 1953, undertook to appoint defendant Lynn Lockhart, of Springerville, Arizona, as state senator from Apache County for a short term, effective November 2, 1953. On that day defendant appeared at the office of the Governor and took his oath of office as state senator, and in compliance with the rules of the Senate subscribed to a non-communist oath. On the following day while the Senate was assembled in open session, defendant intruded upon that body and made demand upon the Senate President, Hon. Hubert Merryweather, that he be seated as a duly qualified senator from Apache County. His words were substantially as follows: "I am a member of this Senate; my name is Lynn Lockhart. I have been appointed by the Governor of this State to serve as the second state senator from Apache County. I hand you my certificate of appointment, my noncommunistic oath, and my oath of office. There not appearing to be any desk available for me at this time, I will sit here until a desk is provided for me." Apparently Mr. Lockhart then seated himself in a vacant chair on the Senate floor. Thereupon a motion to adjourn sine die was made and carried, and the senators left the chambers. Defendant presently claims to hold and exercise the office of state senator, and to assume and perform the duties pertaining thereto, and to be entitled to receive the emoluments thereof. Upon the verified complaint of the Senate president and pursuant to Section 28-301, A.C.A. 1939, the attorney general has brought this quo warranto action, asking that judgment of ouster be entered against defendant. Article 6, Section 4 of the Constitution of Arizona, confers upon this court original jurisdiction in quo warranto proceedings as to all state officers. Members of the legislature are undoubtedly state officers. While elected from a single county or a subdivision thereof, this fact cannot alter their official rank, which arises from the fact that the legislature is under our Constitution a co-ordinate branch of the state government. Certainly their duties *395 concern the state at large, for the legislature is an instrumentality appointed by the state to exercise a part of its sovereign powers. See Morril v. Haines, 2 N.H. 246; 42 Am.Jur., Public Officers, § 20; 49 Am.Jur., States, Territories and Dependencies, § 28. Therefore, it is of great public concern that only persons lawfully entitled thereto shall discharge the duties of a member of the state legislature, and from the facts here presented we deem the case to be a proper one for this court to exercise its original jurisdiction. Some question is raised whether quo warranto is a proper proceeding to decide the problems here involved. We hold that it is. Section 28-301, A.C.A. 1939, says: "An action may be brought by the attorney-general in the name of the state upon his relation, * * * upon the verified complaint of any person, in the Supreme Court, * * * against any person who usurps, intrudes into or who unlawfully holds or exercises any public office or any franchise within this state, and he shall bring such action whenever he has reason to believe that any such office or franchise is being usurped, intruded into or unlawfully held or exercised." When defendant received a purported appointment by the highest executive officer of this state, and pursuant thereto took an oath of office, entered the Senate chambers, claimed to be a duly qualified and acting senator, and seated himself therein as a regular member of that body, he was more than a mere volunteer or interloper without color of right, and brought himself within the terms of our statute as one who "usurps, intrudes into or who unlawfully holds or exercises any public office." Whether the ancient prerogative writ would lie in these circumstances we need not decide. It suffices that there is a controversy justiciable by this court. We stated in State ex rel. Sullivan v. Moore, 49 Ariz. 51, 65, 64 P.2d 809, 815, "No officer nor tribunal other than the courts may determine whether an election or appointment is void or not." Nor is this exercise of jurisdiction by the courts an encroachment upon the power of the legislature to judge the qualifications of its own members. See State v. O'Brien, 47 Ohio St. 464, 25 N.E. 121. The constitutional amendment in question embraces both (a) an increase in the size of the Senate, and (b) a limitation on the future membership of the House to freeze it at its present size, accomplished by a changed basis of apportionment. It is contended that the amendment never became part of the Constitution of this state because the manner in which it was submitted to a vote of the people violated Article *396 21, Section 1, of the Constitution of Arizona, which provides in part as follows: "* * * If more than one proposed amendment shall be submitted at any election, such proposed amendments shall be submitted in such manner that the electors may vote for or against such proposed amendments separately. We believe the prohibition of Article 21, Section 1 was not violated, and we shall proceed to point out why. In the case of Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549, 554, 94 A.L.R. 1502, this court laid down the yardstick to be used in determining what matters fall within the ban of the constitutional provision, and said: "If the different changes contained in the proposed amendment all cover matters necessary to be dealt with in some manner, in order that the Constitution, as amended, shall constitute a consistent and workable whole on the general topic embraced in that part which is amended, and if, logically speaking, they should stand or fall as a whole, then there is but one amendment submitted. But, if any one of the propositions, although not directly contradicting the others, does not refer to such matters, or if it is not such that the voter supporting it would reasonably be expected to support the principle of the others, then there are in reality two or more amendments to be submitted, and the proposed amendment falls within the constitutional prohibition." In applying that gauge to the facts shown therein, the court had no hesitancy in declaring as "log rolling of the worst type" and violative of "both the spirit and the letter of the Constitution", three new proposed amendments to the Constitution to be voted on as a single measure. The amendments would have (a) made the Tax Commission a constitutional body, (b) changed the method of taxing public utilities, and (c) changed the procedure by which copper mines should be taxed. It had been contended that all of said measures fell under the general head of "taxation". Deciding just what changes do or do not fall within the purview of the prohibition becomes a matter of applying reason to fact. At the outset it should be stated that courts do not lightly declare laws unconstitutional, and we agree with the Supreme Court of Colorado that: "* * * every reasonable presumption, both of law and fact, is to be indulged in favor of the validity of an amendment to the Constitution when it is attacked after its ratification by the people. * * *" People ex rel. Elder v. Sours, 31 Colo. 369, 74 P. 167, 169; Cf. State v. Gastelum, 75 Ariz. 271, 255 P.2d 203; Duhame v. State Tax Commission, 65 Ariz. 268, 179 P.2d 252, 171 A.L.R. 684. *397 Since the organization of the Territory of Arizona in the year 1863, the Legislative Assembly, as our legislative body was known prior to statehood, was composed of two bodies, viz.: the Council and the House of Representatives. With the framing and adoption of the Constitution of Arizona in the year 1912, and at all times since, the provisions for the composition and apportionment of the two houses of the legislature have been consolidated into Article 4, Part 2, Section 1, subsection (1), thereof, as a Senate and House of Representatives. Until the adoption of the amendment now in question the Senate membership, by constitutional mandate, has remained the same, i.e., nineteen members to be elected in the fourteen counties according to the apportionment heretofore set forth. However, the people through the initiative, first in the year 1918 (see Sess. Laws Arizona 1919, Initiative and Referendum Measures, p. 7), and later in the year 1932 (see Sess. Laws Arizona 1933, p. 619) amended said subsection and changed the size and apportionment formula for the House membership, while leaving unchanged the Senate membership, although somewhat different phraseology was used each time to accomplish this last result. True, only the latest amendment has changed the number of senators from any county, but each amendment was an amendment of the whole subsection. Although it did not change the number of senators, it amended the previous provisions just as much as if it had changed the number. The question of change in the number of senators has nothing to do with the problem, the question is whether a provision as to senators and their apportionment to the counties may logically and lawfully be coupled with a provision as to representatives and their apportionment. Clearly both relate to, and are germane to, one general subject, i.e., the composition of the state legislature, and historically the people of this state have considered that but one subject was involved, to-wit: "The Legislature", albeit that legislature is bicameral. We cannot say that the people of this state in dealing with this subject for the past forty years have erred and acted unreasonably in treating their legislature as a single subject in constitutional amendments. We hold that but one proposed amendment was submitted to a vote of the people, and the legislature did not violate Article 21, Section 1, of the Constitution. The action of the governor in appointing defendant necessarily is founded upon the premise that proclamation of the amendment made it law, and that the law operated eo instanti to create the second office of senator from Apache County and to create a short term thereof to which defendant could be appointed. If this premise be false, all else falls with it. The date a measure becomes law and the date it becomes operative may be the same, as in Priser v. Frohmiller, 42 Ariz. 30, 21 P.2d 927, but, the authorities agree, and reason *398 compels us to accept as true, that the date a provision becomes law and the date it becomes operative may be different. 16 C.J.S., Constitutional Law, § 39. For example, a provision that today becomes part of the body of law of the state may by its terms declare that beginning one year from the date thereof an officer shall have certain powers conferred upon him. While the law exists as law in the interim, it operates to confer the powers only upon the day specified. Let us examine the amendment here with a view to determining at what time it operates to create the term of office which defendant purports to occupy. It is fundamental that "The prime effort in construing Constitutions or statutes is to ascertain the intention of those who framed them * * *." Clark v. Boyce, 20 Ariz. 544, 185 P. 136, 140. In 11 Am.Jur., Constitutional Law, Sec. 61, the rule is phrased: "The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. A constitutional clause must be construed reasonably to carry out the intention of the framers, which gives rise to the corollary that it should not be construed so as to defeat the obvious intent if another construction equally in accordance with the words and sense may be adopted which will enforce and carry out the intent. The intent must be gathered from both the letter and spirit of the document. "It has been very appropriately stated that the polestar in the construction of Constitutions is the intention of the makers and adopters. "Wherever the purpose of the framers of a Constitution is clearly expressed, it will be followed by the courts. Even where terms of a constitutional provision are not entirely free from doubt, they must be interpreted as nearly as possible in consonance with the objects and purposes in contemplation at the time of their adoption, because in construing a constitutional provision, its general scope and object should be considered. Of course no constitutional provision is to be construed piece-meal, and regard must be had to the whole of the provision and its relation to other parts of the Constitution. Guided by the foregoing principles, our examination of the amendment has convinced us defendant purports to hold a nonexistent term of office. The amendment begins by declaring "The Senate shall consist of two members from each county elected at large." (Emphasis supplied.) The word "elected" here can refer only to the regular election processes provided for by the Constitution and laws of this state. Certainly nothing in the phraseology of the amendment leads us to believe *399 it was the intent of the electorate to have the amendment become effective instanter and of itself create a term for the new offices. To uphold the appointment we would be forced to read into the amendment something conspicuously absent from it, namely, the creation of a "short term" to be filled by appointment, for the nine new offices. We reject such a strained interpretation, and hold the legal effect of the amendment was to create, at the time it was proclaimed to be law, the nine additional senate offices therein named, and that it was intended the terms thereof should commence when the offices had been filled by persons elected in the manner other senators are elected. The second sentence of the amendment declares "Beginning with the Twenty-second Legislature the House of Representatives shall be composed * * *." Here the matter is left in no doubt whatsoever, it is spelled out clearly and completely, and in unmistakable terms tells us the change wrought in the manner of apportioning the House of Representatives is not effective until the 1954 elections are held. Here it is both possible and reasonable to read the provisions as to the House as applicable to the Senate, not merely because the provisions follow one another in the amendment, but because the sense of the amendment as a whole when read by an intelligent voter is that it was not meant to become operative as to either house until the next elections. We reiterate, the amendment treats with but one subject, "The Legislature", and the changes made are changes in that legislature. There is one amendment, and one set of changes, and ordinarily we should expect but one date for the changes to become effective. We are not impressed with the construction urged by defendant that it was intended during the interim we should have a legislature with an increased Senate membership but with an unchanged House apportionment. To say the new offices are created and the term thereof becomes presently effective (the vacancy thus resulting to be filled by appointment), would in our opinion be in direct conflict with the plain language of the amendment, and the result would be to deprive the people in the nine counties granted an additional senator, of the privilege of exercising their electoral franchise to select the person to fill the office. We believe this was never the intent of the electorate, for they have ever jealously guarded their right to elect their public officials and vested the appointing power in other hands only in exceptional cases. For example, see Chapter 135, Laws 1947 (now Section 19-210 of the 1952 Cumulative Supplement), enlarging the membership of the Supreme Court. A departure from this policy would have to be declared in clearer words than are here found. Furthermore, we note that the amendment was proposed by a concurrent resolution of the legislature, and therein it was *400 provided that it should be submitted to a vote of the people at the next regular general election, or at a special election called for that purpose. This meant that possibly there would be no submission to the electorate until November, 1954, which indicates the legislature never intended there be any term other than the regular two-year term provided for by Article 4, Part 2, Section 21, of the Constitution, which reads: "The members of the first legislature shall hold office until the first Monday in January, 1913. The terms of office of the members of succeeding legislatures shall be two years." It appears that another court has reached a similar conclusion upon a comparable fact situation. In State ex rel. Sanchez v. Dixon, La. App., 4 So.2d 591, 595, the issue presented was whether the governor could appoint as interim appointments, four additional police jurors, under an act authorizing the creation of these offices upon varying population increases. The court said: "The general rule is that, where no time is fixed for the beginning of the term of an elective office, it begins at the time the office is filled by an election, and if the office is an appointive one, the term begins when the appointment is made. So, where an election is necessary, the term does not begin until after that election is held. 46 C.J., pages 965, 966; 22 R.C.L. p. 550, Sec. 251; State [ex rel. Foot] v. Rogge, 80 Mont. 1, 257 P. 1029; State [ex rel. Kriebs] v. Halladay, 52 S.D. 497, 219 N.W. 125 et seq.; People [ex rel. Quereau] v. Hamrock, 74 Colo. 411, 222 P. 391." Cf. Graham v. Lockhart, 53 Ariz. 531, 91 P.2d 265; People ex rel. Bagshaw v. Thompson, 55 Cal. App.2d 147, 130 P.2d 237; State ex rel. Rosenthal v. Smiley, 304 Mo. 549, 263 S.W. 825; and State ex rel. Cotter v. Leipner, 138 Conn. 153, 83 A.2d 169. Following the analysis of the Louisiana court, the failure of the amendment to declare otherwise means the office, though created, was not to be filled until the beginning of the term prescribed by law. The new term not yet having come into existence, there is no vacancy to be filled. It is the judgment of the court that the defendant is guilty of usurping or intruding into the State Senate, in that he is claiming without right to be a member thereof as a Senator from Apache County, and he is therefore ordered ousted and excluded from said legislative body. STANFORD, C.J., and PHELPS, LA PRADE and WINDES, JJ., concur.

Case: 13-14229 Date Filed: 07/09/2014 Page: 1 of 4 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-14229 Non-Argument Calendar ________________________ D.C. Docket No. 5:13-cr-00002-RS-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DONYEL JAMES FITTS, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Florida ________________________ (July 9, 2014) Before HULL, MARCUS, and FAY, Circuit Judges. PER CURIAM:  Case: 13-14229 Date Filed: 07/09/2014 Page: 2 of 4 Donyel James Fitts appeals his three consecutive life terms of supervised release, imposed after he pled guilty to three counts of production of child pornography, in violation of 18 U.S.C. § 2251(a) and (e). We affirm. I. BACKGROUND Fitts was arrested after his girlfriend notified the Jackson County, Florida, Sheriff’s Office she had found a digital camera containing child pornography. The camera contained video showing the victim, his girlfriend’s four-year-old- daughter, performing oral sex on Fitts, as well as nude pictures of the victim. A federal grand jury indicted Fitts on four counts of production of child pornography. Fitts pled guilty to three of the counts in exchange for the government’s dismissal of the remaining count. During his sentencing hearing, Fitts asked the district judge to impose consecutive 15-year sentences for each count, the mandatory minimum for each offense. The government joined in the request. Fitts was sentenced to consecutive 15-year sentences for each count; a total of 45 years of imprisonment. The district judge also imposed three consecutive life terms of supervised release. Neither party objected. II. DISCUSSION On appeal, Fitts argues the district judge plainly erred, when he imposed consecutive, rather than concurrent, supervised-release terms, in violation of 18 U.S.C. § 3624(e) and U.S.S.G. § 5G1.2. When a convicted defendant did not raise 2  Case: 13-14229 Date Filed: 07/09/2014 Page: 3 of 4 a sentencing error before the district judge, we review for plain error only. See United States v. Rodriguez, 627 F.3d 1372, 1380 (11th Cir. 2010). Establishing plain error requires the defendant show (1) an error (2) that was plain, (3) affected one’s substantial rights, and (4) seriously affected the fairness of the judicial proceedings. Id. Fitts argues the district judge erred by imposing three consecutive life terms of supervised release. Under the clear language of 18 U.S.C. § 3624(e), terms of supervised release must run concurrently. 18 U.S.C. § 3624(e); U.S.S.G. § 5G1.2, comment. (n.2(C)); United States v. Magluta, 198 F.3d 1265, 1283 (11th Cir. 1999), vacated in part on other grounds, 203 F.3d 1304 (11th Cir. 2000). Therefore, the district judge committed error that was plain, when he sentenced Fitts to consecutive, rather than concurrent, supervised-release terms. See Magluta, 198 F.3d at 1283. The error, however, did not affect Fitts’s substantial rights, because his total term of supervised release, life, would remain the same even without the error. See United States v. Gallego, 247 F.3d 1191, 1200 n.19 (11th Cir. 2001) (recognizing combining consecutive sentences “to equal life imprisonment are effectively the same as one sentence of life imprisonment,” and a defendant’s substantial rights are unaffected by affirming the sentence”). Fitts has identified no consequences, collateral or otherwise, from the imposition of consecutive life terms of supervised 3  Case: 13-14229 Date Filed: 07/09/2014 Page: 4 of 4 release that could affect his substantial rights. Therefore, he has failed to satisfy the third prong of the plain-error test. AFFIRMED. 4 

995 F.2d 228 Edwards (Nathaniel)v.Delo (Paul) NO. 92-3109 United States Court of Appeals,Eighth Circuit. Dec 15, 1992 1 Appeal From: E.D.Mo. 2 DISMISSED.

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL SLOVIK,  No. 06-55867 Petitioner-Appellant, D.C. No. v. CV-05-00193-BEN/ JAMES A. YATES, Warden,  NLS Respondent-Appellee. ORDER AND AMENDED  OPINION Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Argued and Submitted April 9, 2008—Pasadena, California Filed February 10, 2009 Before: William C. Canby, Jr., Andrew J. Kleinfeld, and Jay S. Bybee, Circuit Judges. Opinion by Judge Bybee 1513 1516 SLOVIK v. YATES COUNSEL Kurt David Hermansen, Law Office of Kurt David Herman- sen, San Diego, California, for the petitioner-appellant. Garrett Beaumont, Deputy Attorney General of the State of California, San Diego, California, for the respondent-appellee. ORDER The Opinion filed October 6, 2008, slip op. 14145, and appearing at 545 F.3d 1181 (9th Cir. 2008), is hereby  SLOVIK v. YATES 1517 amended. The amended opinion is filed concurrently with this Order. With these amendments, the panel judges have voted to deny Appellee’s petition for rehearing. Judges Kleinfeld and Bybee voted to deny the petition for rehearing en banc, and Judge Canby recommended denying the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. Appellee’s petition for rehearing and petition for rehearing en banc, filed October 20, 2008, are DENIED. No further petitions for rehearing or rehearing en banc will be accepted. OPINION BYBEE, Circuit Judge: California prisoner Michael D. Slovik petitions for a writ of habeas corpus, contending that his confrontation rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated when a California trial court prevented him from asking questions on cross-examination that would establish that one of the prosecution’s key wit- nesses had likely lied under oath. The district court denied the petition. For the reasons explained below, we agree that Slovik was denied his confrontation rights and that the right was clearly established; accordingly, we reverse. I. FACTS AND PROCEEDINGS This case arises out of a billiard ball fight—not a billiard hall fight, although it certainly was that as well—but a fight involving billiard balls. On the evening of November 20, 1998, Slovik was drinking at a bar named Gusser’s Carousel. 1518 SLOVIK v. YATES It is clear that a bar fight occurred that night, and that Slovik was one of the main belligerents in that fight. After that, the details get kind of hazy. The various witnesses and participants—as the State points out, indisputably not picked from a Sunday school choir—offered conflicting testimony.1 The prosecution relied largely on the eyewitness testimony of the bartender, Katherine Buckley-Stoffel, and bar patrons Mark Featherstone, Marilyn Woods, and Zachary Johnson. The defense relied on the eyewitness testimony of bar patron Bridgett Lewis. The trial error that is the subject of this appeal occurred during Featherstone’s testimony. We are going to relate the story as each of the witnesses recounted it. Buckley-Stoffel testified that at approximately 1:00 a.m. she stopped serving Slovik alcohol because he was intoxi- cated and antagonistic. In response, Slovik threw a tip at Buckley-Stoffel, yelled obscenities, and threatened to kill her as he was escorted outside. After Slovik was removed from the bar, Buckley-Stoffel attempted to shut and lock the door, but Slovik grabbed it, pushed her back inside, and then shoved her and punched her in the shoulder. She testified that Slovik grabbed pool balls2 and threw one toward Lewis and 1 Our recitation of the facts is drawn from the findings of fact in the opinion of the California Court of Appeal, whose findings are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Neither Slovik nor the State has challenged these findings. 2 At oral argument, counsel for both sides indicated that cue balls were thrown. We are fairly confident that not everyone was throwing cue balls, although the record doesn’t reveal whether one side was stripes and the other solids. Given that there seems to have been only one pool table at the bar, there would only have been a single cue ball. Therefore, if Slovik threw multiple balls they must have been pool balls and not cue balls. In addition to the difference in color (the cue ball is, of course, white), on coin-operated tables the owners use slightly larger and heavier cue balls, or occasionally magnetic cue balls in order to ensure that the cue ball is returned to the game after a scratch. See EWA MATAYA LAURANCE & THOMAS C. SHAW, THE COMPLETE IDIOT’S GUIDE TO POOL & BILLIARDS 90 (1998).  SLOVIK v. YATES 1519 one toward her, which came within six inches of her head and broke the Plexiglas wall covering behind her. Buckley-Stoffel saw Slovik on the floor with Featherstone standing over him and then saw Slovik chasing Featherstone. Featherstone testified that Buckley-Stoffel took Slovik’s drink after Slovik did backflips through the bar. According to Featherstone, when Buckley-Stoffel asked Slovik to leave, Slovik yelled, cursed and shoved her. Buckley-Stoffel screamed for Featherstone to call 911. Featherstone further testified that as he attempted to shut the door, Slovik grabbed it and reentered the bar, shoving both Featherstone and Buckley-Stoffel against the wall. Slovik chased Lewis, and then slipped on pool sticks he had knocked down earlier. Fea- therstone denied touching Slovik, but claimed that Slovik chased him around the pool table, and threw two pool balls at his face. When Featherstone ducked, the balls hit the wall, and Slovik then threw a third ball. The incident that is the basis for Slovik’s habeas petition occurred during Featherstone’s cross-examination. Feather- stone was asked whether he was currently on probation. He answered “no.” Slovik’s counsel apparently had a form estab- lishing that Featherstone had been placed on five-years’ pro- bation for driving under the influence of alcohol, and he wished to impeach Featherstone with this evidence. After an unreported side-bar discussion, the trial court apparently sus- tained a prosecution objection under California Evidence Code § 352 to any further questioning of Featherstone about his probationary status, ruling the inquiry would be too time consuming. Although, due to the unrecorded side-bar, the written record is ambiguous as to what exactly Slovik’s coun- sel was attempting to introduce, at oral argument the State conceded that Slovik’s counsel was not permitted to show Featherstone the document and ask him an “isn’t it true that” question. Woods testified that Johnson jumped on Slovik and they began scuffling. Woods also testified that after Johnson and 1520 SLOVIK v. YATES Slovik scuffled, others unsuccessfully tried to remove Slovik from the bar. Featherstone called 911 and Johnson ran out the back door. Woods confirmed that Slovik shoved Buckley- Stoffel and hit Buckley-Stoffel’s arm. She testified that while Featherstone was on the other side of the pool table egging him on, Slovik grabbed two pool balls and threw one of them. Johnson testified that he went to assist in the effort to remove Slovik from the bar. According to Johnson, Slovik swung at Buckley-Stoffel and missed, and when Johnson stepped in the way, Slovik swung at him instead, and they began fighting. Johnson hit Slovik twice in the back of the head and they fell. The defense relied principally on the testimony of Lewis, another customer at the bar that night. According to Lewis, Slovik was intoxicated and belligerent and refused to leave until Buckley-Stoffel accompanied him to the door. When Lewis heard a disturbance, she went outside and witnessed Johnson holding Slovik in a chokehold against a car, as John- son’s sister screamed to “let him go!” Lewis testified that Slovik followed Johnson back into the bar, and when Lewis and Buckley-Stoffel attempted to shut the door, Slovik pushed Buckley-Stoffel aside and entered the bar. Lewis then kicked Slovik; he threatened her, and she ran outside. Lewis wit- nessed Featherstone pushing Slovik, and then kicking and pushing him back down when he tried to get up. Lewis testi- fied that after Slovik got up he angrily threw pool balls in an erratic fashion “not to pinpoint anybody out. He was just throwing them to throw them.” On cross-examination Lewis testified that she was unsure what he was trying to hit: “I guess people. I don’t know how.” She further testified that as Slovik moved toward the door, Featherstone threw a ball in that direction.3 3 Lewis testified that when the police asked them to write statements, they discussed the events among themselves, and Featherstone indicated that they should not mention that he had pushed or kicked Slovik.  SLOVIK v. YATES 1521 As a result of the bar fight, Slovik was charged with assault with a deadly weapon (the pool balls) and by means of force likely to produce great bodily injury upon Buckley-Stoffel (count one), and upon Featherstone (count two) in violation of California Penal Code § 245(a)(1); and battery upon Fea- therstone (count three) and Buckley-Stoffel (count four) in violation of California Penal Code § 242. A jury found Slovik guilty of counts two and four as charged, guilty of the lesser included offense of simple assault for count one, and not guilty of count three. On June 28, 1999, the trial court sen- tenced Slovik to 40 years to life as a result of the California three-strikes law and other sentencing enhancements. Slovik appealed his conviction on numerous grounds. The California Court of Appeal affirmed Slovik’s conviction on the merits, but struck some of the sentencing enhancements in an unpublished decision. The California Supreme Court denied Slovik’s petition for review. In September 2001, Slovik was resentenced to 35 years to life, which the Califor- nia Court of Appeal affirmed in another unpublished decision. Slovik then filed a state habeas corpus petition, which was denied by the Superior Court, the state appellate court, and the California Supreme Court. In February 2005, Slovik filed a 28 U.S.C. § 2254 petition for writ of habeas corpus in federal district court. Magistrate Although she wrote that Slovik hit Buckley-Stoffel, she testified that she meant that he pushed Buckley-Stoffel when being escorted out of the bar. She explained that she did not mention the parking lot fight in her state- ment because the police told them to write about the incident in the bar. Lewis also failed to note in her written statement that Featherstone had thrown a pool ball, but she testified that she decided to tell the truth when she learned that Slovik would receive a long sentence. A defense investigator testified that when he interviewed Lewis she never mentioned anyone besides Slovik throwing pool balls, but she did state that Featherstone pushed Slovik to the ground and then kicked him, and that Buckley-Stoffel and Featherstone did not plan to inform the police about either that or the parking lot fight. 1522 SLOVIK v. YATES Judge Stiven recommended that the habeas petition be denied, and Judge Benitez adopted that recommendation and denied the petition on May 1, 2006. Slovik timely appealed. II. DISCUSSION This case is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d).4 See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under AEDPA, we may not grant Slovik habeas relief unless the last reasoned state court adjudication, here the California Court of Appeal’s first unpublished decision addressing the merits of his case, “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented 4 After briefing, oral argument, and publication of an opinion in this case, the State argued for the first time in a petition for rehearing that Slovik did not sufficiently raise a Confrontation Clause argument in state court proceedings. Moreover, Slovik apparently cannot return to state court to raise a Confrontation Clause claim because he failed to raise the argument in his original state habeas petition. See In re Clark, 855 P.2d 729, 760 (Cal. 1993) (holding that “absent justification for the failure to present all known claims in a single, timely petition for writ of habeas cor- pus, successive and/or untimely petitions will be summarily denied”). Accordingly, Slovik is no longer subject to an exhaustion requirement, but he has procedurally defaulted his Confrontation Clause claim. See Frank- lin v. Johnson, 290 F.3d 1223, 1229-32 (9th Cir. 2002). We find, however, that the State has forfeited this procedural default argument, and we refuse to raise the issue sua sponte. See id.; Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003). In similar circumstances, the court in Franklin, 290 F.3d at 1233, went on to review the petitioner’s claim under AEDPA’s deferential standard despite the fact that the issue had not been raised in state court. However, in Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005), the court held that when a state has forfeited a procedural default argument we review the claim de novo. We need not resolve any tension between these cases, because we conclude that under either standard, a writ of habeas must be issued.  SLOVIK v. YATES 1523 in the State court proceeding.” 28 U.S.C. § 2254(d). We review de novo a district court’s decision to deny a habeas petition. Campbell v. Rice, 408 F.3d 1166, 1169 (9th Cir. 2005) (en banc). We granted a certificate of appealability on two questions: (1) whether Slovik’s constitutional rights were violated by the trial court’s exclusion of evidence that would have impeached Featherstone; and (2) whether Slovik’s right to present a defense was violated by the assault instruction given to the jury. Because we find the limitation on use of impeachment evidence for cross-examination adequate to grant the petition, we do not reach the jury instruction issue. A. Confrontation Clause Violation [1] The Confrontation Clause of the Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” U.S. CONST. amend. VI. The Supreme Court has explained that the right of confrontation “means more than being allowed to confront the witness physically,” but rather “[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (internal quotation marks and citation omitted). The Confrontation Clause does not prevent a trial judge from imposing “reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Nevertheless, the Court has held that a defendant’s Confrontation Clause rights have been violated when he is “prohibited from engaging in otherwise appropriate cross-examination . . . and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ ” Id. at 680 (quoting Davis, 415 U.S. at 318). “[A] criminal defendant states a violation of the Confrontation 1524 SLOVIK v. YATES Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness.” Id. Accordingly, the defendant has met his burden when he has shown that “[a] reasonable jury might have received a signifi- cantly different impression of [a witness’] credibility had . . . counsel been permitted to pursue his proposed line of cross- examination.” Id. [2] Slovik’s Sixth Amendment right to be confronted with the witnesses against him was violated because a reasonable jury might have received a “significantly different impres- sion” of Featherstone’s credibility had Slovik been permitted to confront Featherstone with the record of probation and cross-examine him concerning his apparent lie under oath. See id. During his cross-examination of Featherstone, Slovik’s counsel asked “You’re currently on probation right now?” to which Featherstone responded “No.” When, during cross-examination, Slovik’s counsel attempted to approach Featherstone with evidence that Featherstone was in fact on probation, the trial court denied permission to approach the witness with that evidence. Had Slovik’s counsel been permit- ted to ask Featherstone something along the lines of “isn’t it true that you are currently on probation for driving under the influence of alcohol?” Slovik might have shown that Feather- stone’s prior statement, made under oath, that he was not on probation was a lie.5 [3] The evidence that Featherstone was placed on five- years’ probation for driving under the influence was not being proffered to establish that Featherstone was unreliable simply because he was on probation, but rather to establish that Fea- 5 At oral argument the State suggested that Featherstone was not neces- sarily lying because he may not have known that he was on probation. We find it extremely improbable that a person is unaware that he is on proba- tion. In any event, that argument should have been left to counsel and resolved by the jury.  SLOVIK v. YATES 1525 therstone was unreliable because he had lied about being on probation and to establish that he had an ulterior motive to place the blame on Slovik so as not to admit to violating the terms of his probation.6 It is clear to us that the jurors might have formed a significantly different impression of Feather- stone’s credibility if they had heard cross-examination show- ing that Featherstone was willing to lie under oath and that he had a motive for lying because of the terms of his probation status. Therefore, the trial court’s refusal to allow Slovik to present such evidence violated Slovik’s constitutional rights under the Sixth Amendment, so clearly set forth in Van Ars- dall and Davis. The State concedes that the exclusion of the proffered impeachment cross-examination would violate Slovik’s Sixth Amendment confrontation rights if the excluded testimony would have produced a significantly different impression of the witness’ credibility, but it contends that exclusion of cross-examination with the record of Featherstone’s probation did not significantly alter the jurors’ impression of Feather- stone’s credibility. Inexplicably, the State argues that “[j]urors could reasonably infer from defense counsel’s cross- 6 Slovik argues that if Featherstone was on probation, he would have had an additional motive for lying about whether he attacked Slovik first, because an assault or battery charge would have violated the terms of his probation. The State argues that Slovik never advised the trial court, pur- suant to California Evidence Code § 354(a), that he intended to pursue evidence of Featherstone’s current probation status to show Featherstone had a motive for testifying falsely. California evidentiary law is irrelevant to the determination of Slovik’s constitutional rights, and we find Slovik’s argument sufficient to raise the issue to the state trial court. The record clearly indicates that Slovik argued that he should have had the opportu- nity to question Featherstone regarding his probationary status under Davis v. Alaska, 415 U.S. 308 (1974). Davis involved the right to confront a witness based on his motive to lie due to his probationary status. Id. at 319. Insofar as the State now wishes to assert that Slovik is procedurally barred by failing to raise this issue in the state courts of appeal, we find that the State has forfeited the argument by failing to raise it prior to the filing of its petition for rehearing. See Franklin, 290 F.3d at 1229-32. 1526 SLOVIK v. YATES examination question and Featherstone’s answer that Feather- stone committed an offense resulting in a prior placement on probation.” The entire exchange proceeded as follows: Slovik’s counsel asked Featherstone, “You’re currently on probation right now?” to which Featherstone responded “No.” It is baffling how jurors could reasonably infer from this exchange that Featherstone committed an offense resulting in a prior placement on probation. The only conclusion that a juror could reasonably draw is that Slovik’s counsel was attempting to impeach Featherstone’s credibility, but failed. Indeed, because use of the evidence was prohibited, it would have been improper for the jurors to read anything else into the exchange. The State has not offered any reason why the jury would suspect that Featherstone was lying when he answered “No.” The jurors were left to assume that Slovik’s counsel was fishing and that Featherstone testified honestly. The State also contends that the trial court’s ruling did not significantly alter the jury’s impression of Featherstone’s credibility because Slovik’s trial counsel had already estab- lished that some of the prosecution’s witnesses were regular bar patrons, and some were on probation, and that this “suf- ficed to dispel any lingering illusions that the prosecutor picked his witnesses from a Sunday school choir.” This argu- ment fails to recognize the effect that cross-examination might have had on the jurors’ perception of the individual wit- ness. Although we will consider this argument again in our harmless error analysis, the fact that defense counsel impeached other witnesses bears no relevance in the confron- tation right analysis, which asks whether impeaching Feather- stone would have produced a significantly different impression of Featherstone’s credibility. Featherstone was an important witness. He was in the middle of the dust-up and, if his testimony was believed, was a victim of Slovik’s billiard-ball assault. The Supreme Court has emphasized that “the focus of the Confrontation Clause is on individual wit- nesses” and thus “the focus of the prejudice inquiry in deter- mining whether the confrontation right has been violated must  SLOVIK v. YATES 1527 be on the particular witness, not on the outcome of the entire trial.” Van Arsdall, 475 U.S. at 680. That defense counsel was able to impeach other witnesses is irrelevant to whether the trial court’s limit on Slovik’s ability to cross-examine Fea- therstone violated the Confrontation Clause. [4] The California Court of Appeal analyzed Slovik’s claim as an evidentiary issue governed by state law, rather than a confrontation question governed by the Sixth Amendment. The California Court of Appeal approved the trial court’s rul- ing under California Evidence Code § 352, which states: The court in its discretion may 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. Applying a California evidentiary standard of review, the Court of Appeal concluded that “[a]bsent a clear showing of abuse, the trial court’s exercise of discretion under this section will not be reversed.” See People v. Avila, 133 P.3d 1076, 1137 (Cal. 2006) (“We review for abuse of discretion a trial court’s rulings on relevance and the exclusion of evidence under Evidence Code section 352.”). AEDPA gives us no basis here for questioning a California court’s decision apply- ing its own evidentiary rules. However, had the Court of Appeal applied Van Arsdall and Davis, we believe it would have come to a different conclusion. In this regard, the Cali- fornia Court of Appeal’s decision was objectively unreason- able in light of clearly established Supreme Court precedent regarding the Confrontation Clause. B. Harmless Error Analysis [5] Confrontation Clause errors are subject to harmless- error analysis. Normally, for constitutional errors “[t]he cor- 1528 SLOVIK v. YATES rect inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. at 684. However, in reviewing state court decisions for harmless error in the context of a habeas petition, federal courts review to determine if the error had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see Fry v. Pliler, 127 S. Ct. 2321, 2325-27 (2007). “If a habeas court is left with ‘grave doubt’ about whether a constitutional error sub- stantially influenced the verdict, then the error was not harm- less.” Parle v. Runnels, 387 F.3d 1030, 1044 (9th Cir. 2004). In making this inquiry, the court must review the record to determine “what effect the error had or reasonably may be taken to have had upon the jury’s decision.” McKinney v. Rees, 993 F.2d 1378, 1385-86 (9th Cir. 1993) (quoting Kot- teakos, 328 U.S. at 764). In any particular case the relevant factors include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contra- dicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Id. Applying these factors, we conclude that the trial court’s limit on Slovik’s ability to cross-examine Featherstone had a substantial and injurious effect or influence in determining the jury’s verdict. Assuming, as we must, that the damaging potential of Featherstone’s cross-examination was fully real- ized, Fowler v. Sacramento County Sheriff’s Dep’t, 421 F.3d 1027, 1041 (9th Cir. 2005), we are left with a grave doubt as to whether the trial error had a substantial influence on the jury’s decision. [6] The conviction at issue in Slovik’s habeas petition is count two, assault with a deadly weapon, for throwing pool  SLOVIK v. YATES 1529 balls at Featherstone. Featherstone’s testimony is critical to that conviction because Featherstone testified plainly that Slovik threw one or more pool balls at him. The only other witness who testified that Slovik may have thrown a pool ball at Featherstone is Woods. According to the California Court of Appeal, Woods testified that “while Featherstone was on the other side of the pool table egging him on, [Slovik] threw one of the balls.” Given that Slovik’s defense was based on self-defense, and he argued that Featherstone was the aggres- sor, a reasonable jury would have had a much more difficult decision on a charged count of assault with a deadly weapon based solely on Woods’ testimony—that Slovik “threw one of the balls” while Featherstone was egging him on. Woods’ tes- timony did not even indicate that Slovik was aiming at Fea- therstone, as opposed to just throwing a ball aimlessly. Moreover, Woods only testified that Slovik threw one ball and does not indicate the target of that ball, whereas Feather- stone contended that Slovik threw three balls at him. Other witnesses testified either that Slovik threw pool balls haphaz- ardly, or that he threw them at others. Lewis, for example, tes- tified that Slovik “was just throwing [pool balls] to throw them” and was not trying “to pinpoint anybody.” Feather- stone’s testimony thus appears crucial to the prosecution’s case and is not cumulative. We gravely doubt whether the prosecution’s case was so strong that the trial court’s decision to exclude cross-examination on evidence discrediting Fea- therstone did not have a substantial and injurious impact on the jury’s decision. The State does not attempt to argue that its case was partic- ularly strong, or that Featherstone was inconsequential to its conviction. Rather, the State alleges that even if the state court committed constitutional error, “the state court trial jurors knew that none of the trial witnesses led a purely law-abiding life.” We are not sure what we should take from this admis- sion. This argument is presumably an attempt to show that the testimony was cumulative, but it merely serves to emphasize that the State’s case rested on the testimony of shaky wit- 1530 SLOVIK v. YATES nesses and reminds us that if these witnesses were further contradicted, the jury might not have returned a conviction. The California Court of Appeal found “harmless error in the court’s excluding evidence a witness was on probation when the witness testified to the contrary.” People v. Slovik, No. SCE193584, at 2 (Cal. Ct. App. filed Mar. 2, 2001). The court provided no reasoning to support that statement. The court’s analysis is limited to another conclusory statement that “there is no reasonable probability of a different result had the court allowed questioning of Featherstone’s probationary sta- tus.” Id. at 13. The court fails to explain why there is no rea- sonable probability of a different result, in light of any of the factors provided by the Supreme Court to guide the harmless error inquiry. Instead, the court just concludes for a third time that “[t]he fact [that] the defense was not allowed to question Featherstone further about whether he was on probation did not result in a miscarriage of justice.” Id. [7] We review a state court decision regarding harmless error to determine if it “is contrary to Supreme Court prece- dent or objectively unreasonable.” Inthavong v. Lamarque, 420 F.3d 1055, 1059 (9th Cir. 2005).7 Although it is unclear whether the California Court of Appeal simply failed to con- duct a harmless error analysis, or whether it misapplied that analysis, its conclusion that the trial court’s exclusion of the evidence of Featherstone’s probation was harmless error either contradicted or unreasonably applied established fed- 7 Here, because Slovik failed to directly raise the Confrontation Clause issue, the California Court of Appeal appears to have applied the state harmless error standard under People v. Watson, 299 P.2d 243, 253-55 (Cal. 1956), rather than the constitutional harmless error standard under Chapman v. California, 386 U.S. 18, 24 (1967). As noted above, we find that the State has forfeited any procedural default argument on this issue by failing to bring it to the attention of the court prior to filing a petition for rehearing. Under either de novo review, see Chaker, 428 F.3d at 1221, or the more deferential standard under AEDPA, see Franklin, 290 F.3d at 1233, we conclude that the writ of habeas must be issued.  SLOVIK v. YATES 1531 eral law as determined by Supreme Court precedent. See Van Arsdall, 475 U.S. at 684. III. CONCLUSION [8] We reverse the denial of the petition, and direct the dis- trict court to issue an order stating that a writ of habeas corpus will be issued with regard to Slovik’s assault conviction unless he is retried or resentenced within a reasonable period of time to be determined by the district court. REVERSED AND REMANDED. 

797 So.2d 778 (2001) STATE of Louisiana, Appellee, v. Jerry W. MUNHOLLAND, Appellant. No. 35,941-KA. Court of Appeal of Louisiana, Second Circuit. October 12, 2001. *779 Stephen A. Jefferson, Counsel for Appellant. Richard P. Ieyoub, Attorney General, William R. Coenen, Jr., District Attorney, Penny W. Douciere, Kenneth D. Wheeler, Assistant District Attorneys, Counsel for Appellee. Before WILLILAMS, GASKINS and KOSTELKA, JJ. WILLIAMS, Judge. The defendant, Jerry Munholland, pled guilty to driving while intoxicated ("DWI"), third offense, a violation of LSA-R.S. 14:98. Thereafter, defendant was sentenced to serve three years imprisonment at hard labor. The defendant now appeals. We affirm. FACTS The defendant was charged by bill of information on June 19, 1999 with DWI, third offense, which occurred on April 17, 1999 in Richland Parish. The bill of information alleged two predicate convictions of DWI: (1) March 21, 1996: State of Louisiana, Parish of Ouachita, Fourth District Court, and (2) June 29, 1998: State of Louisiana, Parish of Ouachita, Fourth District Court. On December 21, 1999, the defendant filed a motion to quash the bill of information, alleging, in pertinent part, that the June 1998 conviction "is constitutionally defective because there is an insufficient inquiry and colloquy between the defendant and the presiding judge." Parts 4 and 5 of the defendant's motion to quash read as follows: 4. The transcript of the guilty plea shows that the Trial Judge advised Mover of certain constitutional rights, however, the Trial Judge failed to ascertain: a) Whether or not the Defendant understood each constitutional right; and b) Whether or not the Defendant waived each constitutional right. 5. Mover shows that after the Trial Judge informed Mover of said rights, there was no affirmative showing by Mover, nor was there a response by Mover, that he understood and wanted to waive his constitutional rights. The evidence submitted, including the court minutes and transcript of the June 1998 guilty plea, shows that the defendant was not represented by counsel while entering his guilty plea. However, the defendant has not challenged the propriety of his waiver of counsel. Thus, the only issue presented for our review is whether the defendant made a knowing and voluntary waiver of his Boykin rights during the 1998 plea colloquy. *780 The pertinent part of the plea colloquy reads as follows: Q: Do you understand today's an arraignment session and normally people plead not guilty today and then come back in a couple of two or three months and then they change their plea to guilty. You don't have to plead guilty today or any other day for that matter. A: No. I want to go ahead and get it behind me. Q: Alright. A: That way I can work on it. * * * * Q: Okay. You're charged with DWI, driving under revocation, and improper lane usage resulting from a stop back in November. You took the chemical test and your results were .189. And of course if they're higher than .10 then you're presumed to be under the influence. Don't matter if you had two beers or twenty. You're telling me you want to plead guilty to DWI-first offense. You know what that is? A: Yes, sir. Q: Operating a motor vehicle on a public highway of this parish and state while under the influence of an alcoholic beverage. By pleading guilty you're giving up your right to a trial before a judge, you're giving up your presumption of innocence, you're giving up the right to subpoena witnesses on your behalf to testify for you if there were any, you're giving up the right to cross-examine the arresting officer that stopped you. It looks like it was a parish deputy ... a sheriff's deputy, Gene Caviness. He and anybody else that might have assisted in the arrest would be summoned to testify. And if you didn't have an attorney, then you could ask the officer questions about why he stopped you and how you did on the field sobriety and all of those other things. By pleading guilty you give up those rights. You give up the right to remain silent. You couldn't be made to testify against yourself. You give up any right to question why the officer stopped you in the first place-probably because of improper lane usage. You might have made a lane change without signalling (sic) or you might have gone back and forth or some other thing that might have given you. A: I know why he did it. Q: Why did he do it? A: On Highway 51 it's got a real sharp curve back to the left. And that improper lane says do not enter. Q: You crossed over into the other lane? A: Everybody in the world does it when ... that lives down there in there. But it's just one time I got caught doing it. Q: Okay. Well, that's a pretty honest way of looking at it. If I determine that there was a good reason for him to stop you, that would be enough for him if he had suspicion that you had been drinking to make you ... ask you to do field sobriety and chemical tests and then the whole bit. Do you understand what the penalty for DWI is? It's going to be a Five Hundred Dollar ($500.00) fine and a sixty ... a hundred and twenty days suspended— because this is not a true first—and about ten eight-hour days of community service work, plus going to the same classes that you did the *781 first time. See, that was suppose to be so much of a hassle for you and inconvenience you that you wouldn't want to do this again. But it didn't work though, did it? A: No, sir. Q: So you're probably going to have to go into some kind of alcohol treatment program. I'm not saying it has to be a hospital, but it's going to have to be something a little more serious than what you just got through going through because it obviously didn't work. Alright. Any questions? A: No, sir. Q: Alright. The next DWI you get— hopefully there won't be one—but it could be charged as a third. And that would be a felony and you'd be looking at a minimum of a year in the parish jail, possibly as much as five years in the penitentiary and a Two Thousand dollar ($2,000.00) fine, possibly the seizure and sale of your motor vehicle, the loss of driving privileges for God knows how long. DWI—fourth is a very serious felony. That's ten to thirty in the penitentiary. So it gets worse every time it happens. You're lucky you're not being charged as a second offender. Apparently because of when this occurred there was some question about whether or not they could actually process the second offense if you asked for a jury trial. So in any event, you're being allowed to plead. They just charged this as a first. Alright. Any questions? A: No, sir. Q: Alright. Are you pleading guilty because you are in fact guilty? A: Yes, sir. Q: On or about November 6, 1997, in Ouachita Parish, Louisiana, did you operate a motor vehicle while under the influence of an alcoholic beverage? A: Yes, sir. Q: Alright. And I told you what your results were..189. A: Yes, sir. Q: That's quite a bit higher than the minimum level of .10. By the court: Alright. The Court accepts the plea, finds the same to be freely, voluntarily, knowingly, and intelligently entered after due advisal of rights by the Court and further finds that he's made an intelligent waiver of his right to counsel knowing the dangers and disadvantages of self representation.... The court minutes for the present case reflect that on May 5, 2000, the defendant introduced the transcripts and minutes of the two predicate DWI offenses into evidence and the trial court took the motion to quash under advisement. The record does not reflect that the trial court made a formal ruling on the motion. On October 24, 2000, the defendant appeared in open court, with counsel, withdrew his previous plea of not guilty, and entered a plea of guilty pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving his right to appeal the use of the June 28, 1998 DWI conviction as a predicate offense for the DWI, third charge. The defendant was sentenced to serve three years at hard labor. This appeal followed. DISCUSSION Whenever a misdemeanor guilty plea will be used as a basis for actual imprisonment, enhancement of actual imprisonment or the conversion of a subsequent misdemeanor into a felony, it is incumbent *782 upon the court to inform the defendant that by pleading guilty he waives (a) his privilege against self-incrimination; (b) his right to trial by jury where it is applicable; and (c) his right to confront his accuser. State v. Jones, 404 So.2d 1192 (La.1981); State v. Cadiere, 99-0970 (La.App. 1st Cir.2/18/00), 754 So.2d 294. What the accused understood is determined in terms of the entire record and not just certain "magic words" used by the trial judge. State v. Strain, 585 So.2d 540 (La.1991). Everything that appears in the record concerning the predicate offense, as well as the trial judge's opportunity to observe the defendant's appearance, demeanor and responses in court, should be considered in determining whether or not a knowing and intelligent waiver of rights occurred. Cadiere, supra; State v. Lodrigue, 97-1718 (La.App. 1st Cir.5/15/98), 712 So.2d 671. Factors bearing on the validity of this determination include the age, education, experience, background, competency, and conduct of the accused, as well as the nature, complexity and seriousness of the charge. Cadiere, supra. The defendant argues that he was not represented by counsel in the June 1998 guilty plea and although the trial court began to inform him of his three Boykin rights, the trial court made no inquiry or determination that he expressly and knowingly waived those constitutional rights in entering the guilty plea. He further contends that the trial judge must ask a defendant "whether he or she understands his or her rights and wants to give them up." The state argues that the defendant's rights were explained in simple, straightforward language and that the defendant was given the opportunity to ask questions before he pled guilty. The state further argues that it is clear from the transcript that the trial judge explained to the defendant that by pleading guilty he would be giving up his right to a trial, the presumption of innocence, the privilege against self-incrimination, the right to subpoena witnesses and the right to cross examine the state's witnesses. The exchange between the trial judge and the defendant during the colloquy gave the judge ample opportunity to observe the defendant's demeanor and conduct. The record shows that the judge advised the defendant of his right to counsel and that he did not have to plead guilty. The defendant responded, "No. I want to go ahead and get it behind me".... "That way I can work on it." The judge and the defendant discussed the defendant's probation stemming from a prior DWI. Also, later in the colloquy, the defendant answered affirmatively when asked whether he wanted to plead guilty to DWI first offense. Finally, the judge informed the defendant that by pleading guilty, he was giving up his right to trial, his privilege against compulsory self-incrimination, and his right to confront his accuser. After the trial judge informed the defendant of his constitutional rights, the defendant interjected and began to explain to the judge why he believed he was stopped by the officer. Thereafter, the judge explained to the defendant the penalties and consequences of his plea and asked him if he had any questions. The defendant responded, "No Sir." The judge also explained the penalty for a later conviction of a third DWI and then asked the defendant if he had any questions. The defendant again responded, "No Sir." Although the defendant was not represented by counsel when he entered his guilty plea, the conduct and demeanor of *783 the defendant demonstrated that he understood the proceedings and that he knowingly and intelligently waived his Boykin rights. In fact, the defendant's comments in regard to "getting this matter behind him" and "working on the matter" showed that defendant understood the nature of the charge and was knowingly and voluntarily pleading guilty to the charge. Also, the defendant's explanation of the facts surrounding the June 1998 charge and his discussion with the judge regarding a prior DWI conviction during the colloquy at issue is further evidence that the defendant understood the nature of the proceedings. Moreover, the defendant's rights were explained to him in detail and the trial court gave him numerous opportunities to ask questions. Instead, the defendant continued to express his desire to plead guilty. The Louisiana Supreme Court has stressed that neither Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) nor the court's implementation of Boykin in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), sets out a "magic word formula" which may "serve as a technical trap for conscientious trial judges who conduct a thorough inquiry into the validity of the plea...." State v. Madison, XXXX-XXXX (La.8/31/00), 768 So.2d 593; State v. Bowick, 403 So.2d 673 (La.1981). Here, the judge informed the defendant that by pleading guilty he was "giving up" the right to trial, the right to confront his accusers and the right to remain silent. After being so advised, the defendant stated that he wished to plead guilty. Therefore, in the present case, the absence of the question, "Do you understand?" following the 1998 colloquy does not negate this defendant's guilty plea, where it is clear from the record that the defendant knowingly and intelligently waived his Boykin rights. The assignment of error lacks merit. ERRORS PATENT Pursuant to LSA-C.Cr.P. art. 920, we have reviewed the record for error patent and have found none. CONCLUSION For the above reasons, the defendant's conviction and sentence are affirmed. AFFIRMED.

Opinion issued May 20, 2005 In The Court of Appeals For The First District of Texas NO. 01-00-01163-CV NO. 01-00-01169-CV MALCOMSON ROAD UTILITY DISTRICT, Appellant V. FRANK GEORGE NEWSOM, Appellee On Appeal from the County Civil Court At Law No. 3 Harris County, Texas Trial Court Cause Nos. 691,631 & 691,632 DISSENTING OPINION ON REHEARING           I agree with the majority that Hubenak II requires us to apply the summary judgment standard of review to the trial court’s rulings on each of the statutory requirements for condemnation, including the unable-to-agree requirement. Applying this standard, I agree with the majority that the District conclusively proved that the parties were unable to agree on damages before the filing of suit. I also agree that the District carried its constitutional burden of proving that the taking was for a public use. See Tex. Water Code Ann. § 54.201(a), (b)(3) (Vernon Supp. 2004-2005) (delegating to utility districts power of eminent domain to “gather, conduct, divert, and control local storm water or other local harmful excesses of water”); Housing Auth. of the City of Dallas v. Higginbotham, 143 S.W.2d 79, 83 (Tex. 1940) (legislative determination that project is for public use is binding unless use is “clearly and palpably” private). However, because I believe the majority has imposed an improperly high standard of review on a utility district’s determination of the necessity of a taking for public use, and has therefore denied the District judgment to which it is entitled in law, I respectfully dissent.           As the majority states, a condemning authority’s discretion to condemn land for a public purpose is nearly absolute, and the courts will not review the exercise of that authority without a showing that the condemnor acted fraudulently, in bad faith, or arbitrarily and capriciously. See Ludewig v. Houston Pipeline Co., 773 S.W.2d 610, 614 (Tex. App.—Corpus Christi 1989, writ denied); Bradford v. Magnolia Pipe Line Co., 262 S.W.2d 242, 246 (Tex. Civ. App.—Eastland 1953, no writ); Meaney v. Nueces County Navigation Dist. No. 1, 222 S.W.2d 402, 405 (Tex. Civ. App.—San Antonio 1949, writ ref’d); Jones v. City of Mineola, 203 S.W.2d 1020, 1022 (Tex. Civ. App.—Texarkana 1947, writ ref’d). A condemnation determination is arbitrary and capricious when it is “willful and unreasoning action, action without consideration and in disregard of the facts or circumstances [that] existed at the time condemnation was decided upon, or within the foreseeable future.” Wagoner v. City of Arlington, 345 S.W.2d 759, 763 (Tex. Civ. App.—Fort Worth 1961, writ ref’d n.r.e.). Thus, to resist summary judgment, Newsom, as condemnee, had the burden to establish that the condemnation of his property was not for an authorized public use or was willful and unreasoning and made in disregard of the facts. As the majority puts it, “[T]o show that the District acted arbitrarily and capriciously, Newsom had to negate any reasonable basis for determining what and how much land to condemn for the pond and the ditch expansion.” Malcomson Rd. Util. Dist. v. Newsom, Nos. 01-00-01163-CV & 01-00-01169-CV, slip op. at 22 (Tex. App.—Houston [1st Dist.] May 20, 2005, no pet. h.); see Wagoner, 345 S.W.2d. at 763 (noting that non-movant landowner could “have raised the issue [of arbitrariness] only if it was unquestionably established in the evidence that there could have been no actual public necessity for the [condemning authority] to seek the land in question for [authorized public] purposes”) (emphasis added).             The majority acknowledges that [r]egarding the pond, a land planner testified for the District that, as HCFCD had concluded, a pond was necessary. Santasiero’s engineer, Newsom’s engineer, and Newsom’s land planner agreed that a detention pond was necessary, but did not specify a location. HCFCD did not require that the pond be placed on Newsom’s property, but Ray Zobel, president of the District’s board, testified that the board selected Newsom’s property for the pond because that location would have allowed Villagio to have more homes, thus increasing the tax base more than if Newsom had been allowed to develop his own land.   Regarding the ditch expansion, an engineer and a land planner testified for the District that, as HCFCD had concluded, the project was necessary. Newsom’s own land planner agreed that HCFCD “would prudently require” the ditch expansion. The existing ditch ran along the eastern boundary of Newsom’s northern tract of land. The only direction in which the ditch could be expanded was westward, onto Newsom’s property, because the land to the east of the ditch had already been developed. Malcomson, Nos. 01-00-01163-CV & 01-00-01169-CV, slip op. at 28. The District thus presented evidence both that there was an actual necessity for the condemnation of Newsom’s land for an authorized public use and that there was a reasonable basis for condemning the land. Newsom produced no evidence that showed this testimony to be fraudulent or given in bad faith.           The majority, however, places a burden on the District to go behind the evidence showing public necessity and a reasonable basis for the condemnation decision, to refuse to accept the testimony of persons whose interests are adverse to the landowner as sufficient, and to require its own engineers to confirm not just the necessity for the taking—here for the ditch and the pond—but also the necessity of condemning this ditch and this pond as opposed to any other. In addition, the majority imposes the burden on the District to consider and investigate the scope of the taking, specifically to investigate whether the right-of-way for a drainage ditch such be taken in fee simple or by easement. The majority concludes that “the above evidence raises a fact issue on whether the District declined to exercise its discretion in determining whose land to condemn for the pond and in deciding whether to condemn Newsom’s land in easement or in fee for the ditch expansion,” thus raising a fact issue “on whether the District reached its condemnation decisions arbitrarily and capriciously or by abusing its discretion.” Malcomson, Nos. 01-00-01163-CV & 01-00-01169-CV, slip op. at 31. I cannot agree.           First, the majority’s conclusion is not supported by the language of the governing statute. There is no requirement in the governing statute, section 49.222(a) of the Water Code, that the District determine whose land to condemn—only that it determine on an evidentiary basis that the condemnation is for a public purpose. See Tex. Water Code Ann. § 49.222(a) (Vernon 2000). Nor is there any requirement that the condemnor investigate whether to condemn land in easement or in fee and provide evidence for its determination; rather, the power to elect to condemn either in fee simple or in easement is expressly given to the condemning authority. See id. In both cases, the language of the statute under which the District sought to condemn Newsom’s property is plain: A district . . . may acquire by condemnation any land, easements, or other property inside or outside the district boundaries . . . necessary for water, sanitary sewer, storm drainage, or flood drainage or control purposes or for any other of its projects or purposes, and may elect to condemn either the fee simple title or a lesser property interest. Tex. Water Code Ann. § 49.222(a) (emphasis added); see also id. § 49.218(a)-(c) (Vernon Supp. 2004-2005) (granting districts right to purchase land or interest in land considered necessary for districts’ purposes).           Second, the majority’s holding conflicts with established authority. See Ludewig, 773 S.W.2d at 614–15 (holding landowners’ evidence that condemnor could have adopted plans circumventing landowners’ property or determined size of easement differently was no evidence of arbitrary or capricious behavior where there was reasonable basis for determination); Wagoner, 345 S.W.2d at 763 (holding, “When the use for which property is sought under authority of the statutes of eminent domain is an authorized public use, the necessity or expediency of condemning any particular property is not a subject of judicial cognizance”) (emphasis added); Meaney, 222 S.W.2d at 408 (holding where district had statutory authority to condemn fee title, determination whether to take fee rather than easement was primarily for commissioners; in absence of showing that determination was induced by fraud or was wholly arbitrary and founded on no adequate determining principal, district’s decision was final); Hardwicke v. City of Lubbock, 150 S.W.3d 708, 716–17 (Tex. App.—Amarillo 2004, no pet.) (holding where there was room for two opinions as to necessity of condemning specific properties for redevelopment, action of zoning authority was not arbitrary and capricious).           I believe the holding of this court improperly heightens the burden on the District in establishing the necessity of condemning property for an authorized public purpose and is contrary to the plain language of the statute the District relied on to condemn Newsom’s property, section 49.222(a) of the Water Code, and to authority interpreting the condemnation power. I also believe that Newsom failed to bear his burden of proof that the District acted fraudulently, in bad faith, or arbitrarily and capriciously in condemning a portion of his property. Therefore, I respectfully dissent. I would hold that the District carried its summary judgment burden of showing the necessity of the taking for an authorized public use and that Newsom failed to raise a fact issue as to the propriety of the taking. Conclusion           I would reverse the district court’s judgment denying the District’s motion for summary judgment, reverse the judgment granting Newsom’s motion for summary judgment and awarding him attorney’s fees and possession of the property and improvements on it, render partial summary judgment for the District, and remand for further proceedings in accordance with this opinion.                                                                Evelyn V. Keyes                                                              Justice Panel consists of Justices Taft, Keyes, and Higley. Justice Keyes, dissenting.

397 F.2d 60 68-2 USTC P 12,538 Mrs. Frankie Lou Smith PRICHARD, Independent Executrix ofthe Estate of Houston Smith, Jr., Appellant,v.UNITED STATES of America, Appellee. No. 23931. United States Court of Appeals Fifth Circuit. June 20, 1968. George E. Ray, Dallas, Tex., for appellant. Melvin M. Diggs, U.S. Atty., Fort Worth, Tex., Mitchell Rogovin, Asst. Atty. Gen., Tax Div., Richard C. Pugh, Act. Asst. Atty. Gen., Meyer Rothwacks, Lee A. Jackson, Gilbert E. Andrews, Jeanine Jacobs, Attys., Dept. of Justice, Washington, D.C., for appellee. Before BELL, GODBOLD and DYER, Circuit Judges. GODBOLD, Circuit Judge: 1 This is an appeal from a judgment that appellant executrix is not entitled to refund of an alleged overpayment of estate tax on the estate of Houston Smith, 255 F.Supp. 552 (N.D.Texas 1966).1 The case concerns application of 2042 of the Internal Revenue Code, 26 U.S.C.A. 2042. The district court found for the government under sub-sections (1) and (2) of 2042. We affirm on the basis of sub-section (2), which requires inclusion in the gross estate of proceeds from insurance payable to beneficiaries other than the estate if the decedent possessed at the time of his death any incidents of ownership in the insurance. This makes unnecessary any discussion of sub-section (1). 2 The decedent, a building contractor, was a resident of Texas, a community property state. He approached Great Southern Life Insurance Company for permanent mortgage financing on a shopping center which he proposed to construct in Texas. Great Southern stated as one of its conditions for making the loan that Smith secure from it $250,000 of insurance on his life to be assigned as additional collateral. Immediately Smith applied for such a policy, on the application showing Great Southern as the proposed beneficiary and owner. The local Great Southern agent wrote on the application that the insurance was to be assigned to the company if the loan, then pending for approval, was approved. The company notified Smith it did not wish to be named beneficiary and owner, that an absolute assignment to it would be required. Mrs. Smith then was named beneficiary and owner. 3 Great Southern issued a commitment letter in a form usual in this type of transaction, committing the company to make a loan of $575,000 to Mr. and Mrs. Smith, secured by mortgage on the real estate and improvements of the shopping center.2 It contained a specific condition requiring that the $250,000 of insurance be absolutely assigned as additional collateral. Smith paid Great Southern a 'standby fee' of $5,750 for the commitment. Using the commitment to show that permanent financing had been arranged, Smith obtained interim financing from a bank for construction of the center. 4 Great Southern issued its policy on November 4, 1957 showing as beneficiary the wife if living, otherwise the surviving children of Smith by his said wife. The policy was ordinary life, with endowment at age 90. Smith was age 42 at issue. As part of the policy when issued there was attached a supplemental provision stating: 5 The application for this policy having been made by Houston Smith, Jr., insured, it is understood and agreed that the applicant having designated Frankie Lou Smith-- wife-- as the beneficiary to control this policy, it is understood and agreed that Frankie Lou Smith-- wife-- is the sole owner of this policy and shall have the power to exercise all of the privileges, benefits, rights and options granted to the insured in the policy. 6 The policy was delivered to either Mr. or Mrs. Smith, the record is not clear which. 7 On November 6 Great Southern wired its local loan representative that the leases (to shopping center tenants) had been approved, the loan approved, and the life insurance issued. Promptly thereafter construction of the center began. It was built larger than originally planned. Great Southern agreed to increase its commitment to $615,000 and issued a second commitment letter, making no charges except those necessitated by the new amount and containing a condition that the described $250,000 policy be absolutely assigned as collateral. 8 Under the terms of the policy and assignment of it had to be by Mrs. Smith as owner. (By other policy terms the right to make policy loans and the right to surrender the policy for its cash value also were in her as owner). 9 The Great Southern loan to the husband-wife community was closed July 7, 1958 when the center was complete. Necessary papers had been prepared by Great Southern; they included an absolute assignment of the insurance policy, prepared for the signatures of Mr. and Mrs. Smith, which was signed by them at the closing and delivered to Great Southern. Under the terms of the assignment Great Southern was given a lien upon the policy and the proceeds.3 The rights of the beneficiary were expressly made subordinate to Great Southern's rights under the assignment. 10 On July 15 Smith sent the original policy to Great Southern, which as assignee was entitled to possession of it. In June, 1959, Great Southern returned the policy to Smith with a form letter saying that it need no longer be held in the company's possession, that the existence of the absolute assignment had been noted on the policy and would be released when the secured indebtedness was retired. 11 Smith was killed in an automobile accident on July 2, 1960. The unpaid balance on the indebtedness at this time was $565,929.84. At the request of Mrs. Smith the company agreed to release to her $150,000 of the proceeds of the policy rather than applying all to the secured indebtedness as the company was entitled. The company stated it was doing this 'in order that it may be of some assistance to you in meeting the taxes that will be assessed against the Estate of your husband.' The other $100,000 was applied against the debt. 12 Appellant timely filed an estimated tax return. No portion of the $250,000 policy proceeds was included in the gross estate, but the entire amount of the unpaid indebtedness on the loan at the time of Smith's death was listed as a mortgage debt due Great Southern and was sought to be deducted under 2053(a) (4). On examination the commissioner included in the estate $125,000, one-half of the policy proceeds, and allowed deduction of one-half the outstanding balance on the mortgage loan. 13 Appellant paid the tax and sued for refund. From that unsuccessful suit comes this appeal. 14 The statute makes no attempt to define incidents of ownership. The regulations provide: 15 The term 'incidents of ownership' is not limited in its meaning to ownership of the policy in the technical legal sense. Generally speaking, the term has reference to the right of the insured or his estate to the economic benefits of the policy. Thus, it includes the power to change the beneficiary, to surrender or cancel the policy, to assign the policy, to revoke an assignment, to pledge the policy for a loan, or to obtain from the insurer a loan against the surrender value of the policy, etc. 16 Treas.Reg. 20.2042(1)(c). See generally Lowndes & Kramer, Federal Estate and Gift Taxation 13.6-13.8 (2d ed. 1962). This court, in Commissioner of Internal Revenue v. Chase Manhattan Bank, 259 F.2d 231 (5th Cir. 1958), refers to incidents of ownership as the whole bundle of the rights in a policy except the right to the proceeds, including 17 'the economic benefits of the insurance, the cash surrender value, the power to change the beneficiary, the power to surrender or cancel the policy, the power to assign the policy or revoke an assignment, the power to pledge the policy for a loan, the power to obtain from the insurer a loan against the surrender value of the policy.' 18 259 F.2d at 246, quoting from Benjamin & Pigman, Federal Estate and Gift Taxation of Louisiana Life Insurance, 28 Tul.L.Rev. 243, 247 (1954). 19 Section 2042(2) does not require that the decedent must have retained incidents of ownership in the insurance until his death, only that he possessed incidents of ownership at death. The language of the statute so provides. See also Lowndes & Kramer, supra 13.6.4 20 We agree fully with the conclusion of the district court that decedent enjoyed incidents of ownership which required judgment be entered for the government, although our conclusion is based on different grounds.5 21 Under Texas law a conveyance by husband to wife makes the property conveyed the wife's separate property, so that the quantum of Mrs. Smith's ownership of the policy, as a matter of state title law, was complete and sole. McAdams v. Ogletree, 348 S.W.2d 75 (Tex.Civ.App.1961); Reed v. Reed,283 S.W.2d 311 (Tex.Civ.App.1955). But we do not close our eyes to the realities. From the initial statement by Great Southern of what its conditions would be, and up to the time of Smith's death, the insurance policy and the loan were indispensable parts of an integrated transaction. The negotiations and the course of the loan transaction, the correspondence, and the other documents, admit of only one conclusion. Although Mrs. Smith was designated as owner we would be wholly unrealistic to conclude anything other than that she was named as owner under the understanding, agreement and arrangement that the policy must be assigned when the community loan was ready to be closed. The requirement that the policy be obtained and assigned was imposed before application was made for the insurance. The intent that it be assigned was reported by the agent on the original application, which was before the matter arose of Mrs. Smith's being named owner. Without an assignment by her there could be no loan to the community, and without the permanent loan the interim lender (who loaned on the faith of the Great Southern commitment for a permanent loan) could not be paid. There is no evidentiary support for any thesis that Mrs. Smith acted from a donative intent, or was lending collateral to the community, or from any intent other than carrying out the business arrangements which had been made. There is no evidence that she paid any premium. While the facts here hardly call for it, we note that we are bound to give effect to substance over form. Commissioner of Internal Revenue v. Court Holding Co., 324 U.S. 331, 65 S.Ct. 707, 89 L.Ed. 981 (1945). 22 Appellant emphasizes that the loan was closed eight months after Mrs. Smith was named owner, that had the loan never been closed the policy would have remained in force so long as the premiums were paid, that had Smith died before the loan was closed the policy would have been the property of Mrs. Smith, and had she died before the loan was closed, her husband surviving, the cash surrender or replacement value of the policy would have been includable in her estate.6 A husband may unconditionally make his wife the owner and beneficiary of an insurance policy on his life when it is issued, or later if he desires, so as to bar inclusion of it in his estate. Commissioner of Internal Revenue v. Estate of Noel, 380 U.S. 678, 85 S.Ct. 1238, 14 L.Ed.2d 159 (1965). The lapse of eight months, and the rights of the wife during that time, are evidentiary only; they are of little force here, since this was the period during which the center was being built under interim financing which was to be paid off out of the Great Southern loan upon completion. 23 Also appellant seems to contend that as a matter of law there was no incident of ownership in Smith at his death because the assignment had been made two years previously and any power or control that he may have had over the policy had been exhausted when the assignment was executed and delivered. But the arrangement existed for such a pledge or assignment to be made, and it was made, and the substantial economic benefit to the husband of having the policy stand as collateral for the community debt then commenced and continued up to his death. Smith's separate property could be liable for the community debt, 30 Tex.Jur.2d 124, and the assigned policy stood between his estate and that possible liability. (Possibly if his estate were subjected to liability it could seek reimbursement from the community estate, id. 134, but the economic benefit of protective insulation from a possible claim is not dissipated by the hope that if one is without the protection and has to pay he may-- or may not-- ultimately be made whole.) 24 An owner may lend collateral. Under different circumstances than in this case a wife who has become the absolute owner of an insurance policy on her husband's life, her husband no longer having any incidents of ownership therein, could assign it as collateral for a community debt and the husband would commence enjoying economic benefit from the time the assignment is made. Whether this alone would bring the policy within the husband's estate is a question for another case. It is not what happened in this case where in the total transaction there were incidents of ownership at all times, an unconsummated arrangement for eight months followed by the continuing economic benefit of the completed assignment. 25 There was testimony, though somewhat sparse, of the wife that during a period of about six months before discussion of the mortgage with Great Southern she and her husband discussed with various insurance agents the purchase of a large amount of insurance on his life to replace earlier policies which he had dropped; the Smiths felt they might afford the premiums which previously they had been unable to keep up, and the two of them saw in insurance a means of saving for the education of their children. This too was only evidentiary, and even if these family motivations were present they did not preclude the use of the policy in the manner that was required, arranged for and carried out. 26 Because we affirm under 2042(2) we do not discuss the applicability of 2042(1). The decision of the district court is 27 Affirmed. 1 The decision of the district court is discussed in Thies, Prichard Decision Confuses Estate Taxation of Life Insurance Receivable by the Executor, 25 J. of Taxation 291 (1966) 2 The commitment was for a 15-year mortgage, and it included conditions of completion of improvements, inspection and acceptance of improvements by Smith and Great Southern and the chief tenants, payment for all labor and material bills, survey, execution of satisfactory leases by tenants, and other normal requirements 3 In case of default on the mortgage note Great Southern was authorized to make policy loans or surrender the policy and withdraw the cash value, applying to the note proceeds so collected. If the proceeds became payable as a death claim Great Southern had the right, regardless of whether there had been a default in the note payments, to collect the proceeds, to apply them to any default existing, and, at its option, to apply the remainder to the payment of the last maturing installments owing on the indebtedness although not then due. Great Southern's rights under the assignment could be exercised without the necessity of resoring to, and without regard to, other security 4 Compare the wording of 2037, which requires that a reversionary interest be retained 5 The district court described the loan as being to Smith and as contingent on an assignemnt of the policy by him, and referred to the assignment as having been made by him and to his possessing incidents of ownership in making the assignment. Commitment and loan were to the community, and, under the terms of the policy commitment read together, assignment by the wife as owner was requisite. The critical time for determining whether decedent possessed incedents of ownership was at the time of death, not at the time of assignment. 26 U.S.C.A. 2042(2); First National Bank of Birmingham, Alabama v. United States, 358 F.2d 625 (5th Cir. 1966) 6 See Estate of Donaldson v. Commissioner, 31 T.C. 729 (1959)

543 U.S. 835 CARTERv.COLLINS ET AL. No. 03-10457. Supreme Court of United States. October 4, 2004. 1 C. A. 4th Cir. Certiorari denied. Reported below: 55 Fed. Appx. 704.

812 F.2d 1415 U.S.v.Burke 86-8442 United States Court of Appeals,Eleventh Circuit. 2/6/87 M.D.Ga., 808 F.2d 1522

162 F.3d 98 Cornv.City of Fort Lauderdale*** NO. 97-5336 United States Court of Appeals,Eleventh Circuit. October 20, 1998 1 Appeal From: S.D.Fla. , No.84-06034-CV-JCP 2 Affirmed. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3 ** Local Rule 36 case

578 F.2d 1384 U. S.v.Russell No. 78-1133 United States Court of Appeals, Eighth Circuit 6/30/78 1 D.N.D. 2 AFFIRMED** ** See Local Rule 9

52 F.Supp.2d 420 (1998) UNITED STATES of America, ex rel. Robert J. MERENA, Plaintiff, v. SMITHKLINE BEECHAM CORPORATION, Smithkline Beecham Clinical Laboratories, Inc., Defendants. United States of America, ex rel. Glenn Grossenbacher, and Charles W. Robinson, Jr., Plaintiffs, v. Smithkline Beecham Clinical Laboratories, Inc., Defendant. United States of America, ex rel. Kevin J. Spear, The Berkeley Community Law Center, Jack Dowden, Plaintiffs, v. Smithkline Beecham Laboratories, Inc., Defendant. Nos. Civ.A. 93-5974, Civ.A. 95-6953, Civ.A. 95-6551. United States District Court, E.D. Pennsylvania. April 8, 1998. *421 Russell B. Kinner, James E. Ward, Dept. of Justice, Civ. Div., Washington, DC, for USA. *422 Marc S. Raspanti, David Laigaie, Miller Alfano & Raspanti, P.C., Philadelphia, PA, for Robert J. Merena, Plaintiff. John Clark, Rand J. Riklin, San Antonio, TX, for Robinson & Grossenbacher, Plaintiffs. Thomas H. Lee, II, Dechert, Price & Rhoads, Philadelphia, PA, for Smithkline Beecham Corporation, defendant. OPINION VanARTSDALEN, Senior District Judge. A. BACKGROUND 1. Preliminary The basic remaining issue for determination in this complex litigation is the amount to be awarded to the qui tam relators as their share in the proceeds obtained from the defendants in the settlement of the qui tam Civil Actions 93-5974 (Merena action), 95-6953 (Robinson action) and 95-6551 (Spear action). The Government, with the consent of all of the qui tam relators in the three enumerated actions, settled and dismissed with prejudice all three actions that had been filed by the qui tam relators against the defendants, SmithKline Beecham Corporation and SmithKline Beecham Clinical Laboratories, Inc. (SBCL). The qui tam actions were filed under the False Claims Act, 31 U.S.C. งง 3729-3733. The total amount of the settlement was $325,000,000, plus interest that had accrued on the settlement funds that were deposited in escrow pending final settlement and dismissal of the actions. The accrued interest amounted to $8,976,266.40, making the total recovery $333,976,266.40. The Settlement Agreement expressly provided for dismissal with prejudice of the three above noted qui tam actions, the court retaining jurisdiction over enforcement of the settlement agreement and determination of attorney fees and relators' share issues. Prior to dismissal, the Government expressly and without limitation intervened in each of the actions pursuant to 31 U.S.C. ง 3730(b)(4). The statute provides that if the Government proceeds with an action brought by an individual under the qui tam statute, the qui tam relator shall "receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action or settlement of the claim." 31 U.S.C. ง 3730(d)(1). If that section of the statute is applicable, superficially at least, the qui tam relator/relators should be entitled to a minimum of $50,096,439.96 and a maximum of $83,494,066.60. The separate qui tam relators (hereafter sometimes referred to as the "Consolidated Plaintiffs" or the "Relators") in all three actions have agreed among themselves as to how they will divide any qui tam share awarded to any or all of them. In addition, the Government has agreed with the Spear qui tam Relators to pay those Relators a qui tam award of 15 percent on an allocated share, including interest, of $13,297,829 of the total settlement proceeds. The Government attributes this sum to the separate allegations contained in the Spear complaint. The Merena and Robinson qui tam Relators agree that this allocated share of the proceeds may be deducted from the total settlement proceeds before determining their respective qui tam share or shares. Thus, only the qui tam share or shares to be paid to the Merena and Robinson Relators remains to be decided in this litigation. 2. Basic Contentions of the Parties The Government contends that in addition to subtracting the amount allocated to the Spear complaint, there also must be subtracted $14,507,107 which was paid out of the total proceeds to various states for losses under the state Medicaid programs resulting from the alleged false claims by *423 SBCL that were included in the settlement.[1] In addition, the Government contends that the qui tam Relators are entitled to no share of the proceeds recovered for certain so-called "automated chemistry" false claim allegations that were settled. The Government contends that as of the time of the filing of the qui tam actions, the "automated chemistry" allegations were under active investigation by the Government, had been publicly disclosed in the news media, and the qui tam Relators were not "original sources" of the information. The qui tam Relators dispute each of these contentions and assert that they are entitled to a minimum is percent share of the total amount obtained by the settlement including earned interest less the agreed amount allocated to the Spear complaint allegations. The Government ascribes and allocates the sum of $241,283,471 (including interest) for the so-called "automated chemistry" allegations (see Government's Exhibit G-108), that the Government claims it recovered as a result of its LABSCAM[2] investigation. The Government contends that the qui tam Relators are entitled to no share of that allocated amount. However, because the Merena and Robinson complaints each made allegations that would, at least arguably, be encompassed within the "automated chemistry" allegations that were settled, the Government now seeks to have all of the "automated chemistry" allegations of the complaints in both 93-5974 and 95-6953 dismissed for lack of jurisdiction and/or failure to be the "first to file" the qui tam action under 31 U.S.C. ง 3730(b)(5). The Government seeks presently to have these allegations dismissed even though approximately ten months prior to filing the present motion to dismiss, the Government intervened in both actions without limitation and with the consent of all parties and in conformity with the Settlement Agreement moved the court to enter an order dismissing all three qui tam actions with prejudice. The order was entered on February 24, 1997 (filed document # 33)[3]. No appeal has ever been taken by any of the Merena, Robinson or Spear qui tam Relators, nor has there been any request by any of them to reconsider or to vacate the order of dismissal[4]. The issues appear to be, therefore, (1) determination of the total fund upon which a qui tam award to the Merena and/or Robinson qui tam relators should be based and (2) determination of the percentage of that total to be awarded to the qui tam relators. Sub-issues of (1) above, are: (a) whether the qui tam relators are entitled to any proportionate share of the $14,507,107 distributed to the individual states, (b) whether any of the allegations of the *424 Merena and/or Robinson complaints can and should be dismissed and (c) whether the allocation which the Government assigns to the separate claims is binding on the qui tam relators in determining the total fund upon which they are entitled to receive a proportionate share. In determining the appropriate percentage share, it would appear that this depends, in the words of the statute, solely "upon the extent to which the person [qui tam relator/relators] substantially contributed to the prosecution of the action." 3. History of the Litigation The three above-captioned qui tam actions were filed under a seal as required by statute by Merena (Civil Action 93-5974), Glenn Grossenbacher and Charles W. Robinson, Jr. ("Robinson") (Civil Action 95-6953), and Kevin J. Spear, The Berkeley Community Law Center, and Jack Dowden ("Spear") (Civil Action 95-6551) (collectively "the Consolidated Plaintiffs")[5]. The Consolidated Plaintiffs brought their respective lawsuits pursuant to the qui tam provisions of the False Claims Act, 31 U.S.C. งง 3729-3733. After granting multiple requests by the Government to extend the time for the Government to elect whether to intervene and to retain the seal in these qui tam actions, the Government formally intervened in these cases on September 27, 1996 and took over the litigation pursuant to 31 U.S.C. ง 3730(b)(4)(A), (c)(1), and (c)(2)(A). The Government, prior to formally intervening, negotiated the settlement with SBCL on behalf of itself and the Consolidated Plaintiffs. An agreement in principle was reached by the parties in February, 1996. I issued an agreed upon Order on February 24, 1997, dismissing with prejudice all the claims settled by the Settlement Agreement and Release (filed document # 33). In that Order I retained jurisdiction over, inter alia, enforcement of the Settlement Agreement and determination of the relators qui tam shares, costs and attorney fees. The settlement funds of $325,000,000 had earlier been placed in a court-supervised interest-bearing escrow account upon the Government's insistence, pending final execution of the Settlement Agreement. While the settlement proceeds were held in the escrow account, they earned interest and the fund grew from $325,000,000 to $333,976,266.40. On February 24, 1997, as requested by the Government, I ordered that the settlement proceeds together with the earned interest be disbursed immediately from the court-supervised escrow account at the CoreStates Bank.[6] After the funds were disbursed from the interest-bearing escrow account, no additional interest has been earned on the settlement proceeds. On April 1, 1997, I issued an Order directing that, pursuant to 31 U.S.C. *425 ง 3730(c)(2)(B), if necessary, a hearing would be held to determine if the proposed settlement was fair, adequate, and reasonable. Such a hearing would allow any interested party to contest the fairness, adequacy, and/or reasonableness of the settlement. On September 18, 1997, the Government and the Consolidated Plaintiffs filed a Stipulation and Proposed Order (filed document # 61) stipulating their "mutual interest in pursuing discussions regarding settlement of relators' shares of the settlement proceeds under the False Claims Act," and that the parties were in agreement that there was no need to conduct a hearing to determine the fairness, adequacy, and/or reasonableness of the settlement. An Order was entered to reflect this stipulation. The Consolidated Plaintiffs had expressly consented to the terms of the Settlement Agreement and Release, and the formal agreement was signed and dated on September 25, 1996. Neither the Settlement Agreement, the Release nor the Order of February 24, 1997 made any reference to a specific dollar or percentage allocation for any particular claim or claims made by any of the Consolidated Plaintiffs, or sought to quantify any separate Claim or claims beyond the total settlement figure of $325,000,000. There is no dispute among the Consolidated Plaintiffs as to the fairness, adequacy, and reasonableness of the Settlement Agreement (filed document # 61). As previously noted, the Consolidated Plaintiffs, have agreed among themselves as to how they will divide whatever is awarded as the Relators, qui tam share of the settlement proceeds. What is currently at issue is the exact percentage to be awarded to the Consolidated Plaintiffs and the exact amount of the settlement proceeds upon which that percentage is to be based. At the present time, the only remaining interest SBCL has in this litigation is the issue of attorneys' fees that may be recoverable by Relators against SBCL.[7] More than six months after the Government and SBCL reached a settlement in principle, and while the Consolidated Plaintiffs complaints remained under a seal, three other plaintiffs (the "Additional Plaintiffs") filed under seal separate qui tam actions pursuant to the "qui tam" provisions of the False Claims Act, 31 U.S.C. งง 3729-3733. Dr. William St. John LaCorte filed in the United States District Court for the Eastern District of Louisiana on April 22, 1996. Jeffrey Scott Clausen filed in the United States District Court for the Northern District of Georgia on September 3, 1996, and Donald Miller filed in the United States District Court for the Middle District of Florida on July 15, 1996. All of these cases were transferred by agreement to the Eastern District of Pennsylvania during 1996 and 1997, and docketed in this court as Civil Actions 96-7768 (LaCorte), 97-1186 (Clausen) and 97-3643 (Miller). The Additional Plaintiffs filed Memoranda in support of their claims to the settlement proceeds, in which they contended that their claims were settled in the Settlement Agreement reached between the Government and SBCL, and that they, therefore, were entitled to a qui tam share in the $325,000,000 settlement (filed documents # 39, # 40, # 41). The original qui tam plaintiffs (the Consolidated Plaintiffs) filed oppositions to the three Additional Plaintiffs' claims to share in the settlement proceeds (filed documents # 45, # 52). Defendant SBCL took the position that the Settlement Agreement was intended to settle and release all claims asserted in the LaCorte, Clausen, and Miller actions and, in addition, that those actions were barred by the "first-to-file bar" of 31 U.S.C. ง 3730(b)(5) by reason of the Consolidated Plaintiffs' prior filings. The Government contended that three claims raised by LaCorte were not included in the Settlement *426 Agreement and therefore could be separately litigated.[8] On July 23, 1997, 1 issued a Memorandum and Order dismissing all of Clausen's and Miller's claims, and all but one of LaCorte's claims โ€” the urinalysis claim โ€” on the grounds that these claims, in fact, were settled by the Settlement Agreement between the Government and SBCL (filed document # 57). LaCorte's urinalysis claim was severed from his other claims. Equally important, was my conclusion that Clausen, LaCorte and Miller were barred from seeking any portion of the Relators' share of the $325,000,000 settlement, based primarily on the "first to file bar" to intervention under 31 U.S.C. ง 3730(b)(5). I retained jurisdiction over LaCorte's severed urinalysis claim, over the enforcement of the Corporate integrity agreement, and over the determination of relators, share issues and the issue of attorneys, fees and costs. LaCorte, Clausen and Miller have appealed my dismissal of their claims to the United States Court of Appeals for the Third Circuit, pursuant to Federal Rule of Appellate Procedure 3(a)[9]. All three Additional Plaintiffs also filed motions to stay the execution of my Order of July 23, 1997, pursuant to Federal Rule of Appellate Procedure 8(a), pending the outcome of their appeals (filed documents # 60, # 67, # 62). The Consolidated Plaintiffs opposed granting a stay, contending that a stay of the ongoing proceedings would cause "irreparable delay and further harm to the Consolidated Plaintiffs" by possibly reducing the amount of the Relators' share of the settlement proceeds. Further, the Consolidated Plaintiffs argued that none of the Additional Plaintiffs had "posted a bond, the prerequisite for obtaining a stay, in order to compensate the Consolidated Plaintiffs for the lost use of their expected relators' share ... during the lengthy delay occasioned by their appeals" (filed document # 65, Relators' opposition to motions for stay, p. 2). I denied all of the motions for a stay. I held further, that the Consolidated Plaintiffs were free to move at any time for a hearing for the purpose of determining the amount to be awarded to the Consolidated Plaintiffs for their qui tam share/shares (filed document # 80). The Consolidated Plaintiffs filed a motion to deem interest and/or to segregate settlement funds for the purpose of earning interest (filed documents # 53). Relator LaCorte filed a similar motion (filed document # 66). The Consolidated Plaintiffs and Relator LaCorte argued that at least the statutory minimum of the total settlement proceeds should be set aside in escrow for the purpose of earning interest during the pendency of the litigation. The motion requested the court to segregate, or set aside, twenty-five percent (25%) of the $333,976,266.40 of settlement funds (the maximum that could be awarded under the statute). The Consolidated Plaintiffs argued in this motion that they were prejudiced by strategic moves by the Government that resulted, and continue to result, in lengthy delays in the disbursement of their relators' shares. As a result of these delays, the Consolidated Plaintiffs claimed that they had lost and were losing use of the money due them and had lost interest they would have earned had the money been deposited into an interest-bearing account at the time of the disbursement from the escrow account. The Consolidated Plaintiffs contended that the Government's strategic *427 move of repeatedly asking for extensions of time to intervene and to extend the seal period in the qui tam actions unduly prejudiced them in that during these delays, the Consolidated Plaintiffs were forced (and continue to be forced) to engage in months of litigation with the Additional Plaintiffs "who filed their qui tam actions during the latter stages of the protracted seal period." (filed document # 53, Motion of Consolidated Plaintiffs to Deem Interest or to Segregate Settlement Funds for the Purpose of Earning Interest, p. 6) The Consolidated Plaintiffs contended that the Government could have and should have promptly raised the first-to-file bar against all potential later-filed qui tam actions including the actions of the three Additional Plaintiffs by intervening in the Consolidated Plaintiffs' actions before the first Additional Plaintiff, LaCorte, filed his suit on April 22, 1996 (after the Government and SBCL had agreed in principle to the settlement). Furthermore, they claimed they were prejudiced by the delays the Additional Plaintiffs caused by way of filing their claims in the first place, and by their subsequent appeals of the dismissals of the Additional Plaintiffs claims. The Consolidated Plaintiffs contended that they have fully complied with the Government's requests throughout the litigation of these cases, including extensions of the period of the sealed filings, and resolving any differences that may have existed among themselves, only to be stonewalled by the Government and the Additional Plaintiffs.[10] The 25 percent of the total settlement proceeds which the Consolidated Plaintiffs moved the court to segregate represents the maximum percentage, or share, of the proceeds to which they could be entitled under the False Claims Act, 31 U.S.C. ง 3730(d). Although, they conceded that they probably will not be awarded the maximum share, the Consolidated Plaintiffs asserted that setting aside the maximum amount that could be awarded, fully protects the Government. If the Relators' share is ultimately determined to be less than 25 percent, the Government would collect the balance, including accrued interest on the balance (filed document # 53, Motion of Consolidated Plaintiffs to Deem Interest or to Segregate Settlement Funds for the Purpose of Earning Interest, p. 14, n. 2). In support of its request that the Government be ordered to deposit the settlement proceeds in an interest-bearing account, the Consolidated Plaintiffs alleged that because of the nature of the relationship between qui tam plaintiffs and the Government in qui tam suits, the Government acts as a fiduciary over any settlement proceeds recovered. The settlement proceeds, they argued, can be likened to a trust fund, and by statute, all money held in trust by the Government must be deposited in an interest-bearing account, pursuant to 31 U.S.C. ง 1321 and 31 U.S.C. ง 9702.[11] In an order dated October 28, 1997, I denied these motions on the ground that the Government is not a fiduciary of the settlement proceeds (filed document # 80). The Government neither expressly nor impliedly agreed to act as a fiduciary of these funds. Characterizing the settlement *428 funds as a trust fund is inappropriate. I ruled, therefore, that there is no requirement that the Government deposit the proceeds in an interest-bearing account. Relator LaCorte moved to sever his urinalysis claim from the remainder of his claim. This motion was granted, and LaCorte, in turn, filed a motion to retransfer the severed urinalysis claim back to the Eastern District of Louisiana (filed document # 81). Citing the pending appeals of the dismissed claims and the possible effect of the outcome of these appeals on the overall litigation, I denied both LaCorte's motion for retransfer (filed document # 98) and his motion for reconsideration of my earlier denial (filed document # 111). On December 2, 1997, 1 met with the parties in chambers, and the parties agreed informally to a proposed scheduling order. The parties have complied with this informal agreement. Both the relators and the Government have filed in camera proposed procedural orders, but no formal procedural order was issued. On January 23, 1998, Relator Merena filed a motion for partial summary judgment, pursuant to Federal Rule of Civil Procedure 56(c), requesting that judgment be entered for him in the amount of $10,385,412, which is 16 percent (the percentage suggested by the Government as being appropriate) of those settlement proceeds that the Government has conceded should be utilized for purposes of determining the qui tam share based on what the Government contended were the six "Merena only" claims. Merena further argued that entry of partial summary judgment would streamline litigation of the remaining issues (filed document # 110)[12]. Because of the Government's alleged concession on this issue, Merena argued that there was no genuine issue as to any material fact, and that he, therefore, was entitled to a partial judgment as a matter of law. The Government opposed this motion on the grounds that Merena had placed at issue whether the Government's allocation of the settlement proceeds among the various claims was proper. The Government contended that although it recommended the allocation and award of 16 percent of the settlement proceeds as to the so-called non-LABSCAM or six Merena-specific allegations, Merena's claim for a larger share effectively put the determination of his share at issue. Because of this, the Government argued that there was a genuine dispute as to material facts and therefore the motion for partial summary judgment should be denied.[13] I issued a Memorandum and Order on February 23, 1998 entering judgment in favor of Relator Merena and against the Government in the amount of $9,736,324, which represents the minimum 15 percent of the $64,908,828 the Government allocated to Merena's six non-LABSCAM claims (filed document # 124)[14]. This judgment was entered without prejudice to the right of any of the Consolidated Plaintiffs, including Merena, to seek and to claim, in this litigation, additional compensation as a qui tam share in the total proceeds of the settlement between the Government and SBCL. *429 4. Motions for Determination Currently there are four motions outstanding: 1) the Consolidated Plaintiffs' motion for the determination of relators' share (filed document # 86); 2) the Government's motion with respect to the distribution of settlement proceeds (filed document # 105); 3) the Government's motion to dismiss the Relators' "automated Chemistry" allegations and to dismiss any of the relators' claims to any share of the state recoveries (filed document # 101); and 4) a motion by SBCL regarding attorneys, fees (filed document # 117). The Government filed in camera proposed findings of fact and a reply to the Consolidated Plaintiffs' proposed allocation of the proceeds. The Government also filed a status report regarding discovery (filed document # 118). Both the Government and Relators Merena and Robinson, filed witness lists (filed documents # 115 and # 116). A seven-day evidentiary hearing was held beginning on March 16, 1998, to resolve all of the outstanding motions, including the issue of relators' share.[15] Both the Government and the Relators have filed post-trial motions to support and supplement arguments made in open court during the seven-day hearing. a. Consolidated Plaintiffs' Motion to Determine Relators' Share The Relators contend, as they have throughout the litigation, that they are entitled to an award between 15 and 25 percent of the entire proceeds of the settlement and accrued interest. They contend a percentage in excess of the statutory minimum of 15 percent is justified because of their substantial contributions to the investigation as well as the significant risks they have taken in their efforts to supply information to the Government during its investigation. Based on 15 percent of an allocation of $13,297,829 of the settlement fund to the spear Relators those Relators have agreed to settle their claims to a qui tam share. The Merena-Robinson Relators do not contest this award and agree that the $13,297,829 allocation should be deducted from the proceeds in determining their qui tam shares. Specifically, the other Consolidated Plaintiffs, Merena and Robinson, are requesting an award of 18 percent of the total recovery, including interest earned on the escrow account, after deducting the Spear Relator allocation.[16] b. Government's Motion Regarding the Distribution of Settlement Proceeds In the Government's motion regarding the distribution of settlement proceeds (filed document # 105), the Government argues that the Relators may not presently raise objections to the Government's allocation of the settlement funds to Relators, specific claims for purposes of determining Relators' share. The Government takes this position because, it argues, the Relators agreed that the terms of the settlement with SBCL were fair, adequate and reasonable, and they knew exactly the allocations utilized by the Government for purposes of the settlement with SBCL. The Government argues that the Relators effectively waived their right to challenge the Government's allocation because they did not challenge the fairness of the Settlement Agreement and, therefore, the Government's allocation of the proceeds between and among the various claims is now binding against the Relators. The Relators, on the other hand, contend that they were never put on notice that by agreeing to the Settlement Agreement, they were also agreeing to the Government's *430 allocations for purposes of determining the Relators' qui tam share. Their contention is that they agreed to the overall settlement amount and terms, but that the determination of the Relators, share was an issue totally separate and outside the scope of the Settlement Agreement. They contend that they understood that the determination of Relators' share was reserved until after the Government settled the qui tam actions with SBCL. The Government's conduct after the settlement and until just recently supports this understanding, they claim. For example, the Consolidated Plaintiffs cite several instances in which the Government represented to them and to the court that it had not yet determined the allocation of Relators, shares. The Government contends that for purposes of negotiating the settlement with SBCL, the so-called automated chemistry allegations were valued at $234,798,505. After adding interest earned on the escrow account, that sum amounted to $241,283,471, or approximately 72 percent of the total proceeds including earned interest. (See Government's Motion to Dismiss the Automated Chemistry Allegations, etc., Exhibit # 2, filed document # 101). In addition, the Government allocated $14,507,107 with interest included for payment to various states as their "Medicaid share" of the settlement. The Government contends that these two sums, i.e., the $241,283,471 (automated chemistry) and the $14,507,107 (states Medicaid proceeds) plus the $13,297,829 agreed allocation to the Spear Relators must be deducted from the total proceeds for purposes of determining the Relators' share. Therefore, based on total proceeds of $333,976,266.40, the Government contends that Relator Merena is entitled to a qui tam share of $10,385,412, which represents 16 percent of the net balance of $64,908,828[17] allocated by the Government's calculations to the "Merena non-LABSCAM" allegations.[18] The Government alternatively contends that the Consolidated Plaintiffs, at most, are entitled to no more than 10 percent of the recovery for the Relator's automated chemistry claims. c. Motion to Dismiss Relators An to the "Automated Chemistry" Claims The Government has moved to dismiss all of the so-called "automated Chemistry" allegations of the Relators, complaints pursuant to Federal Rule of Civil Procedure, 12(b)(1) as to whichever Relator the court deems to have been the "first to file" the automated chemistry allegations settled between the Government and SBCL under 31 U.S.C. ง 3730(b)(5)[19]. First, the Government seeks to bar Relators from any share in the recovery for the automated chemistry claims, pursuant to the jurisdictional bar in 31 U.S.C. ง 3730(e)(4), because of allegedly widespread public disclosures of the automated chemistry allegations against SBCL and the Government's ongoing investigation of SBCL prior to any Relator filing a qui tam action. The Government argues that the Relators' complaints are jurisdictionally barred as to any "automated chemistry" allegations because the investigation into these claims commenced by the Government prior to, and independent of, any contact with *431 the Relators.[20] Specifically, the Government argues that because of the high-profile media coverage of the investigation into the automated chemistry claims prior to the Relators, filing their qui tam actions, the Relators' claims are jurisdictionally barred pursuant to the False Claims Act's public disclosure bar. 31 U.S.C. ง 3730(e)(4)(A). The Government's argument is that the Government was already aware of SBCL's illegal conduct and was in the process of investigating this conduct as part of its ongoing LABSCAM Task Force investigation before any of the Relators came forth with any information. Moreover, the Government points out that, prior to the filing of any of these qui tam actions, there were articles in the New York Times and various industry publications, as well as an expose on a CBS television broadcast of the show 60 Minutes on September 19, 1993, entitled "Blood Money," concerning the filing of false claims by three medical laboratories including SBCL.[21] Second, the Government seeks to bar Relator Robinson and others because of the first-to-file bar rule in 31 U.S.C. ง 3730(b)(5). The Government argues that upon the court's determination of which Relator was the first to file an automated chemistry claim, the later filing Relators are barred from making any automated Chemistry claims because no person other than the Government may intervene in a qui tam action or "bring a related action based on the facts underlying the pending action." 31 U.S.C. ง 3730(b)(5). In the alternative, the Government contends that even if the court had jurisdiction over the qui tam plaintiffs' automated chemistry claims, the Relators would still only be entitled to a relator's share in the range of zero to ten percent of the recovery allocated to the automated chemistry claims. It is the Government's contention that no Relator qualifies as an "original source" as to the automated chemistry allegations, but that even if a Relator was an original source, the qui tam share should be limited to a low percentage in the zero to ten percent range category for the amount of the proceeds allocated to the automated chemistry claims. In response to the Government's motion, the Merena-Robinson Relators contend that 31 U.S.C. ง 3730(e)(4) "does not divest the court's jurisdiction over `parties' ... but instead over the entire action." (filed document # 113, Reply of Relators to Government's Motion to Dismiss Automated Chemistry Allegation, p. 16). Therefore, they argue, when the Government intervened in the actions, it "assured the court's jurisdiction over the Relators' `actions.'" (filed document # 113, Reply of Relators to Government's Motion to Dismiss Automated Chemistry Allegation, p. 16). By intervening, the Relators contend, the Government "establishes subject matter jurisdiction, whether or not, absent intervention, the Court would have had jurisdiction over the Relators." (filed document # 113, Reply of Relators to Government's Motion to Dismiss Automated Chemistry Allegation, p. 14). The Relators contend that they are not jurisdictionally barred by the statute because none of the so-called public disclosures the Government references actually disclose the "allegations or transactions" of SBCL's fraud schemes as alleged in their respective qui tam actions and their actions were not based upon any public disclosures. The Relators allege that they were the original voluntary sources of the *432 information upon which their respective qui tam actions were based, including the so-called "automated chemistry" allegations. They contend that they had personal, direct and independent knowledge upon which they based all of their allegations. They contend that none of their claims or allegations were based upon or derived from already publicly disclosed information, but were all made upon their individual firsthand personal knowledge. The Relators assert, further, that because there was no public disclosure of their particularized claims or of the allegations or transactions upon which their actions were based including the automated chemistry claims, there is no issue as to whether they were an original source. The Government requests, pursuant to Federal Rule of Civil Procedure 12(b)(6) that the court dismiss the Relators' claims to a share of the state portion of Medicaid funds recovered by forty-three states from SBCL as a part of the overall settlement.[22] The $14,507,107 that was paid to the states was deducted from the total $325,000,000 plus accrued interest that the Government received. The Government argues that these state funds were not recovered under the federal False Claims Act, 31 U.S.C. งง 3729-3733, and, therefore, the Relators are not entitled to a share of these state settlement proceeds. The Government claims that the federal statute does not entitle the Relators to any share of the state proceeds. Because these proceeds were paid directly by SBCL to the states and not to the Government, the Government contends it never had or received this money, and it is now the Relators' burden to deal directly with the states if they believe they are entitled to some portion of the "Medicaid" recoveries paid to the states. It is the Relators' contention that they are entitled to a percentage share in the total "proceeds of the action or settlement of the claim," 31 U.S.C. ง 3730(d)(1), including that portion "unilaterally diverted to forty-three states." (filed document # 113, Reply of Relators to Government's Motion to Dismiss Automated Chemistry Allegation, p. 140). Therefore, Relators contend that the amounts paid to the states should not be deducted from the total fund of money from which their Relators' share should be calculated. Despite the argument that the Relators should share less than the 15 percent statutory minimum on the "automated chemistry" claims, it appears that the Government concedes that Relator Merena is entitled to a qui tam share in the 15 to 25 percent range of all proceeds recovered based on Merena's "non-automated allegations" or his "new allegations." The total recovery for these new allegations has been valued by the Government at $64,908,828, including pro-rated earned interest. The Government suggests that an appropriate percentage for these non-automated chemistry claims should be 16 percent. Therefore, the total maximum recovery the Government contends Relators Merena and Robinson are entitled to receive would be $10,385,412.48. The Relators differ with the Government in three major respects. First, they place a higher value on "the extent to which they substantially contributed to the prosecution of the actions." 31 U.S.C. ง 3730(d)(1). They claim that their Relators' share should be at least IS percent rather than 16 percent as suggested by the Government. Second, they contend that they are entitled to at least 18 percent of the total settlement fund, including the automated chemistry claims and the money paid to the states as part of the Settlement Agreement, less the $13,297,829 allocated for the Spear Relators, regardless of how the funds were allocated by the Government for the purposes of negotiating a settlement with SBCL or distributed *433 among the various federal and state agencies. Third, they contend that they are not, and cannot now, be jurisdictionally barred by the public disclosure bar and that they should not be limited to recovery on only the non-automated chemistry claims. d. Motion of SBCL in regard to Attorney Fees and Costs SBCL has advised that it has agreed to the amount of attorney fees and costs it will pay to Relator Merena, in Civil Action 95-6953. SBCL contends that it should not be required to pay any counsel fees or costs to the Robinson Relators in Civil Action 95-6953 or to the Spear Relators in Civil Action 95-6551, largely because of the "first to file law." However, all three civil actions, 93-5974, 95-6953 and 95-6551 were settled and dismissed with prejudice by agreement of all parties. The settlement expressly settled all claims asserted in the three qui tam actions and certain other additional claims as set forth in the Settlement Agreement and Release for $325,000,000. There was no allocation of the proceeds between or among the qui tam actions, or among the various claims. There was no motion filed by any party prior to the dismissal of the actions challenging the court's jurisdiction over any or all of the claims, nor any motion to dismiss any claim or claims. For this reason, it would appear that reasonable attorney fees and reasonable expenses necessarily incurred and costs should be awarded to the qui tam Relator in each of the three actions. B. DISCUSSION 1. Irrelevant Considerations. Before discussing the discrete legal and factual issues, several arguments advanced by one or more of the parties to this litigation may be briefly set aside. Relator Merena, and perhaps other Relators, argue extensively as to the risk and hazard to their respective occupational reputations and future employment prospects, as well as to the disruption of their family life by reason of being "whistleblowers." Nothing in the statute remotely suggests that these are appropriate Considerations in determining the amount or proportionate share to be awarded qui tam relators. 31 U.S.C. ง 3730(d)(1) sets forth as the only guideline for the 15 to 25 percent range "the extent to which the person substantially contributed to the prosecution of the action or settlement of the claim," and, as to the "not more than 10 percent" range (if applicable), "the significance of the information and the role of the person bringing the action in advancing the case to litigation." The two tests, one for the 15 to 25 percent range and the other for the "not more than 10 percent" range appear to be essentially the same; namely, the extent to which the qui tam relator's information and assistance helped the successful prosecution and, in this case, settlement of the case. Apparently, Congress concluded that the proportionate share of the proceeds established by the statute was an adequate incentive and compensation to a qui tam relator for the economic and personal risks in filing a qui tam action, and that the primary guideline for the percentage to be awarded should be the aid and assistance the information provides toward the ultimate conclusion of the case. The extensive arguments presented by both the Relators and the Government as to the Government's treatment of qui tam Relators in other actions in which a qui tam percentage share was awarded and/or paid by the Government, whether voluntarily by agreement or after litigation, would appear to have no relevance to the present issues except possibly as some precedence as to what might be an appropriate percentage in this case. The Government, in various of its briefs and filings seems to argue that because of the ongoing LABSCAM investigation, the investigation of SBCL would have ultimately proved just as successful as the *434 investigation of NHL, at least as to the automated chemistry claims, without the aid and assistance of the Relators, and therefore, that the Relators are somehow barred from any recovery as to those claims. I find nothing in the statute that states or suggests that merely because the Government is carrying out an investigation, a qui tam action is barred. The necessary element under the statute is not an investigation but rather public disclosure. Government investigations are ordinarily not publicly disclosed until they are completed. Merely because a qui tam complaint may make allegations that correspond with or parallel allegations that a Government agency may be investigating, the qui tam action is not barred, nor is the qui tam Relator precluded from an appropriate statutory share of any resulting recovery. The Government has also made some suggestions that because there was a very large recovery against SBCL[23], the percentage awarded should be on the lower rather than on the higher end of the appropriate statutory range. There is nothing in the statute to suggest that the amount of the total recovery is, or should be, an appropriate consideration in determining the percentage range or in calculating the total qui tam award. Had Congress intended the amount of the award to be a relevant factor in establishing the percentage of the recovery, it could have simply enumerated this as a relevant factor to be considered, or Congress could have directed a sliding scale of percentages depending on the dollar amount of the recovery. Obviously, Congress had to be well aware that a qui tam Relator could indeed recover a very large sum of money as a qui tam award if the civil recovery that Government obtained from the defendant was also very large. Therefore, I do not consider the amount of the total settlement to be a relevant factor in determining what percentage of the recovery should be paid to a qui tam relator. Finally, both the Government and the Relators argued extensively about matters occurring after the date of the settlement, which for the purpose of deciding the qui tam Relators, share would be, at the latest, the date of the dismissal of the actions on February 24, 1997. The extent, if any, to which the Relators may have assisted or cooperated with the Government in any ongoing or further investigation seems to me to be wholly outside the scope of inquiry in determining the percentage and amount of the award to go to the qui tam Relators for their assistance in bringing about the settlement and the termination of these actions. 2. Justiciability of the percentage range The statute makes no specific reference as to the procedure to be utilized in determining what percentage, within the statutory 15 to 25 percent range, should be awarded a qui tam Relator, nor does the statute expressly provide that the issue of the appropriate percentage is a matter to be decided by the courts in the absence of an agreement between the Government and the Relators. In several sections the statute makes explicit that certain issues are subject to a court hearing, and, therefore by inference, subject to a court decision. As examples of such clearly justiciable issues are: (1) dismissal or settlement of qui tam actions by the Government over the objection by relators (31 U.S.C. ง 3730(c)(2)(A) (dismissal) and (B) (settlement); (2) limiting the litigation participation of a qui tam relator when the Government proceeds with the action, 31 U.S.C. ง 3730(c)(2)(C) and (D); (3) permitting the Government to intervene at a later date upon a showing of "good cause," (31 U.S.C. ง 3730(c)(3); (4) staying discovery on the application of the *435 Government (31 U.S.C. ง 3730(c)(4); (5) an award in the zero to ten percent range โ€” "the Court may award such sum as it considers appropriate" โ€” (31 U.S.C. ง 3730(d)(1)). Curiously, the statute says nothing as to whether a court in a judicial proceeding may determine what percentage between the 15 and 25 percent range, where applicable, should be awarded. Having expressly provided for court decision as to some issues, but no mention as to the 15 to 25 percent range, it could be argued that the actual percentage is a matter committed solely to executive (prosecution) branch discretion, reviewable, possibly, only for an abuse of governmental discretion. None of the parties to this litigation have contended that the court may not decide what percentage should be awarded. Case law, without discussing or mentioning the justiciable issue suggests that when the parties cannot agree as to the proper percentage, the matter is appropriate for court judicial decision,[24] to determine "the extent to which the person [qui tam Relator] substantially contributed to the prosecution of the action" (15 to 25 percent range) and "the significance of the information and the role of the person bringing the action in advancing the case to litigation." 31 U.S.C. ง 3730(d)(1). I will proceed to first decide the justiciable issues, namely (1) the motion to dismiss the "automated chemistry" claims in Civil Actions 93-5974 and 95-6953; (2) the amount of the proceeds upon which the qui tam percentage award will be based; i.e., whether the state Medicaid recoveries of $14,507,107 should first be deducted from the fund upon which the percentage is calculated; (3) whether the allocations as to separate claims, including the Medicaid, the "automated chemistry" and the other "non-Merena only" claims utilized by the Government in negotiating the settlement with SBCL are binding on the qui tam Relators in determining their qui tam share; (4) whether the 15 to 25 percent range or the zero to ten percent range should be applied to the whole or to separate portions of the claims. Finally, assuming that establishing the actual percentage or percentages are justiciable, the percentage or percentages that should be applied will be decided and judgment will be entered for the amount of the qui tam award. 3. Dismissal of the "Automated Chemistry" Claims The complaints in both Civil Actions 93-5974 and 95-6953 seem clearly to allege all of the so-called "automated chemistry" claims. The Government apparently concedes this and, for that reason, in order to prevent qui tam Relators from sharing any percentage of any recovery attributable properly to those claims, seeks to have those portions of the qui tam complaints dismissed. I find no case that remotely suggests that a district court could now dismiss any of the particular claims made in any of the three qui tam complaints. To begin, all three qui tam complaints were dismissed, with prejudice, including all claims set forth in the complaints, upon the motion of the Government and with the joinder of qui tam Relators and SBCL. I retained jurisdiction over only enforcing the settlement agreement and determining the qui tam shares to be awarded out of the settlement and attorneys fees and Costs and expenses to be assessed against SBCL in favor of the qui tam Relators. Although not directly applicable, the case of Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) makes it apparent, at least to me, that when a *436 case is finally dismissed with prejudice, the court loses all jurisdiction except to the extent that jurisdiction is expressly retained in the order of dismissal. The Government seeks to have Relator Merena's automated chemistry allegations dismissed pursuant to Federal Rule of Civil Procedure 9(b) for failure to plead fraud as to those allegations with sufficient specificity. How or why this should be done at this time, long after the case was settled and dismissed with prejudice in its entirety is not explained. Even if a timely motion had been made, and granted, undoubtedly the plaintiff would have been afforded an opportunity to replead and specify in detail. I consider this argument by the Government to be frivolous. This assertion by the Government is perhaps one of the reasons why the qui tam Relators feel forced to argue that the Government is trying in every conceivable way possible to defeat their respective claims for the qui tam share that they believe they are entitled to receive under the law. To the extent that the Government is asking this court to dismiss Relator Merena's automated chemistry Claims for failure to specifically allege fraud, the motion will be denied. The Government's primary contention as to both Merena and Robinson's automated chemistry Claims is that these claims should be dismissed from both of the qui tam complaints because of lack of subject matter jurisdiction, pursuant to the bar of 31 U.S.C. ง 3730(e)(4)(A). The qui tam actions, including all claims asserted therein have already been dismissed with prejudice. They do not have to be re-dismissed. Perhaps of even more importance, the Government does not contend that the court lacked jurisdiction over the actions, but merely certain of the claims alleged in each of the actions. The qui tam Relators contend that their automated chemistry claims were not "based upon" any public disclosures or obtained or copied from news reports or media, but were based upon their personal knowledge and information and that they were, in any event, "original sources" within the meaning of the statute 31 U.S.C. ง 3730(e)(4)(B). They also contend that irrespective of whether their respective actions, as to some of the claims might have been subject to dismissal under 31 U.S.C. ง 3730(e)(4)(A) and (B), no motion to do so was ever made, and upon the Government formally intervening in the action, the question of the court having subject matter jurisdiction was mooted. I agree. On the motion to dismiss the automated chemistry claims, I conclude that the motion will be denied. In doing this, I do not decide whether those claims could have been barred because of preexisting public disclosures and whether either of the Relators were "original sources" if the motions had been made before the dismissals. Even if the "automated chemistry" claims could have been, or may even now be subject to dismissal, this would not necessarily preclude the qui tam Relators from sharing within the 15 to 25 percent range on the "proceeds of the action or settlement of the claim." Where a qui tam action is filed, and the Government intervenes and expands the allegations of the complaint, or settles the action, including broader Claims than alleged in the qui tam action, this should not preclude the qui tam relator from receiving the minimum statutory qui tam share of 15 percent of the entire settlement, as well as a percentage above the 15 percent minimum up to the maximum of 25 percent "depending upon the extent to which the person [qui tam Relator] substantially contributed to the prosecution of the action." 4. Allocation of Values to Specific Claims The denial of the Government's motion to dismiss all of the automated chemistry claims contained in the qui tam Relators' complaints does not necessarily mean that the Relators are entitled to a share in the 15 to 25 percent range, or indeed even in *437 the "not more than 10 percent" range. The Government contends that the court must consider the actions of the Relators on a claim by claim basis irrespective of whether the automated chemistry allegations are dismissed. As to those claims in which there was prior public disclosure and the Relators were not "original sources", the Government argues that the Relators are entitled to no qui tam share of the proceeds. The qui tam statute involved makes no mention of treating a qui tam complaint as having distinct and divisible claims for the purpose of determining the qui tam Relator's share of the proceeds. The statute provides that where the Government intervenes and proceeds with the action, as it did in these cases, the qui tam Relator shall "receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the claim." (Underlining added). The statute speaks of the action and claim as a single unit or whole entity. It would seem almost inevitable to me that at least in most qui tam actions there would be allegations of multiple false claims alleged in a complaint. The qui tam actions involved here were settled as to all claims, whether or not validly pled or substantively valid, for a single overall sum of money. In determining the portion to be paid to qui tam Relators, I do not think the statute ever contemplated that a court should, after the fact of settlement, consider each separate claim to determine whether the claim was subject to dismissal because of pre-filing public disclosures and/or whether the Relators were an "original source." The Government never sought to have any of the Relators' qui tam allegations dismissed prior to entry of the order settling and dismissing each of the actions with prejudice. Neither did it ever seek leave to file an amended complaint, as it undoubtedly had the right to do. Far more important, at least to me, is that in all three of the qui tam actions, the Government intervened, and settled with SBCL (with the consent of the Relators) for an overall settlement sum of $325,000,000. The signed Settlement Agreement and the executed Releases designated no monetary allocation or division among various claims, other than mention that the settlement included all enumerated claims by various Governmental agencies, and by the separate state claims for their respective Medicaid losses. Neither did the Settlement Agreement, the Releases or anything else filed of record seek to allocate or quantify a dollar amount between or among the three qui tam actions or the separate claims of each action. The evidence is specific and clear that although the Government, in determining the reasonableness and adequacy of the overall settlement, evaluated the monetary value of certain distinct claims, the settlement between the Government and SBCL was an arbitrary "bottom line" figure of $325,000,000 for all of the claims that were set forth in the Settlement Agreement through the date of September 16, 1996. The settlement expressly included all of the claims set forth in the three qui tam actions and all claims for the states' Medicaid losses. SBCL certainly did not settle the qui tam actions or any specific claim or claims asserted therein for any specific sum other than the overall figure of $325,000,000. Even if the court should consider the qui tam shares on a claim by claim basis, because the only quantified amount is the overall settlement of $325,000,000, it seems to me that, at the least, the Government would have the burden of proof to establish such allocation of the settlement proceeds it seeks to have the court make. The Government apparently contends that it has fully established this and met any burden of proof that it may have, because prior to the settlement being approved, the Government submitted to the Relators its proposed allocations that it would present to SBCL for the purpose of concluding settlement negotiations. The evidence is clear however, that no representative of *438 the Government ever informed any of the Relators that the Government would contend that these calculations would be binding on Relators in determining their respective qui tam shares. Neither did the Government ever inform any of the Relators that if the matter of the qui tam shares would ever be litigated, the Government would contend that the Relators had waived any right to contest such allocations because they had agreed to the overall settlement with SBCL with knowledge of the allocations assigned by the Government for purposes of negotiating the settlement. To the extent that a finding on waiver is necessary or appropriate, I find as a fact that the Government's position that the Relators must accept and are bound by the Government's allocation was never expressed to the Relators prior to their agreeing to the settlement. Even in Court filings and representations to the court, long after the settlement was approved, and while the issues of the Additional Plaintiffs' right to share in the proceeds as qui tam relators was being litigated, the Government repeatedly stated that it had not yet calculated or determined what amount it would offer to the qui tam Relators, either individually or in total. I find the Government's position that the Relators, by not objecting to the overall settlement somehow waived their right to challenge the Government's assigned allocations of proceeds to particular claims to be unacceptable. So far as the evidence discloses the allocations were unilaterally set by the Government. They were never expressly agreed to by any party, including SBCL. The Government now contends that not only the Relators, but also the court, must accept at face value those allocations. The Government used the allocations of proceeds among claims solely for purposes of negotiating a settlement and to calculate distribution of the proceeds among the various affected governmental agencies. There is absolutely no evidence on the record before me, beyond the unacceptable waiver argument, to establish any allocation among various claims. The Relators repeatedly sought explanation from the Government, both informally and in discovery, as to the Government's allocation calculations. The Government's only response is, and always has been, that the calculations were based on rational estimates of losses and complex negotiations among the various governmental agencies and that the parties and the court are bound to accept the Government's calculations. It seems to me to be almost a "trust us, we are not wrong, we are correct" attitude. The Government tries, at a minimum, to require Relators to prove the allocations are in error without providing Relators with any discovery on the issue, although such discovery was requested. This I cannot accept. I conclude on this issue, that the Relators are not bound by the allocations assigned by the Government as to the automated chemistry, the "new Merena-only" and the Spear qui tam allegations. It is the Government that attempts to reduce the individual and total qui tam award shares by assigning particular values to various claims. Even if dividing the proceeds among separate claims would be appropriate, there is no evidence upon which a fact-finder could rationally make such a determination on the record before me. All parties were provided with a full opportunity to develop the record on all issues. In determining the qui tam share or shares to be paid to the Relators, the claims may not be allocated for dollar amounts between or among the automated chemistry, the "new Merena only" and other claims. First, neither the Settlement Agreement, the Release nor any statement or document on record at the time of the approval of the settlement ever mentioned any separate sum of money other than the $325,000,000. Second, the statute makes no suggestion that a qui tam award should be based on a claim by claim basis to *439 determine which claims are valid or what the individual monetary worth of separate claims were to the overall settlement. The percentage of the award above the minimum is to be based upon the extent to which the qui tam Relator substantially contributed to the prosecution of the action. Third, Relators did not waive their right to contest any governmental allocations of proceeds to particular claims. Finally, there is no basis in the evidence upon which a monetary allocation among claims could rationally be made. 5. Medicaid Fraud Payments Made to 42 States and the District of Columbia The February 24, 1997 order of distribution from the escrow account directed that "$14,460,124.01 be distributed into the National Association of Medicaid Fraud Control Units, for further distribution to the states with which SBCL had settled." The total amount of net proceeds recovered by the Government was $319,469,159 ($333,976,266 less $14,507,107).[25] The evidence discloses that 42 states and the District of Columbia, who had made Medicaid payments under their respective state programs to SBCL, negotiated separate settlements with SBCL. Because SBCL sought a "global settlement" for the alleged billing fraud claims, the amount to be paid to the states was factored into the overall $325,000,000 settlement. It is clear that the Government never received and never intended to receive the full $325,000,000. All parties were well aware of this. Although there is no direct mention of separate payment amounts to the state Medicaid Fraud Control Units in the Settlement Agreement or the Release, the fact that the states were simultaneously settling their claims was expressly set forth in the Settlement Agreement. Preamble G of the Settlement Agreement specifically refers to the submission of Claims for payment by SBCL to the Medicaid programs of the expressly enumerated 42 states and the District of Columbia. Preamble Q, however, specifies that the Government contends that all of the alleged fraudulent payments, including the Medicaid program payments to the states constituted submission of false claims under the Federal False Claims Act. Paragraph 4 of the Settlement Agreement refers to "receipt of the payment described in Paragraph 1 above [$325,000,000] by the United States and the State Settlement Account, collectively." Paragraph 6 of the Settlement Agreement provides that the Relators (all of whom signed the Settlement Agreement) "will release, upon receipt of the payment described in Paragraph 1 above by the United States and the State Settlement Account, collectively, in accordance with the Court Order, SBCL...." Consequently, it is clear that the Relators were well aware that payment would be made directly to the enumerated states out of the total $325,000,000 settlement recovery. They knew, at least when the order of distribution was entered, if not before, the exact amount that was to be paid to the states. I do not agree, however, with what I understand is the Government's present position, that a federal cause of action under the False Claims Act for the payments to the states for their share of the Medicaid payments, could not be maintained. That is inconsistent with the Government's contentions set forth in Preamble Q to the Settlement Agreement cited above. Medicaid programs, although authorized by federal law and supported by federal contributions to the states, are not strictly federal government programs. They are state programs authorized and partially financed by federal law. A false claim *440 submitted to and paid by a state's Medicaid program indirectly results in a loss to the federal government, but it is not strictly speaking, a false claim submitted to the United States. A qui tam share may be obtained from the Government only out of the proceeds of the settlement received by the Government. The Government's net recovery was, as above noted, $319,469,159. That is the total proceeds upon which the qui tam shares will be determined. I recognize that this determination is arguably inconsistent with the determination that the various claims against SBCL set forth in the qui tam complaints may not be subdivided and quantified as to amounts. The amounts that were paid to the states under the Medicaid programs are definite and they were incorporated in an order of court. They were funds that the Government never received and never were entitled to receive. The amounts paid to the states were negotiated separately and separate agreements and releases were signed by each of the effected states and SBCL. I note that the Government, the Relators and SBCL entered into a stipulation, prior to the Relators agreeing to the settlement, that both the Government and the Relators reserved the right to contend, "that funds paid to any state are or are not subject to any claim for a relator's share." As to this issue, it appears that the Government's present position comes as no surprise to the Relators. The Relators Contend that they are entitled to a qui tam share of that portion of the proceeds received by the states, because, in the words of the Relators, those payments were made as "a unilateral determination of the Government." I disagree with that characterization. The qui tam award that will be made will be calculated on the total proceeds received by the Government, after deducting the amount received by the states. 6. The "no more than 10 per cent qui tam share" issue The most perplexing issue under the statute is whether the "no more than ten percent of the recovery" award is applicable. Neither the Relators nor the Government were clear as to their respective interpretations of this section of the statute. 31 U.S.C. ง 3730(d) provides in relevant part: (d) Award to Qui Tam plaintiff. โ€” (1) If the Government proceeds with an action under subsection (b), [as it did in this case] such person shall, subject to the second sentence of this paragraph, receive at least 15 percent but not more than 25 percent of the proceeds of the action or settlement of the Claim, depending upon the extent to which the person substantially contributed to the prosecution of the action. Where the action is one which the court finds to be based primarily on disclosures of specific information (other than information provided by the person bringing the action) relating to allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, the court may award such sums as it considers appropriate, but in no case more than 10 percent of the proceeds, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation. The problem arises, because the statute in almost identical language in sub-section (e)(4)(A) provides that unless the qui tam Relator is an "original source", as expressly defined in the statute, "no court shall have jurisdiction over" a qui tam action that is "based upon public disclosures" of the same type that triggers the "no more than 10 percent" award provision. The Government has argued that sub-section (e)(4)(A) forecloses both the Merena and Robinson Relators from any award on the *441 automated chemistry allegations and alternatively, but I believe inconsistently, alleges that sub-section (d), quoted above, limits any award on the automated chemistry allegations to the "no more than 10 percent" range, and suggests that the percentage should be in the low range between zero and ten percent. Arguably, the "no more than 10 percent" award could apply in every case, if the court makes the finding that "the action [not specific allegations of the action] is based primarily on disclosures of specific information" (underlining added) of the type therein defined. The Government, in argument, suggested that the distinction between the two apparently conflicting sections, is that the "no more than 10 percent" subsection specifies "disclosures", whereas the jurisdictional bar sub-section refers to "public disclosures". I do not think this distinction is valid, because, for example, there could hardly be a disclosure "from the news media" that was not a public disclosure. To the extent that the Government suggests that there might be a non-public disclosure to the Government by some inter-governmental investigation, allowing a recovery of no more than 10 percent, the statute can not be reasonably so interpreted. One of the clearly enunciated purposes of the most recent 1986 amendments to the statute, was to prevent the harsh preclusive effect of mere governmental knowledge or investigation as occurred in United States ex rel, Wisconsin v. Dean, 729 F.2d 1100 (7th Cir.1984). See United States ex rel, Stinson v. Prudential Insurance Company, 944 F.2d 1149, 1163 (3d Cir.1991) (Scirica, J., dissenting). The Relators explanation of the "no more than ten percent" clause in sub-section (d) appears to be that where an action would be subject to dismissal for lack of jurisdiction under the public disclosure bar, sub-section (e)(4)(A) and (B), but the Government nevertheless intervenes, the Relator would then be entitled to a percentage up to ten percent "taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation." Relators further contend that the jurisdictional "public disclosure" bar and the "original source" exception have no application once the Government intervenes. This is a plausible explanation for the seemingly contradictory clauses of the statute. The Relators contend, as they have throughout this litigation, that, it any event the "public disclosure bar" has no application to their qui tam actions. Factually, they contest vehemently the nature of any public disclosures, including the broadcast in the television show 60 Minutes, of "allegations or transactions" on which their actions "are based." Both Relators Merena and Robinson deny that any of the allegations of fraud which they set forth in their respective complaints relied in any way upon any disclosures made by others, whether public or private. Both contend that their allegations were based upon their firsthand personal knowledge acquired while employees of SBCL: Relator Robinson as the Medical Director of an SBCL laboratory in San Antonio, Texas and Relator Merena, as a billing analyst and Supervisor of Response Development at SBCL's national headquarters. Although some of the allegations in both complaints may have been similar to those upon which the Government successfully prosecuted NHL, there were many allegations encompassed, even within the "automated chemistry" claims that had not been included in any Prior disclosures to the Government, whether or not public. The purpose of the "public disclosure bar" would appear to be intended to prevent a person taking advantage of and using publicly disclosed information, and to prevent the filing of "copy cat" complaints. If "based upon" means or is similar in meaning to "relied upon", neither Relator's complaint was based upon any disclosures, other than those that they learned as employees of SBCL. Again I note that the "public disclosure bar" of sub-section *442 (e)(4)(A) and (B), refers to an "action" being barred, not to certain allegations. Certainly the qui tam complaints were not subject to dismissal, even had the Government timely so moved. As I have heretofore noted, I will not dismiss or separate out various claims, including the "automated chemistry" claims, in determining an appropriate qui tam share. The "no more than ten percent" provision of subsection (d) requires that the court find that the "action" be based "primarily on disclosures of specific information (other than information provided by the person bringing the action) relating to allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media." I decline to make such a finding, irrespective of whether the "disclosures" must be public. I conclude that the Relators, whether singly or in combination are entitled to a qui tam award in the 15 to 25 percent range on the net proceeds of the settlement. Those net proceeds are calculated as follows: Total recovery of the settlement and accrued interest, $333,976,266.40, less the total amount paid to the states Medicaid Fraud Units, $14,507,107, leaving a net balance of $319,469,159.40. In computing the proceeds upon which the Merena-Robinson Relators will be entitled to receive a share, there must be further deducted the amount of the agreed allocation to the Spear Relators of $13,297,829. This leaves a balance of proceeds of $306,171,330 upon which the disputed qui tam shares will be Calculated. 7. Relators' Contribution to the Prosecution of the Action At the seven-day hearing in March, 1996, Relators Merena and Robinson presented evidence supporting their claims for a larger percentage of relators' share. The Government presented evidence to support their own arguments that the Relators are barred from recovery on the automated chemistry claims, and that the Relators contributed only minimally to the investigation of and settlement with SBCL on their other allegations. Relator Merena has worked voluntarily with the Government for the last four years to secure a settlement in the qui tam cases against SBCL. While he was still employed as the supervisor of Response Development at SBCL, he provided the Government with information and documents for eighteen months after he filed his qui tam action. He continued to assist the Government in its investigation of SBCL for two years after the unsealing of his qui tam action, and after he left his employment at SBCL in March of 1995. The Government does not dispute that Relator Merena spent literally hundreds of hours assisting the Government at the Philadelphia Task Force's Media, Pennsylvania headquarters. Relator Merena alleges that he first contacted the Government about what he suspected were fraudulent billing practices at SBCL in mid-August 1993 when he voluntarily placed a call to a toll-free government fraud alert hotline. Apparently, Relator Merena's phone call was routed and re-routed until he finally was referred to the United States Patent Office. The United States Patent Office, in turn, directed Relator Merena to James Sheehan, Chief, Civil Division of the United States Attorney's Office for the Eastern District of Pennsylvania. Mr. Sheehan testified at deposition[26] that he did not take any notes to memorialize this phone call, but that he recalled an anonymous caller phoning in about the alleged fraud at SBCL. At deposition, Mr. Sheehan testified that he remembered that during his telephone conversation with Relator Merena, Relator Merena discussed *443 the fact that he was an employee of SBCL, and that he had concerns about the way the company was operating. Mr. Sheehan testified that Relator Merena thought that there might have been grounds to address SBCL's activities under the False Claims Act. Mr. Sheehan recalled that Relator Merena expressed concern about identifying himself. Mr. Sheehan recalls at least two other telephone contacts with Relator Merena after the initial phone call and before Relator Merena's counsel, Mr. Marc Raspanti, became involved. Prior to any face-to-face meeting between Relator Merena and Mr. Sheehan, Relator Merena's counsel, Mr. Raspanti, provided Mr. Sheehan with information concerning a number of schemes ongoing at SBCL. The information provided included schemes to maximize Medicare revenues by "unbundling" or "exploding" its various test panels, including its automated chemistry panels. Relator Merena's first face-to-face meeting with Mr. Sheehan was on October 9, 1993. Relator Merena's counsel, Mr. Raspanti, also was present. At this meeting, Relator Merena voluntarily provided additional information to Mr. Sheehan concerning SBCL's alleged fraudulent billing practices. Relator Merena explained his background and employment at SBCL. He began working at SBCL in 1986 as the Supervisor of the Third-Party Billing Department. Relator Merena moved up in the company, and was at the time he contacted Mr. Sheehan, supervisor of Response Development, where he handled SBCL's receipt of payments from Medicare and other payors. Relator Merena spent his entire career with SBCL working at its national headquarters. At deposition, Mr. Sheehan testified that during this October 9, 1993 meeting, Relator Merena provided him with the names of various individuals who headed various functions at SBCL and with an overview of SBCL's operations throughout the country. Relator Merena indicated to Mr. Sheehan certain of SBCL's laboratories that he believed were involved in questionable acts, and he indicated to Mr. Sheehan certain parts of the country he thought would be most fruitful to the Government's investigation based on his experience at SBCL's national headquarters. Relator Merena described SBCL's National Billing Group, and SBCL's relationship with Pennsylvania Blue Shield ("PBS"), and he provided the names of employees of PBS and SBCL who were interacting with each other as to some of his allegations. Relator Merena explained in detail how SBCL's "unbundling" or "exploding" scheme worked. He described that SBCL was looking for ways to maximize revenues, and that it attempted to do so by identifying laboratory tests which could be separated out from the standard multichannel battery of tests. He explained that individual states differed in how they paid SBCL for additional tests, and therefore SBCL could submit claims for unbundled tests to certain states and receive payment for the multi-channel battery of tests (the bundle) and bill again for certain tests which were already billed as part of the battery. Relator Merena explained the unique test billing codes used by SBCL's laboratories and explained how the National Billing Group converted the laboratory codes in a way that improperly inflated Medicare revenues. He explained that SBCL even hired procedure code analysts whose job it was to maximize revenue for test panels, including automated blood chemistry panels. Relator Merena explained SBCL's centralized computer billing systems. He described SBCL's scheme of "jamming" diagnosis codes, whereby SBCL's computer automatically added other diagnosis codes for particular claims where specific diagnoses are required. He stated that, in this way, SBCL obtained Medicare payment without obtaining necessary diagnosis information from the referring physician. He explained SBCL's alleged deceptive *444 marketing schemes. Relator Merena also discussed and explained SBCL's alleged practices of billing for tests which were not performed, improper billing for End Stage Renal Disease ("ESRD") patients, multiple kickback schemes used to entice referring physicians, and a particular diagnosis scheme related to pap smears. The October 9, 1993 meeting lasted about seven hours. Prior to Relator Merena's suit, the Government had, in December 1992, concluded an investigation of NHL, which resulted in NHL pleading guilty in the United States District Court for the Southern District of California of submitting false claims to the Government and paying a $1 million criminal fine. The president of NHL also pleaded guilty to felony counts of submitting false claims to the Government and served a prison sentence. Additionally, NHL agreed to a civil settlement of $100 million with the Government and paid a monetary settlement to 33 individual states.[27] By way of declaration, Carol Lam, Assistant United States Attorney for the Southern District of California, states that the issue in the NHL investigation was NHL's alleged practice of routinely adding non-medically necessary tests to automated chemistry panels and billing government health insurance programs separately for those added-on tests. Allegedly, NHL used deceptive marketing practices that lead physicians ordering laboratory tests to believe that the additional test results they were receiving with the automated chemistry panels came at little or no additional cost. Ms. Lam testified, by way of declaration and in open court, that during the course of the NHL investigation, the team of government agents and lawyers learned that the scheme at NHL was not unique to NHL, and began to suspect that many of NHL's competitors were also committing similar marketing and billing fraud. Ms. Lam testified that after the resolution of the NHL investigation, in late 1992, she and Mr. Freedman discussed the need to investigate and prosecute, where appropriate, the other major medical laboratories in the country, including SBCL. Following the resolution of the NHL investigation, the Government gave press releases and its officials, including Ms. Lam made comments and statements in various forums, including television and the print media as well as at professional conferences, regarding the Government's investigation of NHL and its suspicion that fraudulent billing practices by medical laboratories were not unique to NHL. In December, 1992, numerous articles appeared in newspapers and industry publications across the country. The general gist of these articles was that the alleged billing practices at NHL were not unique to NHL, and that federal officials were continuing to investigate the marketing and billing practices of other national medical laboratories. The successful NHL investigatory team evolved into a task force. This task force decided to commence a joint criminal, civil and administrative investigation of the seven other national laboratories. In the early summer of 1993, the task force became known as Operation LABSCAM or the LABSCAM Task Force. During the summer of 1993, the LABSCAM Task Force requested from the Program Integrity Branch of the Health Care Financing Administration ("HCFA"), all available national clinical laboratory billing data. HCFA provided the task force with tapes of billing data for 1991 through 1993. The data provided included laboratory claims submitted to Medicare for all laboratory tests by seven major medical laboratories including SBCL. From this data, Ms. Lam testified that the LABSCAM Task Force was able to identify numerous potential billing schemes by SBCL. When asked on cross-examination about the Philadelphia Task Force's contribution *445 to the case, Laurence Freedman, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice ("DOJ"), responded that he, and others at the DOJ in Washington, DC, did not know what the Philadelphia Task Force was doing in relation to these cases. He testified that the Philadelphia Task Force did not even know much about the case. Both Assistant United States Attorney Lam and Freedman testified that up until the summer of 1993 the Government had been tracking anomalies and indicia of fraud as it related to SBCL's billing practices. Lam testified that the investigation into SBCL's billing practices began on August 24, 1993 with the issuance of subpoenas to seven medical laboratories, including SBCL. On August 24, 1993 the Department of Health and Human Services' Office of Inspector General (HHS-OIG) Office of Audit Services issued Comprehensive subpoenas to SBCL and six other medical laboratories. The Government received over 200 boxes of documents in response to its initial subpoena issued to SBCL. Federal Bureau of Investigation ("FBI") Special Agent Jacob Gregory of San Diego reviewed the SBCL documents and came up with documents which he thought would be helpful in prosecuting a Case against SBCL for its alleged fraudulent billing practices. These subpoenaed documents later became known as "hot documents" or "the hot documents file." From these so-called "hot documents", Special Agent Gregory also compiled a table of contents and created a time line setting forth critical dates of the SBCL alleged scheme. The DOJ made the decision to transfer the investigation of SBCL to the Eastern District of Pennsylvania. In accordance with this decision, Special Agent Gregory re-boxed the documents, time line, and table of contents and sent them to federal investigators in this district, sometime in July, 1993. By August, 1993, media coverage of the alleged billing fraud in the medical laboratories industry continued. An article dated August 28, 1993, and headlined, "Medical Labs Subpoenaed in Medicaid-Medicare Probe", was distributed by the Associated Press wire service and was published in the Washington Post stating that some of the nation's leading medical testing laboratories had recently received federal subpoenas seeking documents for a "widening investigation of Medicaid and Medicare fraud". The article mentioned SBCL by name as being among those receiving a subpoena. The story of the Government's subpoena of documents from the seven major laboratories was picked up by other newspapers and industry publications. On September 19, 1993, CBS News broadcast a segment entitled "Blood Money" on its show 60 Minutes. The story, reported by Leslie Stahl, covered the alleged fraud involving automated chemistry panels. The show's Associate Producer Karen Jaffee went to SBCL with an order for an automated chemistry panel, a CBC, and thyroid test. On camera, Stahl and a medical doctor examined the bill generated by SBCL. The bill included an un-ordered but billed magnesium test. By the end of 1993 the Government alleges that, in addition to the attorneys assigned to the investigation, there were six full-time federal agents from the FBI and the Defense Criminal Investigative Service ("DCIS"), and a full-time paralegal supervisor assigned to the LABSCAM Task Force. It is the Government's contention that its investigation of SBCL's alleged fraudulent billing practices was well on its way at the time Relator Merena filed his complaint, and even before he made his first contact with Mr. Sheehan. More importantly, the Government argues that its knowledge of the alleged fraud, its ongoing investigation, and the public disclosures of these facts constitute public disclosures for the purposes of the False Claims Act and therefore constitute a bar *446 to any recovery by Relator Merena and other relators. Relator Merena testified in open court, however, that he did not view the 60 Minutes segment, nor did he read any of the numerous newspaper articles, press releases or industry publications. He contends that the allegations he made in his complaint were based on facts of which he has independent knowledge. He claims his allegations and the facts supporting them, therefore, are based on his knowledge and not on the disclosures of the Government's investigation into or suspicions of alleged fraudulent billing practices at SBCL. Both Lam and Freedman testified that the information the Government had in the summer of 1993, at the time of the issuing of the subpoenas as well as the documents and other information the Government received in response to the subpoenas was insufficient for the Government to go forward and successfully prosecute a case against SBCL for violations of the False Claims Act. Nonetheless, the Government contends that its investigation and resolution of the NHL fraud case provided a blueprint that was easy to follow in its subsequent investigations of the other national medical laboratories, including SBCL. Ms. Lam testified in open court that once the Government understood the fraudulent schemes by NHL, the Government felt it would not be "rocket science" to uncover the same or similar schemes at the other laboratories. It is the Government's contention, therefore, that any investigation of SBCL would be more or less a matter of following a well laid out map. Relator Merena argues, however, that if the Government had sufficient information at that time, settlement would not have taken four years to conclude. Relator Merena contends that the Government, by trivializing the extent to which Relator Merena contributed to the Government's investigation of SBCL, has minimized the contribution of the entire Philadelphia Task Force in settling the qui tam actions against SBCL. In addition to the assistance Merena provided through October 9, 1993, at his first face-to-face meeting with the Government, Relator Merena made other significant and substantial contributions which led to the Government's ultimate settlement with SBCL. Relator Merena reviewed documents received from SBCL in response to three subpoenas, two of which he was helpful in preparing. Specifically, he helped the Government understand many of the internal documents received from SBCL in response to the subpoenas. He assisted FBI and LABSCAM Task Force agents in preparing for interviews of witnesses. He prepared outlines for interviews with witnesses. He assisted the task force in evaluating and reviewing the notes after the witness interviews were completed. He assisted in obtaining documents, many of which he fed to the Government during the eighteen months he was still an employee at SBCL. He assisted in preparing Government agents for the re-interview of witnesses. He provided technical support himself and legal support through his counsel to the Government in drafting subpoenas and key documents. He and his counsel provided assistance in the settlement process, and helped to put pressure on SBCL to reach a settlement of the case. He filed a qui tam action here in the United States District Court for the Eastern District of Pennsylvania where the other qui tam actions against SBCL ultimately were transferred and settled. It is undisputed that on November 8, 1993, counsel for Relator Merena provided Mr. Sheehan with a draft of Relator Merena's qui tam complaint, and on November 12, filed a qui tam complaint under seal in this court. His complaint alleged fraud by SBCL in SBCL's automated chemistry panels, urinalysis tests, prostate antigen tests, pap smear tests, tests performed for ESRD patients, tests not performed, and kickbacks. On the same day, Relator Merena provided the Government with his initial Notice of Disclosure. On December 13, 1993, Relator Merena provided the *447 Government with his first Supplemental Disclosure Statement which supported each of the claims raised in Relator Merena's earlier meetings with the Government, as well as those in his qui tam complaint. Mr. Sheehan sought the assistance of Relator Merena and his counsel in drafting document requests that the Government could serve on SBCL. On March 7, 1994, Relator Merena provided the Government with information about SBCL's Lexington, Kentucky laboratory's practice of artificially reducing its Medicare accounts receivables by "jamming", or automatically adding, diagnosis codes to Medicare claims to facilitate their payment. On March 8, 1994, Relator Merena provided the Government with an annual recap of SBCL's 1993 results. On March 17, Relator Merena provided the Government a complete set of SBCL's 1993 monthly Billing and Accounts Receivable Reports. On March 21, 1994, Relator Merena provided the Government a summary of individuals and documents pertaining to SBCL. Relator Merena met with Government officials on March 21, 1994. This meeting was arranged at the request of Mr. Sheehan. During this meeting, Relator Merena carefully explained to Mr. Sheehan how SBCL manipulated its billing for automated chemistry profiles in order to maximize reimbursement. Specifically, Relator Merena explained how SBCL separately billed certain tests, including the HDL, LDL, and RDW tests to the Atlanta, Georgia and Florida Medicare carriers to obtain greater Medicare reimbursement than if SBCL would have submitted those claims to PBS. On April 29, 1994, Relator Merena's counsel, Mr. Raspanti, provided the Government with drafts of detailed and comprehensive subpoenas. On May 5 and May 6, 1994, Relator Merena provided the Government with copies of all documents previously provided to the United States Attorney's Office for the Eastern District of Pennsylvania. On May 11, 1994, Relator Merena provided to the Government an internal SBCL directory which listed key personnel for each of SBCL's laboratories. On June 22, 1994, Relator Merena and his counsel met with various Government officials in a meeting lasting approximately four hours. At this meeting, Relator Merena discussed and identified numerous SBCL employees, as well as former SBCL employees, describing who were likely to be cooperative witnesses and who would have the most relevant information about SBCL's various practices and schemes nationwide. Also in the summer of 1994, Relator Merena and his counsel assisted the Government in drafting a letter to SBCL regarding a May 11, 1994 subpoena which Relator Merena and his counsel also helped draft. Relator Merena, at the Government's request, provided additional assistance concerning SBCL's "jamming" of diagnosis codes for pap smear tests and test performed on ESRD patients. Relator Merena also further described and provided documentation regarding SBCL's kickback scheme. Throughout the investigation, the Government made repeated representations to him that he was a big help to the investigation of SBCL, and that the information he was providing was very useful. Relator Merena contends, and the Government agrees, that Relator Merena's counsel asked Mr. Freedman of the DOJ repeatedly about what the DOJ's position would be with regard to the relators' share. It is undisputed that, after the Government reached the settlement in principle with SBCL, it asked Relator Merena and his counsel to summarize what they believed to be a basis for the fair and adequate resolution of relators' share issues. Relator Merena provided a detailed 45-page letter setting forth his contribution to the investigation and settlement of the case. (Merena Exhibit 70). On March 22, 1996, Relator Merena, his counsel, and other Relators and their counsel, met with Mr. Sheehan, Mr. Freedman *448 and another Government official at the Government's request to discuss the settlement in principle with SBCL. It is undisputed that at the outset of the meeting, Mr. Sheehan congratulated counsel for the Relators and told them the Government was extremely appreciative of their assistance and efforts in bringing about the successful settlement of this case, which the Government claims is the most successful qui tam case in the history of the United States. The Government acknowledged the hundreds of hours Relator Merena and his counsel spent assisting the Government in achieving this settlement. Relator Merena contends, however, that the Government never indicated at this meeting nor at any time prior to this meeting, that the Relators would not recover the statutory relators' share of the total settlement proceeds, or that the Government would seek to preclude Relators from recovery on certain of their allegations. Relator Merena contends that the Government never told the relators what their relators' share would be, but that the Government would be fair to the relators. The Government, on the other hand, contends and Mr. Freedman so testified in open court, that if the Relators objected to the settlement proceedings and/or agreement in principle, they could have said so. The Government, in essence, contends that the Relators should have raised the issue of their shares themselves prior to agreeing to the settlement with SBCL. Relator Robinson argues that he, too, substantially contributed to the investigation of and settlement with SBCL. From 1990 to 1993, he was the medical director of SBCL's San Antonio regional laboratory. He resigned his position at SBCL on June 1, 1993, after concluding that the company's alleged practice of "unbundling" or "exploding" its charges to federal health care programs was deliberate, and that he could not effect, from within, a change in the company's policy. In May, 1993, he met with Relator Grossenbacher, an attorney, and discussed SBCL's alleged fraudulent policy and practices. Relator Grossenbacher then contacted DCIS Special Agent Larry Daniels about SBCL's alleged fraudulent policy and practice of unbundling charges to the Government for component parts of its automated chemistry panels. It is uncontested that on or before June 6, 1993, DCIS Special Agent Daniels briefed fellow agent Scott Parker, who was investigating health Care fraud matters in Texas, on the information Special Agent Daniels had received from Relator Grossenbacher. On June 8, 1993, Relator Grossenbacher discussed with Special Agent Parker, SBCL's alleged nationwide policy and practice of unbundling charges for its automated chemistry panels. He claims that he provided Special Agent Parker with at least five documents which evidenced SBCL's alleged schemes, and that Special Agent Parker added these documents to his investigative file. Apparently, the information and evidence he and Relator Grossenbacher provided to Special Agents Daniels and Parker was the first specific information disclosed to the Government regarding SBCL's policy and practice of "unbundling" charges to federal health care programs for iron, TIBC, HDL, LDL, and magnesium tests. It is uncontested that in mid-July 1993, Special Agent Parker opened a separate investigative file on SBCL with the information and documents that he had received from Relators Robinson and Grossenbacher. Relators Robinson and Grossenbacher filed their complaint on December 15, 1993, and on that same date, delivered to the Government material evidence and information in support of the complaint. On April 20, 1994, Relator Robinson met with Mr. Freedman, FBI Special Agent Gregory, and DCIS Special Agent Parker. During this meeting, he was interviewed at length regarding his knowledge of SBCL's unbundling policies and practices including the billing and marketing of SBCL's laboratory *449 services. He was questioned about his career at SBCL, and of how he came to be aware of SBCL's alleged fraudulent practices. When asked for the names of current and former SBCL employees knowledgeable about SBCL's marketing of and billing for automated chemistry tests, Relator Robinson provided names of current and former employees he felt might be helpful to the investigation. At least one of these individuals was interviewed by the Government. Relators Robinson's and Grossenbacher's cases were later transferred to this court. At Mr. Freedman's request, Relator Robinson came to Philadelphia for a meeting held on November 29, 1995. At that meeting Government officials advised Relators and their counsel that the Government was looking for litigation support from the relators and their counsel, and the Government officials discussed with Relator Robinson the testimony they anticipated from SBCL's medical experts. The Government indicated that it intended to call Dr. Robinson as an expert witness to controvert the anticipated testimony of SBCL's medical experts. At this meeting, the Government also questioned him more about the operations at SBCL, including quality assurance and compliance issues, and recordkeeping practices. It is uncontested by the Government that, upon returning to Texas, Relators Robinson and Grossenbacher and their counsel spent many hours analyzing SBCL's responses to the unbundling issues and preparing a written rebuttal of SBCL's arguments in a 13-page letter that was sent to the Government on December 12, 1995. 8. The Merena - Robinson qui tam shares The Government insists that I must decide which Relator is entitled to a qui tam share, and preclude the other from receiving anything, on the basis of "the first to file bar." Such an analysis and decision might be required if the Merena and Robinson Relators were arguing between themselves as to who should receive the qui tam award. Fortunately, and quite practically and sensibly, the Relators, long before this litigation began over the amount of the qui tam share the Government would have to pay, agreed among themselves as to the division of any proceeds, regardless to whom the award or awards were made. Therefore, I do not think it is necessary to decide that one Relator and not the other is entitled to a share. Because both cases were settled for an overall sum, as heretofore noted, there is no way to quantify or to separate the recoveries between or among the qui tam Realtors. Because the Government never sought to dismiss any of the actions or any claims of the actions until after the settlement was completed and the cases were dismissed with prejudice, it is conceivable that each of the three qui tam Relators could have plausibly argued that each was entitled to a percentage between 15 and 25 percent of the entire proceeds. It is clear that the qui tam statute contemplated no more than one recovery. Relators seek nothing more than this. I will decide the percentage between 15 and 25 percent that should be awarded on the net proceeds. Undoubtedly both Relators provided very valuable and substantial assistance to the Government in bringing these actions to a successful settlement and termination. A brief synopsis of the assistance has been outlined above. There was much more, but it would gain little to recite in full detail. The sole statutory criterion for an award is "the extent to which the person [qui tam Relator] substantially contributed to the prosecution of the action." In the final analysis, this can be no more than a judgment call by the decision maker. There is no precise way to quantify in a percentage the contribution of a qui tam Relator. This is particularly true, it seems to me, in a case where the actions are terminated by an overall settlement. There is no way of determining on the *450 record before me how much monetary value, if any, was added to the potential settlement when the cases were partially unsealed, and SBCL became aware for the first time of the identities of the qui tam "whistle-blowers." Likewise there is no way to quantify how much sooner the actions settled because of the assistance and persistence of the Relators. The evidence is strong, however, that it was the Relators who constantly urged to Government to enter into serious negotiations with SBCL. I recognize that the Government would probably have continued to pursue at least the "automated chemistry" claims against SBCL, and would very likely have obtained a substantial settlement. How much such a settlement would have been without the assistance of Relators would be pure speculation. Relators had deep and extensive knowledge of the inner workings of SBCL and they were able to obtain, provide and more importantly interpret corporate billing records, without which the cases would have had serious problems. As to the "Merena only" claims, in an earlier filing the Government suggested a qui tam award of 16 percent on the amount it allocated to those claims. The Relators suggest that they should be entitled to an overall share of 18 percent of the total proceeds, including the proceeds to the states that I have declined to include. Whether we consider only the individual contributions of Merena or the individual contributions of the Robinson Relators, certainly some percentage above the minimum 15 percent should be awarded. Both Relators substantially contributed, and were willing to contribute as much as the Government was willing to receive. I conclude that the substantial contribution of each was equal to that of the other. Thus if only one, but not the other qui tam Relator would be entitled to an award on the whole of the proceeds, I would award the same percentage regardless of which one was entitled. In reading the depositions and evidence received into evidence, and listening to the arguments of counsel, I am left with the impression that the attorneys in charge of the LABSCAM investigation, conducted largely from San Diego and Washington, DC by the DOJ seek to take far more credit for the overall success of the proceedings than is rightly due. The suggestion has been presented that San Diego and Washington took care of all the automated chemistry investigation and claims, which the Government contends was the most valuable part of the case, and that the United States Attorney's office in the Eastern District of Pennsylvania, through Mr. Stiles, the United States Attorney, and Mr. Sheehan, an Assistant United States Attorney, and the investigators working under their direction played only a minor part in bringing about the successful Conclusion of the actions. Perhaps the reason the litigation has been presented in this light is because the contacts that Relator Merena, and, to a large extent, Relator Robinson had with the Government was in providing assistance to the investigators and United States Attorneys from this district, and the Government wants to minimize the contributions of the Relators in order to lower their ultimate award. No matter how the qui tam award in this case is calculated, it will be quite large. I recognize that some of the arguments presented by the Government attorneys may have been caused by a sincere desire to save as much of the proceeds as possible for the Government. However, an Act of Congress provides for substantial awards in order that persons who acquire first-hand knowledge of false claims being presented to the Government will come forth and file meritorious qui tam complaints. The success of this legislation in continuing to achieve its goals can only be assured by unstintingly providing the qui tam awards dictated by Congress, irrespective of the size of the awards. Relators undoubtedly sincerely believe that their respective contributions toward *451 bringing about the overall settlement were not only substantial but vital to the highly successful outcome of the actions. They therefore may have exaggerated to some extent the importance of their individual contributions. Similarly, I am convinced that the Government through the DOJ has greatly underestimated and minimized the help provided by the Relators. I believe that the DOJ attorneys who have represented the Government in the present qui tam relator share proceedings have been largely unaware of the tremendous effort put forth by the United States Attorney's Office for this district. That office and its investigative staff relied very heavily upon the aid of the Relators, particularly upon Mr. Merena. It was primarily through the insistence of both the Relators and Mr. Sheehan that serious and meaningful settlement negotiations were commenced. It is quite clear that the automated chemistry claims were not investigated and developed solely by the LABSCAM task force. The development of the total facts as to all of the claims asserted by the qui tam complaints of Merena and Robinson, including the automated chemistry allegations, were developed primarily through the task force operating out of the Media Office of the United States Attorney's office in this district. The ultimate decision as to the percentage share to be awarded is my own overall assessment of the extent to which Relator Merena and/or the Robinson Relators substantially contributed to the successful prosecution and settlement of the actions. As previously noted, some percentage above the 15 percent minimum amount is entirely appropriate in this case. In my judgment a qui tam share of 17 percent of the net proceeds of $306,171,330 is proper. Other persons who might make a similar decision based on the same facts, might well provide a larger or a smaller percentage. The net proceeds upon which the qui tam share will be computed is, as previously set forth, $306,171,330. Seventeen percent of that amount is $52,049,126. From that amount there must be deducted the amount of the partial summary judgment awarded of $9,736,324.[28] A judgment will be entered in favor the Merena- Robinson Relators, jointly, in the sum of $42,312,802. All factual statements contained in this opinion shall be deemed to be findings of fact. In addition, all of the submitted unopposed proposed findings of fact presented by either of the Relators and by the Government, shall be deemed as additional findings of fact. Perhaps Congress never contemplated that such large awards might occur, although that seems doubtful. Congress is, of course, capable of amending the statute at anytime, should it consider that it has been too generous in specifying the percentages to be awarded. If so, Congress might also be more helpful in defining when the lesser percentage ranges should be utilized and also in clarifying the several seemingly unclear and conflicting sections of the statute. For the reasons set forth in this opinion judgment will be entered in favor of the Merena and the Robinson relators jointly in the sum of $42,312,802, for the balance of their qui tam shares. JUDGMENT For the reasons set forth in the accompanying opinion, Judgment is entered in favor of the Relators, Robert J. Merena in Civil Action 93-5974 and Glenn Grossenbacher and Charles W. Robinson in Civil Action 95-6953, jointly and against the United States of America in the sum of $42,312,802. It is further ORDERED that any and all pending motions in Civil Actions 93-5974, *452 95-6953 and 95-6551 not otherwise expressly ruled upon in the accompanying opinion are DENIED. NOTES [1] 42 states and the District of Columbia executed separate settlement agreements with SBCL for their respective Medicaid losses from the alleged false claims paid to SBCL. Those agreements, together with accrued interest total $14,507.107 that they received from the total settlement proceeds. [2] LABSCAM is an acronym for a governmental investigative team that was formed and evolved an a result an investigation of National Health Laboratories, Inc. (NHL) in the Southern District of California. The NHL litigation resulted in successful civil and criminal proceedings against NHL, for alleged billing practice frauds similar to many of those alleged against SBCL. After the successful conclusion of the NHL case, the LAB-SCAM team was formed and proceeded to investigate alleged illegal billing practices of many of the large independent medical laboratories, including SBCL. The LABSCAM investigation, operating primarily from San Diego, California and Washington, DC, focused almost exclusively on the so-called "automated chemistry" claims. [3] All "filed document #" refer to documents filed in Civil Action 93-5974. [4] Other qui tam actions have been filed against SBCL and transferred to this court. The qui tam relators in those cases were held to be entitled to no qui tam share of the settlement proceeds involved in this litigation (filed document # 13). Their actions were dismissed, except as to a single claim that was severed because the claim was not encompassed within the terms of the Settlement Agreement and Release. [5] Relator Merena filed suit in this court an November 12, 1993. The Robinson action was originally filed in the United States District Court for the Western District of Texas in December, 1993 (Civil Action 93-1070), and the Spear action was originally filed in the United States District Court for the Northern District of California in February, 1995 (Civil Action C95-0501-DLJ). The Robinson and Spear actions were transferred by agreement to the United States District Court for the Eastern District of Pennsylvania in the fall of 1995. [6] The order directed that: "(1) ง 314.731,103.35 of the settlement proceeds, plus interest be electronically transferred to the United States Attorney's Office for the Eastern Distract of Pennsylvania; (2) $3,703,419.14 be electronically transferred to the United States Attorney's Office for the District of Columbia; (3) $14,460,124.01 be electronically transferred into an account at the Chase Manhattan Bank for the National Association of Medicaid Fraud Control Units, for further distribution to the states with which SBCL had settled; (4) all interest, income, and dividends either deposited or accrued in the escrow account after February 24, 1997 be electronically transferred to the United States Attorney's Office for the Eastern District of Pennsylvania to be further distributed in equal proportion to any entitled party or parties." These amounts total $332,894,646.50. However, the parties agree that the total proceeds disbursed were $333,976,266. [7] The Attorneys have advised the court that SBCL and Relator Merena have agreed as to the amount of Relator Merena's attorney fees and costs in Civil Action 93-5974. [8] The Government and the Consolidated Plaintiffs contended that LaCorte's Claim 1 (Complete Blood Count Claim), Claim 3 (Unauthorized Testing an Part of a Screening Program), and Claim 4 (Unauthorized Testing as Part of an Annual Audit Program) were not settled, but that all of Claim 2 (Substitution of More Extensive Chemistry Profiles) and Claim 5 (Misleading Requisition Forms) were settled. [9] Relator Jeffrey Clausen also filed a Motion to Extend Time for Filing Notice of Appeal (filed document 0102), but that motion was denied (filed document # 212). [10] The Government did not elect to intervene until after it had agreed with SBCL on specific settlement terms to resolve all of the claims in the Consolidated Plaintiffs' cases and long After the February 6, 1996 agreement in principle had been negotiated. [11] Subsection W of 31 U.S.C. ง 1321 provides in part that: Amounts (except amounts received by the Comptroller of the Currency and the Federal Deposit Insurance Corporation) that are analogous to the funds named in subsection (a) of this section and are received by the United States Government as trustee shall be deposited in an appropriate trust fund account in the Treasury. 31 U.S.C. ง 9702, Investment of Trust Funds, specifies that: Except as required by a treaty of the United States, amounts held in trust by the United States (including annual interest earned on the amounts) โ€” (1) shall be invested in Government obligations; and (2) shall earn interest at an annual rate of at least five percent. [12] The six claims Merena claims only he raised are as follows: 1) urinalysis tests; 2) prostate specific antigen ("PSA") tests; 3) pap smear tests; 4) tests performed for end stage renal disease patients ("ESRD"); 5) tests not performed ("TNP"); and 6) kickbacks. [13] The Government states, "Mr. Merena would have this Court reserve the question of whether `the Government's allocation of the settlement proceeds among issues and to the various states was improper.'" (United States' opposition to motion of Robert J. Merena for Partial Summary Judgment, p. 2). [14] The $64,906,828 figure includes a pro-rated share of the accrued interest. The Government appears to agree that accrued interest should be treated the same as principal in calculating the qui tam share or shares of the proceeds. [15] The findings at this hearing are discussed in more detail under the heading, "Relators' Contribution to the Prosecution of the Action," of this Opinion. [16] Merena and Robinson agree, however, as above noted, that from this total there be deducted the amount allocated to settling the Spear parties' claims. Consequently, the Relators are requesting an award of 18% ื ($333,976.266.40 - $13.297.829) which totals $57,722,118.73. [17] Using the above figures, the net balance would be $64,887,859, a Discrepancy of $20,969. [18] The Settlement Agreement did not make any mention of any specific state allocations, but it was understood by the parties that a sum of the proceeds would be paid to the states, as in reflected in my Order of February 24, 1997 which Orders that $14,460.124.01 be disbursed for the settlement of the states' claims. The amount actually disbursed was $14,507,107. [19] There appears to be no dispute that both Relators Merena and Robinson, in their qui tam complaints, made allegations of fraud involving automated chemistry tests, although Relator Merena's may have been rather general. [20] A non-public governmental investigation would not bar the filing of a qui tam action. See discussion, infra. [21] In the 60 Minutes story, one of the shows Associate Producers went to a SmithKline laboratory with an order for a SMAC (automated blood chemistry panel), CBC, and thyroid test. The bill generated by SBCL was then examined on camera, and the bill was found to include an un-ordered, but billed, magnesium test. Transcript of "Blood Money," 60 Minutes, CBS News, September 19, 1993, p. 20. [22] The Government indicates that the state funds total $14,507,107 which includes the pro rated share of the earned interest. [23] The Government quite properly emphasized in announcing the settlement with SBCL that the settlement was the largest recovery ever obtained under the False Claims Act for health care fraud. [24] United States v. General Electric, 808 F.Supp. 580 (S.D.Ohio 1992); United States v. Stern, 818 F.Supp. 1521 (M.D.Fla.1993); United States ex rel. Coughlin v. IBM, 992 F.Supp. 137 (N.D.N.Y.1998); United States ex rel. Burr v. Blue Cross and Blue Shield of Florida, 882 F.Supp. 166 (M.D.Fla.1995). [25] Apparently because of a few days extra interest earned under item (4) of the order, the actual amount paid to the Medicaid Fraud Control Units was $14,507,107, and the total settlement proceeds, with interest was $333,976,266. These later two figures will be used for all further calculations of the qui tam shares. [26] Mr. Sheehan testified at deposition, but was not called as a witness in open court during the evidentiary hearing which began on March 16, 1998. [27] The NHL case also was a qui tam action. [28] The Government has paid the amount of the partial summary judgment to Relator Merena.

142 F.3d 194 1998 Copr.L.Dec. P 27,765, 46 U.S.P.Q.2d 1521 John SUNDEMAN, Successor Personal Representative of theEstate of Marjorie Kinnan Rawlings Baskin;Florida Foundation, Plaintiffs-Appellants,v.THE SEAJAY SOCIETY, INC., Defendant-Appellee. No. 97-1339. United States Court of Appeals,Fourth Circuit. Argued Jan. 30, 1998.Decided April 23, 1998. 1 ARGUED: J. Lester Kaney, Cobb, Cole & Bell, Daytona Beach, FL; Herbert L. Allen, Allen, Dyer, Doppelt, Franjola & Milbrath, P.A., Orlando, FL, for Appellants. Steve A. Matthews, Sinkler & Boyd, P.A., Columbia, SC, for Appellee. ON BRIEF: Robert O. Meriwether, Nelson, Mullins, Riley & Scarborough, L.L.P., Columbia, SC, for Appellee. 2 Before WILLIAMS and MICHAEL, Circuit Judges, and KISER, Senior United States District Judge for the Western District of Virginia, sitting by designation. 3 Affirmed by published opinion. Senior Judge KISER wrote the opinion, in which Judge WILLIAMS and Judge MICHAEL joined. OPINION KISER, Senior District Judge: 4 Mr. Norton Baskin (Baskin) is the personal representative of the estate of his late wife, Mrs. Marjorie Kinnan Rawlings Baskin (Rawlings). In Count I of the Second Amended Complaint, Baskin and the University of Florida Foundation (Foundation) (formerly known as the University of Florida Endowment Corporation) seek to recover from The Seajay Society, Inc. (Seajay) physical possession of certain documents which appellants assert are assets of the Rawlings estate. In Count II, the Foundation seeks damages and injunctive relief for Seajay's alleged violation of, and alleged threats to continue violating, its copyright.1 5 Senior Judge Perry tried this case without a jury on September 5 and 6, 1991. After the trial, post-trial briefs, and closing arguments, the lower court, on October 1, 1992, entered judgment for Seajay as to Counts I and II, but did not render a decision on the counterclaim.2 The district court also did not file findings of facts or conclusions of law at that time. Baskin and the Foundation noticed an appeal to this Court on October 30, 1992. This Court, however, dismissed the appeal without prejudice because of the district court's failure to address the counterclaim or include findings of fact and conclusions of law. 6 On February 5, 1997, after reopening the record, receiving additional evidence on Count II, and hearing renewed closing arguments, the district court found for Seajay as to Counts I and II and the counterclaim. The district court also filed its findings of fact and conclusions of law. That decision is now before this Court on appeal. I. FACTS 7 Rawlings died on December 14, 1953 in St. John's County, Florida. She was the noted author of books such as Sojourner, Cross Creek, and The Yearling, which won the 1939 Pulitzer Prize. 8 In her will, Rawlings designated Baskin and the Foundation as coexecutors of her estate. She also designated one of her closest friends, Ms. Julia Scribner Bigham (Bigham) as literary executrix of her estate. Bigham was the daughter of publisher Charles Scribner, whose company, Charles Scribner's Sons Publishers (Scribner Publishing), published all of Rawlings' works. 9 On January 27, 1954, the County Judge's Court for St. John's County, Florida appointed Baskin as the sole executor of Rawlings' estate. The probate court never appointed the Foundation as an executor. Likewise, the probate court never appointed Bigham as literary executrix, or as any other fiduciary. Bigham acted in the capacity as literary executrix, however, under the auspices of Baskin, from 1953 until her death on October 24, 1961.3 10 Rawlings' will left immediate custody of "all manuscripts, all notes, all correspondence, and all literary property of any kind" to Bigham, in her role as literary executrix. Bigham had the power to destroy any of the "notes, manuscripts or correspondence" she believed should be destroyed. She also had the power to determine which materials would be published. Bigham could keep the literary works as long as she wanted, then she was to turn them over to the University of Florida Library. Any income from these literary materials was to be held in trust by the Foundation, along with the remainder of Rawlings' property. 11 Acting in her role as literary executrix, Bigham collected Rawlings' correspondence, papers, manuscripts, and other materials from Baskin. Bigham also obtained some of Rawlings' materials from Scribner Publishing. At no time did Baskin, the only court appointed fiduciary, ever request an inventory of the materials collected by Bigham. 12 Bigham scrupulously performed her duties as literary executrix. During the remainder of her life, she wrote an introduction to and posthumously published The Secret River, and then directed the original manuscript be sent to the University of Florida Library; she posthumously published The Marjorie Rawlings Reader, and then returned the typescript and original materials to Scribner Publishing; she worked to ensure that any works retained by Scribner Publishing were later sent to the University of Florida Library; and she transferred numerous other documents to the University of Florida Library. After Bigham's death in 1961, Baskin did not ask any one else to assume the role of literary executor. Instead, as executor of the estate, he assumed that role. 13 Baskin was not as conscientious as Bigham in performing the duties of literary executor. He admitted that he was aware that Bigham had a significant number of Rawlings' documents at the time of her death, yet he never asked Bigham's family to return any of those documents to the Rawlings estate. He stated that he believed the documents were under consideration for publication by Scribner Publishing, but admits that he knew the documents were at Bigham's residence. In any event, he failed to confirm whether or not the documents were part of the Rawlings estate and whether or not they were being considered for publication by Scribner Publishing. Four years after Bigham's death on October 24, 1961, the Florida probate court closed administration of Rawlings' estate with Baskin still having failed to clarify the status of those documents. 14 The documents remained stored at the residence of Bigham's widower in two boxes which were labeled "MKR letters and papers." In 1987, Bigham's widower was moving from the residence, so he and his children decided to dispose of the contents of the boxes. Ms. Ann Hutchins, Bigham's daughter, contacted Mr. Glenn Horowitz, a nationally known dealer of rare books and literary and historical manuscripts, to help them sell the material. Horowitz and his staff cataloged the contents of the two boxes as follows: 15 1. Letters written from Rawlings to Bigham from 1939 to 1953; 16 2. Correspondence of Bigham in connection with her duties as literary executrix; 17 3. Publisher's typescript with editor's blue-penciled emendations of Rawlings' The Secret River (a children's book posthumously published by Bigham); 18 4. Miscellaneous original typescripts, manuscripts, and story ideas written by Rawlings, including her first unpublished novel, Blood of My Blood; 19 5. Letters written from Bigham to Rawlings from 1940 to 1953.4 20 After compiling the catalog of documents, Horowitz contacted Dr. James Meriwether, an officer of Seajay, about the letters. Seajay is a small, non-profit organization dedicated to enhancing public aware ness of, and interest in, unduly neglected aspects of South Carolina and southern culture. After negotiations, Seajay obtained the documents by partial purchase and partial gift from the Bigham estate. 21 After purchasing the documents, Seajay made one whole copy of Blood Of My Blood for Dr. Anne Blythe (Blythe). Blood of My Blood is Rawlings' first novel; it was written in 1928, is 183 pages long, and has never been published. Blythe, also an officer of Seajay, used the copy in preparing a critical review of Blood of My Blood. Seajay made the copy so that Blythe would not damage the fragile original during her analysis. Seajay also made a partial copy5 of the manuscript which it sent to the Rare Books Room at the University of Florida Library. Seajay made this copy for the dual purpose of allowing Baskin, or his designee, to view and authenticate it, and allowing the University of Florida Press to view it and determine if it was worthy of publication. Access to the copy was restricted, and photocopying it was prohibited.6 The University of Florida Library eventually returned its copy to Seajay. 22 In April of 1988, Blythe orally presented her critical analysis of Blood of My Blood to a symposium of the Marjorie Kinnan Rawlings Society at the University of Florida. Between 150 and 200 members of Rawlings Society attended the symposium. In the presentation, Blythe quoted approximately 2,464 words from the text of Blood of My Blood, or four to six percent of the total text. Blythe submitted a hard copy of her paper for publication with the Marjorie Kinnan Rawlings Society Journal. She also hoped to publish an edited version of her presentation as an introduction to Blood of My Blood, which the University of Florida Press wanted to publish in its entirety. Blythe was aware that neither the Society's Symposium nor the University of Florida Press would be able to publish her article, much less Blood of My Blood, without first obtaining the permission of the copyright holder. Neither publisher was able to secure the necessary permission, thus neither Blood of My Blood nor Blythe's paper has ever been published.7 23 On February 9, 1990, the St. John's County, Florida probate court re-opened administration of Rawlings' estate, allowing Baskin to bring this suit on behalf of the estate. Baskin then filed the original Complaint, in which he sought recovery of the documents from Seajay, on May 18, 1990. He amended his Complaint on September 21, 1990 to include the Foundation's claim for damages and injunctive relief under the Copyright Act. At trial, on September 6, 1991, Baskin and the Foundation amended the Amended Complaint so that the Foundation could also assert an action for recovery of the documents under Count I. On February 5, 1997, the district court entered final judgment in favor of Seajay as to Counts I and II and its counterclaim. II. POSSESSION OF THE DOCUMENTS 24 As to Count I of the Second Amended Complaint, the lower court made three alternative holdings which supported its finding for Seajay. First, it held that Baskin's claim in Count I was barred by South Carolina's six year statute of limitations, S.C.Code Ann. § 15-3-530(4) (Law.Co-op.1997), and that the Foundation had no independent claim to a possessory interest in the contested documents. Second, the lower court held that even if Baskin and the Foundation had a possessory interest in the documents, Seajay's title in them was protected as a good faith purchaser for value from a dealer in goods of the kind. S.C.Code Ann. § 36-2-403(2). Third, the district court addressed the merits of the case, and held that Baskin and the Foundation failed to prove that either had a right to possession of the documents. The appellants attack each one of these holdings. In affirming the decision of the lower court, we need only address whether or not Baskin's claim is barred by the relevant statute of limitations.8 25 South Carolina Code § 15-3-530(4) provides a six year limitations period for "an action for the specific recovery of personal property." Such an action must be commenced within six years after the claimant "knew or by the exercise of reasonable diligence should have known that he had a cause of action." S.C.Code Ann. § 15-3-535; see also Campus Sweater and Sportswear Co. v. M.B. Kahn Constr. Co., 515 F.Supp. 64, 79 (D.S.C.1979) (holding that "discovery rule" in § 15-3-535 applies to claims under § 15-3 530(4)), aff'd, 644 F.2d 877 (4th Cir.1981). The lower court held that Baskin, in the exercise of reasonable diligence, should have known that he had a cause of action to recover the contested documents on October 24, 1961, the date of Bigham's death. 26 The determination that Baskin "knew or by the exercise of reasonable diligence should have known that he had a cause of action" almost thirty years before bringing his action is a finding of fact. Thus, it is subject to a "clearly erroneous" standard of review. See Fed.R.Civ.P. 52. 27 The lower court made its determination by relying upon fifteen subsidiary facts drawn solely from an examination of Baskin's own deposition testimony and interrogatory responses.9 The most relevant of those facts to this Court are that: (i) Bigham worked, not as a fiduciary under a court order, but under the auspices of Baskin, the sole court appointed fiduciary of the Rawlings estate; (ii) Baskin delivered numerous documents to Bigham following Rawlings' death and knew that Bigham collected documents from Scribner Publishing, as well; (iii) Baskin knew that Bigham had some of Rawlings' documents at her home when she died in October of 1961; (iv) as executor of the estate, Baskin assumed the role of literary executor upon Bigham's death;10 (v) despite his knowledge that Bigham had some of Rawlings' documents in her possession at the time of her death and his understanding that the documents were now his responsibility as executor of the estate, Baskin did not request to review the documents to determine if they were the property of the estate, nor did he ask that the documents be returned to his possession; and (vi) Baskin never requested the return of the documents from 1961 to 1965, while administration of Rawlings' estate remained open.11 28 The evidentiary support for the district court's factual finding is more than sufficient to withstand review under a clearly erroneous standard. We concur with the district court that even if the contested documents were part of the Rawlings' estate, Baskin's cause of action to recover the documents arose in 1961 and expired, under South Carolina law, in 1967. Thus, his attempt to now recover possession of the documents is time barred. Because Baskin's claim is time barred, and because the Foundation has waived its claim to possession of the documents, we affirm the district court's decision as to Count I of the Second Amended Complaint. III. COPYRIGHT INFRINGEMENT 29 In Count II of the Second Amended Complaint, the Foundation seeks damages and an injunction for the past and prospective infringement of its copyright in Blood of My Blood.12 Specifically, the Foundation seeks damages for the entire copy of Blood of My Blood provided by Seajay to Blythe; the partial copy provided by Seajay to the University of Florida Library; and for Blythe's oral presentation, which quoted and paraphrased Blood of My Blood, and her attempts to publish that presentation. The Foundation seeks the injunction because of alleged threats made by Seajay to disseminate copies of Blood of My Blood to other archives which maintain collections of Rawlings' works. 30 The district court held that the allegedly infringing copies were permissible under the fair use exception of 17 U.S.C.A. § 107. According to the lower court, Blythe's paper constituted a scholarly appraisal of Blood of My Blood from a literary and biographical perspective, for which extensive quoting from a copyrighted work is permissible. As for her attempts to publish the scholarly criticism, the lower court found that she understood that the paper would not be published unless the publisher first obtained the permission of the copyright holder, and, in fact, her paper never was published. The lower court found that the complete copy of Blood of My Blood given to Blythe was permissible since it was provided to prevent damage to the original manuscript during the course of her scholarly work. Regarding the partial copy sent to the University of Florida Library, the district court found that it was made for the dual purposes of allowing Baskin, or his designee, to authenticate it and to allow the University of Florida Press to determine whether it was worthy of publication. The court also decided that Seajay knew that no publication of the novel would take place without first obtaining the permission of the copyright holder. 31 The claim for injunctive relief is based upon a letter written by Seajay's counsel on September 13, 1989, which the Foundation claims threatened the dissemination of additional copies of Blood of My Blood in violation of the Foundation's copyright. The lower court decided that the alleged threat did not constitute a threat at all. Rather, the court found that the letter constituted a request by Seajay for permission to copy Blood of My Blood. A. Claim for Damages 32 Seajay concedes that the copies it made of Blood of My Blood constitute copyright infringement, unless they are protected by an exception to the Copyright Act. Seajay argues that its copies are protected by the fair use exception to copyright infringement found at 17 U.S.C.A. § 107. 33 "Fair use is a mixed question of law and fact." Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985). Thus, we review the district court's legal conclusions de novo. American Geophysical Union v. Texaco Inc., 60 F.3d 913, 918 (2d Cir.1994). The district court's subsidiary findings of fact are, of course, subject to a clearly erroneous standard of review. Id. 34 "Section 106 of the Copyright Act confers a bundle of exclusive rights to the owner of the copyright," Harper & Row, 471 U.S. at 546, 105 S.Ct. at 2223; 17 U.S.C.A. § 106 (West 1996 & Supp.1997), including the "right of first publication." Salinger v. Random House, Inc., 811 F.2d 90, 95 (2d Cir.), cert. denied, 484 U.S. 890, 108 S.Ct. 213, 98 L.Ed.2d 177 (1987). Section 107 of the Act provides an exception to the copyright holder's exclusive rights: "the fair use of a copyrighted work ... is not an infringement of copyright." 17 U.S.C.A. § 107. "Any individual may reproduce a copyrighted work for a 'fair use'; the copyright owner does not possess the exclusive right to such a use." Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 433, 104 S.Ct. 774, 784, 78 L.Ed.2d 574 (1984). This fair use exception permits photocopying of copyrighted material "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research."13 17 U.S.C.A. § 107. 35 Fair use is an "equitable rule of reason," for which "no generally applicable definition is possible." H.R.Rep. No. 94-1476, at 65 (1976), U.S.Code Cong. & Admin. News at 5659, 5679. The statute requires a "case-by-case analysis" to determine whether a particular use is fair. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577, 114 S.Ct. 1164, 1170, 127 L.Ed.2d 500 (1994). While Congress has "eschewed a rigid, bright-line approach to fair use," Sony, 464 U.S. at 448 n. 31, 104 S.Ct. at 792 n. 31, it has set forth four factors to guide a court when deciding whether a particular use is fair: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C.A. § 107. These factors are not exclusive, but are "particularly relevant to the fair use question." Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1260 (2d Cir.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987). These four statutory factors may not be "treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright." Campbell, 510 U.S. at 578, 114 S.Ct. at 1171. 36 i. Character and Purpose 37 The first factor to be considered is the purpose and character of the challenged use, including whether such use is of a commercial nature or is for non-profit educational purposes. 17 U.S.C.A. § 107(1). 38 a. Character 39 "The enquiry here may be guided by the examples given in the preamble to § 107, looking to whether the use is for criticism, or comment, or news reporting, and the like.... The central purpose of this inquiry is to see ... whether the new work merely' supersede[s] the objects' of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is transformative. Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works.... [T]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Campbell, 510 U.S. at 578-79, 114 S.Ct. at 1171 (citations omitted). 40 We find that the district court was correct in characterizing Blythe's paper as "a scholarly appraisal of Blood of My Blood from a biographical and literary perspective." Baskin v. Seajay Society, Inc., No. 3:90-1100-0, at 30 (D.S.C. February 5, 1997). A reading of Blythe's paper clearly indicates that she attempted to shed light on Rawlings' development as a young author, review the quality of Blood of My Blood, and comment on the relationship between Rawlings and her mother. The "further purpose" and "different character" of Blythe's work make it transformative, rather than an attempt to merely supersede Blood of My Blood. 41 While it does quote from and paraphrase substantially Blood of My Blood, its purpose is to criticize and comment on Ms. Rawlings' earliest work. Thus, Blythe's transformative paper fits within several of the permissible uses enumerated in § 107; it has productive uses as criticism, comment, scholarship, and literary research. While this finding is not determinative, it is one factor supporting the district court's finding of a fair use. See Harper & Row, 471 U.S. at 561, 105 S.Ct. at 2230-31; Wright v. Warner Books, Inc., 953 F.2d 731, 736 (2d Cir.1991) ("[T]here is a strong presumption that factor one favors the defendant if an allegedly infringing work fits the description of uses described in section 107."). 42 b. Purpose 43 The Foundation contends that Blythe was partially motivated by prospective royalties from the publication of her scholarly criticism, and that such commercial motivation negates any scholarly motivation. Under the fair use doctrine, commercial use of an allegedly infringing work is more disfavored than noncommercial use. See Sony, 464 U.S. at 449, 104 S.Ct. at 792. Nonetheless, while there is evidence that Blythe hoped to profit from her paper, this factor alone is not dispositive of the fair use issue. "[T]hough it is a significant factor, whether the profit element of the fair use calculus affects the ultimate determination of whether there is a fair use depends on the totality of the factors considered; it is not itself controlling." Rogers v. Koons, 960 F.2d 301, 309 (2d Cir.) (citation omitted), cert. denied, 506 U.S. 934, 113 S.Ct. 365, 121 L.Ed.2d 278 (1992).14 44 "The crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price." Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231. Courts should also "consider the public benefit resulting from a particular use notwithstanding the fact that the alleged infringer may gain commercially." Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1523 (9th Cir.1992). This public benefit typically involves "the development of art, science, and industry." Rosemont Enters., Inc. v. Random House, Inc., 366 F.2d 303, 307 (2d Cir.1966) (citation omitted), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). 45 First, there is no evidence of an exploitative motive in any of the allegedly infringing uses. There was no commercial motive, much less an exploitative motive, in the complete copy provided to Blythe. Her copy was provided in pursuit of her scholarly objective and only because she might harm the fragile, seventy year old original manuscript during her analysis. There also was no exploitative motive underlying the University of Florida Library's partial copy. One of Seajay's motivations for delivering the copy was to authenticate it as a work of Ms. Rawlings. Clearly, this was non-commercial and nonexploitative. The other purpose behind the copy was to assess the worthiness of Blood of My Blood for publication. While this was potentially a commercial motivation, there was no risk of exploitation since Seajay understood that such publication could not take place without the permission of the copyright holder. 46 As for Dr. Blythe's paper, there was a potential commercial motivation in that Dr. Blythe may have received royalties if her paper were published, however, there was no attempt to exploit the Foundation. The paper was only to be published if the necessary permission were obtained from the copyright holder. Since such permission was not obtained, the paper was not published and no royalties were ever received. 47 Second, all of Seajay's uses unquestionably served the "public benefit" and "the development of art." The Blythe copy was provided by Seajay to protect the fragile original from damage during a scholarly literary criticism of the work. The Library copy was provided for authentication and determination of worthiness for publication, publication which would not take place without the permission of the copyright holder. As noted above, the Blythe paper was for the purposes of scholarship, criticism, comment, and literary research. All of these purposes serve the public benefit and aid in the development of the arts. 48 Thus, in general, the challenged uses of Blood of My Blood were for noncommercial, educational purposes. To the extent there was any commercial motivation behind the uses, there was no attempt to exploit Blood of My Blood to the detriment of the Foundation. 49 A subsidiary enquiry to the commercial/non-commercial distinction is whether the allegedly infringing uses "supplant[ed] the copyright holder's commercially valuable right of first publication." Harper & Row, 471 U.S. at 562, 105 S.Ct. at 2231. In this case, Seajay's uses of Blood of My Blood had neither the "intended purpose," nor the "incidental effect," of usurping the Foundation's right of first publication. See id. First, there is no evidence that Seajay intended to publish Blood of My Blood before the Foundation. In fact, all of the evidence indicates that Seajay sought the Foundation's approval to publish the work, and that when such approval was not forthcoming, it did not publish Blood of My Blood.15 Second, Seajay's uses did not have the effect of supplanting a potential publication of Blood of My Blood by the Foundation. Blythe's copy was seen only by Dr. Blythe as she performed her scholarly review. The Library's copy was seen only by a representative of Baskin and representatives of the University of Florida Press. Blythe's paper was presented only to between 150 and 200 members of the Rawlings Society, the editor of the Society's Symposium, and an editor for University of Florida Press. None of these disseminations of Blood of My Blood was sufficient to support a finding that Seajay supplanted the Foundations's right of first publication. 50 For the aforementioned reasons, the purpose and character of Seajay's allegedly infringing uses weigh heavily in favor of finding the uses fair under 17 U.S.C.A. § 107. 51 ii. Nature of Copyrighted Work 52 The second statutory consideration is the nature of the copyrighted work. 17 U.S.C.A. § 107(2). "This factor calls for recognition that some works are closer to the core of intended protection than others, with the consequence that fair use is more difficult to establish when the former works are copied." Campbell, 510 U.S. at 586, 114 S.Ct. at 1175. 53 Creative works and unpublished works are closer to the core of works protected by the Copyright Act. "The law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy .... [and][t]he scope of fair use is also narrower with respect to unpublished works." Harper & Row, 471 U.S. at 563, 564, 105 S.Ct. at 2232, 2232. Because Blood of My Blood is a creative, unpublished work, the second enquiry weighs in favor of finding Seajay's use unfair.16 54 Appellant argues that the unpublished nature of the Blood of My Blood requires us to reverse the district court. Indeed the Supreme Court stated that "[u]nder ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use." Harper & Row, 471 U.S. at 555, 105 S.Ct. at 2228. In 1992, however, Congress amended § 107 to state that: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." 17 U.S.C.A. § 107.17 Thus, while the fact that Blood of My Blood was unpublished militates against a finding of "fair use," it does not foreclose a finding that Seajay's use was fair. 55 Appellant also urges reversal because the dissemination by Seajay denies the Foundation its power to decide not to publish Blood of My Blood at all. Harper & Row clearly recognizes that "[t]he right of first publication encompasses ... the choice whether to publish at all...." 471 U.S. at 564, 105 S.Ct. at 2232. The Foundation is correct in its statement that usurping the copyright holder's privilege to determine whether or not to publish Blood of My Blood would favor a finding of unfair use. This argument presupposes, however, that the purpose or effect of the allegedly infringing uses was to supplant the Foundation's right to publish Blood of My Blood. As discussed above, we have found that neither the purpose nor the effect of any of the challenged copies amounted to a first publication of Blood of My Blood. Thus, we hold that while the unpublished nature of Blood of My Blood weighs against a finding of fair use, the allegedly infringing copies have not stripped from the Foundation its right to determine whether or not to publish Rawlings' first work at all. 56 For the aforementioned reasons, the nature of the copyrighted work weighs in favor of finding Seajay's use to have been unfair under 17 U.S.C.A. § 107. 57 iii. Amount and Substantiality of Copied Portion 58 The third statutory factor addresses the amount and substantiality of the portion copied by the alleged infringer in relation to the copyrighted work as a whole. 17 U.S.C.A. § 107(3). "[T]his factor calls for thought not only about the quantity of the materials used, but about their quality and importance, too." Campbell, 510 U.S. at 587, 114 S.Ct. at 1175. Thus, this factor has favored copyright holders where a significant percentage of the copyrighted work was copied, or where the percentage was not great, but the copied portion essentially was the "heart" of the copyrighted work. Wright, 953 F.2d at 738 (citations and internal quotations omitted). 59 a. Quality 60 No evidence was admitted as to the value of the copied material in relation to the copyrighted work as a whole. We could presume that because Blythe chose to quote it, the material copied necessarily must be the "heart of the work," however, we decline to do so. Obviously, the quoted material is of significant value, or it would not have been quoted. All quoted material is of significant value, but it cannot be said to be the "heart of the work" or the fair use doctrine would be destroyed. See Religious Technology Center v. Lerma, 908 F.Supp. 1362, 1367 (E.D.Va.1995). If all quoted material were deemed significant enough to preclude a fair use just because it was significant enough to be quoted, no one could ever quote copyrighted material without fear of being sued for infringement. Thus, we find that the quoted portions are undoubtedly significant, but fall short of being the "heart of the work," and thus weighing in favor of a finding of unfair use. 61 b. Quantity 62 "There are no absolute rules as to how much of a copyrighted work may be copied and still be considered a fair use." Maxtone-Graham, 803 F.2d at 1263. In analyzing this factor, we must consider material copied from the copyrighted work, whether it has been quoted verbatim or paraphrased. Salinger v. Random House, 811 F.2d 90, 97 (2d Cir.1987). Copying an entire work weighs against finding a fair use, Advanced Computer Servs. v. MAI Sys. Corp., 845 F.Supp. 356, 365 (E.D.Va.1994), however, it does not preclude a finding of fair use. Id. at 366 (citations omitted). "[T]he extent of permissible copying varies with the purpose and character of the use." Campbell, 510 U.S. at 586-87, 114 S.Ct. at 1175.18 63 Obviously, the copies of Blood of My Blood provided to Blythe and the University of Florida Library were qualitatively and quantitatively substantial. Nonetheless, when the extent of the copying is considered with the purpose and character of the uses, the amount and substance of the copies are justified. See Campbell, 510 U.S. at 586-87, 114 S.Ct. at 1175-76. In order for Blythe to perform her scholarly criticism of the novel, she obviously needed access to either the original or an entire copy. Similarly, in order for the Library to authenticate Blood of My Blood as being Rawlings' work, to determine whether the work was worthy for publication, and to obtain the necessary permission from the copyright holder, it too needed either the original or a nearly complete copy. It would severely restrict scholarly pursuit, and inhibit the purposes of the Copyright Act, if a fragile original could not be copied to facilitate literary criticism. Thus, we find that the amount and substantiality of the portion of Blood of My Blood copied for Blythe and the Library did not exceed the amount necessary to accomplish these legitimate purposes. See Supermarket of Homes, Inc. v. San Fernando Valley Bd. of Realtors, 786 F.2d 1400, 1409 (9th Cir.1986). 64 As to Blythe's paper, she quoted between four and six percent of Blood of My Blood. In addition, she paraphrased substantially from the work. As with the copies provided to Blythe and the Library, the propriety of the amount quoted and paraphrased by Blythe must be analyzed in consideration of the purpose and character of the allegedly infringing use. Here, Blythe was performing a scholarly criticism of Rawlings' initial work. It seems apparent that a scholarly criticism of a book will require the critic to quote and paraphrase from the work it is analyzing. See Supermarket of Homes, 786 F.2d at 1408 ("A common type of 'fair use' is quotation of a passage in a book review."); Robert Stigwood Group Ltd. v. O'Reilly, 346 F.Supp. 376, 385 (D.Conn.1972) (recognizing that critical review of another's work can be a fair use and that critics may quote extensively from the copyrighted work "in order to comment effectively"). Additionally, as the district court held, the amount quoted by Blythe is well within allowable limits as found by other courts. See New Era Publications Int'l, ApS v. Carol Publ'g Group, 904 F.2d 152, 158 (2d Cir.) (fair use defense available where defendant quoted minuscule amount from 25 works, between 5 and 6 percent of 12 works and 8 percent or more of 11 short works), cert. denied, 498 U.S. 921, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990); Maxtone-Graham, 803 F.2d at 1263 (quoting 4.3 percent of copyrighted work not incompatible with finding of fair use). Thus, we find that no more of the text was quoted or paraphrased than was necessary for Blythe to adequately criticize and comment upon Blood of My Blood. 65 For the aforementioned reasons, the amount and substantiality of the portion copied by Seajay weigh in favor of finding the uses fair under 17 U.S.C.A. § 107. 66 iv. Market Effect 67 The final statutory enquiry considers the effect the allegedly infringing use has upon the market for, or value of, the copyrighted work. 17 U.S.C.A. § 107(4). This fourth factor "is undoubtedly the single most important element of fair use." Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233. 68 a. Impair Marketability 69 A use that does not materially impair the marketability of the copyrighted work generally will be deemed fair. Advanced Computer Services, 845 F.Supp. at 366 (citing Sony, 464 U.S. at 450-51, 104 S.Ct. at 792-93; Harper & Row, 471 U.S. at 566-67, 105 S.Ct. at 2233-34; N.A.D.A. Servs. Corp. v. Business Data of Virginia, Inc., 651 F.Supp. 44, 48 (E.D.Va.1986)). The only evidence presented at trial as to the market effect of the allegedly infringing uses was that, despite the Blythe presentation and the copies to Blythe and the Library, the University of Florida Press still wanted to publish Blood of My Blood. Based on this evidence, the district court held that the uses made by Seajay did not diminish the potential market for, or value of, Blood of My Blood. 70 This finding of fact was not clearly erroneous. The copy provided to Blythe was seen only by Blythe; the copy provided to the University of Florida was seen only by Mr. Roger Tarr, an associate of Baskin, and representatives of University of Florida Press; the presentation by Blythe was seen by between 150 and 200 members of the Marjorie Kinnan Rawlings Society, the editor of the Society's Symposium, and an editor for the University Press. Thus, it is reasonable for the district court to have concluded that the allegedly infringing activities did not have a negative impact on the market for, or value of, Blood of My Blood. In fact, it is likely that Blythe's presentation stimulated interest in Blood of My Blood among the Society's members and may actually have increased demand for it. See Maxtone-Graham, 803 F.2d at 1264. 71 b. Market Substitute 72 Another key element of the fourth enquiry is whether the allegedly infringing work is a market substitute for the copyrighted work. As the Supreme Court stated, "the role of the courts in determining fair use is to distinguish between '[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.' " Campbell, 510 U.S. at 592, 114 S.Ct. at 1178 (quoting Fisher v. Dees, 794 F.2d 432, 438 (9th Cir.1986)). The fair use doctrine protects against a republication which offers the copyrighted work "in a secondary packaging," where "potential customers, having read the secondary work, will no longer be inclined to purchase again something they have already read." New Era Publications Int'l, ApS v. Henry Holt & Co., Inc., 695 F.Supp. 1493 (S.D.N.Y.1988), aff'd, 873 F.2d 576 (2d Cir.1989), cert. denied, 493 U.S. 1094, 110 S.Ct. 1168, 107 L.Ed.2d 1071 (1990). The doctrine does not protect against criticism which may have an adverse market effect. Id. 73 This analysis harkens back to our discussion of § 107(1). As we held then, Blythe's paper was transformative; it did not amount to mere duplication of the original, and did not have the purpose or effect of supplanting the copyrighted work. It did not serve as a market replacement for Blood of My Blood, rather it served as a criticism of and comment about Blood of My Blood. This holding is reinforced by the University of Florida Press' willingness to publish Blood of My Blood despite Blythe's presentation. Accordingly, we hold that since Blood of My Blood and Blythe's criticism of Blood of My Blood serve different market functions, Blythe's paper is not a market substitute for the original work.19 74 c. Derivative Markets 75 A final element of the fourth factor is the impact the allegedly infringing uses may have on the market for derivatives of the copyrighted work. Harper & Row, 471 U.S. at 568, 105 S.Ct. at 2234-35. The market for potential derivatives includes those uses that the copyright holder of the original work would develop or license others to develop. Campbell, 510 U.S. at 592, 114 S.Ct. at 1178. As the Supreme Court declared, however, "there is no protectible derivative market for criticism." Id. If there were a protectible derivative market for critical works, copyright holders would only license to those who would render favorable comment. The copyright holder cannot control the dissemination of criticism. See New Era, 695 F.Supp. at 1523 (fair use protection is not "accorded only to favorable critics"). Thus, Seajay's allegedly infringing uses could not impact the market for derivatives of Blood of My Blood. 76 For the aforementioned reasons, the effect Seajay's uses have on the market for, or value of, Blood of My Blood weighs in favor of finding the uses fair under 17 U.S.C.A. § 107. 77 v. Aggregation of Four Factors 78 An analysis of the four statutory factors leads us to agree with the district court that Seajay's uses of the original manuscript of Blood of My Blood were permissible under the "fair use" exception to copyright infringement. B. Claim for Injunctive Relief 79 The district court held that the alleged threats of illegal duplication contained in the letter of September 13, 1989 did not constitute threats at all. Instead, the lower court held that the letter merely requested permission to publish Blood of My Blood. The court noted that letters dated January 29, 1990; July 3, 1990; and August 16, 1990 supported its factual determination. A review of those letters shows ample support for the district court's factual finding. Accordingly, there was no threat of future dissemination of Blood of My Blood, and the district court properly denied the Foundation's request for an injunction. IV. CONCLUSION 80 For the reasons contained herein, we affirm the judgment of the district court. 81 AFFIRMED. 1 It is important to note the distinction between the physical ownership of documents, and the ownership of the literary rights in those documents, the later being the copyright. Under 17 U.S.C.A. § 202 (West 1996), the physical document and the copyright are subject to separate transfer. Count I concerns the right to physical possession of the documents themselves, while Count II concerns the ownership of the literary rights in the documents. Seajay concedes that the Foundation owns the copyright to Ms. Rawlings' letters and papers, however, it contends that it did not infringe upon those literary rights 2 Seajay filed a counterclaim seeking a declaration that their uses of the contested documents prior to February 21, 1991 did not constitute publication sufficient to warrant an extension of the Foundation's copyright under 17 U.S.C.A. § 303. Appellants apparently do not appeal this ruling 3 The term "literary executrix" is somewhat misleading because Bigham never qualified as a fiduciary in any capacity. Her legal status seems to have been that of an advisor to the executor, Baskin 4 Appellants allege in Count I that certain of the documents in categories 3 and 4 were owned by Rawlings at the time of her death, and passed to Bigham solely in her role as literary executrix. They claim that upon Bigham's death, rightful possession of those documents passed to Baskin as the administrator of the estate. Their claim covers a total of 12 documents from those two categories, including Rawlings' first unpublished novel Blood of My Blood 5 This copy included all but six pages of the original 6 The Foundation used a copy of Blood of My Blood obtained in violation of this restriction to register its copyright on June 13, 1990 7 In Count II, the Foundation claims that the copy of Blood of My Blood made for Blythe; the copy made for the University of Florida Library; and the paper written and presented by Blythe, which quoted and substantially paraphrased Blood of My Blood, constitute copyright infringement. The Foundation also claims that Seajay has threatened to make additional infringing copies of Blood of My Blood. According to the Foundation, this alleged threat justifies the injunctive relief sought under 17 U.S.C.A. § 502 8 As noted, the lower court held that the Foundation did not have a possessory interest in the contested documents. Appellants have not appealed this decision. Indeed, their entire appeal as to Count I is directed at Baskin's recovery of the contested documents. Accordingly, appellants have waived any claim by the Foundation for possession of the contested documents. Therefore, we need only discuss whether Baskin has a viable claim under Count I 9 Baskin was unable to testify at the trial due to his health. His deposition testimony and interrogatory responses were admitted into evidence 10 Baskin not only admitted this in his interrogatory responses and deposition testimony, but in paragraph 14 of the Second Amended Complaint, Baskin alleged that, upon Bigham's failure to complete her duties as literary executrix, the duty passed to him as personal representative of the estate 11 In paragraph 15 of the Second Amended Complaint, Baskin alleges that as personal representative of Rawlings' estate, the right to possession of all the estate's personal property belonged to him pending the completion of administration of the estate, yet he did not attempt to recover these documents while administration of the estate remained open from 1961 until 1965 12 Count II is a claim exclusively put forward by the Foundation, as the sole owner of the copyright 13 This list of permissible uses is not exhaustive and is not intended to single out any particular use as presumptively fair. Harper & Row, 471 U.S. at 561, 105 S.Ct. at 2230-31 14 "If, indeed, commerciality carried presumptive force against a finding of fairness, the presumption would swallow nearly all of the illustrative uses listed in the preamble paragraph of § 107, including news reporting, comment, criticism, teaching, scholarship and research, since these activities are generally conducted for profit in this country." Campbell, 510 U.S. at 584, 114 S.Ct. at 1174 (citation and internal quotation omitted) (emphasis added) 15 In this case, there was no attempt by the defendant to market the copyrighted work ahead of an imminent publication by the copyright holder, as there was in Harper & Row 16 Even though Blood of My Blood can be characterized as autobiographical, it is still a work of creative expression rather than a presentation of information 17 Appellants contend that the 1992 amendment to § 107 does not apply in this case because the action commenced in 1990 and the district court reached its initial decision in 1991. We disagree. The district court reopened the case for argument in 1996, received additional evidence as to Count II at that time, and entered its findings of fact and conclusions of law in 1997. Thus, the law at the time of the district court's decision included the 1992 amendment. In any event, prior to the 1992 amendment, the Supreme Court's statement in Harper & Row did not require a finding of unfair use; it merely militated against a finding of fair use. We are of the opinion that the district court's decision should be upheld whether or not the 1992 amendments apply to this case 18 The more material copied directly from a copyrighted work tends to show a lack of transformative character under the first factor and a greater likelihood of market harm under the fourth factor. See Campbell, 510 U.S. at 587-88, 114 S.Ct. at 1175-76 19 We find that, even if widespread, Harper & Row, 471 U.S. at 568, 105 S.Ct. at 2234-35, Blythe's presentation would not have superseded Blood of My Blood 's place in the market. As a scholarly criticism, Blythe's paper is of a different character and delivers a different message than Blood of My Blood. Thus, it could not be a market substitute for or a competitor with Blood of My Blood

2 So.3d 943 (2006) EX PARTE ALJAY LOCKETT. No. CR-06-0014. Court of Criminal Appeals of Alabama. December 7, 2006. Decision of the Alabama Court of Criminal Appeal without opinion. Mand. pet. dismissed.

People v Vidro (2017 NY Slip Op 01975) People v Vidro 2017 NY Slip Op 01975 Decided on March 16, 2017 Appellate Division, First 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 on March 16, 2017 Tom, J.P., Acosta, Kapnick, Kahn, Gesmer, JJ. 3415 4029/13 [*1]The People of the State of New York, Respondent, vMelvin Vidro, Defendant-Appellant. Richard M. Greenberg, Office of the Appellate Defender, New York (Charity L. Brady of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of counsel), for respondent. Judgment, Supreme Court, New York County (Arlene D. Goldberg, J.), rendered May 22, 2014, as amended July 22, 2014, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the fourth degree, and sentencing him, as a second felony drug offender previously convicted of a violent felony, to a term of four years, unanimously affirmed. The court properly denied defendant's motion to suppress physical evidence and the confirmatory identifications made by undercover police officers. The arresting officer had probable cause to arrest defendant under the fellow officer rule because "the radio transmission [of] the undercover officer . . . provided details of the defendant's race, sex, clothing, as well as his location and the fact that a positive buy' had occurred" and defendant was the only person in the area who matched the description at the location (see People v Young, 277 AD2d 176, 176-177 [1st Dept 2000], lv denied 96 NY2d 789 [2001]). Although the arresting officer did not testify at the suppression hearing, "the only rational explanation for how defendant came to be arrested . . . is that [the arresting officer] heard the radio communication [heard by the testifying officer] and apprehended defendant on that basis" (People v Poole, 45 AD3d 501, 502 [1st Dept 2007], lv denied 10 NY3d 815 [2008] [internal quotation marks and citation omitted]; People v Myers, 28 AD3d 373 [1st Dept 2006], lv denied 7 NY3d 760 [2006]). The inference of mutual communication (see People v Gonzalez, 91 NY2d 909, 910 [1998]) does not turn on what kind of radios the officers were using, or how well the radios were working, but on the simple fact that, without hearing the radio transmission, the arresting officer would have had no way of knowing where to go or whom to arrest. Defendant's challenges to the prosecutor's summation are entirely unpreserved because, during the summation, defendant made only unspecified generalized objections. Although defendant's postsummation mistrial motion made some specific claims, this was insufficient to preserve those issues, which should have been raised during the summation (see People v Romero, 7 NY3d 911, 912 [2006]; People v LaValle, 3 NY3d 88, 116 [2004]). We decline to review any of defendant's challenges to the summation in the interest of justice. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: MARCH 16, 2017 CLERK

647 F.Supp.2d 247 (2009) Gary LA BARBERA, Thomas Gesualdi Lawrence Kulda, Louis Bisignano, Anthony Pirozzi, Frank Finkel Joseph Ferrara, Sr., Lynn Mourey Marc Herbst, and Thomas Piali, Trustees and Fiduciaries of Local 282 Welfare, Pension, Annuity, Job Training and Vacation and Sick Leave Trust Funds, Plaintiffs, v. TADCO CONSTRUCTION CORP., Defendant. Case No. 07-CV-2791 (FB)(RER). United States District Court, E.D. New York. August 10, 2009. *248 Amie Ravitz Hogan, Esq., Friedman & Wolf, New York, NY, for the Plaintiffs. MEMORANDUM AND ORDER BLOCK, Senior District Judge. On May 4, 2009, Magistrate Judge Reyes issued a Report and Recommendation ("R & R") recommending that a default judgment be entered against defendant in the amount of $238,133.21. See R & R at 254. The R & R also stated that failure to object within ten days would preclude appellate review. See id. at 12. Attorney for plaintiffs mailed a copy of the R & R to defendant on May 5, 2009; no objections have been filed. If clear notice has been given of the consequences of failure to object, and there are no objections, the Court may adopt the R & R without de novo review. See Mario v. P & C Food Mkts., Inc., 313 *249 F.3d 758, 766 (2d Cir.2002) ("Where parties receive clear notice of the consequences, failure timely to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision."). The Court will excuse the failure to object and conduct de novo review if it appears that the magistrate judge may have committed plain error, see Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir.2000); no such error appears here. Accordingly, the Court adopts the R & R without de novo review and directs the Clerk to enter judgment in accordance with the R & R. SO ORDERED. REPORT & RECOMMENDATION RAMON E. REYES, JR., United States Magistrate Judge. Plaintiffs, Gary La Barbera, Thomas Gesualdi, Louis Bisignano, Anthony Pirozzi, Frank Finkel, Joseph Ferrara, Sr., Marc Herbst, Thomas Piali, and Christopher Ward, as trustees of the Welfare, Pension, Annuity, Job Training and Vacation and Sick Leave Trust Funds of Teamsters Local 282 (the "Funds"), brought this action against defendant, Tadco Construction Corp. ("Tadco"), alleging that Tadco has violated the Employee Retirement Income Security Act of 1974 ("ERISA") because of their refusal to comply with the terms of the Restated Agreement and Declaration of Trust ("Trust Agreement") governing the Funds, as well as the collective bargaining agreement ("CBA") between Tadco and Local 282. The plaintiffs allege that Tadco did not comply with the Trust Agreement or the CBA because it has failed to respond to requests to produce its pertinent books and records for audit. In light of Tadco's failure to appear in or otherwise defend this action, plaintiffs moved for default judgment on November 26, 2008. (Docket Entry 13.) On December 1, 2008, the Clerk of the Court noted defendant's default pursuant to Federal Rules of Civil Procedure 55(a). On February 3, 2009, the Honorable Frederic Block found the allegations in the complaint sufficient to establish a violation of the Trust Agreement and the CBA and ordered the defendant to produce its books and records for the relevant period May 2005 to February 2, 2009 within 30 days so that an audit could be conducted to determine any outstanding contributions. (Docket Entry 19.) If the pertinent books and records were not produced, then the formulas to calculate the contributions owed under the Trust Agreement were to be assessed accordingly. (Id.) The matter was then referred to me to supervise the audit and issue a Report and Recommendation on the relief to be awarded. (Id., at 3.) BACKGROUND The Funds are employee benefit plans within the meaning of section 3(3) of ERISA. (Docket Entry 9, ¶ 5); 29 U.S.C. § 1002(3). Tadco entered into a CBA with Local 282, effective from July 1, 2002 until June 30, 2006. Pursuant to the CBA, all signatories were a party to and bound by the terms of the Trust Agreement that established the Funds on July 1, 1999.[1] (Docket Entry 14, Ex. C, Section 13(G).) On July 1, 2006, a new CBA between Tadco and Local 282 was entered into, effective through June 30, 2009, maintaining Tadco's status as being a party to and bound by the Trust Agreement. (Id., Ex. C.) Pursuant to the Trust Agreement, defendant is required to pay fringe benefit *250 contributions to the Funds on behalf of its employees who are members of Local 282. (Docket Entry 9, ¶ 5.) Defendant is also required under the Trust Agreement to submit monthly remittance reports to the Funds. (Id. ¶ 10.) The monthly remittance reports state the hours worked in any given month by the employees covered by the CBA and the amounts to be paid to the Funds based on the hours worked. Tadco did not submit a remittance report for August 2006 and has not submitted any remittance reports since October 2006. (Id., ¶ 11.) The plaintiffs notified Tadco of its failure to submit remittance reports and requested the delinquent reports by letter seven different times. However, Tadco never responded. (Id., ¶ 12.) An audit to review Tadco's books and records on site was scheduled for October 10, 2006. However, Tadco cancelled this audit, and it was never rescheduled. (Id., ¶ 15.) Consequently, pursuant to their authority under the Trust Agreement, on February 27, 2007, the plaintiffs demanded that Tadco submit its pertinent books and records for an audit. (Id., ¶ 18.) Despite the plaintiffs' demand, Tadco failed to produce the requested books and records for audit. This prompted the plaintiffs to initiate this action on July 11, 2007. DISCUSSION "While a party's default is deemed to constitute a concession of all well pleaded allegations of liability, it is not considered an admission of damages." Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir.1992) (citing Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir.1974) and FED. R. CIV. P. 8(d)). Claims for damages must generally be established in an evidentiary proceeding at which the defendant is afforded the opportunity to contest the amount claimed. Id. An evidentiary presentation is required so that the court may ensure that there is a basis for the damages sought before entering default judgment in the amount demanded. Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir.1989). A court may make this determination based upon evidence presented at a hearing or upon a review of detailed affidavits and documentary evidence. See FED R. CIV. P. 55(b)(2); Action S.A. v. Marc Rich & Co., Inc., 951 F.2d 504, 508 (2d Cir. 1991); Fustok, 873 F.2d at 40. Plaintiffs claims that they are entitled to the following relief under the Trust Agreement: (1) $176,698.73 in unpaid contributions; (2) $34,674.31 in interest on the penalty amount contributions; (3) the greater of the interest on the penalty amount contributions or liquidated damages; (4) $5,572 in attorney's fees; and (5) $1,861.60 in costs. To support their damages request, the plaintiffs submitted a declaration of Theresa Cody, an employee of the Funds who is responsible for organizing the Funds' records and recording whether an employer has submitted monthly remittance reports and required contributions to the Funds. (Docket Entry 14.) Attached to Cody's declaration is the Trust Agreement, the expired CBA, and the current CBA. (Id., Ex. A, B, and C.) In addition, the plaintiffs submitted a declaration of Ken Jones, an auditor who computed the amount due by Tadco for their failure to comply with the Trust Agreement and CBA. (Docket Entry 15.) Attached to Jones' declaration is his audit report. (Id., Ex. A.) The plaintiffs also submitted a declaration of Anusha Rasalingam, their lead attorney, supporting their request for interest, liquidated damages, attorney's fees and costs. (Docket Entry 16.) On February 24, 2009, *251 Ken Jones submitted a second declaration that further explained the plaintiffs' damages calculation and included the monthly remittance reports submitted by Tadco during the relevant period. (Docket Entry 20; Id., Ex. A.) According to the Trust Agreement, if an employer fails to submit remittance reports and/or books and records for an audit, a formula may be utilized to calculate the contribution amounts due by the employer, notwithstanding the employer's submission of monthly remittance reports and payment of the appropriate contribution during the requested audit period. The Trust Agreement provides two different calculation methods. Determining which of the two methods to use depends on whether Tadco submitted monthly remittance reports or not. (Docket Entry 9, ¶ 33-36.) A. Calculation of Unpaid Contributions 1. No Reports and No Books and Records Submitted For months in which Tadco failed to submit monthly remittance reports, the formula set forth in Article IX(l)(e) of the Trust Agreement applies: [i]n the event the Employer fails to submit the required [remittance] reports and/or[2] pertinent books and records for audit within twenty (20) days after written demand, the Trustees, or their agents, may compute the sum due for any month by adding 10 percent to the number of hours for the month in which the largest number of hours were reported in the previous twelve (12) reports submitted by the Employer (hereinafter referred to as the base month). The number of hours reported in the base month is increased by 10 percent; this number is then multiplied by the appropriate fringe benefit rate ("FBR") to arrive at the contribution amount due for that month. (Docket Entry 14, Ex. A, Article IX(1)(e).) This formula provides a mechanism to estimate the contributions owed by the employer to the Funds since no reports were submitted and no books and records were made available to determine how much the employer owes for that month. La Barbera v. J.D. Collyer Equipment Corp., 337 F.3d 132, 134 (2d Cir. 2003) (approving of the use of an identical formula). Tadco did not submit remittance reports or its books and records for August 2006, or from October 2006 through September 2008. Accordingly, there are 25 months in which this formula may be used to determine the contribution amounts. In the last 12 reports submitted by Tadco, the greatest number of hours reported was 201.5 in December 2005. (Docket Entry 21, ¶ 20.) Therefore, utilizing the formula yields 221.65 hours (201.5 times 1.10) per month for the 25 months that Tadco did not submit reports or books and records. Plaintiffs argue that 221.65 should then be multiplied by the September 2008 FBR for each of the 25 months to arrive at the contribution amount owed.[3] The September 2008 FBR, however, did not become effective until July 1, 2008, and therefore should not be used retroactively for periods prior thereto. (Docket Entry 14, Ex. C.) Consequently, the appropriate FBR is *252 the FBR that was in effect for each month in which the work was performed by the Local 282 member/employee. Using this method, I calculate that the plaintiffs are entitled to $153,881.62 for the 25 month period in which no reports and no books and records were submitted: -------------------------------------------------- Months Hours Total Total Amount FBRs -------------------------------------------------- 8/06 and 2216.5 (10 $26.7025 $59,186.09 10/06-6/07 months * per hour (2216.5 * 221.65 hrs) $26.7025) -------------------------------------------------- 7/07-6/08 2659.8 (12 $28.3025 $75,278.99 months * per hour (2659.8 * 221.65 hrs) $28.3025) -------------------------------------------------- 7/08-9/08 664.95 (3 $29.20 $19,416.54 months * per hour (664.95 * 221.65 hrs) $29.20) __________________________________________________ Total Amount: $153,881.62 -------------------------------------------------- I respectfully recommend that the plaintiffs be awarded $153,881.62 for these months. 2. Reports but No Books or Records Submitted For the months in which monthly remittance reports were submitted by the defendant but the pertinent books and records were not provided upon request, Article IX(1)(f) of the Trust Agreement provides: [i]n the event the Employer submits the required remittance reports, but thereafter such Employer fails to submit the pertinent books and records for audit... the Trustees and/or their agents may compute the additional contributions due for any month by taking 50 percent of the number of hours reported for that month and then multiplying said number of hours by the current contribution rate. (Id., Ex. A, Article IX(1)(f).) Thus, the failure to provide the pertinent books and records upon request entitles the plaintiffs to collect additional contributions from the employer amounting to half the contribution amount already paid for that month. Employers are required to maintain records so that the Funds can ensure the accuracy of the remittance reports, and thereby effectively countering the problem of misreporting by employers. La Barbera, 337 F.3d at 137. If the pertinent books and records are not available, the Funds are unable to verify the truth and accuracy of the reported hours and the contributions made to the Funds for those months. Id., at 134. When the Funds are unable to verify that the employer reported and paid the correct contribution, this formula imposes an additional contribution on the employer as a "good faith estimate of the truth." Id., at 137. Tadco did submit remittance reports from June 2005 through July 2006, but did not provide the pertinent books and records for that period. Another report was submitted by Tadco in September 2006 with no accompanying books and records, and thereafter no remittance reports were submitted through September 2008. (Docket Entry 20, Ex. A.) Therefore, for the 15 months that Tadco did submit a remittance report but not the pertinent books and records, the plaintiffs are entitled to implement this formula and seek additional contributions. As discussed above, the applicable FBR is the rate that was in effect at the time the work was performed and the report was submitted. Based on the monthly remittance reports, I calculate that the plaintiffs are entitled to additional contributions amounting to $12,598.58: ---------------------------------------------------------------------------------- Months Reported Hours Reported Hours/2 Total of Total Effective FBRs Contribution ---------------------------------------------------------------------------------- 6/05 246.5 123.25 $23.6025 $ 2,909.01 ---------------------------------------------------------------------------------- *253 6/05-9/06[4] 772 386 $25.1025 $ 9,689.57 __________________________________________________________________________________ Total Amount: $12,598.58 ---------------------------------------------------------------------------------- I respectfully recommend that the plaintiffs be awarded $12,598.58 for these months. B. Prejudgment Interest Plaintiffs also seek prejudgment interest on the unpaid contributions in the amount of $34,671.31. (Docket Entry 9, ¶ 28.) Pursuant to ERISA, "interest on the unpaid contributions shall be determined by using the rate provided for under the plan...." 29 U.S.C. § 1132(g)(2)(B). An Amendment to the Trust Agreement, effective October 28, 2003, states that the interest to be charged is at a rate of "1½% per month for each... amount due for each month." (Docket Entry 14, Ex. A, Article IX(5)(d)(2).) A 1½ percent monthly interest rate results in an 18 percent per annum rate. (Docket Entry 15, ¶ 13.) This rate is the equivalent to 0.0493 percent per day (18% / 365 days). The per diem rate is then multiplied by the number of days the principal for that month is in arrears through September 2008.[5] Pursuant to the Trust Agreement, interest begins to accrue on the first day of the month in which payment is due. (Id.) Payment is due for each month 45 days after the last day of the calendar month in which the work was performed. (Docket Entry 14, Ex. B, Section 13(F).) For example, the June 2005 payment was due August 14, 2005-45 days after June 30. Therefore, for the June 2005 unpaid contribution amount due to the Funds, interest began accruing on August 1, 2005 and ended September 30, 2008. This number is then multiplied by the unpaid contribution amounts for that month. See Trustees of Local 807 Labor-Management Health & Pension Funds v. River Trucking and Rigging, Inc., No. 03-CV-3659, 2005 WL 3307080, at *1 (E.D.N.Y. Dec. 2, 2005). Following the same method for all the relevant months, using the appropriate FBRs as discussed above, the total interest on the unpaid contributions due to the Funds is $31,638.35, not $34,674.31 as the plaintiffs suggest. See attached table for interest calculations (Appendix A). Accordingly, I recommend the plaintiffs be awarded $31,638.35 in interest. C. Liquidated Damages Under ERISA, plaintiffs are entitled to an amount equal to the greater of (1) interest on the unpaid contributions; or (2) liquidated damages provided for under the plan that is not greater than 20 percent of the unpaid contributions. See 29 U.S.C. § 1132(g)(2)(C). Article IX, Section 3(d) of the Trust Agreement mirrors the statutory language, (Docket Entry 14, Ex. A, Article IX(3)(d)), and the plaintiffs requested an amount equal to the greater of the two. (Docket Entry 9, ¶ 28.) The greater of the two amounts is $33,296.04,[6] which I respectfully recommend that plaintiffs be awarded for liquidated damages. D. Attorneys' Fees Plaintiffs also seek to recover attorneys' fees. An award of reasonable *254 attorneys' fees is mandatory under ERISA. See 29 U.S.C. § 1132(g)(2)(D). Furthermore, under Article IX, Section 3(a), plaintiffs are entitled to attorneys' fees "equal to the actual amount to be billed to the Trustees by their counsel for work performed in connection with this matter." (Docket Entry 14, Ex. A, Article IX(3)(a).) Even though the Trust Agreement provides that the plaintiffs are entitled to the actual amount billed by their attorneys, an award of attorneys' fees must still be reasonable under the statute. Bourgal v. Lakewood Haulage Inc., 827 F.Supp. 126, 129 (E.D.N.Y.1993) ("The determination of a reasonable fee award under Section 1132(g)(2)(D) of ERISA lies within the sound discretion of the district judge.") In support of their request for attorneys' fees, plaintiffs submitted a declaration of Anusha Rasalingam, their lead attorney in this matter. (Docket Entry 16.) Attached to Rasalingam's declaration is a detailed invoice, describing the time spent on the case by Rasalingam and her associate, Amie Ravitz Hogan, in discrete entries (i.e., in non-block billed form). (Id., Ex. C.) Both attorneys charge $280.00 an hour; and they spent a combined total of 19.9 hours on the case, resulting in $5,572 in attorneys' fees. (Id. at ¶ 29.) I find these rates and the hours spent to be reasonable given the complexity of the case and the attorneys' expertise in labor and employee benefit practice.[7]See, e.g., McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F.3d 91, 97-8 (2d Cir. 2006). Accordingly, I recommend that plaintiffs be awarded $5,572 in attorneys' fees. E. Costs The plaintiffs request a total of $1,861.60 in costs. (Docket Entry 9.) Under ERISA, an award of costs is mandatory. See 29 U.S.C. § 1132(g)(2)(D). Plaintiffs incurred $1,064.10 in costs commencing this action (e.g., filing fees, postage, and service of process). (Docket Entry 16, Ex. D.) These costs are reasonable, so I respectfully recommend the plaintiffs be awarded this amount. The plaintiffs are also entitled to the audit costs under Article IX(3)(b) of the Trust Agreement.[8] (Docket Entry 14, Ex. A, Article IX(3)(b).) The declaration of Ken Jones, the Funds' auditor, states that the audit cost $797.50. Plaintiffs request this amount. (Docket Entry 15, ¶ 14.) Attached to Jones's declaration is a summary of the audit, confirming this cost. (Id. ¶ 14, Ex. A.) I find the cost to be reasonable. Therefore, I recommend the plaintiffs be awarded the full costs of the audit in accordance with the Trust Agreement. In conclusion, I respectfully recommend the plaintiffs be awarded costs totaling $1,861.60. CONCLUSION For the foregoing reasons, I respectfully recommend that default judgment be entered against defendant in the amount of $238,133.21, comprised of 1) $166,480.20 in unpaid contributions; 2) $31,638.35 in prejudgment interest through September 2008; 3) $33,296.04 in liquidated damages; *255 4) $5,572 in attorneys' fees; and 5) $1,861.60 in costs. Any objects to the recommendations made in this Report must be filed with the Clerk of the Court and the Honorable Frederic Block within ten business days of receipt hereof. Failure to file timely objections may waive the right to appeal the District Court's Order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72; Small v. Sect'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.1989). Plaintiffs are hereby directed to serve copies of this Report and Recommendation upon defendant, and to promptly file proof of service with the Court. Appendix A WELFARE INTEREST CALCULATIONS Interest Days Amount Month Hours FBR Rate Late Due Jun 2005 123.25 8.85 0.0493 1156 621.82 Jul 2005 82.5 8.85 0.0493 1125 405.06 Sept 2005 52 8.85 0.0493 1064 241.47 Oct 2005 65.5 8.85 0.0493 1034 295.58 Nov 2005 76 8.85 0.0493 1003 332.68 Dec 2005 100.75 8.85 0.0493 972 427.39 Jan 2006 9.25 8.85 0.0493 944 38.1 Aug 2006 221.65 8.95 0.0493 730 714.15 Oct 2006 221.65 8.95 0.0493 669 654.41 Nov 2006 221.65 8.95 0.0493 638 624.09 Dec 2006 221.65 8.95 0.0493 607 593.76 Jan 2007 221.65 8.95 0.0493 579 566.37 Feb 2007 221.65 8.95 0.0493 548 536.05 Mar 2007 221.65 8.95 0.0493 518 506.7 Apr 2007 221.65 8.95 0.0493 487 476.38 May 2007 221.65 8.95 0.0493 457 447.03 Jun 2007 221.65 8.95 0.0493 428 418.66 Jul 2007 221.65 9.2 0.0493 395 395 Aug 2007 221.65 9.2 0.0493 365 365 Sept 2007 221.65 9.2 0.0493 334 334 Oct 2007 221.65 9.2 0.0493 304 304 Nov 2007 221.65 9.2 0.0493 273 273 Dec 2007 221.65 9.2 0.0493 242 242 Jan 2008 221.65 9.2 0.0493 213 213 Feb 2008 221.65 9.2 0.0493 182 182 Mar 2008 221.65 9.2 0.0493 152 152 Apr 2008 221.65 9.2 0.0493 121 121 May 2008 221.65 9.2 0.0493 91 91 Jun 2008 221.65 9.2 0.0493 60 60 Jul 2008 221.65 9.6 0.0493 29 30.43 Total Due: 10,662.13 PENSION INTEREST CALCULATIONS Interest Days Amount Month Hours FBR Rate Late Due Jun 2005 123.25 5.7 0.0493 1156 402.08 Jul 2005 82.5 6.1 0.0493 1125 279.2 Sept 2005 52 6.1 0.0493 1064 166.43 Oct 2005 65.5 6.1 0.0493 1034 203.73 Nov 2005 76 6.1 0.0493 1003 229.31 Dec 2005 100.75 6.1 0.0493 972 294.59 Jan 2006 9.25 6.1 0.0493 944 26.26 Aug 2006 221.65 7 0.0493 730 558.52 Oct 2006 221.65 7 0.0493 669 511.85 Nov 2006 221.65 7 0.0493 638 488.13 Dec 2006 221.65 7 0.0493 607 464.41 Jan 2007 221.65 7 0.0493 579 442.99 Feb 2007 221.65 7 0.0493 548 419.27 Mar 2007 221.65 7 0.0493 518 396.32 Apr 2007 221.65 7 0.0493 487 372.6 May 2007 221.65 7 0.0493 457 346.64 Jun 2007 221.65 7 0.0493 428 325.92 Jul 2007 221.65 7 0.0493 395 302.21 Aug 2007 221.65 7 0.0493 365 279.26 Sept 2007 221.65 7 0.0493 334 255.54 Oct 2007 221.65 7 0.0493 304 232.59 Nov 2007 221.65 7 0.0493 273 208.87 Dec 2007 221.65 7 0.0493 242 185.15 Jan 2008 221.65 7 0.0493 213 162.96 Feb 2008 221.65 7 0.0493 182 139.24 Mar 2008 221.65 7 0.0493 152 116.29 Apr 2008 221.65 7 0.0493 121 92.57 May 2008 221.65 7 0.0493 91 69.62 Jun 2008 221.65 7 0.0493 60 45.9 Jul 2008 221.65 7 0.0493 29 22.18 Total Due: 8040.63 ANNUITY INTEREST CALCULATIONS Interest Days Amount Month Hours FBR Rate Late Due Jun 2005 123.25 6.2525 0.0493 1156 439.18 Jul 2005 82.5 7.0525 0.0493 1125 322.79 Sept 2005 52 7.0525 0.0493 1064 205.31 Oct 2005 65.5 7.0525 0.0493 1034 235.55 Nov 2005 76 7.0525 0.0493 1003 265.11 Dec 2005 100.75 7.0525 0.0493 972 340.59 Jan 2006 9.25 7.0525 0.0493 944 30.36 Aug 2006 221.65 7.6525 0.0493 730 610.62 Oct 2006 221.65 7.6525 0.0493 669 559.59 Nov 2006 221.65 7.6525 0.0493 638 533.36 Dec 2006 221.65 7.6525 0.0493 607 507.45 Jan 2007 221.65 7.6525 0.0493 579 484.04 Feb 2007 221.65 7.6525 0.0493 548 458.12 Mar 2007 221.65 7.6525 0.0493 518 433.04 Apr 2007 221.65 7.6525 0.0493 487 407.13 May 2007 221.65 7.6525 0.0493 457 382.05 Jun 2007 221.65 7.6525 0.0493 428 356.13 Jul 2007 221.65 8.6525 0.0493 395 373.58 Aug 2007 221.65 8.6525 0.0493 365 343.1 Sept 2007 221.65 8.6525 0.0493 334 313.96 Oct 2007 221.65 8.6525 0.0493 304 285.76 Nov 2007 221.65 8.6525 0.0493 273 256.62 Dec 2007 221.65 8.6525 0.0493 242 227.48 Jan 2008 221.65 8.6525 0.0493 213 200.22 Feb 2008 221.65 8.6525 0.0493 182 171.08 Mar 2008 221.65 8.6525 0.0493 152 142.88 Apr 2008 221.65 8.6525 0.0493 121 113.74 May 2008 221.65 8.6525 0.0493 91 85.54 Jun 2008 221.65 8.6525 0.0493 60 57.34 Jul 2008 221.65 9.15 0.0493 29 29 Total Due: 9170.72 JOB TRAINING INTEREST CALCULATIONS Interest Days Amount Month Hours FBR Rate Late Due Jun 2005 123.25 0.1 0.0493 1156 7.03 Jul 2005 82.5 0.1 0.0493 1125 4.58 Sept 2005 52 0.1 0.0493 1064 2.73 Oct 2005 65.5 0.1 0.0493 1034 3.34 Nov 2005 76 0.1 0.0493 1003 3.76 Dec 2005 100.75 0.1 0.0493 972 4.83 Jan 2006 9.25 0.1 0.0493 944 0.43 Aug 2006 221.65 0.1 0.0493 730 7.98 Oct 2006 221.65 0.1 0.0493 669 7.31 Nov 2006 221.65 0.1 0.0493 638 6.97 Dec 2006 221.65 0.1 0.0493 607 6.63 Jan 2007 221.65 0.1 0.0493 579 6.33 *256 Feb 2007 221.65 0.1 0.0493 548 5.99 Mar 2007 221.65 0.1 0.0493 518 5.66 Apr 2007 221.65 0.1 0.0493 487 5.32 May 2007 221.65 0.1 0.0493 457 5 Jun 2007 221.65 0.1 0.0493 428 4.66 Jul 2007 221.65 0.1 0.0493 395 4.32 Aug 2007 221.65 0.1 0.0493 365 3.99 Sept 2007 221.65 0.1 0.0493 334 3.65 Oct 2007 221.65 0.1 0.0493 304 3.32 Nov 2007 221.65 0.1 0.0493 273 2.98 Dec 2007 221.65 0.1 0.0493 242 2.65 Jan 2008 221.65 0.1 0.0493 213 2.33 Feb 2008 221.65 0.1 0.0493 182 1.99 Mar 2008 221.65 0.1 0.0493 152 1.66 Apr 2008 221.65 0.1 0.0493 121 1.32 May 2008 221.65 0.1 0.0493 91 0.99 Jun 2008 221.65 0.1 0.0493 60 0.66 Jul 2008 221.65 0.1 0.0493 29 0.32 Total Due: 118.73 VACATION INTEREST CALCULATIONS Interest Days Amount Month Hours FBR Rate Late Due Jun 2005 123.25 2.7 0.0493 1156 189.65 Jul 2005 82.5 3 0.0493 1125 137.31 Sept 2005 52 3 0.0493 1064 81.85 Oct 2005 65.5 3 0.0493 1034 100.19 Nov 2005 76 3 0.0493 1003 112.77 Dec 2005 100.75 3 0.0493 972 144.88 Jan 2006 9.25 3 0.0493 944 12.91 Aug 2006 221.65 3 0.0493 730 239.38 Oct 2006 221.65 3 0.0493 669 219.36 Nov 2006 221.65 3 0.0493 638 209.2 Dec 2006 221.65 3 0.0493 607 199.03 Jan 2007 221.65 3 0.0493 579 189.85 Feb 2007 221.65 3 0.0493 548 179.68 Mar 2007 221.65 3 0.0493 518 169.85 Apr 2007 221.65 3 0.0493 487 159.68 May 2007 221.65 3 0.0493 457 149.85 Jun 2007 221.65 3 0.0493 428 139.68 Jul 2007 221.65 3.35 0.0493 395 144.64 Aug 2007 221.65 3.35 0.0493 365 133.65 Sept 2007 221.65 3.35 0.0493 334 122.3 Oct 2007 221.65 3.35 0.0493 304 111.32 Nov 2007 221.65 3.35 0.0493 273 99.97 Dec 2007 221.65 3.35 0.0493 242 88.62 Jan 2008 221.65 3.35 0.0493 213 78 Feb 2008 221.65 3.35 0.0493 182 66.64 Mar 2008 221.65 3.35 0.0493 152 55.66 Apr 2008 221.65 3.35 0.0493 121 44.31 May 2008 221.65 3.35 0.0493 91 33.32 Jun 2008 221.65 3.35 0.0493 60 21.97 Jul 2008 221.65 3.35 0.0493 29 10.62 Total Due: 3646.14 NOTES [1] As amended through January 30, 2007. [2] Because of the word "or" in this section, the formula could arguably be read to apply to the months when a remittance report was submitted but the pertinent books and records were not. However, this interpretation is not only inconsistent with the remaining provisions of Article IX(l)(e), but is also in conflict with Article IX(l)(f), which expressly provides for a remedy in such a situation. [3] September 2008 is the month in which Ken Jones conducted an audit, and he used the FBRs that were effective at that time. [4] Zero hours were reported for August 2005, and February through September 2006. Accordingly, no penalty is owed for those months. Furthermore, no report was submitted for August 2006, so it subject to the other penalty formula discussed above. [5] Because plaintiffs provide interest calculations through September 30, 2008, I limit my interest calculations accordingly. [6] This amount represents 20 percent of the total unpaid contribution calculation (.20 multiplied by $166,480.20). [7] Rasalingam has been engaged in labor and employee benefits practice since 2003; meanwhile, Hogan has been engaged in the practice of labor and employment law since 2000. [8] Effective September 1, 2000, plaintiffs are entitled to an auditor's fee of $350 or any other amount that the Trustees request if it is determined, by an audit, that the amount of the Employer's delinquent contributions to the Funds exceeds $2,000 in the aggregate. Tadco owes the Funds more than $2,000 in contributions. Thus, the plaintiffs are entitled to more than $350 in auditor's fees.

796 F.Supp. 1344 (1991) The FEDERAL DEPOSIT INSURANCE CORPORATION, a federal corporation, Clark Compton, Walter Sands, Stephen Bennett, Donald Bumgarner, Emmett Egbert, Lawrence Hughes, Norval J. Ritchey, and Faye Rookard, Plaintiffs, v. CONTINENTAL CASUALTY COMPANY, dba CNA, Defendant. Civ. No. 90-1100-RE. United States District Court, D. Oregon. October 18, 1991. *1345 Mark E. Friedman, Eric A. Lindenauer, Garvey, Schubert & Barer, Portland, Or., Jeffrey R. Williams, F.D.I.C., Legal Div., Washington, D.C., for the F.D.I.C. Arden E. Shenker, Robert E.L. Bonaparte, Tooze Shenker Holloway & Duden, Portland, Or., Gary V. Dixon, William E. O'Brien, Jr., Joan Gerhart Mollerus, Ross, Dixon & Masback, Washington, D.C., for Continental Cas. Co. OPINION REDDEN, Chief Judge: BACKGROUND On September 24, 1982, the MGIC Indemnity Corp. issued a Directors' and Officers' Liability Insurance Policy (MGIC Policy) *1346 to the Bank of the Northwest (Bank), a bank in Eugene, Oregon, providing defense and insurance coverage for wrongful acts of the Bank's officers and directors and indemnity coverage for the Bank. The Policy period ran from September 24, 1982 to September 24, 1983. In September 1983, MGIC notified the Bank that it was not renewing the Policy. The Bank elected to purchase "extended discovery" coverage pursuant to paragraph 2(B) of the Policy for the period September 24, 1983 to December 23, 1983. On November 1, 1983, the MGIC Policy and its obligations were assumed by defendant, Continental Casualty Company, dba CNA (CNA). CNA agreed to assume all MGIC policies of certain specified types (including directors and officers liability insurance policies) that were in full force and effect on November 1, 1983. CNA also agreed to pay MGIC's liability on certain claims arising prior to November 1, 1983. On August 31, 1984, the Bank was declared insolvent by the State Banking Division. Plaintiff, Federal Deposit Insurance Corporation (FDIC) was appointed receiver of the Bank. FDIC, as receiver, sold and transferred to the FDIC, in its corporate capacity, all assets and claims of the Bank material to this action. The Bank's former rights and interest in the MGIC Policy are now property of the FDIC. The FDIC now has the rights, titles and powers of any officer or director of the Bank, including those pertaining to the MGIC Policy. On July 1, 1985, MGIC placed itself in voluntary liquidation proceedings under Wisconsin law. CNA entered into an agreement ("Putback Agreement") with WMBIC Indemnity Corporation, MGIC's successor-in-interest (WMBIC) and the Commissioner of Insurance of the State of Wisconsin as the court-appointed Liquidator of WMBIC (the Liquidator). Under the Putback Agreement, CNA attempted to transfer its obligations under the MGIC Policy to WMBIC and the Liquidator. Plaintiff alleges that the Putback Agreement is ambiguous and that the insureds under the MGIC Policy did not have notice of, nor did they consent to, the Putback Agreement. In 1987, FDIC filed suit in Eugene, Oregon, FDIC v. Clark Compton et al., Cv 87-6413-E (the Eugene FDIC action). The Eugene FDIC action alleged wrongful acts by certain officers and directors of the Bank, including all individually named plaintiffs in the action at bar. On October 25, 1990, plaintiffs FDIC and eight individuals who are former directors and officers of the Bank (plaintiffs) filed this action against CNA alleging CNA was notified of the claims in the Eugene FDIC action and that CNA denied responsibility for those claims. Plaintiffs allege that the Putback Agreement is unconscionable as to the insureds under the MGIC Policy. Also in 1990, plaintiffs filed proofs of claims against WMBIC in the liquidation proceedings in Wisconsin state court, seeking a determination that the Policy provides coverage for the same claims as the claims at issue in this proceeding. See In re WMBIC Indemnity Segregated Account, 85-CV-3361. The Deputy Liquidator recommended denial of the individual directors' and officers' claims in November 1990 and of the FDIC's claim in December 1990. The directors and officers and the FDIC filed objections to the Deputy Liquidator's recommendations and pursued the appropriate actions (the "WMBIC actions") in the Wisconsin state court. On August 16, 1991, the Wisconsin court issued a Decision and Order granting WMBIC's Motion for Summary Judgment. The court entered judgment in favor of WMBIC and dismissed plaintiffs' action on August 21, 1991. See CNA's Exh. B. Plaintiffs' first claim for relief is for declaratory judgment. Specifically, plaintiffs contend that the MGIC Policy provides coverage for the claims and damages set forth in the Eugene FDIC action. Plaintiffs contend that notice of a claim was received by MGIC within the applicable time periods under the MGIC Policy. Plaintiffs assert that CNA is under an obligation to defend and indemnify the plaintiffs and to indemnify the FDIC in the Eugene FDIC action; including paying any *1347 settlement or judgment arising from the Eugene FDIC action. Plaintiffs' second claim is for breach of an insurance contract. Plaintiffs allege that CNA's failure and refusal to defend and indemnify the defendants and indemnify the FDIC in the Eugene FDIC action is a breach of express contractual obligations owed to plaintiffs by CNA under the MGIC Policy. Plaintiffs' third claim alleges breach of a good faith obligation. When CNA assumed the MGIC Policy, among the obligations assumed was an implied obligation of good faith in favor of the plaintiffs. Plaintiffs allege that CNA breached that obligation. Regarding damages, plaintiffs allege that CNA is obligated to defend and indemnify defendants and indemnify FDIC in the Eugene action and to pay any settlement or judgment arising from the Eugene FDIC action. Plaintiffs also allege they are entitled to damages in an amount to be proven at trial for CNA's alleged breach of contract and breach of implied obligation of good faith under the MGIC Policy. Plaintiffs also request attorney's fees and costs. STANDARDS 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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). The materiality of a fact is determined by the substantive law on the issue. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626, 630 (9th Cir.1987). The authenticity of a dispute is determined by whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553. Special rules of construction apply to evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Electrical, 809 F.2d at 630. SUMMARY JUDGMENT MOTIONS CNA moves for summary judgment on five separate grounds as follows: (1) plaintiffs' claims are barred by collateral estoppel based on a judgment by a Wisconsin court against these plaintiffs on the issue in this case; (2) plaintiffs' claims are barred by the Regulatory Exclusion of the insurance policy at issue; (3) plaintiffs' claims are barred by the Insured v. Insured Exclusion of the policy at issue; (4) plaintiffs' claims are barred because no claim was made and no notice of a potential claim given during the Policy period; and (5) CNA did not issue the policy in question and is not responsible for the obligations thereunder. I grant summary judgment for CNA and deny plaintiffs' summary judgment motion for the reasons that follow. 1. Collateral Estoppel CNA argues that plaintiffs are barred from asserting this action by collateral estoppel because a Wisconsin state court entered judgment against plaintiffs on the same issues before this court. See CNA's exh. B(1) (Wisconsin court opinion). I agree. In granting WMBIC's summary judgment motion, the Wisconsin court held that the Policy does not provide coverage for FDIC's action against the directors and officers of the Bank because (1) the Regulatory Exclusion bars coverage for the FDIC's claims against the directors and officers; (2) the Insured v. Insured Exclusion *1348 bars coverage for the FDIC's claims against the directors and officers; and (3) no claim had been made against the directors and officers and no timely notice of claim given during the Policy period. In finding that collateral estoppel bars plaintiffs' claim, I rely on the Full Faith and Credit Statute which implements the Full Faith and Credit Clause of the U.S. Constitution. 28 U.S.C. § 1738. That statute provides that state court judicial proceedings "shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State, Territory or Possession from which they are taken." See Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct. 411, 415-16, 66 L.Ed.2d 308 (1980) ("Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgment emerged would do so"). Wisconsin has explicitly adopted the doctrine of non-mutual, defensive collateral estoppel. Crowall v. Heritage Mut. Ins. Co., 118 Wis.2d 120, 346 N.W.2d 327, 330 (Wis.App.1984). A party may assert the doctrine of collateral estoppel in defense of a claim against him to prevent his adversary from relitigating an issue that was conclusively decided in a previous action. Id. The doctrine is available even if the party asserting it was not a party to the first action. Id. Therefore, even though CNA was not a party to the WMBIC action, CNA may assert the doctrine of collateral estoppel in defense of plaintiffs' claims against it. The party raising the defense of collateral estoppel must demonstrate that the issue it seeks to foreclose was "litigated, determined, and necessary to the decision in the prior proceeding." Reckner v. Reckner, 105 Wis.2d 425, 314 N.W.2d 159, 165 (Wis.App.1981). The issues before this court are identical to the issues decided by the Wisconsin court. The Wisconsin court was construing the same Policy, issued to the same insureds, with the same terms and exclusions as the Policy before this court. The claims for which the insureds seek coverage before this court are the same claims the insureds sought coverage for before the Wisconsin court. The three grounds relied on by the Wisconsin court to grant defendant's summary judgment motion are the same three grounds relied on here by CNA. Further, I find that plaintiffs fully and actually litigated the issues before the Wisconsin court. The Wisconsin court decided the case on WMBIC's summary judgment motion. Plaintiffs opposed WMBIC's motion, fully briefed their opposition and orally argued the motion on July 19, 1991. Plaintiffs had every incentive and opportunity to vigorously litigate the issues before the Wisconsin court. I reject the "alternative grounds" rule advanced by FDIC. Where a judgment rests on alternative grounds it is conclusive on all such grounds in a later action. In re Westgate-California Corp., 642 F.2d 1174, 1176 (9th Cir.1981) ("even though the court rests its judgment upon two or more grounds, the judgment concludes each adjudicated issue that is necessary to support any of the grounds upon which the judgment is rested"). I also find that the issues relied on by CNA (whether the Regulatory and Insured v. Insured Exclusions bar coverage and whether a claim was made against the insureds or a notice of potential claim was given during the Policy period) were necessary to the Wisconsin court's judgment. The Wisconsin court expressly and conclusively decided each of these issues. The Supreme Court has held that offensive, non-mutual collateral estoppel is not available against the government, but that defensive, mutual collateral estoppel is available. United States v. Mendoza, 464 U.S. 154, 162-63, 104 S.Ct. 568, 573-74, 78 L.Ed.2d 379 (1984); and United States v. Stauffer Chemical Co., 464 U.S. 165, 173, 104 S.Ct. 575, 580, 78 L.Ed.2d 388 (1984). Mutuality exists when the parties in the two actions are the same. Stauffer, 464 U.S. at 171-72, 104 S.Ct. at 579 (government filed suit in different courts against the same party, Stauffer Chemical Company. *1349 The court held that defensive collateral estoppel against the government was appropriate because mutuality of parties existed). In the Wisconsin proceeding, the FDIC and directors and officers filed proofs of claims in the Wisconsin Liquidation court for WMBIC Indemnity Corp. (formerly MGIC). In this case, FDIC and the directors and officers brought a declaratory action against CNA to determine coverage under the Policy. The two proceedings involve different opposing parties, the Liquidator for WMBIC Indemnity Corp. and CNA. Therefore, defensive collateral estoppel is unavailable against the FDIC. However, even declining to apply collateral estoppel against the FDIC, CNA is still entitled to summary judgment against the directors and officers of the Bank. Summary judgment against those individuals necessarily requires summary judgment against FDIC because the FDIC's rights under the policy are derivative of the individual insureds' rights. FDIC contends otherwise, arguing that the FDIC has its own independent standing in this case. FDIC contends that this "independent standing" to sue under the Policy exists because the Policy provides coverage to the Bank in the event the Bank is required to indemnify the directors and officers. This argument is subject to the other terms of the Policy. Therefore, the same provisions that the Wisconsin Court found to bar coverage for the directors and officers also bars coverage for the FDIC. I also fail to find any factual basis for FDIC's suggestion that it might indemnify the directors and officers here. Article X of the Bank's Articles of Incorporation prohibits indemnification if a director or officer is "finally adjudged ... to be liable for negligence or misconduct in the performance of duty to the corporation." CNA's Exh. W. Further, even if the Bank's Articles of Incorporation permitted it to indemnify the directors and officers, there is no factual basis upon which to conclude that the FDIC ever would do so. FDIC asserts that it would indemnify the directors and officers for a judgment entered against them in a case brought by the FDIC and premised upon the directors' and officers' mismanagement and unsafe and unsound banking practices. Further, FDIC has not made any showing that, upon its appointment as receiver, it actually assumed any liability to indemnify the directors and officers for personal liabilities arising out of their mismanagement. SUMMARY: COLLATERAL ESTOPPEL Collateral estoppel acts to bar individual plaintiffs' claims against CNA. Collateral estoppel is not available against the U.S. Government (FDIC) in the absence of mutuality, which does not exist here. Nevertheless, because FDIC's rights are derivative of, and no greater than, the rights assumed by FDIC from the Bank, collateral estoppel may also be derivatively applied to bar FDIC's claims against CNA. 2. Regulatory Exclusion The Regulatory Exclusion provides as follows: It is understood and agreed that the Insurer shall not be liable to make any payment for Loss in connection with any claim made against the Directors or Officers based upon or attributable to any claim, action or proceeding brought by or on behalf of the Federal Deposit Insurance Corporation.... The plain language of the policy clearly excludes from coverage losses incurred in connection with any action or proceeding brought by the FDIC. The plain language of the policy does not mean that only derivative or secondary claims resulting from actions brought by the FDIC are barred. This argument was advanced by plaintiffs in the Wisconsin case and rejected by that court. Concluding that the Regulatory Exclusion bars coverage only for secondary suits would require the court to ignore the unambiguous terms of the Policy. Ten courts have recently considered this issue. Nine of ten have held that the Exclusion is unambiguous and that it bars coverage for actions brought by the FDIC. See American Casualty Co. v. Baker, 758 F.Supp. 1340, 1347 (C.D.Cal.1991) ("there is *1350 no ambiguity to the language of the [Regulatory Exclusion] clause and the RTC/FDIC's submissions do not make it so. Only the `secondary suit' limitation, offered by the RTC/FDIC, creates strain on the contractual provision in issue"). See also, Gary v. American Casualty Co., 753 F.Supp. 1547, 1551 (W.D.Okla.1990) (Regulatory Exclusion clearly bars coverage for "any loss resulting from any action brought by or on behalf of the FDIC in any capacity against a bank director or officer"). The Eighth Circuit is the first federal appellate court to address the enforceability of the Regulatory Exclusion. American Casualty Co. v. FDIC, 944 F.2d 455 (8th Cir.1991). The court held that all claims by the FDIC were barred by the Regulatory Exclusion and that the Exclusion was neither ambiguous nor contrary to public policy. The court stated that the district court's holding that the Regulatory Exclusion was valid was "in line with the vast majority of courts which have considered this exclusion" and that "[n]o good purpose would be served by repeating those discussions." Id. at 460-61. American Casualty follows a long line of state and federal court decisions upholding the exclusion. Only two courts have held to the contrary and both based their holdings upon a early decision out of Iowa that was subsequently reversed. In American Casualty Co. v. FDIC, No. 86-4018, 1990 WL 66505 (N.D.Iowa Feb. 26, 1990) (1990 U.S. Dist. LEXIS 6065), appeal pending, the court reversed its previous holding that the Regulatory Exclusion was ambiguous. Instead, the court concluded that the Regulatory Exclusion "clearly excludes claims by the FDIC and is not ambiguous." CNA maintains that the Regulatory Exclusion is not void as contrary to public policy (another argument attempted by plaintiffs in Wisconsin and rejected by that court). The Supreme Court requires a finding that a public policy is "explicit," "well defined," and "dominant" as a prerequisite to voiding a contract as contrary to that policy. W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983). Courts ascertain whether a purported public policy is explicit, well defined, and dominant by reference to the laws and legal precedents and not from general considerations of supposed public interests. Muschany v. United States, 324 U.S. 49, 66, 65 S.Ct. 442, 451, 89 L.Ed. 744 (1945). Neither the statutory nor the regulatory scheme governing the FDIC establishes an explicit, well defined, and dominant public policy regarding the Regulatory Exclusion. Neither Congress nor any federal regulatory agency has prohibited financial institutions from purchasing directors and officers liability insurance policies that contain a Regulatory Exclusion. Congress and the federal regulatory agencies do not even require that financial institutions purchase directors and officers liability insurance. Further, Congress expressly exempted directors' and officers' liability insurance policies from the FDIC's power to override contract provisions. Congress amended 12 U.S.C. § 1821(e)(12)(A) to include the following provision: "[t]he conservator or receiver may enforce any contract, other than a directors' or officers' liability insurance contract or a depository institution bond, entered into by the depository institution...." The majority of courts examining this issue have concluded that there is not a public policy to justify invalidating a contract on those grounds. See Baker, 758 F.Supp. at 1347 ("[i]t seems illogical to conclude that enforcement of the regulatory exclusion would violate public policy in the face of a congressional enactment which provides for the receiver's enforcement of any contract, except a directors' or officers' liability insurance contract...."); Gary, 753 F.Supp. at 1553 (if Regulatory Exclusion violates public policy then failure to obtain directors and officers liability insurance would also, yet no policy requires that a bank obtain or maintain such insurance); Continental Casualty Co. v. Allen, 710 F.Supp. 1088, 1099 (N.D.Tex.1989) ("directors' and officers' liability insurance is optional under all the rules and regulations promulgated by the various regulatory *1351 agencies of the Bank. Thus, polices providing limited insurance, which are not required by statute or mandated as to form of coverage, are not invalidated on a public policy argument"). FDIC responds by citing the few cases that have found the regulatory exclusions to be void as against public policy. See Branning v. CNA Ins. Co., 721 F.Supp. 1180, 1184 (W.D.Wash.1989) ("the clause substantially hinders FSLIC's exercise of its federal powers and therefore is contrary to federal policy...."); FDIC as Receiver for Buena Vista Bank & Trust v. Bowen, No. 88 CV 16746 (Dist.Ct., City and County of Denver, Colo., Nov. 17, 1989) ("regulatory exclusion is unenforceable because it impairs the federal and state statutorily imposed duties of FDIC/Receiver"). The authority relied upon by FDIC is weak. Bowen was reversed on appeal. FDIC v. Bowen, 824 P.2d 41 (Colo.Ct.App. 1991). Branning was criticized and rejected by recent decisions. See Continental Casualty Co. v. Allen, supra; and FDIC v. Zaborac, 773 F.Supp. 137, 146 (C.D.Ill.1991) ("this Court does not believe that it should invalidate an exclusion where there is no clear public policy interest ...") (CNA's exh. V-2). American Casualty states, "to invalid[ate] its exclusions in this case on grounds of public policy would be tantamount to performing what is properly a legislative function." SUMMARY: REGULATORY EXCLUSION I grant CNA's summary judgment motion on this ground, independent of my finding above on collateral estoppel. I find that the Exclusion bars claims by the FDIC and is not ambiguous or against public policy as held by the Eighth Circuit in American Casualty. 3. No Claim and No Notice During Policy Period CNA also asserts that plaintiffs failed to file a claim or provide defendant with notice of any potential claims during the policy period. The Policy at issue is a "claimsmade" policy which means that the company agrees to assume liability for acts or omissions as long as the claim against the insured arising out of these acts or omissions is made during the policy period. (Contrary to an "occurrence" policy which provides coverage for acts or omissions occurring during the policy period even though the claim is made after the policy has expired). The Policy also allows the insureds to give specific, written notice of potential claims of which they become aware during the Policy period. If the insureds give such notice during the Policy period, a claim made after the Policy period based on the specific Wrongful Acts reported during the Policy period is treated as a claim made during the Policy period and thus as potentially covered. Courts typically enforce the notice requirements in claims-made policies strictly because the notice provision serves a materially different purpose from one in an occurrence policy. The notice provision of a claims-made policy is just as important as the requirement that the claim be asserted during the policy period. If the insured does not give notice within the contractually required time period ... there is simply no coverage under the policy. City of Harrisburg v. International Surplus Lines Ins. Co., 596 F.Supp. 954, 961 (M.D.Pa.1984), aff'd, 770 F.2d 1067 (3d Cir. 1985). Applying the principles discussed above, the Policy affords no coverage here, as the Wisconsin court found. A. CEASE AND DESIST ORDER NOT A CLAIM MADE DURING THE POLICY PERIOD It is undisputed that a lawsuit was not filed until August 1987, after the Policy had expired. CNA argues that the Cease and Desist Order was not a claim made against the directors and officers during the Policy period. The Ninth Circuit has held that regulatory directives requiring compliance with banking laws and regulations, but falling short of holding the insureds personally liable for the misconduct or seeking money damages from them, do not constitute a "claim" made against the *1352 insureds. California Union Ins. Co. v. American Diversified Sav. Bank, 914 F.2d 1271, 1276-77 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 966, 112 L.Ed.2d 1052 (1991); see also, Burns v. International Ins. Co., 709 F.Supp. 187, 189 (N.D.Cal.1989), aff'd, 929 F.2d 1422 (9th Cir.1991). Here, as in California Union and Burns, the Cease and Desist Order may have required compliance with banking regulations, but it fell short of holding the directors and officers personally liable for the misconduct or seeking money damages from them. The insureds themselves recognized that the Order was not a claim as they stated that no claim had been asserted in their December 1982 Proposal. See CNA's Exh. D, p. 2. B. NO NOTICE OF POTENTIAL CLAIM WAS GIVEN DURING POLICY PERIOD The insureds first gave notice of a potential FDIC claim against them in October 1984, when they sent MGIC and CNA a letter from the FDIC which contained allegations of Wrongful Acts by the Directors and Officers. CNA argues that because these notices were forwarded to MGIC and CNA after the Policy period expired, those notices provide no coverage. The notice requirements contained in the Policy require that the insureds themselves become aware of an intention to hold the directors and officers responsible for a "Wrongful Act." The insureds clearly stated that they were unaware of any occurrence that could subsequently give rise to a claim against them. See CNA's Exh. D, p. 2 (Bank's Policy renewal application). The renewal application asks: "[h]as there been during the last 5 years, or is there now pending, any claim against any person proposed for this insurance in their capacity as either Director, Officer or employee of this Holding Company or its Subsidiaries?" and "[d]oes any Director or Officer have knowledge or information of any act, error or omission which might give rise to a claim under the proposed policy?" To both questions, the insureds responded, "no." Id. The insureds explain their response to question # 17 on the renewal form with an attached 1½ typewritten page. Question # 17 asks: "[h]as this Holding Company or Subsidiary ever received a Cease and Desist Order from any regulatory agency?" Insureds respond at length outlining the "affirmative action" to be taken by the Bank as ordered by the FDIC in its Oct. 7, 1982 Cease and Desist Order. The insureds' concluding paragraph states: We believe that the Order was predicated mainly upon the deterioration of the Bank's loan portfolio, due primarily to the depressed state of the economy. Management has taken the steps necessary to strengthen the condition of the Bank, and the results reflect significant improvement. Management and the Directorate continue to closely monitor the Bank's progress, and anticipate further improvement in the future. CNA's Exh. D, p. 8-9. In every one of the individual plaintiffs' depositions, they testified that, at no time prior to 1984 (after expiration of the Policy), did they believe that there was a significant likelihood of claims being asserted against them. The depositions support the fact that the Cease and Desist Order was mentioned because the Proposal forms asked whether any such order had been entered, not because any director or officer feared claims by the FDIC. When the directors and officers did later become aware of a potential claim, they knew to write to MGIC informing it that FDIC was threatening to hold them responsible for a Wrongful Act. See CNA's Exh. C(1) (affidavit of Sherry Anderson, CNA's Manager of Professional Liability Claims with attached letters she received from the Bank's directors and officers in Oct. 1984 notifying CNA of the FDIC's claims against them). FDIC asserts that the issue is whether MGIC received notice of "occurrences" which subsequently gave rise to the claims in the FDIC action. FDIC relies on the affidavit of Lisa Byrnes, the MGIC underwriter who reviewed and denied the Holding Corp. and Renewal Applications. See FDIC's Exh. C. Byrnes stated that she *1353 perceived that future claims against the individual plaintiffs were likely based upon occurrences at the Bank. These occurrences included issuance of the Cease and Desist Order indicating that the Bank's management was unacceptable to the Bank's regulators, that the Bank's financial condition was extremely weak and that the Bank risked financial failure. Id. The Ninth Circuit held in California Union that standard bank financial information submitted on a renewal application does not constitute notice of potential claim, even when the information suggests the bank has financial difficulties and regulatory problems. California Union, 914 F.2d at 1277-78. In California Union, the court construed a notice provision similar to the provision involved here. The court rejected a "constructive" notice theory identical to that asserted by plaintiffs and affirmed summary judgment for the insurer. The court held that the appropriate inquiry is whether the written material submitted by the insureds was designed to and did in fact give notice of an occurrence that might give rise to a claim against the directors and officers. Id. at 1278. Specifically, in California Union, the Bank received a cease and desist order from the California Dept. of Savings and Loan and entered into a supervisory agreement with the FSLIC. As here, the insureds did not provide either the cease and desist order or the supervisory agreement to the insurer. However, they contended that the insurer had "constructive" notice of a potential claim from documents which should have alerted the insurer to the institution's regulatory problems. Id. at 1277-78. The court explicitly rejected the "constructive notice" theory and held that the documents submitted to the insurer "would not have alerted [the insurer] to anything [the insured] considered to be a potential claim." Id. The court held that such notice must be designed to give notice of a potential claim and must actually do so. Id. FDIC attempts to distinguish California Union by arguing that the insureds did not notify the insurance company in any way of the regulatory proceedings and criticisms during the policy period. Here, however, MGIC's receipt of the information in the Holding Corp. and Renewal Applications create an issue of fact as to whether MGIC had notice of potential claims against the directors and officers. A difference must be noted between the issues of whether MGIC was aware of occurrences which subsequently gave rise to the Wisconsin lawsuit, and whether the directors and officers of the Bank gave notice in compliance with paragraph 6(A) of the Policy. I find that there is a substantial difference between an insurer being on notice that an insured is a poor risk for future insurance, and its having received the specific notice required under Policy paragraph 6(A). I rely on the Eighth Circuit's recent decision in American Casualty, where the insurer had been notified that a cease and desist order had been issued against the bank, that classified assets were 200% of capital, and that the bank expected to lose over $400,000. Further, the court found that during the renewal process the bank's troubles with its loan portfolio were fully revealed. Id. at 460 (CNA's exh. V-1). The court held that these facts did not constitute notice under paragraph 6(A). Id. at 460-461. Very similar facts exist here, except that plaintiffs did not provide as much information to the Bank as was provided by the plaintiffs in American Casualty. The court in American Casualty noted that throughout this process, the insured told the insurer the bank was not in danger, just as the Bank did in the case at bar (as evidenced by the renewal applications the Bank filled out). American Casualty relied on the Ninth Circuit's decision in California Union. In California Union, the court rejected the insured's contention that the subjective awareness of the insurer was relevant to determining whether notice of a potential claim was given. Rather, the court held that the issue was whether the insured had provided written notice of matters that the *1354 insured considered to be a potential claim. California Union, 914 F.2d at 1278. Paragraph 6(A)(ii) of the Policy expressly requires that the insured (1) become aware of an occurrence during the Policy period that may give rise to claims; and (2) give specific written notice thereof to the insurer. Neither requirement was satisfied here. Plaintiffs' deposition testimony demonstrated that none of the directors or officers ever believed that claims were a significant possibility until the Bank failed. Plaintiffs have not controverted this fact. In American Casualty Co. v. Wilkinson, CV-89-1609-W, 1990 WL 302175 (W.D.Okla. Dec. 21, 1990) (CNA's Exh. U8), the court construed a notice provision identical to the one here and found that no proper notice had been given on facts far more favorable to the insureds than those present here. In Wilkinson, the insured received, among other things, a letter stating that the financial institution had been advised of a potential claim against the institution and its directors and officers by 50 borrowers specifically identified in the letter. The court rejected FDIC's argument that the listing of 50 loans, even with the express comment that such loans might give rise to a claim, constitutes notice. Slip op., at p. 9 (CNA's Exh. U8). The renewal applications submitted by the Bank fall short of the requirements in California Union and Wilkinson. The applications describe "corporate" acts or financial circumstances of the Bank, but provide no information on specific Wrongful Acts of specific Directors and Officers. The documents contain no "identification of the alleged Wrongful Act" (if any), and no indication that the directors and officers had become aware that such acts might give rise to a claim by the FDIC for negligence or breach of fiduciary duty. See Wilkinson, slip op. at 9-10. SUMMARY: NO VALID NOTICE UNDER PARAGRAPH 6(A) Relying on California Union and American Casualty, CNA has demonstrated that there is no material issue of fact that plaintiffs failed to comply with the notice requirements under the Policy pursuant to para. 6(A). The issue is not whether the insured was aware of occurrences, but whether plaintiffs provided the proper notice. CONCLUSION CNA's summary judgment motion is granted. Collateral estoppel bars individual plaintiffs from relitigating the issues decided by the Wisconsin court. Collateral estoppel does not bar FDIC's claim against CNA directly, but because FDIC's rights under the policy are derivative of the individual insureds' rights, FDIC's claims against CNA are also barred. Even if I did not grant CNA's summary judgment on the basis of collateral estoppel, I find that plaintiffs' claims are barred by the Regulatory Exclusion and therefore grant CNA's motion on this separate and distinct ground. The Exclusion is clear and unambiguous and does not violate public policy. In addition, I grant CNA's summary judgment motion on a third distinct ground. I find that plaintiffs failed to provide CNA with any notice of potential claims during the Policy Period. This action is dismissed.

13 A.3d 972 (2010) COM. v. GEORGE. No. 569 WDA 2009. Superior Court of Pennsylvania. September 3, 2010. Affirmed.

996 F.2d 1235 NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Estelita M. De MAGBANUA, Petitioner,v.OFFICE OF PERSONNEL MANAGEMENT, Respondent. No. 93-3037. United States Court of Appeals, Federal Circuit. May 7, 1993. Before RICH, MICHEL and PLAGER, Circuit Judges: Judgment PER CURIAM. 1 AFFIRMED. See Fed.Cir.R. 36.

841 P.2d 342 (1992) The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Franklin ZIEG, Defendant-Appellant. No. 91CA0226. Colorado Court of Appeals, Div. IV. May 21, 1992. Rehearing Denied June 18, 1992. Certiorari Denied December 1, 1992. *343 Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John J. Krause, Asst. Atty. Gen., Denver, for plaintiff-appellee. Haddon, Morgan & Foreman, P.C., Norman R. Mueller, Denver, for defendant-appellant. Opinion by Judge CRISWELL. Defendant, William Franklin Zieg, appeals a judgment of conviction entered on a jury verdict finding him guilty of felony menacing. We affirm. The record establishes that defendant's neighbors had been disturbed on numerous occasions over a six-month period by loud music coming from defendant's townhome. On the night of the incident at issue, unable to sleep, the neighbors called the police to complain about the loud noise. An officer responded to defendant's townhome and warned him about the music. After the officer left, the music stopped. The neighbors then went to sleep in their bedroom on the third floor of their townhouse, but were awakened shortly thereafter by sounds of defendant screaming and banging on their ground level front door. The neighbors testified that defendant threatened to kill them and to "rip your heads off." They then heard two very loud banging sounds on their front door which "actually shook the whole building." One of the occupants went downstairs to investigate the noise and discovered two holes in the front door, apparently the result of blows by an ax. Defendant contends that the evidence was insufficient to establish felony menacing. He argues that the victims were in bed three floors above the entrance to their house when this incident occurred and that they did not know until later that an ax was used to damage their door. Considering these circumstances, defendant candidly concedes that the evidence was sufficient to support a conviction of the lesser included offense of misdemeanor menacing. He asserts, however, that, because the victims were unaware of his use of the ax at the time of his assault upon the door and did not discover the nature of this attack until it had ceased and they had come downstairs, he cannot be convicted of felony menacing. We disagree. Section 18-3-206, C.R.S. (1986 Repl.Vol. 8B) provides that the crime of "menacing" is committed if the perpetrator, "by any threat or physical action, ... knowingly places or attempts to place another person in fear of imminent serious bodily injury." Generally, menacing is a class 3 misdemeanor, but "if committed by use of a deadly weapon, it is a class 5 felony." Menacing, whether a misdemeanor or a felony, is a general intent crime; it requires only that the defendant be aware that his conduct is practically certain to cause the result. Section 18-1-501(6), C.R.S. (1986 Repl.Vol. 8B); People v. Crump, 769 P.2d 496 (Colo.1989). Although it is not necessary to prove actual subjective fear on the part of the victim, nonetheless, what the victim saw or heard and his reactions thereto are relevant considerations in determining whether the defendant had the requisite mens rea to commit this offense. See People v. Gagnon, 703 P.2d 661 (Colo.App.1985). We conclude that, here, there was sufficient evidence to support the conviction of felony menacing. A threat is a statement of purpose or intent to cause injury or harm to another person. See People v. Hines, 780 P.2d 556 (Colo.1989). Clearly, defendant's statement of purpose to kill the victims and "rip their heads off" was a threat as contemplated by § 18-3-206, C.R.S. (1986 Repl. Vol. 8B). In addition, the victims testified that they heard these threats and recognized defendant's voice when they were made. The statute does not require that, in order to commit the felony offense, the perpetrator must induce a greater degree of fear in the victim than would be required for a misdemeanor conviction. In either case, the victim must be placed "in fear of imminent serious bodily injury." *344 The enhanced nature of the felony offense, therefore, is not based upon the fact that the use of a deadly weapon will induce a greater fear in the victim, although it may have this effect in many instances. The purpose of elevating the crime to a felony in those instances in which a deadly weapon is used is to discourage use of such a weapon so as to prevent the enhanced danger that naturally accompanies its use. Hence, we conclude that, if the actions of the perpetrator would reasonably cause fear of imminent serious bodily injury in the victim, and if the perpetrator uses a deadly weapon to accomplish this result, felony menacing has been committed, even though the victim may not be aware of the nature of the instrument employed by the perpetrator. Here, defendant's threats were accompanied by loud banging noises on the door which led one of the victims to think that "the door had given way." Under these circumstances, it was not unreasonable for the victims to believe that defendant was attempting to break down their door and to enter their home. Nor was it unreasonable for the jury to conclude that defendant's conduct was of such a nature that he was aware it would almost certainly frighten the victims and lead them to believe they were in jeopardy of imminent serious bodily injury. Therefore, because the evidence demonstrated that defendant used a deadly weapon to accomplish this forbidden result, it was sufficient to sustain his conviction of the charged felony. Judgment affirmed. JONES and DAVIDSON, JJ., concur.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2019 ME 141 Docket: Pen-18-481 Argued: June 25, 2019 Decided: August 29, 2019 Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ. STATE OF MAINE v. LARRY F. COSTON II SAUFLEY, C.J. [¶1] Larry F. Coston II appeals from a judgment of conviction of burglary (Class C), 17-A M.R.S. § 401(1)(A) (2018),1 entered by the court (Anderson, J.) after a jury trial. He argues that the court erred in admitting recordings of incriminating telephone conversations that he had with his girlfriend while he was in jail. We affirm the judgment. 1 See also 17-A M.R.S. § 57(1), (2)(C), (3)(A) (2018) (establishing the criminal liability of an accomplice who, “[w]ith the intent of promoting or facilitating the commission of the crime . . . solicits such other person to commit the crime, or aids or agrees to aid or attempts to aid such other person in planning or committing the crime”). 2 I. BACKGROUND [¶2] Coston was tried by a jury in October 2018 on a charge of burglary arising from events that had occurred in May 2018.2 The State presented evidence that Coston borrowed a car; drove his friend to a location near a convenience store where the friend intended to break in to steal cash or goods; and, after the friend broke into the store and stole cigarettes, drove the friend home. [¶3] As part of its case-in-chief, the State sought to admit recordings of Coston’s telephone conversations that were recorded by the jail in which Coston was held after his arrest. The State offered the testimony of a Penobscot County jail administrator and a Dexter police officer to establish the means by which the jail’s phone calls are recorded, preserved, and retrieved. The jail has a contract with an out-of-state company to provide telecommunications services for inmates. Inmates are assigned identification numbers that they 2In the first jury trial of this matter, held simultaneously with a jury-waived trial for a charge of violating a condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2018), in August 2018, the court (Campbell, J.) declared a mistrial because the jury was intractably deadlocked and could not reach a verdict. The court found Coston guilty, however, of violating a condition of release. Coston separately appealed from the judgment of conviction entered on that charge, which we have affirmed. See State v. Coston, Mem-19-90. As we noted in that memorandum of decision, because there is now a final judgment, we were not called upon to address the justiciability of that earlier-filed appeal from a conviction on one count when another count contained in the same charging instrument was still pending in the trial court. See id.  3 must use to place calls. All calls in the jail are recorded except for inmates’ calls to and from their attorneys and calls placed on the separate, internal phone system of the jail. The recordings are collected and preserved on the company’s servers outside of Maine. [¶4] The recordings may be accessed and searched by jail administrators and law enforcement via a website that requires entry of a username and password. The recordings here were downloaded from the system’s website by the Dexter police officer, who kept his username secure in his desk at work, had his password memorized, and accessed the website in his office on a desktop computer that cannot be used without a password. The officer testified that he did not alter the recorded calls or delete anything from them. [¶5] Although Coston objected to the admission of the recordings, asserting a failure of foundation and the State’s failure to eliminate any possibility of tampering, there was no evidence of tampering or other evidence suggesting any alteration of the audio that was to be played to the jury. The court determined that a sufficient foundation had been laid for the recordings and admitted them, concluding that nothing suggested that anyone had tampered with the recordings. 4 [¶6] After the State rested its case, Coston testified that he had not known what his friend had intended to do when he gave him a ride in the borrowed car and that he had not become suspicious until his friend returned to the car carrying cigarettes and wearing different clothes. [¶7] The jury found Coston guilty of burglary, and the court sentenced him to one year of imprisonment, with all but sixty days suspended, and a one- year term of probation.3 II. DISCUSSION [¶8] Coston primarily challenges the adequacy of the foundation that the State provided to establish the authenticity of the jail’s recordings.4 To authenticate an item of evidence, including an item of electronic evidence, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” M.R. Evid. 901(a); see State v. Churchill, 3 The court also ordered Coston to pay $35 to the Victims’ Compensation Fund and found him jointly and severally liable with his friend for $709.20 in restitution to the store. 4 Coston’s recorded out-of-court statements were not excludable as hearsay, see M.R. Evid. 801(d)(2)(A), and Coston has not argued that the statements were confidential or privileged, cf. M.R. Evid. 501-514. Coston does argue that the recordings were inadmissible because they were not originals. See M.R. Evid. 1001(b), (d), 1002. “An ‘original’ of a . . . recording means the . . . recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, ‘original’ means any printout—or other output readable by sight—if it accurately reflects the information.” M.R. Evid. 1001(d); see also State v. Legassie, 2017 ME 202, ¶ 27, 171 A.3d 589 (emphasizing the purpose of the best evidence rule to ensure accuracy). Nothing was presented to the court that would even suggest that the method of presentation in some way rendered the audio recording inaccurate.  5 2011 ME 121, ¶ 6, 32 A.3d 1026. “The standard embodies a flexible approach to authentication reflecting a low burden of proof.” Churchill, 2011 ME 121, ¶ 6, 32 A.3d 1026 (quotation marks omitted). If there is a question about the integrity of electronic data, that question generally goes to “the weight of electronically based evidence, not its admissibility.” Id. ¶ 8 (quotation marks omitted). [¶9] A party seeking the admission of a recording must provide a sufficient foundation to show that the recording was created and stored securely and systematically. See id. ¶¶ 3, 9-10; State v. Berke, 2010 ME 34, ¶¶ 12-16, 992 A.2d 1290. As we have held before, however, “a particular storage process is not necessary to demonstrate that electronic evidence has not been tampered with.” Churchill, 2011 ME 121, ¶ 8, 32 A.3d 1026. For instance, we affirmed the admission of a chat log when it was created by the victim in the presence of law enforcement, was sent by email to the detective, remained in police custody thereafter, and had time stamps and contained responsive contents that made logical sense in the context of the other evidence. See id. ¶¶ 3, 9-10. Similarly, we affirmed the admission of videotapes showing criminal sexual contact with minors when there was foundational evidence that the defendant was present in the videos, the events took place 6 sequentially, and witnesses identified the defendant and the victims in the videos. Berke, 2010 ME 34, ¶¶ 1, 12-16, 992 A.2d 1290.5 [¶10] The evidence presented by the State regarding the method of making, storing, and retrieving the recordings of Coston’s phone calls was sufficient to support the court’s determination that the necessary foundation had been established. [¶11] Although Coston argues that the State’s failure to disprove any possible tampering rendered the audio unreliable and inadmissible, the State is not required to prove the negative. The State need not disprove any possibility of tampering to establish the basic foundation for admissibility. See Berke, 2010 ME 34, ¶ 11, 992 A.2d 1290; see also United States v. Savarese, 686 F.3d 1, 11 (1st Cir. 2012) (“The burden of authentication . . . does not require the proponent of the evidence to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be.” (quotation marks omitted)). “[T]he fact that the falsification of electronic recordings is always possible does not . . . justify restrictive rules of 5 See also Asencio v. State, 244 So. 3d 294, 297 (Fla. Dist. Ct. App. 2018) (affirming the admission of a recorded jail telephone call when the custodian of the recordings testified that a program was in place that used the inmate’s booking number, PIN, and voice recognition software to identify the person placing a call and that the speaker in the recordings referred to facts that only the perpetrator would know).  7 authentication that must be applied in every case when there is no colorable claim of alteration.” People v. Gonzales, No. 16CA0750, 2019 Colo. App. LEXIS 345, *14 (Colo. App. Mar. 7, 2019). [¶12] In those instances where evidence of tampering is presented, the court will determine whether the proffered recording is so unreliable that it lacks an adequate foundation demonstrating that it is what it purports to be. See M.R. Evid. 901(a). In the absence of any evidence of tampering that would undermine the foundation in that way, however, the court may admit the evidence and allow the jury to determine the weight to be given that evidence. See Churchill, 2011 ME 121, ¶ 8, 32 A.3d 1026. [¶13] Here, although Coston argues that there might have been tampering, there was no evidence of tampering, and the court did not err in finding a sufficient foundation for the recordings’ admissibility. The entry is: Judgment affirmed. 8 Zachary J. Smith, Esq. (orally), Lawsmith Legal Services, L.L.C., Bangor, for appellant Larry F. Coston II Marianne Lynch, District Attorney, and Mark A. Rucci, Asst. Dist. Atty. (orally), Prosecutorial District V, Bangor, for appellee State of Maine Penobscot County Unified Criminal Docket docket number CR-2018-1948 FOR CLERK REFERENCE ONLY 

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 10-4449 ____________ JOSEPH FIGUEROA, v. PRECISION SURGICAL, INC., Appellant. v. JOSEPH FIGUEROA D/B/A FIGUEROA MEDICAL-PUERTO RICO; FIGUEROA MEDICAL & ASSOCIATES, LLC ___________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 02-10-cv-05575) District Judge: Honorable Peter G. Sheridan ___________ Submitted Under Third Circuit LAR 34.1(a) March 11, 2011 Before: SCIRICA, AMBRO and VANASKIE, Circuit Judges (Filed: April 12, 2011) ___________ OPINION OF THE COURT ___________ VANASKIE, Circuit Judge. Appellant Precision Surgical, Inc. (“Precision”) appeals a decision by the District Court denying its motion to preliminarily enjoin a former sales representative, Appellee Joseph Figueroa, from working for a competitor. Because we find that the District Court did not abuse its discretion in denying the motion for a preliminary injunction, we will affirm. I. As we write only for the parties, who are familiar with the facts and procedural history of the case, we will set forth only those facts necessary to our analysis. Precision is a distributor of surgical supplies and equipment, actively marketing in New York, New Jersey, Delaware, and Pennsylvania, with a customer base throughout the United States and abroad. It represents on an exclusive basis six manufacturers of surgical equipment and supplies, and also represents approximately 50 manufacturers on a non-exclusive basis. In October, 2003, Precision employed Joseph Figueroa (“Figueroa”) as an independent sales representative. On April 23, 2004, Precision and Figueroa entered into a written Independent Contractor Agreement (“ICA”). The ICA contained a number of restrictive covenants, including a non-solicitation covenant, a non-competition covenant, and a confidentiality covenant, all of which extended for a 24-month period beyond the termination of the ICA. During the course of his relationship with Precision, Figueroa worked from his home while also maintaining an office at Precision. His official Job Description called 2 Figueroa an “account executive.” It mandated that “[a]proximately, eighty percent, 80%, of representative[‟]s time … be spent selling primary exclusive manufacturer product line . . . . [and] [a]pproximately twenty percent, 20%, of representative‟s time to be spent selling non-exclusive „support‟ products offered by Precision….” (J.A. 475.) Numerous other restrictions were also placed on Figueroa‟s work performance, including daily reporting, attending monthly or semi-monthly meetings, reporting absences, posting his schedule on a corporate electronic calendar, instructions on how to dress, orders to receive immunizations, and obtaining permission to give quotes to companies outside his territory. In 2008, at Precision‟s direction, Figueroa created a limited liability company, Figueroa Medical & Associates, LLC, to which Precision began making Figueroa‟s commission payments. It appears from the record that numerous problems developed between Figueroa, who wanted to be an independent contractor free from what he regarded as Precision‟s micromanagement of his performance, and Precision, who felt that the restrictions on Figueroa were consistent with the ICA. Tensions reached a boiling point when Figueroa claimed that his accountant discovered that Precision had made deductions from Figueroa‟s commissions. On September 23, 2010, Figueroa met with John Kalman, Precision‟s president, and asked Kalman to enter into a new independent contractor agreement with him. Precision, however, had determined that it desired to “move people towards an employee relationship” and abolish its independent contractor positions. Accordingly, it countered by proposing to convert Figueroa to employee status. Figueroa refused, and Precision terminated the ICA. 3  Figueroa then brought a civil action against Precision in the Superior Court of New Jersey, Bergen County, alleging that the restrictive covenants in the ICA were unenforceable. The case was removed to the District Court for the District of New Jersey. Precision filed a counterclaim against Figueroa as well as a third-party complaint against Figueroa‟s companies, Figueroa Medical & Associates, LLC, and Figueroa Medical-Puerto Rico. In its counterclaim, Precision alleged that Figueroa was acting in violation of the ICA by working as an independent sales representative for R. C. Sales, one of Precision‟s direct competitors. Precision further alleged that Figueroa‟s establishment of Figueroa Medical-Puerto Rico, which sought to distribute products in Puerto Rico, violated the ICA because Precision was entitled to a right of first refusal to sales in that region. Precision filed an Emergency Motion for Entry of an Order to Show Cause and Issuance of a Preliminary Injunction, seeking to uphold the ICA‟s restrictive covenants. Following a hearing, the District Court denied the requested relief. Precision now appeals. II. The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). Although we apply state law to the substantive issues in this diversity action, see Erie Railroad v. Tompkins, 304 U.S. 64 (1938), 1 “[w]e utilize a federal standard in examining requests to federal courts for preliminary injunctions.” See Instant Air Freight 1 The parties agree that Pennsylvania law applies to the substantive issues in this case. 4 Co. v. C. F. Air Freight, Inc., 882 F.2d 797, 799 (3d Cir. 1989). There are four factors to consider in assessing a motion for a preliminary injunction: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably harmed by the denial of relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest. Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 879 (3d Cir. 1997). “[W]hen reviewing a decision to grant or deny a preliminary injunction, this court reviews a district court's findings of fact for clear error, conclusions of law de novo, and the ultimate decision to grant or deny the preliminary injunction for an abuse of discretion.” McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009). “It frequently is observed that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (internal quotation marks and citation omitted). Moreover, covenants not to compete are disfavored in Pennsylvania, and their provisions may be equitably enforced “only so far as reasonably necessary for the protection of the employer‟s protectible [sic] business interests.” Hess v. Gebhard & Co., Inc., 808 A.2d 912, 920 (Pa. 2002). A. The District Court found that Precision was not entitled to the extraordinary injunctive relief that it sought because it had not demonstrated a substantial likelihood of prevailing on the merits due to its apparent failure to abide by the terms of the ICA. 5 Specifically, the District Court concluded that Precision had likely breached the ICA by treating Figueroa as an employee, as opposed to according him the flexibility to be accorded an independent contractor, the status contemplated by the parties in the ICA. The District Court also found that Precision had likely breached the ICA by failing to pay the commissions to which Figueroa was entitled. We discern no error in the District Court‟s findings. First, there was ample evidence presented at the hearing to suggest that Precision had breached the ICA by treating Figueroa as an employee rather than as an independent contractor. Figueroa‟s title was “Account Executive.” Precision established primary and secondary levels of reporting authority, as well as dress requirements, training obligations, and sales goals. (See J.A. 238.) Figueroa testified that he “wasn‟t allowed to” solicit clients independent of Precision‟s involvement, and that “[i]f I had a relationship or even talked to someone, they were all over me.” (J.A. 755.) Figueroa was given what “looks almost like an employment identification picture,” a Precision business card, and a Precision headquarters telephone number. He was required to devote 100% of his time to Precision, and he was apparently required to inform Precision of future market opportunities, such as those cultivated in Puerto Rico. (J.A. 831-32.) All of these factors make it look much more likely that Figueroa was treated as an employee in derogation of Precision‟s agreement in the ICA to retain Figueroa as an independent contractor.2 2 Precision responds that restrictive covenants are enforceable as a matter of law, whether they are in the context of an employment agreement or an agreement with an independent 6  Second, there was sufficient evidence to support a determination that Precision breached the ICA by failing to pay commissions to which Figueroa was entitled. On numerous occasions, Figueroa attempted to use subcontractors for service or maintenance work on equipment sold to hospitals. Precision repeatedly instructed Figueroa to use Northeast Medical for service and maintenance work.3 Northeast Medical was owned by John Kalman. Figueroa was told that his failure to use Northeast as a subcontractor “is not an acceptable response to our service hiring protocol.” (J.A. 270.) Figueroa rejoined that he was an independent contractor and would proceed as he saw fit. (J.A. 546-47.) When Figueroa invoiced Precision for payments connected with subcontractor maintenance expenses, Precision deducted the amount of the invoices from his commission. (J.A. 759-60.) For this reason, the parties dispute whether Precision has paid Figueroa in full. Precision claims that it has; Figueroa claims that he should be compensated for the amount of the deductions as well.4 contractor. While true in the abstract, the manner in which Precision treated Figueroa is relevant to the issue of whether its breaches of the parties‟ contract militates against preliminary injunctive relief. 3 In fact, Kalman indicated that “[t]here was a policy written that we wanted that done.” (J.A. 727.) This policy appears to be a directive from Robert F. Sariego, Vice President of Sales & Project Management, dated September 11, 2009. (J.A. 304.) 4 We agree with Precision‟s contention that, pursuant to its previous agreement with Figueroa, it is not responsible for paying commissions on sales made by Figueroa for which Precision has not received payment. Such “accelerated” payments are not supported by the agreement or by past practice, as Figueroa acknowledges by acknowledging that they are “new rules,” and Figueroa can hardly complain that a failure to pay them renders the agreement unenforceable. (See J.A. 627.) 7  “The burden lies with the plaintiff to establish every element in its favor, or the grant of a preliminary injunction is inappropriate.” P. C. Yonkers v. Celebrations of the Party and Seasonal Superstore, 428 F.3d 504, 508 (3d Cir. 2005). It is, of course, a well- settled principle of contract law that “a material breach by one party to a contract entitles the non-breaching party to suspend performance.” Widmer Engineering, Inc. v. Dufalla, 837 A.2d 459, 467 (Pa. Super. Ct. 2003). In the context of a motion for a preliminary injunction seeking to enforce a restrictive covenant, an apparent material breach of contract by the employer undermines its claim to such extraordinary relief. The District Court found that the evidence indicated that Precision did not perform as required by the ICA, observing that Precision “has not shown that it has consistently paid Mr. Figueroa all the compensation due him under his contract.” (J.A. 830.) The District Court‟s findings are not clearly erroneous, and provide a rational basis for denying preliminary injunctive relief. There appears to be another basis for denying preliminary injunctive relief not addressed by the District Court, and that is whether the restrictive covenants at issue here were supported by adequate consideration.5 Under Pennsylvania law, a restrictive covenant imposed subsequent to the establishment of an employment or independent contractor relationship “must be supported by new consideration.” Gagliardi Bros., Inc. v. Caputo, 538 F. Supp. 525, 528 (E.D. Pa. 1982) (quoting George W. Kistler, Inc. v. O’Brien, 347 A.2d 311, 316 (Pa. 1975)). In Caputo, an employer sought to enforce a 5 We, of course, may affirm the District Court‟s ruling on any ground supported by the record. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). 8 covenant not to compete which was contained in a contract executed two years after the employment relationship was formed. Id. at 526. Although the employee was given a raise at about the time of the contract‟s execution, the raise was found to be a routine salary increase. Id. Accordingly, the court found that there was insufficient consideration to support the restrictive covenants. The situation here appears similar. By letter dated October 23, 2003, Figueroa was offered a “subcontractor position” with Precision as an “Executive Account Manager.” According to this letter, Figueroa‟s compensation was initially set at $8,000 per month, from November 1, 2003, through April 30, 2004. From May 15, 2004, through October 15, 2004, he would be put “on a conventional draw against commissions,” and on September 30, 2004, Figueroa was to be evaluated for the purpose of determining whether his commissions exceed the amount drawn on his account; if so, he would be compensated for the extra amount. His commission rate was set in October, 2003, at 50% of net profits less a 10% administrative fee, for amounts $500,000 or less. For amounts from $500,001 and above, he was to receive 55% of net profits less a 10% administrative fee. Figueroa commenced working for Precision in October of 2003. Figueroa signed the ICA on April 23, 2004, nearly six months after the parties‟ contractual relationship was formed. The ICA is silent about compensation, providing only that Figueroa “shall be paid in the form of commissions pursuant to a calculation mutually agreed upon by the parties.” (J.A. 252.) Significantly, Kalman, Precision‟s president, admitted at the preliminary injunction hearing that there was no alteration of compensation between October 2003 and December of 2004. (J.A. 702.) He further 9 stated that “[t]he intent [behind the ICA] was to have an agreement,” and that his “intent was not to give [Figueroa] any more benefits or anything additional to what he was getting before the agreement.” (J.A. 711.) In light of the evidence, there is a substantial issue as to whether there was adequate consideration for the restrictive covenants, thus warranting denial of preliminary injunctive relief. In summary, the record discloses ample reasons for concluding that Precision had not demonstrated a reasonable probability of succeeding on the merits. Accordingly, the District Court did not abuse its discretion in denying Precision‟s motion for a preliminary injunction. B. Even if Precision had demonstrated a likelihood of prevailing on the merits, preliminary injunctive relief was foreclosed by the District Court‟s finding that Precision did not demonstrate irreparable injury. In the context of the grant of a preliminary injunction in this Circuit, irreparable injury has been defined as “potential harm which cannot be redressed by a legal or an equitable remedy following a trial.” Instant Air Freight Co. v. C. F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). Indeed, such loss must not be merely economic, but “of a peculiar nature, so that compensation in money cannot atone for it.” A. O. Smith Corp. v. F.T.C., 530 F.2d 515, 525 (3d Cir. 1976) (internal quotation marks omitted). No less than a “clear showing of immediate irreparable injury” is required. Ammond v. McGahn, 532 F.2d 325, 329 (3d Cir. 1976). When asked to discuss the harm Precision sustained as a result of Figueroa‟s conduct, John Kalman, the President of Precision, opined that he had received letters 10 “terminating the . . . exclusive territory that we had with Dornoch Medical Systems,” (J.A. 655), and that “Lista International has also reduced our territory,” although he could not state with certainty that Figueroa was handling sales for either supplier. (J.A. 658). Kalman also testified that a purchase order of $36,000 had been cancelled by the Maimonides Medical Center, (J.A. 660), and that Figueroa had attempted, apparently unsuccessfully, to solicit business from another Precision customer, Englewood Surgical Center. (J.A. 664.) Although Kalman testified that he believed that Figueroa was diverting business to Precision‟s competitor, R.C. Sales, he conceded that, even if the injunction were granted, direct competition with R.C. Sales would continue. (J.A. 687.) The District Court concluded that “[t]here‟s nothing in the proofs before me today that shows that Precision could not remedy the situation through monetary damages.” (J.A. 833.) We have previously held that even when an action will result in the destruction of a business, a District Court was still justified in refusing to grant a preliminary injunction when the loss was “capable of ascertainment and award at final judgment if [petitioner] prevails.” Instant Air Freight Co. v. C. F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). Precision‟s evidence focused on its projected loss of income and the diversion of its business interests, indicating that any injury was compensable through a monetary damages award. Precision failed to meet the high standard required for the granting of a preliminary injunction to enforce a covenant not to compete. For this reason as well, the District Court did not abuse its discretion when it denied Precision‟s request for a preliminary injunction. 11  III. For the foregoing reasons, we will affirm the judgment of the District Court. 12 

243 F.Supp. 496 (1965) UNITED STATES of America, Plaintiff, v. Leon I. ROSS, Ross and Company, Limited, and Central Trading, Inc., Defendants. United States District Court S. D. New York. April 28, 1965. *497 Robt. M. Morgenthau, U. S. Atty., Thomas H. Baer, Asst. U. S. Atty., of counsel, for defendant Leon I. Ross. Farber, Cohen & Diamond, New York City, Frank R. Cohen, New York City, of counsel, for defendant Leon I. Ross. LEVET, District Judge. The United States of America, plaintiff herein, has moved for an order — (1) adjudging the defendant Leon I. Ross in contempt of orders of this court filed July 28 and August 7, 1961, as modified and affirmed, requiring him to transfer certain properties therein specified to a receiver; (2) adjudging and fixing damages in the total amount of the expenses of administering the receivership to date as the amount of damages to which the United States of America is entitled as a result of said contempt; (3) fixing a fine; (4) ordering Ross to comply with said orders to purge his contempt; and (5) directing the arrest of Ross by the United States Marshal and his confinement until his compliance with the said orders and payment of damages and a fine, if any, or until otherwise discharged under law pursuant to Rule 14 of the Civil Rules of the United States District Court for the Southern District of New York. The action is brought to collect taxes in the amount of $2,224,675.85 plus interest due and owing from Ross to plaintiff. ORDER OF JULY 28, 1961 On or about July 28, 1961, Judge Dimock of this court made an order requiring that defendant Leon I. Ross, his agents, servants, employees, etc. be restrained from selling, transferring, etc. any and all property of the said defendant wheresoever situated pending the hearing and determination of this action; appointing George Zeidenstein, Esq., receiver (later superseded by William H. Mulligan as receiver) of the property of said Ross with all the powers of a receiver in equity, and further directing the said Ross to assign and transfer and deliver to said receiver any and all shares of stock in Ross and Company, Limited, a corporation of the Bahamas, and in Central Trading, Inc., a corporation of Liberia, standing in the name of said Ross or in his possession or ownership wherever the same may be located. This order was modified on or about August 7, 1961 by an order of Judge Herlands of this court which provided that the above-mentioned order directing delivery of the said shares would be "deemed satisfied by having said stock deposited with reasonable dispatch (but not later than 12 noon, August 12, 1961) with the clerk of this court who will hold said stock pending the hearing and determination of this application [for reargument] and subject to the further order of the court." The motion for reargument was denied on August 21, 1961. On or about August 19, 1961, the said order of July 28, 1961 was amended by the addition of the following: "IT IS ORDERED, that defendant Leon I. Ross, in his capacity as a shareholder, director and/or officer of Ross and Company, Limited, a corporation of the Bahamas, and Central Trading, Inc., a corporation of Liberia, and any and all agents, servants, employees, officers, attorneys and all persons in active concert and participation with him in his capacity as a shareholder, director or officer of said corporations, be and they hereby are restrained from selling, transferring, pledging, encumbering or in any way removing from their present locations, any and all property of said corporations wheresoever situate, pending the *498 hearing and determination of this action." MODIFICATION BY THE COURT OF APPEALS On May 3, 1962, 302 F.2d 831, the court of appeals affirmed the orders appealed from but modified the same by the addition of the following language: "Before turning over to the receiver the stock certificates of the two corporations, defendant Ross shall apply for such official consent to such transfer as may be required. "Before taking possession of any of the books and papers of said corporations the receiver shall apply to the District Court, on notice to the appellant, for leave to do so." The government asserts that the defendant Ross has never complied with the said orders or the mandate of the Court of Appeals. FAILURE TO TRANSFER PROPERTY WITHIN THE UNITED STATES TO THE RECEIVER The order of Judge Dimock dated July 28, 1961, as above stated, provided that Ross should turn over all property within the United States to the receiver. This, the government asserts, Ross has failed to do and has thereby required the receiver to retain counsel to pursue such property. On or about July 23, 1964, after a petition by the said receiver, Judge Charles H. Tenney of this court granted the receiver permission to pay his attorneys the interim fee of $3,500 plus disbursements of $377.17 and indicated in his opinion that fees for further services to be rendered by the receiver's attorney in further pursuit of the property of Ross which Ross had refused to voluntarily transfer might ultimately be in order. DEFENDANT'S AFFIDAVITS, etc. In an affidavit submitted by the attorneys for Ross, to wit, Clearly, Gottlieb, Steen & Hamilton, upon the hearing of this motion, Ross asserts the following reasons for inability to comply with the court's orders: (a) The stock of Central Trading, Inc. was never owned by him and prior to the institution of this action had been owned by Ross and Company, Limited and that, therefore, the orders did not require transfer of this stock by Ross and Company, Limited. (b) That on or about July 22, 1961 and prior to Judge Dimock's order of July 28, 1961, Ross transferred all of his shares of Ross & Company, Limited which he then owned to Messrs. Ciglen, Phillips, Cravit and Gilbert, attorneys, with offices at 121 Richmond Street W., Toronto 1, Canada, and that such transfer was made to such persons as attorneys for Transamerican Holdings, Ltd., a corporation with which Ross and Company, Limited had been doing business and to effect a pledge of the stock in order to secure an obligation of Ross and Company, Limited to deliver certain bonds to Transamerican Holdings, Ltd.; that this pledge had not been released. To substantiate this statement, at a subsequent hearing held before this court on March 5, 1965, the attorneys for Ross, now Farber, Cohen & Diamond (Frank R. Cohen, Esq., of counsel), submitted and marked into evidence Exhibit E. (c) That since on or about December 31, 1962, Ross' stock in Ross & Company, Limited had been a minority interest consisting of 4% of the stock of that company; that on or about that date Ross and Company, Limited issued to Ross' wife, Helen, a citizen of Canada but a resident of the Bahamas, 24 shares of stock having a par value of £1 per share in return for £24,000, the stock being issued because the corporation was in dire need of funds for the operation of its business; that the said stock so issued was worth no more than its par value; that the purchase price for the said stock was supplied by Ross' wife from her own funds obtained from the sale of other securities in her own name and owned by her prior to her marriage to Ross. Subsequently, and at a hearing held by this court on March 5, 1965, the attorney for Ross, Frank R. Cohen, produced what appeared to be copies of the *499 meeting of shareholders of Ross & Company, Limited, held at the registered offices of the company in the City of Nassau on December 12, 1962, at which time a resolution purportedly was passed increasing the capital of the company by the creation of a further 24,000 shares of the par value of £1 each. (Ex. CC-1) Another extraordinary general meeting of the shareholders was held in the same place on December 31, 1962 at which the said resolution was confirmed. (Ex. CC -2) In a letter from Frank R. Cohen of Farber, Cohen & Diamond, attorneys for Ross, Mr. Cohen offered a letter from the Exchange Control in the Bahamas, dated December 31, 1962, permitting the issuance to Mrs. Helen Ross of 24 shares of stock for the sum of £24,000. (See Ex. C) There is evidence that Mrs. Ross paid for this stock by selling certain Canadian securities of Mrs. Ross held by Crown Trust Company in Toronto, Canada. (Exs. DD, F) (d) Ross further states that the Articles of Association of Ross and Company, Limited provided that no shares of that corporation may be transferred without the prior approval of the Board of Directors and if any transfer is made title of such shares shall remain in the hands of the transferor until such approval is given; that the Board of Directors has indicated that no approval will be given to any transfer which is ordered by a foreign government. Ross further states that he has no property in the United States except the so-called Fisher's Island real property which is already in the hands of the receiver and that the receiver did not demand that any action on his part be taken at any time after "the entry of the opinion of the Court of Appeals modifying the orders of the District Court." Any act which is calculated to embarrass, hinder or obstruct the court in the administration of justice or which is calculated to lessen its authority or dignity is a contempt. See United States v. Pearson, 62 F.Supp. 767, 769 (N.D. Cal.1945). A "civil contempt" is a litigant's failure to do something ordered done by the court in a civil action for the benefit of the opposing party therein. But a contempt is civil also when punishment is wholly remedial, serves only the purposes of the complainant, and is not intended generally as a deterrent to offenses against the public. See Walling v. Crane, 158 F.2d 80, 83 (5th Cir. 1946). Civil contempt is a sanction to enforce compliance with an order of the court. Sauber v. Whetstone, 199 F.2d 520, 523 (7th Cir. 1952); McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599 (1949). In civil contempt proceedings the question is not one of intent but whether the alleged contemnors have complied with the court's order. See National Labor Relations Board v. Lawley, 182 F.2d 798 (5th Cir. 1950). The contempt charged here appears to be civil. See McCrone v. United States, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108 (1939); Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941). In the present case, although it is unnecessary, as above stated, to prove intent, it is obviously necessary for the United States in this proceeding to prove that the alleged contemnor, Leon I. Ross, violated the orders. This the United States has failed to do. The papers presented by the United States do not show a violation of the orders concerned. The papers submitted on behalf of Ross indicate no violation of the orders. No request has been made for any further hearing. Accordingly, the motion to hold Ross for contempt and further other allied relief is denied. Settle order on notice.

Fourth Court of Appeals San Antonio, Texas December 12, 2018 No. 04-18-00927-CR Jesus Geraldo PINA, Appellant v. The STATE of Texas, Appellee From the 187th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR1075 Honorable Joey Contreras, Judge Presiding ORDER Pursuant to a plea-bargain agreement, Jesus Geraldo Pina pled guilty to possession of a controlled substance, heroin, in an amount of four grams or more but less than 200 grams, and was sentenced to six years in prison in accordance with the terms of his plea-bargain agreement. On November 7, 2018, 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 Pina filed a notice of appeal, the trial court clerk sent copies of the certification and notice of appeal to this 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 Pina 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). This appeal will be dismissed pursuant to Texas Rule of Appellate Procedure 25.2(d), unless an amended trial court certification showing that Pina has the right to appeal is made part of the appellate record by January 11, 2019. See TEX. R. APP. P. 25.2(d), 37.1; Daniels v. State, 110 S.W.3d 174 (Tex. App.—San Antonio 2003, order). We ORDER all appellate deadlines be suspended until further order of the court. _________________________________ Karen Angelini, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 12th day of December, 2018. ___________________________________ KEITH E. HOTTLE, Clerk of Court 

16 F.3d 219 E. Dewey ANDERSON, Clisten Dale Corbett, Barbara Ferris, etal., Plaintiffs-Appellees,v.Gilbert L. HOLMES, in His Individual and Official Capacitiesas Commissioner of the Bureau of Motor Vehicles for theState of Indiana and William Stinson, in His Individual andOfficial Capacities as Deputy Commissioner of the Bureau ofMotor Vehicles of the State of Indiana, Defendants-Appellants. No. 93-1694. United States Court of Appeals,Seventh Circuit. Argued Nov. 3, 1993.Decided Feb. 10, 1994. Peggy A. Hillman (argued), Richard A. Waples, Indianapolis, IN, for plaintiffs-appellees. David C. Campbell, Sharon L. Groeger (argued), Bingham, Summers, Welsh & Spilman, Indianapolis, IN, for defendants-appellants. Before WOOD, Jr., FLAUM, and EASTERBROOK, Circuit Judges. HARLINGTON WOOD, Jr., Circuit Judge. 1 In 1988, the unthinkable happened in Indiana, generating an unheralded degree of uncertainty in the career plans of many civil servants. Indiana had elected Evan Bayh as Governor, the first Democrat to win the post since 1964. See Mary Dieter, Mutz, GOP Can't Claim they Weren't Forewarned, The Courier-Journal, Nov. 13, 1988, at 1A. With Bayh's election, as happens after almost all major power shifts, came a purging of members of the opposing party from state offices. On one level such actions are understandable, and even necessary; because politically disloyal hangers-on from former administrations are likely to be resistant to new policy initiatives, filling high-level governmental positions with politically loyal individuals can be essential to carrying out the will of the voters. Selch v. Letts, 5 F.3d 1040, 1041 (7th Cir.1993). 2 That logic, however, does not extend to the total expunction from government service of those sympathizing with the losing party. The idea that individuals can lose their jobs based on their political beliefs, even when those convictions in no way impact on job performance, offends the fundamental First Amendment principle that the government should not punish people based solely on the views they hold. Elrod v. Burns, 427 U.S. 347, 356-57, 96 S.Ct. 2673, 2681, 49 L.Ed.2d 547 (1976). What makes sense for upper echelon officials may not make sense for the people who perform essential every-day tasks that have no policy-making or confidential aspects. Wilbur v. Mahan, 3 F.3d 214, 216-17 (7th Cir.1993). 3 The plaintiffs in this case held jobs fitting into the latter category. The Indiana Bureau of Motor Vehicles (BMV) had for many years employed the plaintiffs, all Republicans, as Field Investigators. Because the position of Field Investigator had become obsolete, most of the plaintiffs were performing the duties of Drivers License Examiners. On April 26, 1989, as a part of a governmental reorganization plan by the newly elected Democratic administration, the BMV terminated fourteen Field Investigators, eleven of whom are plaintiffs in this case. The Indiana Administrative Code gives employees terminated because of governmental reorganization priority consideration for similar vacant positions,1 a fact of which the plaintiffs and the BMV were aware. 4 The plaintiffs sought to take advantage of the priority consideration to which they were entitled by writing to or speaking with defendants Gilbert L. Holmes and William Stinson, respectively the Commissioner and Deputy Commissioner of the BMV. Although a shortage in the number of Drivers License Examiners existed, the defendants made no effort to fill the vacancies with the plaintiffs. Instead, the BMV waited until May of 1990 to conduct the vast majority of its hiring--fourteen new hires to replace the fourteen individuals terminated in 1989.2 The BMV began filling those positions just after the plaintiffs' priority consideration period had expired. Perhaps that had something to do with Stinson's comment, according to a BMV Personnel Director, that "he didn't know about any regulations, he didn't care about any regulations, and these employees would not be recalled." 5 The plaintiffs filed suit against Holmes and Stinson in the District Court for the Southern District of Indiana, and the defendants moved for summary judgment. The district court denied the defendants' motion for summary judgment that was based on qualified immunity. It is because of that denial that the defendants are pursuing this appeal, which we have jurisdiction to hear under 28 U.S.C. Sec. 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (denial of qualified immunity is an immediately appealable final decision for purposes of Section 1291).3 6 To state that this circuit recently has had occasion to decide issues involving qualified immunity would be a generous understatement, and we will refrain from adding to the already lengthy expositions on the subject.4 Let it suffice to say that qualified immunity shields government officials performing discretionary functions from civil liability so long as their conduct does not violate constitutional rights that were established clearly at the time of the conduct and of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Thus, we must ask whether the refusal to hire Drivers License Examiners during the Republican plaintiffs' priority consideration period, and the subsequent hiring of Democrats or friends of Democrats after the priority consideration period had expired, violated a clearly established right of which a reasonable person would have known. The district court correctly answered that question affirmatively. On February 16, 1989, over two months before the plaintiffs' priority consideration period expired, the full Seventh Circuit decided Rutan v. Republican Party of Illinois, 868 F.2d 943 (7th Cir.1989) (en banc), rev'd on other grounds 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990). In Rutan we stated as follows: 7 This is not to say that a laid-off employee is automatically entitled to be considered for other positions with the State, or even his old position, without patronage considerations being taken into account. Failing to rehire after layoff does not in and of itself violate [the First Amendment]. Many laid-off employees will stand essentially in the position of new job applicants when they seek a position. But not all employees will be in that position. If a formal or informal system exists for placing employees into other positions, that system must not include partisan political considerations that cause an employee to lose his employment with the state. 8 Rutan, 868 F.2d at 956 (emphasis added).5 We would be hard-pressed to articulate that principle any more clearly than did Rutan. 9 In fact, although the defendants contend otherwise in their brief, the conduct of the defendants here fits better into the language of Rutan than that of the successful plaintiffs in Rutan itself. The relevant plaintiff in Rutan, O'Brien, did not claim that he had a specific right to recall, but rather alleged that his employer had a policy that allowed him to be recalled within two years without a break in his seniority or benefits. Id. at 956-57. In this case, however, the plaintiffs have the stronger argument that the Indiana Administrative Code gives individuals terminated during governmental reorganization "priority consideration" for similar vacant positions. See Ind.Admin.Code tit. 31, r. 1-31-1. Although the Indiana Administrative Code does not guarantee those laid-off their jobs back, it is a formal system for placing individuals into other positions and therefore must be untainted by partisan political considerations. See Rutan, 868 F.2d at 956.6 10 The BMV had months to react to Rutan, a decision no doubt scrutinized carefully by government officials. A reasonable person would have known that Rutan created a right to have rehiring decisions be free from partisan political considerations in civil service positions such as Drivers License Examiners.7 The district court was quite correct in denying the defendants' motion for summary judgment based on qualified immunity,8 and we therefore AFFIRM. 1 Section one of the Indiana Administrative Code reads in relevant part: (A) Any employee in the non-merit service whose employment is terminated as a direct result of state governmental reorganization shall be given priority reconsideration for employment in vacant positions which are of the same or similar class as that in which the employee was employed at the time his employment was terminated.... (C) Priority consideration means that former employees who are eligible shall be given consideration for same or similar vacant positions to be filled in the following manner: (1) If the agency in which the vacancy exists is the same agency from which the former employee was terminated, the appointing authority shall make reasonable effort to offer employment in such positions to eligible former employees prior to making any offers of employment to persons not eligible for priority consideration. (2) If the agency in which the vacancy exists is not the same agency from which the former employee was terminated, the appointing authority shall make reasonable efforts to interview and consider the eligible former employees prior to the consideration of other persons. (D) Procedures (1) To be eligible for priority consideration, the former employee must make written application to the State Personnel Director within thirty (30) days from the date of his termination. Upon receipt of such request, the Director shall determine if the employee is eligible for priority consideration as provided by this Rule. (2) If the Director certifies the former employee as eligible, the Personnel Division shall provide the following assistance: (a) Provide personal consultation concerning employment opportunities in state government. (b) Refer eligibles to available job openings in the non-merit service. (E) Conditions of Eligibility. A former employee certified by the director as eligible for priority consideration shall retain priority consideration for a period of one (1) year from the date of his termination. Ind.Admin.Code tit. 31, r. 1-31-1. 2 The BMV hired one Drivers License Examiner on February 19, 1990, before the plaintiffs' priority consideration period expired, and the other thirteen after that period expired: six on May 29, two on July 9, two on July 23, two on August 6, and one on September 17 3 The defendants likely would take issue with some of our characterizations of the facts in this case. Because the trier of fact has not had an opportunity to make factual findings in this case, however, we must examine the facts in the light most favorable to the plaintiffs. Green v. Carlson, 826 F.2d 647, 650 (7th Cir.1987) 4 A quick Westlaw search revealed that forty-four Seventh Circuit cases dealt with issues of qualified immunity in 1993 alone 5 The defendants' brief quotes the first sentences of this passage from Rutan but terminates without including the final two sentences. Although the defendants accurately quoted the general rule from Rutan, we note that they omitted the immediately following sentences that both qualify the general rule and directly apply to the facts of this case. See Model Rules of Professional Conduct Rule 3.3 cmt. 3 (1991); Model Code of Professional Responsibility EC 7-23 (1981) 6 The detailed nature of the formal system for placing individuals into other positions can be seen in the language of the Indiana Administrative Code itself, the relevant parts of which are reproduced supra footnote 1 7 The defendants contend that Pieczynski v. Duffy, 875 F.2d 1331 (7th Cir.1989), put this into doubt. Pieczynski, however, did not involve a formal or informal system for placing laid-off employees in other positions, and therefore has no application to the relevant legal principles Rutan enunciated 8 Because we have concluded that the unlawfulness of the defendants' conduct was clearly established during the relevant period of time, we need not reach the issue of whether the district court properly examined the defendants' subjective intent

265 S.W.3d 755 (2007) IBAC CORP., Nylkoorb Management Group, Inc., The Royal Arkansas Hotel and Suites, Inc., Turner Hughes Corp., Wayne Burmaster, and Edward Hayster, Sr., Appellants, v. Gerhardt BECKER, International Hotel Management, Inc., Appellees. No. 07-252. Supreme Court of Arkansas. October 25, 2007. *756 John David Coulter, John Keeling Baker, Little Rock, AR, for Appellant. Michael W. Boyd, Pine Bluff, AR, for Appellee. JIM GUNTER, Justice. This appeal arises from a restraining order and an order to inspect, entered on February 21, 2007, by the Jefferson County Circuit Court against IBAC Corporation (IBAC), Nylkoorb Management Group, Inc. (Nylkoorb), Turner Hughes Corporation (THC), Wayne Burmaster, Edward Hayter, Sr., and The Royal Arkansas Hotel and Suites, Inc. (Royal) (collectively Appellants). Appellants now bring this appeal and ask us to set aside the restraining order. Appellant Royal also asks that we dissolve the order to inspect. We reverse the circuit court's orders and remand for further proceedings. *757 On February 13, 2007, Gerhardt Becker and International Hotel Management, Inc., (collectively Appellees) filed a complaint in the Jefferson County Circuit Court against Appellants alleging various causes of action, including fraud, breach of contract, and breach of fiduciary duty and sought a liquidation and dissolution of Royal. Appellees also requested that the circuit court enter an order to inspect the financial records of Royal pursuant to Ark.Code Ann. § 4-27-1604 (Supp.2007). Appellees further sought a restraining order prohibiting Appellants from: misappropriating, or misusing corporate funds and assets, from paying any expenditure of the corporation except corporate expenditures incurred in the ordinary course of business, from operating the corporation in any manner other than in the ordinary course of business, from selling, concealing, moving, mortgaging, pleading, encumbering, damaging, destroying, impairing, conveying, obligating or otherwise disposing of any corporate asset of The Royal, Inc.; and from destroying, transferring, concealing, altering any corporate record except in the ordinary course of business, from backdating any existing corporate record, from disbursing any bonuses or dividends to any officer or shareholder, from transferring any corporate stock or ownership, and from impairing stock in any way, and from interfering with a complete audit of the corporation's financial records and transactions. On February 21, 2007, the circuit court entered a restraining order, stating that "[i]rreparable harm or damage will or might result to Plaintiffs if preliminary injunctive relief is not granted." The order stated that Appellants were restrained and enjoined from the following: a) misappropriating or misusing corporate funds and assets, from paying any expenditure of the corporation except corporate expenditures incurred in the ordinary course of business, b) from operating the corporation in any manner other than in the ordinary course of business, c) from selling, concealing, moving, mortgaging, pledging, encumbering, damaging, destroying, impairing, conveying, obligating or otherwise disposing of any corporate asset of the Royal Arkansas Hotel and Suites, Inc..; d) from destroying, transferring, concealing, altering any corporate record, e) from creating any corporate record except in the ordinary course of business, f) from backdating any existing corporate record, g) from distributing any bonuses or dividends to any officer or shareholder, h) from transferring any corporate stock or ownership, i) from impairing stock in The Royal Arkansas Hotel and Suites, Inc. in any way, and j) from interfering with a complete audit of the corporation's financial records and transactions. The circuit court also ordered Appellants to allow the inspection and copying of Royal's records. The circuit court did not conduct a hearing before entering these two orders. On March 13, 2007, Appellants filed their joint notice of appeal seeking interlocutory review and reversal of the restraining order and the order to inspect. Appellants now bring this appeal. For their first point on appeal, Appellants argue that the restraining order should be vacated because the circuit court failed to comply with Rule 65 of the Arkansas *758 Rules of Civil Procedure (2007). Specifically, Appellants assert that the restraining order was entered without a showing of irreparable harm or likelihood of success on the merits. Appellants also argue that Appellees failed to satisfy the requirement under Ark. R. Civ. P. 7 (2007) by failing to submit a written or oral motion for injunctive relief. Royal further contends that the restraining order should be dissolved because it was issued without notice. Appellees argue that, although the restraining order is "succinct," it sets forth that irreparable harm will or may result if the order is not entered and goes on to describe with particularity each act prohibited. They assert that the restraining order clearly meets the standards set forth in Rule 65(e). They also contend that Appellants' complaint regarding their ability to address the restraining order should have been raised with the circuit court pursuant to Rule 65. Appellees do not make an argument concerning Rule 7, except to provide a conclusory statement that they complied with the rule. Royal also argues that the circuit court committed reversible error by entering the order to inspect without providing Royal the opportunity to answer the complaint, engage in discovery, and defend itself at a hearing or trial on the merits. Appellees respond, arguing that the order to inspect is not an appealable order pursuant to Rule 2(a) of the Arkansas Rules of Appellate Procedure—Civil (2007), and therefore should not be heard. Alternatively, Appellees assert that the order to inspect was proper and warranted pursuant to Ark. Code Ann. § 4-27-1604. At the outset, we address whether the order to inspect is appealable. Ark. R.App.P.-Civ. 2(a) enumerates matters in which an appeal may be taken from a circuit court to the Arkansas Supreme Court. An order to inspect is not enumerated in this list. However, Rule 2(a)(6) does provide that an injunction is an appealable order. Royal asserts that the order to inspect is a preliminary injunction, which is therefore appealable under Rule 2(a). Royal contends that because the order to inspect mandates acts on the part of Royal, it is rightly considered an affirmative or mandatory injunction under Rule 65. We have defined an injunction as "a command by a court to a person to do or refrain from doing a particular act." State Game and Fish Comm'n v. Sledge, 344 Ark. 505, 42 S.W.3d 427 (2001); Arkansas Dep't of Human Servs. v. Hudson, 338 Ark. 442, 994 S.W.2d 488 (1999); Tate v. Sharpe, 300 Ark. 126, 777 S.W.2d 215 (1989). It is mandatory when it commands a person to do a specific act, and prohibitory when it commands him or her to refrain from doing a specific act. Butler v. State, 311 Ark. 334, 842 S.W.2d 435 (1992). All court orders are mandatory in the sense that they are to be obeyed, but not all orders are mandatory injunctions. Tate, 300 Ark. at 129, 777 S.W.2d at 215. To be a mandatory injunction, the order must be based upon equitable grounds to justify the use of the extraordinary powers of equity, such as irreparable harm and no adequate remedy at law. Id. In addition, the order must determine issues in the complaint, not merely aid in the determination of such issues. Id.; see also Warren v. Kelso, 339 Ark. 70, 3 S.W.3d 302 (1999) (stay of proceedings does not translate into an injunction). Here, the circuit court ordered Appellants to allow the inspection and copying of certain records belonging to Royal. We interpret this order as commanding Royal to do a specific act. See Sledge, supra. Such an inspection could also determine issues in the complaint, such as breach of *759 fiduciary duty, fraud, and deceit. Therefore, we hold that the order to inspect is appealable and will be treated the same as the restraining order. We now turn to the issue of notice. Royal argues that the restraining order should be dissolved because it was given without notice to Appellants, and the circuit court did not conduct a hearing regarding the issuance of the restraining order. Appellees respond, asserting that Appellants were properly served, and therefore they were properly notified. Arkansas Rule of Civil Procedure 65 (2007) states: (a)(1) Notice. A preliminary injunction or a temporary restraining order may be granted without written or oral notice to the adverse party or his attorney where it appears by affidavit or verified complaint that irreparable harm or damage will or might result to the applicant if such preliminary injunction or temporary restraining order is not granted. In all other cases, reasonable notice must be given to the adverse party or his attorney of the application for a preliminary injunction or temporary restraining order and an opportunity for such party or his attorney to be heard in opposition thereto. Every preliminary injunction or temporary restraining order granted without notice shall be filed with the clerk and a copy served upon the party restrained in the manner prescribed by Rule 4 of these rules. .... (b) Hearing. Upon application by the party against whom the preliminary injunction or temporary restraining order has been issued without notice, the Court shall, as expeditiously as possible, hold a hearing to determine whether the preliminary injunction or temporary restraining order should be dissolved. Where a hearing is required to be held on an application for a preliminary injunction or temporary restraining order, the Court may order the trial of the action on the merits advanced and consolidated with the hearing on the application. When consolidation is not ordered, any evidence received upon application for a preliminary injunction or temporary restraining order which would be admissible upon the trial on the merits becomes a part of the record of the trial and need not be repeated upon the trial. This subdivision (b) shall be so construed and applied as to save to the parties any rights they may have to trial by jury. Id. Rule 65(a)(1) provides that, where a preliminary injunction is to be given without notice to the adversary of the one requesting it, it must be alleged by affidavit or verified complaint that, absent the injunction, irreparable harm will result to the appellant. Where notice is given, the rule contemplates that a hearing will be held at which such irreparable harm must be shown. The prospect of irreparable harm or lack of an otherwise adequate remedy is the foundation of the power to issue injunctive relief. See Wilson v. Pulaski Ass'n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997); Amalgamated Clothing v. Earle Indus., Inc., 318 Ark. 524, 886 S.W.2d 594 (1994). See also Ahrent v. Sprague, 139 Ark. 416, 214 S.W. 68 (1919); Ex Parte Foster, 11 Ark. 304 (1850). In the present case, Appellees obtained the restraining order from the circuit court before Appellants were served with the summons and complaint. No notice was given before the restraining order was issued. Because no notice was given, Rule 65(a)(1) requires that there must be *760 an affidavit or verified complaint that irreparable harm or damage will or might result to the applicant if the restraining order is not granted. The complaint in the present case is unverified. Therefore, Appellants should have been notified of the application for a restraining order. Appellants also should have been notified of the request for an order to inspect. Under these facts, it was not necessary for Appellants to bring this issue before the circuit court. Accordingly, we reverse the orders of the circuit court and remand for further proceedings. Because we are reversing and remanding this case on the issue of notice, we will not reach the remaining arguments. Reversed and remanded.

275 So.2d 229 (1973) Herbert Hoover SMITH, Petitioner, v. LAKE BUTLER GROVES, INC., et al., Respondents. No. 42400. Supreme Court of Florida. March 7, 1973. Rehearing Denied April 17, 1973. Thomas R. Mooney, of Meyers & Mooney, Orlando, for petitioner. Warren C. Rose, of Earle, Rose, Carey & Yanchuck, St. Petersburg, and Kenneth H. Hart, Jr., Industrial Relations Commission, Tallahassee, for respondent. ERVIN, Justice. Petition for writ of certiorari to review a reversal order of the Industrial Relations Commission. Claimant Herbert Hoover Smith was injured in a compensable accident on August 9, 1966. On June 26, 1968 the employer, Lake Butler Groves, filed with the Industrial Relations Commission a form notifying the Commission that it was suspending temporary total disability benefits as of June 1, 1968, the date on which the employer contended the claimant had reached maximum medical improvement. The employer stated that it intended to commence payment of permanent partial disability benefits based on 35% of the body as a whole. Claimant then requested a hearing at which he made claim for permanent total disability benefits, permanent partial benefits in excess of 35%, and attorney's fees. At the time of the hearing the employer decided the claimant had not reached maximum medical improvement, and concluded the permanent partial it initiated on June 1 should be reclassified as temporary total. The employer agreed it would continue to furnish benefits to the claimant, and if he did not improve it would pay permanent total. On March 5, 1969 the JIC entered his order finding the claimant had not reached his maximum medical improvement as of the date of the hearing. He said, however, that the order was being entered "without prejudice for further orders to be entered finding that claimant did reach maximum medical improvement" prior to that time. A second hearing was held on November 19, 1970 before a second judge. On March 25, 1971 he entered his order finding claimant was permanently and totally disabled *230 and unable to compete competitively on the open labor market. The JIC ordered the employer to pay the claimant weekly compensation based on a permanent total disability rating from May 14, 1968 to continue until claimant is able to compete competitively on the open labor market. In addition, the claimant was allowed to change doctors and was given hearing costs. The JIC reserved jurisdiction on the question of attorney's fees. The employer sought review by the IRC. With two members sitting, the Commission reversed saying the order was not supported by competent, substantial evidence; rather, according to the IRC, "the Judge of Industrial Claims [in his order] merely recited his own conclusions and those of witnesses." The IRC remanded the cause to the JIC for further findings of fact and entry of a new order containing a statement of "the basic factors concerning age, education, work experience, labor market skills and limitations which must be considered in awarding permanent total disability." In addition the Commission said an award of attorney's fees based upon permanent total was inappropriate in light of its order. Petitioner-claimant seeks certiorari review here of that IRC order. In reaching his conclusion, the JIC said: "I further find that the Claimant is able to engage in some limited physical activities for short periods of time, but that these activities are not enough to enable him to compete on the open labor market or obtain full time competitive employment. I based these findings on the limitations placed on the Claimant by the treating physician ... and further on the testimony of Dr. L.C. Fisher ... that there has been no essential change in Mr. Smith's condition since he first saw him and his opinion that Mr. Smith would be unable to do much work to earn a living for him and his family. I have also considered the testimony of the Claimant and his wife as to the limitations and physical problems he has at the present time and has had since he reached maximum medical improvement, and have taken into consideration the testimony of both investigators . .. and have considered the films taken of the Claimant by both of these parties... ." In addition, the Judge said he took into consideration the stipulation made at the first hearing that the claimant was totally disabled and unable to work in an open labor market. The record supports the Judge's conclusion without more. In addition, it seems to support a finding that this case falls within the following rule from Port Everglades Terminal Co. v. Canty, Fla. 1960, 120 So.2d 596: "Where the injured person can handle only a specially-created job, one light of effort and responsibility but laden with rest and comfort (employment plums that do not often dangle from the tree of everyday economics) the burden is on the defendant-employer to show that such a job is in fact within reach. If proof of that fact is not presented, the claimant then is entitled to a finding of total disability." It would be a waste of time and money to remand the case to the JIC for further hearing and a more complete statement of his findings when review of the record as it now stands amply supports his conclusion. The order of the Commission is quashed with direction to reinstate the order of the Judge of Industrial Claims. It is so ordered. CARLTON, C.J., and BOYD and DEKLE, JJ., concur. ROBERTS, J., dissents.

939 So.2d 792 (2006) Ricky PALMER v. STATE of Mississippi. No. 2005-KA-00497-SCT. Supreme Court of Mississippi. October 12, 2006. *793 William P. Knight, Jr., attorney for appellant. Office of the Attorney General, by Jose Benjamin Simo John R. Young, attorney for appellee. Before COBB, P.J., CARLSON and GRAVES, JJ. *794 COBB, Presiding Justice, for the Court. ¶ 1. Ricky Palmer appeals from his convictions in the Pontotoc County Circuit Court on two counts of sale of methadone and one count of sale of morphine, both schedule II controlled substances. On appeal Palmer argues that the trial court erred by allowing testimony regarding previous narcotics dealings and by not giving a limiting instruction to the jury, sua sponte, as to the use of such testimony. As neither of these arguments are persuasive, we affirm Palmer's convictions and sentences. FACTS ¶ 2. In June 2003 Palmer on two occasions sold schedule II narcotics to Teresa Abbott who was acting as a confidential informant for the Pontotoc County Sheriff's Department. Palmer was arrested in November 2003 during a large scale drug bust of individuals under investigation by the sheriff's department. He was indicted in November 2003 and later tried and convicted on all three counts. For these crimes Palmer was ordered to serve three consecutive sentences, each sentence was 30 years with 20 years suspended. ¶ 3. Prior to trial Palmer filed a motion in limine to exclude testimony that he had previously engaged in transactions involving schedule II narcotics. The trial court held a hearing on the motion and denied it, stating: It is I believe relevant in the State's case demonstrating that he had such items in his possession and coupled with other evidence which the State presumably will present demonstrates that he not only had them but the evidence is, what I think it might be, it would demonstrate that he did in fact do that. So it's all part of one transaction or the res gestae. As to any consideration of prejudicial versus probative value, I consider it to be probative to the extent that any supposed prejudice is outweighed by the probative value of this evidence. . . . ¶ 4. At trial the State called Regina Monts, who at the time was serving an eight-year sentence after pleading guilty to possession of methadone and hydrocodone, and she identified Palmer as a man she knew because of previous "business dealings" between the two. Monts testified that during the summer of 2003 Palmer on at least four occasions purchased, for resale, quantities of methadone and morphine from her. She testified that while Palmer was not her only customer that he was a regular customer. ¶ 5. Palmer did not deny that he purchased and used drugs. His defense was that Abbott, the confidential informant, who was paid "real good money" by law enforcement to buy drugs, actually tricked the narcotics officers into thinking that she was buying drugs from him and others, when actually she did not. Thus, Palmer contends that he was not guilty of selling drugs. ¶ 6. The State presented its case through the testimony of Kevin Rodgers, a criminal investigator for the North Mississippi Narcotics Unit, Monts and Abbott, and Mike Doss, the narcotics investigator for the Pontotoc Police Department. It closed with showing the video of the buy from Palmer. The defense rested without calling any witnesses. ANALYSIS ¶ 7. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Jones v. State, 904 So.2d 149, 152 (Miss.2005). The admissibility of evidence rests within the discretion of the trial court, and reversal will be appropriate only when an abuse of *795 discretion resulting in prejudice to the accused occurs. Clemons v. State, 732 So.2d 883, 887 (Miss.1999). ¶ 8. Palmer first asserts that the trial court abused its discretion in denying his motion in limine and allowing Monts to testify regarding previous narcotics sales between them. The general rule is that evidence of a crime, other than the one for which the accused is being tried, is not admissible. Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995) (citing Duplantis v. State, 644 So.2d 1235, 1246 (Miss.1994)). However, there are exceptions to this general rule as provided by Miss. R. Evid. 404(b): Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. This Court has consistently held the admission of evidence of unrelated crimes for the purpose of showing the accused acted in conformity therewith is reversible error, but admission for the above reasons is permissible. Ballenger, 667 So.2d at 1256. ¶ 9. Evidence of other crimes or bad acts is also admissible in order to tell the complete story so as not to confuse the jury. In Brown v. State, 483 So.2d 328, 330 (Miss.1986), this Court said the State has a "legitimate interest in telling a rational and coherent story of what happened." Where substantially necessary to present to the jury "the complete story of the crime", evidence or testimony may be given even though it may reveal or suggest other crimes. Simmons v. State, 813 So.2d 710, 716 (Miss.2002); Ballenger, 667 So.2d at 1257. In the case of drug sales, this Court has specifically affirmed the admission of evidence of prior involvement in the drug trade to prove intent to distribute. Swington v. State, 742 So.2d 1106, 1111 (Miss.1999); Holland v. State, 656 So.2d 1192, 1195 (Miss.1995). ¶ 10. In the present case it is clear that the trial court admitted the testimony for the purposes of proving intent, motive and in completing the story of the charged crime. See Simmons, 813 So.2d at 716. Therefore, it cannot be said that the trial court abused its discretion in admitting the evidence. Even though the testimony passed muster under Miss. R. Evid. 404(b) it still must be admissible under the ultimate filter of Miss. R. Evid. 403, meaning that the risk of undue prejudice cannot substantially outweigh the probative value. Ballenger, 667 So.2d at 1257. ¶ 11. This Court has held that whenever Miss. R. Evid. 404(b) evidence is offered and there is an objection which is overruled, the objection shall be deemed an invocation of the right to a Miss. R. Evid. 403 balancing analysis. Brown v. State, 890 So.2d 901, 912 (Miss.2004). Rule 403 provides for the exclusion of evidence, even if relevant, where the risk of undue prejudice outweighs its probative value. Simmons, 813 So.2d at 716. Palmer asserts that the trial court's balancing was "incomprehensible at best." However, after reviewing the record it is clear that the trial court weighed the evidences' probative value against the potential for undue prejudice. Therefore, we find Palmer's first issue is without merit. ¶ 12. Palmer next asserts that the trial court erred in failing to sua sponte give a limiting instruction to the jury regarding the value of Monts's testimony. In support Palmer cites Smith v. State, 656 So.2d 95, 100 (Miss.1995), in which this Court first announced the requirement that a limiting instruction must be given to the *796 jury when Miss. R. Evid. 404(b) evidence is given. Smith, 656 So.2d at 97. However, this Court revisited the Smith decision and overruled it prior to Palmer's trial. Brown, 890 So.2d at 913. Palmer's case was tried on December 2-3, 2004, after Brown was handed down on September 2, 2004, the motion for rehearing denied November 4, 2004 and the mandate issued November 12, 2004. Therefore, at Palmer's trial Brown was clearly controlling. ¶ 13. In Brown this Court stated: The burden should properly be upon the trial counsel to request a limiting instruction. This was our rule before Smith, in accord with Rule 105 of the Mississippi Rules of Evidence. The rule provides in pertinent part that "[w]hen evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly" Id. (emphasis in original). Therefore, the burden now rests on trial counsel, not the trial court, to request a limiting instruction for Miss. R. Evid. 404(b) evidence. In the present case trial counsel did not affirmatively present a jury instruction regarding Monts's testimony to the trial court. Therefore, the trial judge cannot be found in error for not giving this instruction. CONCLUSION ¶ 14. The trial court did not err in denying Palmer's motion in limine or in failing to give a limiting jury instruction not presented to it. As a result, Palmer's appeal is without merit, and we affirm his convictions and sentences. ¶ 15. COUNT I: CONVICTION OF SALE OF METHADONE AND SENTENCE OF THIRTY (30) YEARS, WITH TWENTY (20) YEARS OF SAID SENTENCE BEING SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT I SHALL RUN CONSECUTIVELY WITH THE SENTENCES IN COUNTS II AND III. COUNT II: CONVICTION OF SALE OF MORPHINE AND SENTENCE OF THIRTY (30) YEARS, WITH TWENTY (20) YEARS OF SAID SENTENCE BEING SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH THE SENTENCES IN COUNTS I AND III. COUNT III: CONVICTION OF SALE OF METHADONE AND SENTENCE OF THIRTY (30) YEARS, WITH TWENTY (20) YEARS OF SAID SENTENCE BEING SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT III SHALL RUN CONSECUTIVELY WITH THE SENTENCES IN COUNTS I AND II. SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.

USCA1 Opinion [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 96-1246 ROBERT LEBLANC, Petitioner, v. RONALD DUVAL, Respondent. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Nancy J. Gertner, U.S. District Judge] ___________________ ____________________ Before Selya, Cyr and Boudin, Circuit Judges. ______________ ____________________ Robert LeBlanc on brief pro se. ______________ Scott Harshbarger, Attorney General, and Gregory I. Massing, __________________ ____________________ Assistant Attorney General, on brief for appellee. ____________________ OCTOBER 16. 1996 ____________________ Per Curiam. We have carefully examined the record in __________ this case, including the briefs of the parties and the opinion of the district court below. Essentially for the reasons given by the district court in its opinion, LeBlanc _______ v. Duval, 900 F.Supp. 538 (D.Mass. 1996), we agree with the _____ district court's conclusion that the jury instruction constituted harmless error and that petitioner was not denied effective assistance of counsel. Accordingly, the order denying petitioner's request for habeas corpus relief is affirmed.1 1 ________ ____________________ 1The "Antiterrorism and Effective Death Penalty Act of 1 1996" (Pub. L. 104-32) was signed into law while this appeal was pending. We need not determine to what extent the Act's amendments govern this case since, even under the more expansive scope of review prior to the Act, LeBlanc is not entitled to relief. -2-

14-294-cv Fraiser v. Stanley Black & Decker 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 11th day of December, two thousand fourteen. PRESENT: ROBERT D. SACK, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x TAWANNA FRAISER, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. 14-294-cv STANLEY BLACK & DECKER, INC., Defendant-Appellee. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x FOR PLAINTIFF-APPELLANT: SANFORD P. DUMAIN, Milberg LLP, New York, New York, and David A. Slossberg, Hurwitz, Sagarin, Slossberg & Knuff, LLC, Milford, Connecticut. FOR DEFENDANT-APPELLEE: MARK MILLER, Barnes & Thornburg LLP, Chicago, Illinois, and Joseph Bree Burns, Rome McGuigan, P.C., Hartford, Connecticut. Appeal from the United States District Court for the District of Connecticut (Young, J.).* UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is VACATED and the case is REMANDED. Plaintiff-appellant Tawanna Fraiser ("Fraiser"), on behalf of herself and all others similarly situated, appeals from the judgment of the district court entered January 16, 2014, dismissing her claims against defendant-appellee Stanley Black & Decker, Inc. ("SBD"). On October 4, 2013, ruling from the bench, the district court granted SBD's motion to strike the class action allegations and to dismiss the complaint. On October 15, 2013, Fraiser moved for reconsideration, and the district court denied the motion by a handwritten note on November 6, 2013. * The Honorable William G. Young, of the United States District Court for the District of Massachusetts, sitting by designation. -2-  In dismissing Fraiser's class action complaint, the district court stated in totality: I am persuaded. The class action allegations are stricken. The Court concludes, giving all intendments in favor of the plaintiff, that under Rule 23 the need for class action treatment does not outweigh the individual aspects of the case. So I strike the class action allegations. I don't have subject matter jurisdiction. The case is dismissed. (A 479). The district court dismissed the case without sufficiently articulating its rationale, giving only a wholly conclusory explanation. The district court did not specifically address the issues presented by SBD's motion to strike or by Rule 23 itself, including important issues of Connecticut law. For example, the district court did not discuss Fraiser's standing to serve as a class representative under the Connecticut Unfair Trade Practices Act ("CUTPA") or the scope of a viable class under CUTPA. Additionally, the court did not discuss Fraiser's argument that, assuming she was barred by CUTPA from representing a class of Connecticut residents, CUTPA's standing provision was unenforceable by virtue of Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010). The court also did not discuss whether the complaint adequately pleaded claims under the Magnuson-Moss Warranty Act, or whether Fraiser's breach of warranty claims under Connecticut common law could proceed on a class basis with or without the CUTPA claims. -3-  Under the circumstances, we are unsure of the district court's reasoning, and we are therefore unable to properly review its decision. Accordingly, we remand the case to the district court for clarification and for a proper explanation. See Martens v. Thomann, 273 F.3d 159, 173 (2d Cir. 2001) (remanding case for district court to explain its decision because "it is better to remand to seek clarification from the district court" rather than engage in "inappropriate speculation"); Inverness Corp. v. Whitehall Labs., 819 F.2d 48, 51 (2d Cir. 1987) (same). *** Accordingly, we VACATE the district court's judgment and REMAND the case for further proceedings. FOR THE COURT: Catherine O'Hagan Wolfe, Clerk -4- 

764 N.W.2d 283 (2009) PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Raymond Desha DAVIS, Defendant-Appellee. Docket No. 138225. COA No. 282886. Supreme Court of Michigan. May 1, 2009. Order On order of the Court, the application for leave to appeal the December 18, 2008 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. MARKMAN, J. (dissenting). Defendant was charged with possession of ecstasy, being a felon in possession of a firearm, possession with intent to deliver marijuana, and possession of a firearm during the commission of a felony. The trial court suppressed evidence of defendant's incriminating statement to the police on the ground that he was interrogated without first being advised of his Miranda rights after he was arrested, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Court of Appeals affirmed. People v. Davis, 2008 WL 5274837, unpublished opinion per curiam of the Court of Appeals, issued December 18, 2008 (Docket No. 282886). While the police were executing a search warrant at a house, defendant jumped out of a bedroom window. He was brought back into the house and asked whether he lived there. Defendant indicated that he was living at the house. After narcotics were found in the house, defendant was arrested and advised of his Miranda rights. Defendant again indicated that he lived at the house. A defendant must be made aware of his Miranda rights prior to a custodial interrogation. A "custodial interrogation" is defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Yarborough v. Alvarado, 541 U.S. 652, 661, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). "[C]ustody must be determined based on how a reasonable person in the suspect's situation would perceive his circumstances." Id. at 662, 124 S.Ct. 2140. I agree with the trial court that defendant was in custody. He tried to leave the house, the police prevented him from doing so, brought him back into the house, and handcuffed him. A reasonable person in defendant's situation would have believed himself to have been in custody. I also agree with the trial court that defendant was subjected to interrogation. "[T]he term `interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 *284 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Here, the police asked defendant if he lived at the house that they had reason to believe contained drugs. Thus, they should have known that they were likely to elicit an incriminating response. Accordingly, the statement made before defendant was advised of his Miranda rights was made during a custodial interrogation, and, thus, would seem to be inadmissible. The more difficult issue here is whether the subsequent statement made after defendant was advised of his Miranda rights is also inadmissible. In Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (a plurality opinion), the United States Supreme Court held that the police cannot deliberately wait to advise a defendant of his Miranda rights until after a station-house interrogation produces a confession and then admit the statement made after Miranda rights are given. However, the Seibert Court also held that Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), remained good law. In Elstad, the Court held that if the failure to warn before the initial statement constituted an oversight, and the initial statement was made at the suspect's home and the subsequent statement was made after the suspect was advised of his rights and after a station-house interrogation, the subsequent statement is admissible because "any causal connection between the first and second responses to the police was `speculative and attenuated.'" Seibert, 542 U.S. at 615, 124 S.Ct. 2601 quoting Elstad, 470 U.S. at 313, 470 U.S. 298. The pertinent question is "[c]ould the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture?" Seibert, 542 U.S. at 612, 124 S.Ct. 2601. "Could they reasonably convey that he could choose to stop talking even if he had talked earlier?" Id. The Court articulated several factors to evaluate when determining whether "Miranda warnings delivered midstream could be effective enough to accomplish their objective: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first." Id. at 615, 124 S.Ct. 2601. This case is similar to Elstad in several important respects — the failure to advise defendant of his Miranda rights appears to have been an oversight and the custodial interrogation was not carried out in a station-house environment. However, in other respects, this case is similar to Seibert — the questions and answers were the same on two occasions and they occurred relatively closely in time. I would grant leave to appeal. CORRIGAN, J., joins the statement of MARKMAN, J., and additionally states as follows: I join Justice Markman's statement insofar as he sees a jurisprudentially significant issue in defendant's post-Miranda[1] statement. I would additionally grant leave to appeal on the issue whether the police officer's questions regarding defendant's address truly constituted custodial interrogation under Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), or amounted to routine booking questions. YOUNG, J., joins the statement of MARKMAN, J. NOTES [1] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

259 So.2d 113 (1971) Albert V. RICH et al. v. Wade O. MARTIN, Jr., et al. No. 8768. Court of Appeal of Louisiana, First Circuit. November 22, 1971. Written Reasons November 23, 1971. Rehearing Denied December 6, 1971. Writs Refused December 13, 1971 and January 4, 1972. *114 Melvin A. Bellar, Asst. Atty. Gen., Jack P. F. Gremillion, Atty. Gen., William Tommy Reeves, Jr., Asst. Atty. Gen., Baton Rouge, for appellant. Kenneth C. Hughes, New Orleans, Albert V. Rich, Slidell, Richard L. Greenland, Metairie, Lloyd Walters, Covington, for appellees. Before LANDRY, SARTAIN and ELLIS, JJ. PER CURIAM: For reasons to be assigned, the judgment of the trial court is affirmed. All such costs as permitted by law are assessed against the appellant. Affirmed. This is an election case in which the facts are not disputed. At the outset we wish to state that we are here dealing with political party nominees as distinguished from candidates for nomination. The plaintiffs, three nominees for political office from the Republican Party filed for writs of mandamus and injunction against the defendants, Wade O. Martin, Jr., the Secretary of State, Jack P. F. Gremillion, Attorney General, and Douglas Fowler, Custodian of Voting Machines. The District Judge, for written reasons assigned, granted relief as prayed for from which judgment defendants have appealed. We affirm. Plaintiff, Albert V. Rich, was certified as nominee for the office of Clerk of Court for the Parish of St. Tammany by the duly authorized Republican Parish Executive Committee in place of Mrs. Joleen Whitty who was previously certified for the same office by the same committee. Mrs. Whitty withdrew on September 17, 1971, the date of Mr. Rich's certification to the Secretary of State. On October 31, 1971, the Republican State Central Committee certified Mr. Rich as that party's nominee for the aforementioned office. Plaintiffs, Delery Vega and Holden Barre, were certified by the Republican Parish Executive Committee of Jefferson Parish as that party's nominees for the positions of Parish Councilman and Constable, respectively. Mr. Vega had qualified in place of Mr. David D. Duggins and Mr. Barre had qualified in place of Mr. V. J. Gianelloni, III, who had withdrawn to seek other political positions resulting from newly created legislative districts pursuant to a reapportionment order rendered by the United States District Court for the Eastern District of Louisiana, Baton Rouge Division. The Attorney General, in an opinion requested by the Chairman of the St. Tammany Parish Democratic Executive Committee, advised that the plaintiffs were improperly designated as their party's nominees. In accordance with this opinion the Secretary of State declined to place their names on the ballot for the general election to be held in February of 1972. The opinion of the Attorney General was to the effect that the election laws of this state and more particularly R.S. 18:362, 18:361, subd. C, 18:281 and 18:621, when considered in pari materia, do not permit the substitution of a party nominee under these conditions. The District Judge concluded that the aforementioned statutes do not particularly provide for procedures to be followed when a party's nominee withdraws. Finding no express provision on the subject matter he applied R.S. 18:287 which reads as follows: "§ 287. Selection of nominee by state central committee When it is necessary by law to elect or select a party nominee for any of the recognized political parties and this Part does not make provision therefor, the *115 state central committee may provide for the election or selection of the nominee." R.S. 18:362 provides: "§ 362. Vacancies in nominations; lack of candidates; selection of nominee; undetermined contest If, after the expiration of the time fixed by law for the filing of the notification of candidacy, no candidate from any political party has qualified for a political office, the committees having called the primary and having jurisdiction over the primary shall select and certify the nominee for the respective political parties for the office. No person shall be certified as the nominee of the party by a committee having jurisdiction over the primary unless the person sought to be made a nominee is registered as affiliated with the party at the time of certification and has been so registered continuously for more than six months prior to the date set by law for the primary. Such selection and certification shall be made to the secretary of state within ten days after the last date allowed to candidates to qualify with the committee; provided that these provisions shall not affect the provisions of this Chapter relative to death or withdrawal of any candidate after he has been nominated. However, if for any reason any contest filed in court is not finally decided in the district court in time to print the name of the nominee of the party upon the ballot before the election, the political party committee shall certify the name of the contestee in the suit filed, which name shall be printed upon the ballot as the nominee of the party. No court has jurisdiction to enjoin such action. However, should the district court render judgment in a contest in time to print the name of the successful litigant upon the ballot, the name of the successful litigant shall be printed upon the ballot as the nominee of the party, if no decision on appeal is had prior to the printing of the ballots. Amended by Acts 1970, No. 487, § 1." (Emphasis ours) It is appellants' contention that the law neither authorizes or permits certification of a replacement candidate after the ten day period has expired following the qualifying period except in case of death of the party nominee, as provided for in R.S. 18:361, subd. D. Appellants so contend on the ground that prior to the adoption of Act 487 of 1970 (which amended R.S. 18:362) state political parties possessed the right to appoint nominees in case of either death or withdrawal because Section 362 above then provided that if no person applies to become a candidate for office within the time fixed by law, or in any other circumstance where the party had no nominee selected under Title 18 the committee having jurisdiction over the primary shall select the nominee. It is appellants' position that the foregoing authority was withheld when R.S. 18:362 was amended by Act 487 of 1970. It is argued that the latter statute eliminates the first two sentences of former Section 362, above. Appellants note that as thus amended Section 362, above, provides only that if no candidate qualifies for office, the committee having jurisdiction over the election shall certify the name of the party candidate to the Secretary of State within ten days of the last qualifying date. Appellants maintain that while legislation still provides for substitution of a nominee in case of death (See LSA-R.S. 18:361, subd. D.), no such authority now exists as regards a nominee who voluntarily withdraws. Therefore, according to appellants, the committee in this instance had no authority to substitute a nominee in place of one who has withdrawn. Appellants interpret the ten day provision in Section 362, above, as being applicable only where a party has no candidate at the closing of the qualifying period. Appellants point out that in this instance there were candidates at closing time and that the candidates became and were certified as party nominees. Appellees' argument that Section 287 applies in this instance *116 is countered by appellants who note that Section 287 specifically states that it applies "when it is necessary by law to elect or select * * *". Appellants maintain that the quoted language evidences legislative intent that Section 287 applies only where the law expressly authorizes appointment of a nominee and that there is presently no express provision of law authorizing appointment of a replacement for a withdrawn nominee. In this connection appellants point out that the only remaining provision in the law applicable to withdrawn candidates is contained in R.S. 18:361, subd. D. As contended by appellants we note that this section specifically applies only to withdrawal of a candidate between a first and second primary and has no express application to party nominees. It is contended by appellant that the net effect of the revision of Section 362 by the 1970 Act is to distinguish between the withdrawal of a nominee and the death of a nominee. Any other conclusion according to appellants would give party committee machinery greater privileges with respect to withdrawn nominees than there is granted with respect to appointment of a replacement for a nominee who dies. Appellants next argue that the Secretary of State is required by R.S. 18:281 to place on the ballot only the names of candidates elected conformably with Title 18 LSA-R.S., and since plaintiffs were not so elected the Secretary of State rightly refused to recognize plaintiffs' appointments as nominees. In this connection appellants note that the Secretary of State is required by law, namely, R.S. 18:1072, to prepare ballots for voting and make them available to the Clerks of Court throughout the state at least 30 days prior to a primary or general election, and that chaos could result if a party committee were empowered to appoint replacements for nominees who might withdraw within the 30 day period. In substance appellees contend that the state central committees of the various political parties are authorized by Section 287, above, to elect or select a party nominee whenever the law contains no express provision on the subject matter. In this connection appellees point to Section 362 as amended by the Act of 1970, and note that, as amended, Section 362 presently states, "; provided that these provisions shall not affect the provisions of this Chapter relative to death or withdrawal of any candidate after he has been nominated." We consider, as urged by appellee that the quoted provision of Section 362 must be construed in pari materia with Section 287. It seems patent to the court that a necessity to appoint a nominee arises when a party nominee withdraws, otherwise, the party would be without representation in the election from which its nominee had withdrawn. We so find on the ground that the basic policy of our form of government requires that laws governing the conduct of elections be liberally interpreted to promote rather than defeat candidacy. We likewise believe that the interest of the state and its citizens will be best served if election laws are construed so as to foster representation of political parties to the end that the electorate may review the widest possible choice of candidates. Obviously, however, such replacement appointments must be made in time to permit the Secretary of State to perform the mandatory duty imposed upon him pursuant to Section 1072 which governs the furnishing of absentee ballots. In the case at hand it is not shown that appellees' appointments did in any way restrict or infringe upon the duty of the Secretary of State with respect to the providing of ballots in this instance. To the contrary, the general election is not to be held until February of 1972. Accordingly, for the above and foregoing reasons, the judgment appealed from is affirmed. All costs of court as permitted by law are to be borne by the defendants-appellants. Affirmed.

11TH COURT OF APPEALS EASTLAND, TEXAS JUDGMENT Scott Walker, * From the 342nd District Court of Tarrant County, Trial Court No. 342-257089-11. Vs. No. 11-13-00042-CV * February 27, 2015 Citibank, N.A., * Opinion by McCall (Panel consists of: Wright, C.J., Bailey, J., and McCall, sitting by assignment) (Willson, J., not participating) This court has inspected the record in this cause and concludes that there is no error in the judgment below. Therefore, in accordance with this court’s opinion, the judgment of the trial court is in all things affirmed. The costs incurred by reason of this appeal are taxed against Scott Walker. 

986 F.2d 503 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.UNITED STATES of AMERICA, Appellee,v.Norman Paul MULLEN, Jr., Appellant. No. 92-2757. United States Court of Appeals,Eighth Circuit. Submitted: January 13, 1993.Filed: February 17, 1993. Before WOLLMAN, and BEAM Circuit Judges, and NANGLE,* Senior District Judge. PER CURIAM. 1 Norman Paul Mullen, Jr., appeals the fifteen-month sentence imposed by the district court1 following his guilty plea to conspiring to produce false identification in violation of 18 U.S.C. § 371. We affirm. 2 On March 19, 1992, pursuant to a plea agreement, Mullen pleaded guilty to conspiring with Michael Charles Burkholder to produce fraudulent Texas driver's licenses. The men planned to use the licenses in a scheme to defraud banks in Little Rock, Arkansas, of $50,000 to $60,000, in violation of 18 U.S.C. § 1028(a)(3). 3 Following Mullen's guilty plea, the presentence report (PSR) calculated his criminal history score as I and his offense level as 15, yielding a sentencing range of 18 to 24 months. Mullen filed several objections to the PSR, but the only one relevant to this appeal is his claim that he was entitled to a three-level reduction under U.S.S.G. § 2X1.1(b)(2) because the conspiracy had not been completed. 4 Following a sentencing hearing at which Burkholder detailed the steps the men had taken to implement their scheme, the district court denied the reduction. The court sentenced Mullen to fifteen months, a three-month downward departure based on the government's U.S.S.G. § 5K1.1 motion. On appeal, Mullen argues that the district court erred by denying him the section 2X1.1(b)(2) reduction. 5 Section 2X1.1(b)(2) provides for a three-level reduction in conspiracy cases, 6 unless the defendant or a co-conspirator completed all the acts the conspirators believed necessary on their part for the successful completion of the substantive offense or the circumstances demonstrate that the conspirators were about to complete all such acts but for apprehension or interruption by some similar event beyond their control. The background commentary explains that: 7 In most prosecutions for conspiracies or attempts, the substantive offense was substantially completed or was interrupted or prevented on the verge of completion by the intercession of law enforcement authorities or the victim. In such cases, no reduction of the offense level is warranted. Sometimes, however, the arrest occurs well before the defendant or any co-conspirator has completed the acts necessary for the substantive offense. Under such circumstances, a reduction of 3 levels is provided.... U.S.S.G. § 2X1.1, comment. (backg'd.) 8 The record here indicates that Mullen and Burkholder had not taken all the steps necessary to cash in on their scheme before their arrest. They had, however, completed most of the acts necessary to achieve their objectives. They got the information they needed to make and made the fake Texas driver's licenses, went to Mexico and purchased cashier's checks, incorporated two sham businesses in Little Rock, and opened six different bank accounts under assumed names. Moreover, they were "about to complete" the rest of their tasks-having the checks altered, establishing a cash flow at the banks, and floating the checks-"but for [their] apprehension." Section 2X1.1(b)(2). Additionally, the men were not arrested "well before [they] ... completed the acts necessary for the substantive offense." Section 2X1.1, comment. (backg'd.); see United States v. Strickland, 935 F.2d 822, 832 (7th Cir.), cert. denied, 112 S. Ct. 324 (1991). Therefore, the district court correctly concluded that Mullen and Burkholder had "substantially completed" their scheme and denied the reduction. 9 The judgment is affirmed. * The HONORABLE JOHN F. NANGLE, Senior United States District Judge for the Southern District of Georgia, sitting by designation 1 The Honorable Elsijane Trimble Roy, Senior United States District Judge for the Eastern District of Arkansas

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 02-7893 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus RAYMOND CHERISSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (CR-94-97) Submitted: February 20, 2003 Decided: February 27, 2003 Before LUTTIG, MOTZ, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. Raymond Cherisson, Appellant Pro Se. Christine Blaise Hamilton, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Raymond Cherisson appeals the district court’s order denying his Fed. R. Civ. P. 60(b) motion. We have reviewed the record and the district court’s opinion and order and find no reversible error. See Temkin v. Frederick County Comm’r, 945 F.2d 716, 723 (4th Cir. 1991). The claims Cherisson raised in his Rule 60(b) motion are foreclosed by the mandate rule. United States v. Bell, 5 F.3d 64, 66-67 (4th Cir. 1993). 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 2 

760 F.2d 251 Papasv.Berg 84-1589 United States Court of Appeals,First Circuit. 2/27/85 1 D.Mass. AFFIRMED

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2395-17T1 A.R., Plaintiff-Respondent, v. A.C., Defendant-Appellant. ______________________________ Argued February 4, 2019 – Decided February 27, 2019 Before Judges Fasciale and Gooden Brown. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-1050-18. Joshua D. Altman argued the cause for appellant (Benedict and Altman, attorneys; Antonio J. Toto and Joshua D. Altman, on the briefs). Respondent has not filed a brief. PER CURIAM  Defendant appeals from a January 16, 2018 final restraining order (FRO) entered in favor of plaintiff (his ex-girlfriend) under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse, remand, and in fairness to the judge who entered the FRO, we direct that a different judge conduct a new FRO hearing. Defendant argues that the FRO judge failed to advise him of the consequences of proceeding pro se. Before the hearing began, the following exchange between the judge and defendant took place: Q: Do you understand that by proceeding today, you are waiving your right to a lawyer and [you are] acting as your own lawyer? A: Yes. At a minimum, defendant contends that the judge should have informed him that if he entered an FRO, defendant's name would appear in the central registry under the PDVA. Defendant's other argument is that there was no evidence to satisfy the second prong of Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006). Consequently, he seeks a new hearing. We have previously said that an FRO "is not merely an injunction entered in favor of one private litigant against the other." J.S. v. D.S., 448 N.J. Super. 17, 22 (App. Div. 2016). Courts "have consistently recognized that the issuance A-2395-17T1 2 of an FRO 'has serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as a serious crime against society.'" Franklin v. Sloskey, 385 N.J. Super. 534, 541 (App. Div. 2006) (quoting Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div. 2004)); see also N.J.S.A. 2C:25-18. "Once a final restraining order is entered, a defendant is subject to fingerprinting, N.J.S.A. 53:1-15, and the Administrative Office of the Courts [(AOC)] maintains a central registry of all persons who have had domestic violence restraining orders entered against them, N.J.S.A. 2C:25-34." Franklin, 385 N.J. Super. at 541 (quoting Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005)); see also D.N. v. K.M., 216 N.J. 587, 593 (2014) (Albin, J., dissenting) (cataloging the consequences under N.J.S.A. 2C:25-29(b) resulting from entry of a domestic violence FRO). The right to seek counsel is an important due process right that affords defendants "a meaningful opportunity to defend against a complaint in domestic violence matters[.]" D.N. v. K.M., 429 N.J. Super. 592, 606 (App. Div. 2013). Although due process does not require the appointment of counsel for indigent defendants in a domestic violence proceeding who are opposing a request for an FRO, fundamental fairness requires that a defendant understands that he or she A-2395-17T1 3 has a right to retain legal counsel, and that a defendant is afforded a reasonable opportunity to retain an attorney. Ibid. In D.N., we concluded that D.N. relinquished her right to seek counsel because the judge "adequately questioned [her] regarding her decision to decline the opportunity to obtain legal representation." Id. at 607. In that case, the judge asked D.N. (1) whether she wanted the opportunity to obtain counsel, pointing out that the opposing party was represented; (2) whether she understood what would happen if a final restraining order was entered; and (3) whether she knew that she might be subject to civil penalties and other consequences. Ibid. The judge also advised D.N. that she could request an adjournment to consult with an attorney or further prepare for the final hearing. Ibid. Given that advice, we held that D.N.'s waiver of her right to seek counsel was clear and knowing. Defendant should have been likewise informed. In fairness to the FRO judge, and because he made credibility findings, we direct that a different judge conduct the new hearing on remand. Reversed and remanded. We do not retain jurisdiction. A-2395-17T1 4 

T.C. Memo. 2010-221 UNITED STATES TAX COURT WALTER OLIVER MELVIN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent Docket Nos. 5273-08, 609-09. Filed October 12, 2010. Walter Oliver Melvin, pro se. Michael J. Gabor, for respondent. MEMORANDUM OPINION COHEN, Judge: In these consolidated cases, respondent determined deficiencies in income tax and penalties for 2005 and 2006 as follows: Accuracy-Related Penalties Year Deficiency Sec. 6662(a) and (b)(1) 2005 $4,475 $895 2006 $1,500 $300  - 2 - After a concession by petitioner, the issues for decision are: (1) Whether petitioner is estopped under the doctrine of collateral estoppel from litigating the validity of the alimony deductions he claimed for the years in issue; and (2) whether he is liable for the penalties under section 6662. All section references are to the Internal Revenue Code in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure. Background All of the facts have been stipulated, and the stipulated facts are incorporated as our findings by this reference. Petitioner resided in Florida at the time he filed his petition. Petitioner was married to Barbara A. Melvin until they divorced in 1985. During the marriage, petitioner was a practicing attorney. On May 8, 1985, the General Court of Justice, Cumberland County, North Carolina, issued a judgment of divorce which ordered petitioner, among other things, to pay his former wife $500 a month, or $6,000 a year in “permanent alimony.” Consequently, the court required petitioner to transfer significant property and funds to meet his obligation under the order. He did not, however, transfer any money or property to his former wife in 2005 or 2006. On each of his 2005 and 2006 Federal income tax returns, petitioner claimed a $6,000 deduction under section 215 for  - 3 - alimony. The Internal Revenue Service (IRS) sent petitioner a notice of deficiency for 2005 on January 18, 2008, and for 2006 on October 14, 2008. The notices: (1) Determined a deficiency for each of the years in issue because of improper alimony deductions; and (2) imposed accuracy-related penalties under section 6662(a). The statutory notice for 2005 also determined a deficiency for home mortgage interest deductions petitioner claimed which he has since conceded were improper. Petitioner previously brought a case in this Court disputing the IRS’ determination that the alimony deduction he claimed on his 2003 Federal income tax return was erroneous. Melvin v. Commissioner, T.C. Memo. 2008-115 (Melvin I), affd. 303 Fed. Appx. 791 (11th Cir. 2008). In that case, this Court ruled in favor of the IRS because the plain language of section 215 limits alimony deductions to payments made during the taxable year. Id. The Court of Appeals for the Eleventh Circuit affirmed our decision. Discussion Petitioner contests respondent’s determination that he is not permitted a deduction for alimony in 2005 or 2006. The transfers made by way of the State court judgment in prior years are the only bases petitioner has offered for those deductions. Respondent contends, among other things, that petitioner’s argument is precluded by collateral estoppel.  - 4 - Collateral Estoppel Once an issue has been litigated, collateral estoppel may apply. In Monahan v. Commissioner, 109 T.C. 235, 240 (1997), we stated: The doctrine of issue preclusion, or collateral estoppel, provides that, once an issue of fact or law is “actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” Montana v. United States, 440 U.S. 147, 153 (1979) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979)). * * * Under the doctrine of collateral estoppel, (1) the issue to be decided in the second case must be identical in all respects to the issue decided in the first case, (2) a court of competent jurisdiction must have rendered a final judgment in the first case, (3) a party may invoke the doctrine only against parties to the first case or those in privity with them, (4) the parties must have actually litigated the issue and the resolution of the issue must have been essential to the prior decision, and (5) the controlling facts and legal principles must remain unchanged. See Hi-Q Pers., Inc. v. Commissioner, 132 T.C. 279, 289 (2009); Peck v. Commissioner, 90 T.C. 162, 166-167 (1988), affd. 904 F.2d 525 (9th Cir. 1990). Respondent argues that petitioner should be estopped under the doctrine of collateral estoppel from asserting that the alimony deductions he claimed in 2005 and 2006 were proper  - 5 - because this Court already adjudicated the issue for petitioner’s 2003 tax year. Although each tax year is a separate cause of action, collateral estoppel may still apply to preclude a taxpayer from relitigating identical issues for multiple years. See Peck v. Commissioner, supra at 165-166; Berry v. Commissioner, T.C. Memo. 1990-646. Petitioner contends that he is not attempting to relitigate the same issue from Melvin I but offers no coherent argument to support this assertion. He does not dispute that he fully litigated the validity of the alimony deduction he claimed in 2003 under identical circumstances and admits that there has been no change in law or facts to justify a different outcome. He remains a resident of Florida, so appellate venue is unchanged. Petitioner merely continues to assert the correctness of his interpretation of the law, relying exclusively on Hawkins v. Commissioner, 86 F.3d 982 (10th Cir. 1996) (involving the question of whether a marital settlement agreement incorporated into a divorce decree constituted a qualified domestic order), revg. 102 T.C. 61 (1994). In Melvin I, this Court already held that case to be inapplicable to these facts. A party’s disagreement with a court’s reasoning does not bar the application of collateral estoppel. Sydnes v. Commissioner, 74 T.C. 864, 869 (1980), affd. 647 F.2d 813 (8th Cir. 1981).  - 6 - Collateral estoppel bars petitioner from relitigating the deductibility of alimony paid in years other than those before the Court. Although we need not consider the merits of his arguments, he is not entitled to an alimony deduction in 2005 or 2006 for the reasons stated in Melvin I. Section 6662 Accuracy-Related Penalties Petitioner contests the imposition of accuracy-related penalties for the tax years in issue. Section 6662(a) and (b)(1) imposes a 20-percent accuracy-related penalty on any underpayment of Federal income tax attributable to a taxpayer’s negligence or disregard of rules or regulations. Section 6662(c) defines negligence as including any failure to make a reasonable attempt to comply with the provisions of the Internal Revenue Code and defines disregard as any careless, reckless, or intentional disregard. Disregard of rules or regulations is careless if the taxpayer does not exercise reasonable diligence to determine the correctness of a tax return position that is contrary to the rule or regulation. Sec. 1.6662-3(b)(2), Income Tax Regs. Under section 7491(c), the Commissioner bears the burden of production with regard to penalties and must come forward with sufficient evidence indicating that it is appropriate to impose penalties. See Higbee v. Commissioner, 116 T.C. 438, 446 (2001). However, once the Commissioner has met the burden of production, the burden of proof remains with the taxpayer, including the  - 7 - burden of proving that the penalties are inappropriate because of reasonable cause or substantial authority. See Rule 142(a); Higbee v. Commissioner, supra at 446-447. Respondent has met the burden of production. The plain language of section 215 expressly limits alimony deductions to payments made during the taxable year. See, e.g., Melvin v. Commissioner, 303 Fed. Appx. 791 (11th Cir. 2008). Respondent has shown that petitioner improperly claimed alimony deductions based exclusively on transfers he made in prior years, contrary to any reasonable interpretation of the statute. The accuracy-related penalty under section 6662(a) is not imposed with respect to any portion of the underpayment as to which the taxpayer acted with reasonable cause and in good faith. Sec. 6664(c)(1); Higbee v. Commissioner, supra at 448. The decision as to whether a taxpayer acted with reasonable cause and in good faith is made on a case-by-case basis, taking into account all of the pertinent facts and circumstances. See sec. 1.6664-4(b)(1), Income Tax Regs. “Circumstances that may indicate reasonable cause and good faith include an honest misunderstanding of fact or law that is reasonable in light of all of the facts and circumstances, including the experience, knowledge, and education of the taxpayer.” Id. Petitioner does not separately address the penalty issue. He simply pursues the same arguments previously rejected. The  - 8 - authorities petitioner relies on are entirely irrelevant and could not reasonably be considered to support his argument. Educated as an attorney, petitioner should have recognized that his claimed deductions were contrary to the express terms of section 215. Petitioner has not met his burden of demonstrating reasonable cause or good faith for the underpayment, and we sustain respondent’s determination on this issue. We have considered the other arguments of the parties, and they either are without merit or need not be addressed in view of our resolution of the issues. For the reasons explained above, Decisions will be entered for respondent. 

156 F.3d 187 U.S.v.Thomas* NO. 97-8863 United States Court of Appeals,Eleventh Circuit. August 4, 1998 Appeal From: M.D.Ga. ,No.97000064CR2JRE 1 Affirmed. * Fed.R.App.P. 34(a); 11th Cir.R. 34-3

881 So.2d 323 (2004) Willie Earl CLAY a/k/a Willie E. Clay, Jr., Appellant v. STATE of Mississippi, Appellee. No. 2003-KA-00235-COA. Court of Appeals of Mississippi. August 24, 2004. Rehearing Denied November 2, 2004. *324 James A. Williams, Brookhaven, attorney for appellant. Office of the Attorney General by Charles W. Maris, Billy L. Gore, attorneys for appellee. EN BANC. CHANDLER, J., for the Court. ¶ 1. This appeal arises from a November 25, 2002 order of the Lauderdale County Circuit Court sentencing Willie E. Clay as an habitual offender after a jury found him guilty of burglary of a dwelling, pursuant to Mississippi Code Annotated section 97-17-23 (Rev.2000). Clay raises five issues on appeal challenging the manner in which identification testimony was introduced, the circuit court's handling of the jury's *325 apparent confusion over a lesser-included offense instruction, the effectiveness of trial counsel and the sufficiency of the evidence supporting the jury's verdict. He further asserts that the cumulative effect of the errors complained of denied his right to a fair and impartial trial. Finding no merit to these assignments of error, we affirm Clay's sentence and conviction. FACTS ¶ 2. In mid-afternoon, on July 6, 2001, seventy-year-old Mary Katherine Duke heard a noise at her front door which sounded "like someone was tearing it up." She found the solid wood door kicked in and a man standing in her living room. She screamed at him; he looked at her without speaking and started toward her. As she started to run through the kitchen, he grabbed her blouse and pulled her back. She threw one chair in front of him and pushed another in his way before falling out the back door and down the steps. The man ran back out the front door and backed his car down the road. ¶ 3. Mrs. Duke's nephew, Langdon Duke, who lived in a trailer behind her house, heard his aunt's screams. He ran to her assistance and together they went around to the front yard where Langdon threw a rock at the intruder's car. Before calling the sheriff's department, they tried unsuccessfully to get a license tag number as the white, four-door car backed away. ¶ 4. Mrs. Duke testified at trial that the same man had come to her house the previous Sunday. He had inquired about a man named "Tuttle," claiming that he was responding to an ad in the newspaper. He also had asked to use her telephone and she brought a portable phone outside for him. ¶ 5. Ricky Presson, an investigator with the Lauderdale County Sheriff's Department, responded to Mrs. Duke's call and was assigned to investigate the case. The State Crime Laboratory was not able to make an identification of any fingerprints taken at the scene. Based on the Dukes' description of the intruder and his car, however, the sheriff's deputies thought Clay might be a suspect. Investigator Presson prepared a line-up of some photographs, including Clay's. He testified that when he first showed the line-up to Mrs. Duke, she became very frightened and said she would have to see the individual in person to make a positive identification. She later identified a more recent picture of Clay in another photo line-up Presson prepared. ¶ 6. Investigators then questioned Clay's girlfriend, Betty Doss, about Clay's whereabouts at the time of the crime, and the vehicle he was driving. Her description of a white 1985 Suburu with a dented right side matched the description given to Presson by Mrs. Duke and her nephew. It subsequently was found in the possession of a local mechanic, Jimmy Hopson, to whom Clay had given the car as security for money he borrowed from Hopson to buy back the car title from a local "Title for Cash" store. ¶ 7. Clay's girlfriend brought him into the sheriff's office on July 10, 2001. He gave a statement to Investigator Presson, admitting that he had been at Mrs. Duke's home. Clay, however, told authorities that he had knocked on Mrs. Duke's door to ask if she had seen the man he had been looking for previously and if she needed any yard work done. Clay stated that he asked her if he could have some water and when she turned to go inside, he thought she wanted him to come inside, too. He stated that "when I stuck my leg inside the door she panic [sic] and started hollering and pushing the door." He further claimed to have panicked, too, and started *326 walking "real fast" to his car, while Mrs. Duke "was screaming and hollering stuff." ¶ 8. On August 1, 2002, Clay was indicted by the grand jury of the Lauderdale County Circuit Court for burglary of a dwelling. His trial was held on November 25, 2002. Clay elected not to testify. The jury returned two separate verdicts, finding him guilty of burglary of a dwelling as well as of the lesser included offense, illegal trespass. After the circuit judge re-instructed the jury that it could return only one verdict, the jury deliberated further and found Clay guilty of burglary of a dwelling. Clay's motions for a mistrial, a new trial and a motion for a JNOV were denied by the circuit court. Clay was sentenced as an habitual offender to serve twenty-five years in the custody of the Mississippi Department of Corrections. LAW AND ANALYSIS I. WHETHER CLAY WAS DENIED A FAIR TRIAL BY THE IDENTIFICATION TESTIMONY GIVEN BY INVESTIGATOR RICKY PRESSON ¶ 9. Clay first asserts that he was prejudiced by the State's questioning of Investigator Ricky Presson, which, he contends, impermissibly revealed to the jury that he previously had been in trouble with the law and was "known to law enforcement." However, as distinguished from Robinson v. State, 735 So.2d 208 (Miss.1999) and Edlin v. State, 533 So.2d 403 (Miss.1988), on which Clay relies, no evidence of prior crimes, convictions or bad acts was introduced at trial. Rather, he now objects only to Presson's testimony regarding Mrs. Duke's identification of Clay from a photo line-up as well as his discussion with other investigators which led to the development of Clay as a suspect. While Clay's attorney made several timely objections during Presson's testimony, he did not object at trial to the lines of questioning to which he now objects. His right to raise these issues for appellate review, therefore, is forfeited. Walker v. State, 671 So.2d 581, 587 (Miss.1995); Kelly v. State, 463 So.2d 1070, 1073 (Miss.1985). ¶ 10. Clay, however, contends that the State's line of questioning was so egregious as to amount to plain error. As the State points out, "[t]he plain error doctrine permits this court to review errors committed during trial, even if they are not properly preserved on appeal, where those errors impact fundamental rights." Jackson v. State, 815 So.2d 1196, 1199(¶ 5) (Miss.2002). Clay does not articulate what fundamental rights were affected or how his rights may have been impacted by the testimony. Furthermore, no evidence of Clay's prior crimes or convictions, subject to limitation by Rule 404(b) of the Mississippi Rules of Evidence as discussed in Robinson, was even presented at trial. Accordingly, we find no merit to this assignment of error. II. WHETHER THE CIRCUIT COURT ERRED IN FAILING TO GRANT A MISTRIAL AFTER THE JURY RETURNED TWO SEPARATE VERDICTS ¶ 11. The jury received separate instructions on the elements of the crimes of burglary of a dwelling and illegal trespass. Clay requested and received a lesser-included offense instruction, which allowed the jury to find him guilty of burglary, guilty of illegal trespass or not guilty. Instruction C-11, drafted by the defense, was worded as follows: ¶ 12. The Court instructs the jury that your verdict shall be returned to the Court in one of the following forms: 1. Should you find the defendant guilty of burglary of a dwelling, then your verdict shall be: *327 "We, the jury, find the defendant guilty of burglary of a dwelling." 2. Should you find the defendant not guilty of burglary of a dwelling, but guilty of wilfull [sic] trespass, then your verdict shall be: "We, the jury, find the defendant guilty of wilfull [sic] trespass." 3. Should you find the defendant not guilty of burglary of a dwelling and not guilty of wilfull [sic] trespass, then your verdict shall be: "We, the jury, find the defendant not guilty." The jury returned two verdicts: one finding Clay guilty of burglary of a dwelling; the other, guilty of illegal trespass. The circuit judge re-directed the jury's attention to Instruction C-11, emphasizing that there could be only one verdict in the case. He instructed the jury to return to the jury room and resume deliberations until a unanimous decision as to one form of the verdict was reached. After five minutes, the jury returned a verdict finding Clay guilty of burglary of a dwelling. Clay moved for a mistrial. ¶ 13. While Clay sets forth the general proposition that the circuit court erred in failing to grant his motion for a mistrial, he specifically faults the judge for finding that the jury was "confused," rather than "in conflict." Thus, because the judge did not instruct the jury pursuant to Sharplin v. State, 330 So.2d 591, 596 (Miss.1976), Clay asserts that his case should be reversed and remanded. A Sharplin instruction, however, is appropriate only when the jury is unable to agree on a verdict. The jury was polled and there is no evidence in the record to suggest that it was deadlocked. To the contrary, it shows only that instead of following the court's instruction to reach one verdict, the jury entered two separate but consistent verdicts: one finding Clay guilty of the crime for which he was indicted and the other convicting him of the lesser-included offense. Sharplin, therefore, is inapplicable. ¶ 14. Mississippi Code Annotated section 99-19-11 (Rev.2002) provides that "[i]f the verdict is informal or defective the court may direct it to be reformed at the bar." Further, Rule 3.10 of the Uniform Rules of Circuit and County Court Practice provides that "[i]f a verdict is so defective that the court cannot determine from it the intent of the jury, the court shall, with proper instructions, direct the jurors to reconsider the verdict." Accordingly, "[t]he general rule is that the court may require the jury to clear up an indefinite or ambiguous verdict and, `[i]ndeed, it is the duty of the court to direct the jury to reconsider their verdict when satisfied that there has been a palpable mistake.'" Anderson v. State, 231 Miss. 352, 360, 95 So.2d 465, 467 (Miss.1957) (quoting 23 C.J.S. Criminal Law §§ 1412, 1413). The trial judge correctly followed the law by re-instructing the jurors as to the proper form of the verdict as expressed in Instruction C-11 and sending them back to the jury room for further deliberations. Accordingly, there is no merit to Clay's assertion that the circuit court erred in not granting his motion for a mistrial. III. WHETHER CLAY WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL BY HIS APPOINTED ATTORNEY ¶ 15. In his third assignment of error, Clay contends that his attorney failed to adequately pursue at trial his defense that he did not have the requisite intent to commit burglary. Notwithstanding his on-the-record decision not to testify, Clay now mentions, albeit only in passing, that given the evidence presented at trial, it was "imperative" for him to testify. His actual *328 argument on appeal, however, focuses on objections his attorney should have made and questions he should have asked on cross-examination. ¶ 16. "The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Simon v. State, 857 So.2d 668, 682 (¶ 22) (Miss.2003). To establish a claim of ineffective assistance of counsel, Clay must prove that under the totality of the circumstances (1) counsel's performance was deficient and (2) that the deficiency deprived him of a fair trial. Howard v. State, 853 So.2d 781, 796 (¶ 47) (Miss.2003). On matters of trial strategy, which form the basis of Clay's assignment of error, this Court generally defers to the judgment of counsel. Woods v. State, 806 So.2d 1165, 1169 (¶ 13) (Miss.Ct.App.2002). It is well-established that "`counsel's choice of whether to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy' and cannot give rise to an ineffective assistance of counsel claim." Howard, 853 So.2d at 796 (¶ 47) (quoting Jackson v. State, 815 So.2d 1196, 1201 (Miss.2002)). Accordingly, because Clay's claims fall wholly within the realm of trial strategy, there is no merit to the assignment of error. IV. WHETHER THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE VERDICT OF THE JURY ¶ 17. The circuit court denied Clay's motions for a JNOV and for a new trial. Clay now asserts that the evidence presented at trial does not support the jury's finding that he was guilty of burglary. He contends that his statement explained his presence in the house and suggests that the situation was simply a misunderstanding. ¶ 18. The jury is charged with weighing and considering conflicting evidence and the credibility of the witnesses. McClain v. State, 625 So.2d 774, 778 (Miss.1993). In questioning the sufficiency of the evidence, we are required to review that evidence in a light most favorable to the State, giving it the benefit of all reasonable inferences which may be drawn from it and accepting as true that evidence which supports guilt. Id. This court is authorized to reverse only where, with respect to one or more elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty. Id. ¶ 19. Similarly, a motion for a new trial asks the Court to hold that the verdict was contrary to the overwhelming weight of the evidence. Crowley v. State, 791 So.2d 249, 253 (¶ 15) (Miss.Ct.App.2000). When a motion for a new trial is made, this Court must accept as true all evidence that favors the jury's verdict. Youngblood v. State, 759 So.2d 479, 483 (¶ 17) (Miss.Ct.App.2000). "Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal." Dudley v. State, 719 So.2d 180, 182(¶ 8) (Miss.1998). ¶ 20. Our standard of review requires that we look not only at the evidence presented, but also at the reasonable inferences which may be drawn from it. McClain, 625 So.2d at 778. The jury, too, as the finder of fact, is entitled to consider not only the testimony of the witnesses, but all inferences that may be reasonably and logically deduced therefrom. Pryor v. State, 349 So.2d 1063, 1064 (Miss.1977). Although nothing was actually stolen from the house and Clay asserts that the incident was simply a misunderstanding, or at best, trespass, the jury could have inferred *329 from the testimony at trial that he broke into Mrs. Duke's house with the intent to steal. ¶ 21. Evidence was presented to show that Clay had approached Mrs. Duke at her house only a week before the break-in. On the afternoon of July 6, 2001, Mrs. Duke's car was not parked in front of her house and it was not apparent that she was at home. Her locked front door was kicked open and Clay entered the house. He fled when Mrs. Duke screamed for help. "Intent is an emotional operation of the mind, and it is usually shown by acts and declarations of the defendant coupled with facts and circumstances surrounding him at the time." Dixon v. State, 240 So.2d 289, 290 (Miss.1970). Considering the facts of the crime, along with the evidence that Clay had just borrowed money from James Hopson to retrieve the title of his car from a "Cash for Title" business and within days after the incident gave Hopson the car as security for his debt, it reasonably may be inferred that Clay needed money and had the requisite intent to steal when he broke into Mrs. Duke's house. It was well within the jury's province to weigh these facts, and the inferences which could be drawn from them, against Clay's statement that he had asked for a drink of water and that the door broke when he stuck his foot across the threshold, thinking Mrs. Duke had invited him inside. ¶ 22. Looking at the evidence in a light most favorable to the State, we find that there is sufficient evidence to support the jury's verdict. Further we find that the evidence is not contrary to the verdict entered by the jury. The assignment of error is without merit. V. WHETHER THE CUMULATIVE ERRORS AT TRIAL NECESSITATE REVERSAL OF CLAY'S SENTENCE AND CONVICTION ¶ 23. In his final assignment of error, Clay suggests that the cumulative effect of the errors at trial denied his right to a fair and impartial trial. Although Clay lists several cases, including King v. State, 857 So.2d 702 (Miss.2003), he neither sets forth any argument nor provides us with any clues as to the relevance of the cited cases. Where the appellant has provided no meaningful argument in support of an assignment of error he has raised, the issue is waived. King, 857 So.2d at 716 n. 3 (¶ 23); Jones v. State, 841 So.2d 115, 138 (¶ 70) (Miss.2003); Pate v. State, 419 So.2d 1324, 1325-26 (Miss.1982). ¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF BURGLARY OF A DWELLING HOUSE AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO LAUDERDALE COUNTY. KING, C.J., BRIDGES, P.J., LEE, MYERS AND GRIFFIS, JJ., CONCUR. IRVING AND BARNES, JJ., NOT PARTICIPATING.

670 S.E.2d 644 (2008) STATE v. MORRISON. No. COA08-299. Court of Appeals of North Carolina. Filed November 4, 2008. Certification Date November 24, 2008. Case reported without published opinion. Affirmed.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 98-7024 RAYMOND EDWARD PAYNE, Petitioner - Appellant, versus RONALD J. ANGELONE, Director of the Virginia Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, District Judge. (CA-98-40-R) Submitted: September 30, 1998 Decided: October 21, 1998 Before ERVIN, LUTTIG, and WILLIAMS, Circuit Judges. Dismissed by unpublished per curiam opinion. Raymond Edward Payne, Appellant Pro Se. Leah Ann Darron, Assistant Attorney General, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Raymond Edward Payne seeks to appeal the district court’s order denying relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 1998). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we deny a certificate of appealability and dismiss the appeal on the reasoning of the district court. Payne v. Angelone, No. CA-98- 4-0-R (W.D. Va. June 24, 1998); see also Brown v. Angelone, 150 F.3d 370 (4th Cir. 1998). We dispense with oral argument because the facts and legal contentions are adequately presented in the ma- terials before the court and argument would not aid the decisional process. DISMISSED 2 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-4254 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAVOB JAMES HARRISON, JR., a/k/a Skittles, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:11-cr-00008-BR-1) Submitted: November 21, 2019 Decided: November 25, 2019 Before KEENAN and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: While serving a term of federal supervised release, Javob James Harrison, Jr., distributed a quantity of crack cocaine. Harrison pled guilty to the ensuing federal charge, which resulted in an 18-month term of imprisonment. The district court also imposed a consecutive 24-month sentence for Harrison’s violation of the terms of his supervised release. On appeal from his revocation judgment, Harrison contends that the revocation sentence violates the Double Jeopardy Clause. For the reasons that follow, we affirm. We review double jeopardy challenges de novo. United States v. Schnittker, 807 F.3d 77, 81 (4th Cir. 2015). We have previously determined that “[t]he sentence imposed upon revocation of a term of supervised release is an authorized part of the original sentence,” intended to sanction the defendant’s breach of the court’s trust in violating the terms of his release, “leaving the punishment for any new criminal conduct to the court responsible for imposing the sentence for that offense.” United States v. Woodrup, 86 F.3d 359, 361 (4th Cir. 1996) (emphasis and internal quotation marks omitted); see also Johnson v. United States, 529 U.S. 694, 701 (2000) (“We therefore attribute postrevocation penalties to the original conviction.”). Because the punishment imposed on a defendant for violating his supervised release term “is properly considered punishment for his previous offense,” not for his subsequent offense, “the punishment imposed for this latter offense is not barred by the Double Jeopardy Clause.” Woodrup, 86 F.3d at 362. Harrison properly concedes that his argument is foreclosed by Woodrup. It is well settled that “[a] decision of a panel of this court becomes the law of the circuit and is binding on other panels unless it is overruled by a subsequent en banc opinion of this court 2 or a superseding contrary decision of the Supreme Court.” United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005) (internal quotation marks omitted). Although Woodrup has not been affected by any intervening en banc or Supreme Court decision, Harrison nonetheless urges us to depart from Woodrup, highlighting changes to the Sentencing Guidelines and statutory sentencing factors that have occurred since 1996. These changes, however, provide no basis for us to conclude that the reasoning in Woodrup is no longer sound. We thus reject Harrison’s assertion that his revocation sentence runs afoul of the Double Jeopardy Clause. Accordingly, we affirm the district court’s revocation judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 3 

731 N.W.2d 637 (2007) STATE v. OBRIECHT. No. 2005AP2622. Supreme Court of Wisconsin. January 9, 2007. Petition for review denied.

NUMBER 13-12-00290-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG RICHARD THOMAS A/K/A DEVON KELLIE, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 252nd District Court of Jefferson County, Texas. MEMORANDUM OPINION1 Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Rodriguez This is an appeal from an order revoking unadjudicated community supervision and adjudicating guilt. Appellant Richard Thomas a/k/a Devon Kellie was placed on deferred probation for the state jail felony offense of burglary of a building. See TEX. PENAL CODE ANN. § 30.02 (West 2011). The State filed a motion to revoke Thomas's 1 This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005). probation, and after Thomas pleaded true to driving while intoxicated, the trial court revoked his community supervision, adjudicated his guilt, and sentenced him to two years' confinement in the state jail. Thomas appeals from this judgment. Determining that there are no meritorious issues for appeal, counsel filed an Anders brief in which he reviewed the merits, or lack thereof, of the appeal. We affirm. I. COMPLIANCE WITH ANDERS2 Pursuant to Anders v. California, Thomas's counsel filed a brief and a motion to withdraw with this Court stating that he has diligently reviewed the appellate record and that, in his opinion, there are no meritorious issues for appeal. See 386 U.S. 738, 744-45 (1967). Counsel's brief meets the requirements of Anders as it presents a professional evaluation showing why there are no non-frivolous grounds for advancing an appeal. See In re Schulman, 252 S.W.3d 403, 407 n.9 (Tex. Crim. App. 2008) (orig. proceeding) (AIn Texas, an Anders brief need not specifically advance >arguable= points of error if counsel finds none, but it must provide record references to the facts and procedural history and set out pertinent legal authorities.@) (citing Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.—Corpus Christi 2003, no pet.)); Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991) (en banc). In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.] 1978), Thomas's counsel has carefully discussed why, under controlling authority, an appeal from the judgment and sentence is without merit and frivolous because the record reflects no reversible error and, in his opinion, there are no grounds upon which an 2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 2 appeal can be predicated. Counsel specifically noted, from his review of the following, that he found no appealable issues for this Court to review: (1) the grand jury proceedings; (2) pretrial motions; (3) the research and investigation done by the trial attorney and by Thomas; (4) competency; (5) sentencing; (6) the right to present evidence during the guilt/innocence and punishment stages; (7) the right to appeal; and (8) the judgment. Counsel has demonstrated that he has complied with the requirements of Anders by (1) examining the record and finding no arguable grounds to advance on appeal; (2) serving a copy of the brief on Thomas; (3) informing Thomas of his right to review the record and to file a pro se response;3 and (4) providing Thomas with a copy of the record. See Anders, 386 U.S. at 744; Stafford v. State, 813 S.W.2d 503, 510 n.3; see also In re Schulman, 252 S.W.3d at 409 n.23. More than an adequate time has passed, and Thomas has not filed a pro se response. See In re Schulman, 252 S.W.3d at 409. II. INDEPENDENT REVIEW Upon receiving an Anders brief, this Court must conduct a full examination of all proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the entire record and counsel's brief, and we have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) (ADue to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of 3 The Texas Court of Criminal Appeals has held that "the pro se response need not comply with the rules of appellate procedure in order to be considered. Rather, the response should identify for the court those issues which the indigent appellant believes the court should consider in deciding whether the case presents any meritorious issues." In re Schulman, 252 S.W.3d 403, 409 n.23 (Tex. Crim. App. 2008) (orig. proceeding) (quoting Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, no pet.)). 3 Appellate Procedure 47.1.@); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court. III. MOTION TO WITHDRAW In accordance with Anders, counsel has filed a motion to withdraw. See Anders, 386 U.S. at 744; see also In re Schulman, 252 S.W.3d at 408 n.17 (citing Jeffery v. State, 903 S.W.2d 776, 779-80 (Tex. App.—Dallas 1995, no pet.) ("If an attorney believes the appeal is frivolous, he must withdraw from representing the appellant. To withdraw from representation, the appointed attorney must file a motion to withdraw accompanied by a brief showing the appellate court that the appeal is frivolous.") (citations omitted)). We grant counsel's motion to withdraw that was carried with the case on July 2, 2012. Within five days of the date of this Court=s opinion, counsel is ordered to send a copy of the opinion and judgment to Thomas and to advise Thomas of his right to pursue a petition for review.4 See TEX. R. APP. P. 48.4; see also In re Schulman, 252 S.W.3d at 412 n.35; Ex parte Owens, 206 S.W.3d 670, 673 (Tex. Crim. App. 2006). NELDA V. RODRIGUEZ Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed the 16th day of August, 2012. 4 No substitute counsel will be appointed. Should Thomas wish to seek review of this case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court. See TEX. R. APP. P. 68.2, 68.3. Any petition for discretionary review should comply with the requirements of Texas Rule of Appellate Procedure 68.4. See TEX. R. APP. P. 68.4. 4 

58 F.3d 636 Shokrianv.San Antonio*d NO. 94-50092 United States Court of Appeals,Fifth Circuit. June 05, 1995 Appeal From: W.D.Tex., No. SA-92-CA-0760 1 AFFIRMED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2 d Local Rule 47.6 case

8 Ariz. App. 247 (1968) 445 P.2d 449 John VALLENTINE, II, Appellant, v. George AZAR and Norma Azar, husband and wife, The Cedars, Appellees. No. 2 CA-CIV 489. Court of Appeals of Arizona. September 26, 1968. Rehearing Denied October 11, 1968. *248 Lillian S. Fisher, Tucson, for appellant. Spaid, Fish, Briney & Duffield, by Richard C. Briney, Tucson, for appellees. HATHAWAY, Chief Judge. This is an appeal by John Vallentine II, one of the plaintiffs below, from a summary judgment in favor of the defendants below, George and Norma Azar. Appellant contends the cause should have been allowed to go to trial. Vallentine, a college student not quite twenty-one years of age, decided to celebrate New Year's Eve, 1965, with a few drinks. He knew that the law forbade him to purchase or consume intoxicating beverages in this State but he had previously been successful in doing so in at least five bars in Tucson. In the late afternoon of December 31, 1965, Vallentine and some friends decided to go to the defendants' bar, "The Cedars," where he knew he could purchase alcoholic beverages without proof of age. In his deposition, taken by the defendants, Vallentine stated that he drank "probably about eight to ten" beers during the hour or so that he spent shooting pool at "The Cedars." He then left with his friends to pick up their dates for the evening, taking along a "fifth" of hard liquor and "a couple of six-packs" of beer which Vallentine purchased personally from defendant George Azar. He testified that he was still "pretty much sober" when they left. They were drinking heavily as they drove around that night. Sometime after the New Year arrived, they stopped at the Tucson Inn. By this time, Vallentine was admittedly quite drunk. He climbed up "a pole or something like that" to the roof of the Inn, at least three stories high, and tried to jump off into the swimming pool, for "no purpose at all." He landed in the pool but suffered thirty to thirty-two fractures of the bones in his feet. Vallentine was in the hospital until March 27, 1966. After his release, he and his father joined in this action. The amended complaint sounds in both negligence and intentional tort, alleging that the Azars knew that Vallentine was a minor; that "The Cedars" was maintained by them in such a way as to be attractive to minors, alluding to the presence of pool tables and the reputation for serving young people without asking for proof of age; that George Azar personally sold hard liquor to Vallentine in violation of the law of this State and in "wanton and willful disregard of the welfare and health and morals" of Vallentine and others, corrupting and impairing Vallentine's judgment and morals and thereby causing his injuries. Compensatory and punitive damages were prayed for. The defendants moved for dismissal on the ground that the complaint did not state a claim upon which relief could be granted, Rule 12(b) (6), Rules of Civil Procedure, 16 A.R.S. That motion was denied. After both parties had served written interrogatories and the defendants had taken Vallentine's deposition, the trial court granted the defendants' motion for summary judgment. Young Vallentine appeals from that judgment, the father having chosen not to do so. The plaintiff contends that there were issues of fact before the trial court which should have precluded the court from granting summary judgment, namely: (1) Whether the defendant knew that the plaintiff was intoxicated (at the time the drinks were sold), (2) Whether the defendant knew the plaintiff was a minor, (3) Whether plaintiff's judgment and morals were corrupted and impaired by the defendants' conduct, and (4) Whether the defendants' breach of duty and violation of statute proximately caused the injuries sustained by the plaintiff. Plaintiff contends that there was also a question of common law liability for intentional tort because of the sale to a minor and/or intoxicated person and another question of liability because of the violation of statutes (A.R.S. §§ 4-241, 4-244(9) (14)) which were specifically designed to protect this plaintiff. He also contends that *249 it was error to remove the question of proximate cause from the jury. Finally, he says that if the foregoing is not the law of this jurisdiction that this court should overrule prior decisions. Some fact issues which plaintiff contends were unanswered by the pleadings and discovery were answered adversely to him from his own mouth. He claimed, in his deposition, that he was "still pretty much sober" when he left "The Cedars," and that he was "half looped" around midnight when they stopped at a private party. He asserted in his deposition that purchasing and consuming the alcoholic beverages was a totally voluntary act and that he did it because "it was camp, so to speak," to drink while under age. He denied any additional effects from the consumption of alcohol that night. The other issues are answered by an examination of the relevant cases in this jurisdiction. We know of only two cases in point in this jurisdiction: Pratt v. Daly, 55 Ariz. 535, 104 P.2d 147, 130 A.L.R. 341 (1940) and Collier v. Stamatis, 63 Ariz. 285, 162 P.2d 125 (1945). The Pratt case dealt with the sale of alcoholic beverages to an "habitual drunkard." (The wife was suing for loss of consortium.) Our Supreme Court held that such an action did lie and the judgment of the trial court, awarding both compensatory and punitive damages to Mrs. Daly, was affirmed. Collier involved a similar suit, for loss of services, by the mother of a fifteen-year-old girl, alleging that the defendant sold alcoholic beverages to the girl, knowing her to be a minor, causing her drunkenness, arrest, and adjudication as a delinquent child. (There is a companion case, Mickey v. Stamatis, 63 Ariz. 293, 162 P.2d 128 (1945), summarily dismissing the daughter's appeal on the basis of Collier.) Our Supreme Court affirmed the order of the trial court dismissing Mrs. Collier's complaint on the ground that it failed to state a claim upon which relief could be granted. The court's rationale was that the proximate cause of the confinement of the daughter was the drinking of the alcoholic beverages rather than the sale thereof; reasoning that the child, at age fifteen, was capable of committing a crime under the laws of this State and therefore capable of voluntary action. The court further reasoned that the statute prohibiting sale of alcoholic beverages was for regulatory purposes and was not intended to "enlarge civil remedies," as a civil damages or "Dram Shop" act. The court did, however, leave open the question where the child involved is "so young as not to have a discretion or a will to refuse the drink, thus bringing the case within the rule of Pratt v. Daly [supra,] or when by corrupt temptation held before him his will is broken down and the act of drinking becomes merged into the act of selling or giving the drink." 63 Ariz. at 291, 162 P.2d at 127. Although the pleadings in this case attempt to meet this language, alleging "corrupt temptation" and the breaking down of the will of the plaintiff, it is clear from his deposition that no such pressure was placed upon him by the defendants in this case. It is, therefore, impossible to distinguish the instant case from that of Collier v. Stamatis, supra. Plaintiff points out that other jurisdictions have allowed recovery by a minor as the result of injury sustained after illegal purchase of alcoholic beverages. Rappaport v. Nichols, 31 N.J. 188, 156 A.2d 1, 75 A.L.R.2d 821 (1959); Elder v. Fisher, 217 N.E.2d 847 (Ind. 1966) (recovery by third party); Davis v. Shiappacossee, 155 So.2d 365 (Fla. 1963); People v. Gar Bob, 49 Misc.2d 88, 266 N.Y.S.2d 771 (1966). Citing City of Glendale v. White, 67 Ariz. 231, 194 P.2d 435 (1948); and, White v. Bateman, 89 Ariz. 110, 358 P.2d 712 (1961), the plaintiff asks this court to overrule Collier v. Stamatis, supra, if we find it impossible to distinguish it. While we may agree with the plaintiff's contention that there should be some remedy, other than the threat of loss of license or criminal prosecution, against a liquor licensee who wantonly sells to minors, we feel that it is for our Supreme Court or the legislature to change *250 the present law. This court has no authority to overrule a higher court. McKay v. Industrial Commission, 103 Ariz. 191, 438 P.2d 757 (1968). Perhaps this appeal might have best been filed directly with the Supreme Court in view of appellant's request. Arizona Podiatry Ass'n v. Director of Insurance, 101 Ariz. 544, 422 P.2d 108 (1966). Affirmed. MOLLOY and KRUCKER, JJ., concur.

124 Mich. App. 237 (1983) 333 N.W.2d 562 DESGRANGES PSYCHIATRIC CENTER, PC v. BLUE CROSS & BLUE SHIELD OF MICHIGAN Docket No. 54787. Michigan Court of Appeals. Decided February 11, 1983. Pelavin, Pelavin & Powers, P.C. (by Frumeth Brenda Hirsh), for plaintiffs. Foster, Swift, Collins & Coey, P.C. (by Theodore W. Swift and William K. Fahey), and Michael T. Zajac and Daniel E. Lazaroff, of counsel, for defendant on appeal. Before: M.J. KELLY, P.J., and T.M. BURNS and MacKENZIE, JJ. PER CURIAM. Coming before this Court on an appeal as of right, defendant Blue Cross-Blue Shield of Michigan argues that the lower court erred in entering a declaratory judgment on November 5, 1980, finding that defendant's refusal to contract with plaintiffs constituted a combination to restrain trade in violation of the provisions of MCL 445.701; MSA 28.31. Plaintiffs cross-appeal as of right from the trial judge's refusal to award them damages for the alleged antitrust actions of defendant and the trial judge's failure to find that the provision in the contract between the defendant and Dr. Louise Desgranges requiring the *241 doctor to be personally present when any psychiatric care was given to a patient by the plaintiff psychiatric center was unconscionable and void as against public policy. Plaintiff Desgranges Psychiatric Center is a professional corporation that provides outpatient mental health care services to adolescent children and their families. It was incorporated by Dr. Desgranges, a child psychiatrist, and the staff includes a full psychologist as well as plaintiff Kathleen Desgranges, who has a master's degree in social work. Defendant, a voluntary nonprofit medical care and hospital service corporation, has provided service benefits for outpatient medical health care administered by a participating clinic since 1966. In January, 1979, Dr. Desgranges requested an application to secure a participation agreement with defendant for reimbursement for outpatient child psychiatry care. On November 11, 1978, Dr. Desgranges became a participating physician under a contract with defendant. Pursuant to this contract, Dr. Desgranges must certify that the services she provides and for which she seeks reimbursements are performed personally by her or under her direct and personal supervision and in her presence. Thus, plaintiffs can receive reimbursement only for services provided personally by Dr. Desgranges and only for psychological testing conducted by a certified psychologist. Dr. Desgranges' January 12, 1979, request for an application to secure a participation agreement with defendant for her psychiatric center was never granted due to a moratorium imposed by defendant on the granting of any further outpatient psychiatric clinic participation agreements. *242 Had the application been granted, Dr. Desgranges' clinic could have been reimbursed for services by a social worker with a master's degree as well as services by a psychiatrist. In the instant action, plaintiffs charge defendant with violating Michigan's antitrust statute by maintaining its moratorium on the approval of new outpatient psychiatric clinics for participation in defendant's reimbursement scheme. Plaintiffs also allege that defendant maintains an unlawful monopoly over the outpatient psychiatric service market in Genesee County and that the requirement of Dr. Desgranges' reimbursement agreement that she would be personally present when psychiatric care is given is an unconscionable contract provision that inhibits Dr. Desgranges from engaging in medically accepted methods of diagnosis and treatment. Following a lengthy hearing held below, the trial judge ruled that defendant's maintenance of its moratorium on the approval of new outpatient psychiatric clinics was unreasonable and violated Michigan's antitrust statutes. The trial judge made no ruling on plaintiffs' claim that the "personal presence" requirement of Dr. Desgranges' reimbursement agreement with defendant is unconscionable. The dispositive issue in this appeal is whether the evidence presented below was sufficient to establish that defendant combined or conspired with any other party to restrain trade in violation of Michigan's antitrust statute. That statute, MCL 445.701; MSA 28.31, makes it unlawful in this state to participate in: "a combination of capital, skill or arts by two or more persons, firms, partnerships, corporations or associations *243 of persons, or of any two or more of them, for either, any or all of the following purposes: "1. To create or carry out restrictions in trade or commerce; * * * "3. To prevent competition in manufacturing, making, transportation, sale or purchase of merchandise, produce or any commodity." As was noted by this Court in Metro Club, Inc v Schostak Brothers & Co, Inc, 89 Mich App 417, 419; 280 NW2d 553 (1979), the most basic element of a cause of action brought under this statute is proof of "the requisite combination of two or more entities". Plaintiffs sought to prove the existence of an unlawful combination between defendant and certain outpatient psychiatric clinics by showing that they were parties to a participation agreement that restrained trade. However, the trial judge's findings of fact do not contain a determination that such a combination was established. The mere fact that participation agreements between defendant and various outpatient clinics exist is insufficient proof of an illegal combination without evidence to show that the agreements restrained trade. Id. Plaintiffs' theory that the agreements restrain trade is seriously undermined by plaintiffs' admission that they enable "subscribers to receive health care benefits". Thus, they would appear to facilitate trade. Most damaging to plaintiffs' argument that the agreements are unlawful is the fact that the purpose of this lawsuit is to obtain such an agreement. If the agreements are unlawful, then this Court cannot affirm the lower court judgment as to do so would have the effect of ordering defendant to enter into an unlawful contract with plaintiffs. Further, there is no evidence in the record that *244 defendant and the participating outpatient psychiatric clinics entered into any type of agreement that would deny plaintiffs an opportunity to secure such a participation agreement. Specifically, there is no evidence that the participation agreements between defendant and various outpatient psychiatric clinics contain any provision that would inhibit defendant from entering into a similar agreement with plaintiffs. Rather, the decision to impose a moratorium on any further such agreements appears to have been made solely by defendant. We recognize plaintiffs' argument that defendant is composed of a diversity of constituent groups which make defendant itself a combination of two or more entities. However, the evidence in the record refutes this argument. Unlike the situation in Virginia Academy of Clinical Psychologists v Blue Shield of Virginia, 624 F2d 476 (CA 4, 1980), cert den 450 US 916; 101 S Ct 1360; 67 L Ed 2d 342 (1981), defendant's bylaws do not require that a majority of the board of directors be physicians or psychiatrists. In fact, nearly 60% of defendant's board of directors are consumer representatives. Because of the structure of defendant's board of directors then, the questionable type of provider control criticized by the Virginia Academy court is not present in this case. For this reason that case is distinguishable. Human Resource Institute of Norfolk, Inc v Blue Cross of Virginia, 498 F Supp 63 (ED Va, 1980). Thus, the record establishes that defendant's decision not to contract with plaintiffs was a unilateral one. A unilateral action, no matter how anticompetitive it may be, does not amount to a combination to restrain trade. Theatre Enterprises, Inc v Paramount Film Distributing Corp, *245 346 US 537; 74 S Ct 257; 98 L Ed 273 (1954); Overseas Motors, Inc v Import Motors Ltd, Inc, 375 F Supp 499 (ED Mich, 1974), aff'd 519 F2d 119 (CA 6, 1975). Therefore, the lower court erred in finding that defendant's actions constituted a combination to restrain trade in violation of MCL 445.701; MSA 28.31. Although the lower court did not render a decision on whether the provision in defendant's reimbursement contract with Dr. Desgranges that she be "personally present" when any psychiatric care is administered is unconscionable and unreasonable, we find that a remand to determine this matter is not necessary. As this Court noted in Michigan Ass'n of Psychotherapy Clinics v Blue Cross & Blue Shield of Michigan, 101 Mich App 559, 571-573; 301 NW2d 33 (1980), modified in part 411 Mich 869; 306 NW2d 101 (1981), such a clause does not invade the physician-patient relationship, "Doctors are still free to use social workers without master's degrees in their clinics. The only difference is the financial source to which they must now look for compensation". Reversed. MacKENZIE, J. (concurring). I am constrained to agree with the majority's holding that the record before us contains insufficient evidence that the moratorium was the result of a combination to support the trial court's finding of a violation of MCL 445.701; MSA 28.31. I do not, however, endorse all of the reasoning which the majority proffers in support of that result. On cross-appeal, plaintiffs argue that Dr. Desgranges' participation agreement with defendant was unconscionable and void because it violated MCL 550.310; MSA 24.600, which provided in part: *246 "A nonprofit medical care corporation shall not impose restrictions on the doctors of medicine, doctors of osteopathic medicine, or doctors of surgical chiropody or podiatry, or doctors of chiropractic, who treat its subscribers as to methods of diagnosis or treatment. The private physician-patient relationship shall be maintained and the subscriber shall at all times have free choice of doctor of medicine, doctor of osteopathic medicine, or doctor of surgical chiropody or podiatry, or doctor of chiropractic." Plaintiffs argue that, in view of the foregoing provision, the trial court erred by denying them declaratory and injunctive relief. The majority rejects that argument in view of Mich Ass'n of Psychotherapy Clinics v Blue Cross & Blue Shield of Michigan, 101 Mich App 559, 571-573; 301 NW2d 33 (1980), modified in part 411 Mich 869; 306 NW2d 101 (1981). Whether or not that case was correctly decided, plaintiffs' claim for declaratory and injunctive relief is now untenable because MCL 550.310; MSA 24.600 was repealed by 1980 PA 350, the Nonprofit Health Care Corporation Reform Act, effective April 3, 1981. The analogous provision of the new act is MCL 550.1502(3); MSA 24.660(502)(3), which provides: "A health care corporation shall not restrict the methods of diagnosis or treatment of professional health care providers who treat members. Each member of the health care corporation shall at all times have a choice of professional health care providers. This subsection shall not apply to limitations in benefits contained in certificates, to the reimbursement provisions of a provider contract or reimbursement arrangement, nor to standards set by the corporation for all contractng providers." (Emphasis added.) The emphasized language evidently permits restrictions *247 in participation agreements such as those at issue here. The record before us contains disturbing evidence that the moratorium unilaterally imposed by defendant bears no reasonable relationship to the need for outpatient psychotherapy clinics and specifically outpatient child psychotherapy clinics. Many of defendant's subscribers are being relegated to the offices of individual participating psychiatrists at which reimbursement is not possible under defendant's rules for the multidisciplinary approach to therapy, which approach is generally recognized as preferable in this field. The ostensible reason for the moratorium was to allow time for development of methodologies for determining the need for outpatient psychotherapy clinics, but defendant has since rejected the methodologies developed by the state without proffering any of its own and extended the moratorium indefinitely. The record suggests that the moratorium does not reduce waste or unnecessary treatment, but instead cuts defendant's costs by discouraging subscribers from utilizing benefits which defendant has contracted to provide. Fortunately, subscribers and providers will soon have a remedy under the new act. Under part 5 of the act, MCL 550.1501 et seq.; MSA 24.660(501) et seq., defendant was required to develop a provider class plan which met, among other requirements, those of MCL 550.1504(1); MSA 24.660(504)(1): "A health care corporation shall, with respect to providers, contract with or enter into a reimbursement arrangement to assure subscribers reasonable access to, and reasonable cost and quality of, health care services, in accordance with the following goals: "(a) There will be an appropriate number of providers *248 throughout this state to assure the availability of certificate-covered health care services to each subscriber. "(b) Providers will meet and abide by reasonable standards of health care quality. "(c) Providers will be subject to reimbursement arrangements that will assure a rate of change in the total corporation payment per member to each provider class that is not higher than the compound rate of inflation and real economic growth." Providers and subscribers will be able to raise the concerns expressed here when the Commissioner of Insurance eventually determines whether defendant is meeting the required goals; see MCL 550.1509, 550.1510, 550.1515; MSA 24.660(509), 24.660(510), 24.660(515).

[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT July 2, 2007 No. 06-15552 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 06-00025-CR-FTM-99-SPC UNITED STATES OF AMERICA, Plaintiff-Appellee, versus THEODIS EUGENE GOODMAN, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (July 2, 2007) Before BIRCH, BLACK, and HILL, Circuit Judges. PER CURIAM: David J. Joffee, appointed counsel for Theodis Eugene Goodman, has filed a motion to withdraw on appeal supported by a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Morse’s conviction and sentence are AFFIRMED. 2 

In the United States Court of Federal Claims Nos. 17-465C, 17-473C (Filed Under Seal: July 3, 2017) (Reissued for Publication: July 13, 2017)1 *************************************** * * DELL FEDERAL SYSTEMS, L.P., and * BLUE TECH INC., * * Plaintiffs, * * and * * Bid Protest Challenging Agency IRON BOW TECHNOLOGIES, LLC, et al., * Corrective Action; Multiple Award * * IDIQ Contracts; Proposal Discussions Plaintiff-Intervenors, * Contrasted With Clarifications; Effect v. * of Blue & Gold Fleet; Declaratory and * * Injunctive Relief. THE UNITED STATES, * * Defendant, * and * * * ALPHASIX CORP., et al., * * Defendant-Intervenors. ** * ************************************** * Michael F. Mason, with whom were C. Peter Dungan, Christine Reynolds, and Thomas A. Pettit, Hogan Lovells US LLP, Washington, D.C., for Plaintiff Dell Federal Systems, L.P.; Michael J. Anstett, with whom were James J. McCullough, Neaha P. Raol, and Brendan C. McNamara, Fried, Frank, Harris, Shriver & Jacobson LLP, Washington, D.C., for Plaintiff Blue Tech Inc.; 1 The Court issued this decision under seal on July 3, 2017, and invited the parties to submit proposed redactions of any proprietary, confidential, or other protected information on or before July 10, 2017. None of the parties proposed any redactions. Thus, the Court reissues the opinion in full. Joseph E. Ashman, Trial Attorney, with whom were Chad A. Readler, Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Martin F. Hockey, Jr., Deputy Director, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., for Defendant; Jerry Alfonso Miles, Deale Services, LLC, Rockville, Maryland, for Plaintiff-Intervenor Govsmart, Inc.; Maria L. Panichelli, with whom was Robert G. Ruggieri, Cohen, Seglias, Pallas, Greenhall & Furman, P.C., Philadelphia, Pennsylvania, for Plaintiff-Intervenor Ideal Systems Solutions, Inc.; Thomas K. David, with whom were Kenneth D. Brody and Katherine A. David, David, Brody & Dondershine, LLP, Reston, Virginia, for Plaintiff-Intervenor NCS Technologies, Inc.; Joseph P. Hornyak, with whom were Elizabeth N. Jochum and Rodney M. Perry, Holland & Knight LLP, Tysons, Virginia, for Plaintiff-Intervenor Red River Computer Co., Inc.; Anthony J. Marchese, with whom were Carol L. O’Riordan, Pamela J. Bethel, and Taimur Rabbani, O’Riordan Bethel Law Firm, LLP, Washington, D.C., for Defendant-Intervenor Alphasix Corp.; Daniel R. Forman, with whom were Jonathan M. Baker, Elizabeth A. Buehler, and Nkechi A. Kanu, Crowell & Moring LLP, Washington, D.C., for Defendant-Intervenor HPI Federal, LLC; David M. Nadler, with whom were David Y. Yang, Adrien C. Pickard, and Philip E. Beshara, Blank Rome LLP, Washington, D.C., for Defendant-Intervenor CDW Government LLC; Gerald H. Werfel, with whom was Ian A. Cronogue, Baker, Cronogue, Tolle & Werfel, LLP, McLean, Virginia, for Defendant-Intervenor Insight Public Sector, Inc.; Anne B. Perry, with whom were Matthew W. Turetzky, and Keeley A. McCarty, Sheppard Mullin Richter & Hampton LLP, Washington, D.C., for Defendant-Intervenor Sterling Computers Corp. 2  OPINION AND ORDER WHEELER, Judge. Plaintiffs brought this bid protest to challenge the Department of the Army’s decision to take corrective action after multiple previous protests had been filed at the Government Accountability Office (“GAO”). The underlying solicitation sought to procure commercial off-the-shelf computer hardware through indefinite-delivery, indefinite quantity contracts with the Army. Fifty-eight offerors submitted proposals, and the Army found only nine of those proposals to be technically acceptable. The Army awarded contracts to each of the nine technically acceptable offerors. Twenty-one of the unsuccessful offerors filed protests at the GAO. The protesters mainly alleged that the solicitation contained several ambiguities causing the offerors to submit technically unacceptable proposals. The protesters argued that they could have corrected the flaws in their proposals if the Army had requested clarifications or engaged in discussions with offerors. After analyzing the GAO protests, the Army determined that the GAO protests represented a significant litigation risk. The Army’s counsel found that Department of Defense Federal Acquisition Regulation Supplement (“DFARS”) § 215.306(c), in conjunction with a recent GAO decision, In re Science Applications International Corp., B-413501.2, 2016 WL 6892429 (Nov. 9, 2016), meant that the Army was obligated to conduct discussions with offerors unless it had a reasonable basis for forgoing such discussions. The Army thought it possible that the GAO could find the Army lacked a reasonable basis to forgo discussions, and therefore it decided to implement corrective action by reopening the procurement, conducting discussions with virtually all of the offerors, and allowing offerors to resubmit proposals with new pricing. Complicating matters, the Army had disclosed the prices of the nine contract awardees. Plaintiffs and Plaintiff Intervenors (the “Protesters”)—six of the original contract awardees—now challenge the Army’s corrective action. They argue that it was arbitrary and capricious for the Army to decide that corrective action was appropriate in this case. They further challenge the scope of the Army’s corrective action, as well as the Army’s decision to release their winning proposal prices. Those receiving contracts rightly complain that they would be at a significant competitive disadvantage in having to compete again for contracts they had rightly won in the first instance. They seek a permanent injunction that would forbid the Army from implementing the corrective action. Five of the previously unsuccessful offerors have joined this suit as Defendant-Intervenors. They, along with the Government, defend the Army’s corrective action as a reasonable response to a reasonable assessment of litigation risk. 3  Most of the parties have submitted cross-motions for judgment on the administrative record. The Court heard oral argument on the cross-motions on June 14, 2017. After considering the parties’ arguments, the Court finds that the Army’s contemplated corrective action is not narrowly targeted to address the procurement defects the Army has identified. While discussions would have been permissible before the Army announced its contract awards, the Army elected to make awards without discussions. The administrative record reflects the consequences of that decision: many offerors made minor errors filling out the Army-provided spreadsheets and submitted technically unacceptable proposals as a result. These consequences are relatively minor, and the Court finds that clarifications and reevaluation would suffice to remedy them. On the other hand, discussions paired with re-solicitation would represent a blunderbuss approach to corrective action that neither the record nor the law supports. There is no reason to reopen the competition and invite new proposals, particularly where the Army’s requirements have not changed. Therefore, the Court GRANTS Plaintiffs’ and Plaintiff-Intervenors’ motions for judgment on the administrative record. The Court similarly grants their motions for a permanent injunction barring the Army’s proposed corrective action. Defendant’s and Defendant-Intervenors’ motions are DENIED. As the Court will explain, the Army surely can formulate some acceptable form of corrective action short of engaging in full-blown discussions and requesting a new round of proposals. The simple use of clarifications and reevaluation of proposals would cause many of the unacceptable proposals to become acceptable, and thereby eligible for award. Background A. The Army’s Solicitation The Army, acting through the Army Contracting Command at Rock Island, Illinois, issued Solicitation W52P1J-15-R-0122 on May 3, 2016. AR Tab 17 at 153.2 The solicitation would begin a new iteration of the Army Desktop Mobile and Computing program, known as ADMC-3. See id. at 155. The Solicitation sought indefinite-delivery, indefinite-quantity contracts for “commercial-off-the-shelf (COTS) desktop computers, integrated desktop computers, workstations, electronic display, notebooks, tablet computers, slate, thin client, ultra-thin client, printers, multifunction devices and warranty.” Id. The awardees would perform by filling firm fixed-price delivery orders. Id. The Army guaranteed that it would place a minimum of $10,000 in delivery orders with each awardee, which would “require each successful offeror to provide 1-2 laptops, tablets or peripherals to be determined at the time of award.” Id. at 156. Still, the Army 2 References to “AR Tab __” refer to tabs in the administrative record. All page numbers given use the pagination of the administrative record rather than that of individual documents within the record. Furthermore, the Solicitation was amended ten times in ways that are not relevant to this case. For ease of reference, the Court cites the first version (AR Tab 17). 4 contemplated ordering far more equipment under the contract, and the contract’s total estimated value is $5 billion. Id. at 155; AR Tab 69 at 4324. Offerors were evaluated based on “an integrated assessment of three evaluation factors:” Technical Approach, Past Performance, and Price. AR Tab 17 at 199. Factor 1 (Technical Approach) was divided into two subfactors: Equipment Submission Form and Business Process Form. Id. To be considered for an award, the solicitation required an “acceptable” rating for the Technical Approach (including both subfactors) and Past Performance factors. Id. The solicitation directed offerors to submit their proposals in four “volumes:” Technical Approach, Past Performance, Price, and Contracts/Business. Id. at 195. Offerors were required to complete Army-provided Excel spreadsheets for the Equipment Submission form and Business Process Form subfactors as part of Volume 1. Id. For both subfactor spreadsheets, the solicitation instructed offerors to “complete all cell entries and the information provided shall demonstrate that the minimum requirements outlined in the Statement of Work (SOW) are met or exceeded.” Id. at 196. The instructions also stated that “an incomplete or blank entry will indicate that the proposed item does NOT meet the minimum requirements.” Id. The Army intended to award “at least eight” contracts to the offerors who submitted the lowest-priced technically acceptable proposals, but reserved the right to make “as many, or as few, awards as deemed appropriate.” Id. at 155. The awards would be divided into two categories: those reserved for small business, and those available through full and open competition. Id. at 198. For the first category, the Army intended to “select the five lowest priced Small Business Offerors for award, provided that five responsible small business proposals [were] found to be acceptable in all non-price factors.” Id. For the full and open competition category, the Army intended to award three contracts to the non- small-business offerors who submitted the lowest-priced technically acceptable proposals. Id. Finally, the solicitation stated that the Army “intend[ed] to award without conducting discussions with Offerors.” Id. at 193.3 However, “the Government reserve[ed] the right to conduct discussions and to permit Offerors to revise proposals if determined necessary by the Contracting Officer.” Id. Further, if the Army chose to open discussions, “all proposals, to include small business proposals previously removed for unacceptability . . . [would] be included,” after which the Army would reevaluate proposals in accordance with the solicitation. Id. at 198. The Army similarly noted that it could, “solely at its discretion, enter into clarifications or communication as needed” with offerors as part of the evaluation process. Id. at 193. 3 The procurement concept of making award without discussions, even for a large dollar procurement, is not unreasonable when considering that the agency was acquiring commercial off-the-shelf equipment. 5  B. The Army’s Evaluation and Award Decisions All proposals from offerors were due by August 4, 2016. AR Tab 31 at 392. Fifty- eight offerors had submitted proposals by that date (fifty-two from small businesses and six from large businesses). AR Tab 69 at 4327. The Army found that three of the fifty- eight proposals did not comply with the solicitation’s requirements, so the Army only evaluated the remaining fifty-five proposals. Id. The Source Selection Evaluation Board (“SSEB”) evaluated all offerors under the first factor (Technical Approach), and did not evaluate offerors’ proposals under the other two factors if the offeror was rated unacceptable for the first factor. See id. at 4329–30, 4334–40. The SSEB rated only nine proposals acceptable under factor one, and rated each of these nine proposals acceptable under the other two factors. Id. In a briefing for the Source Selection Authority on the evaluation results, the SSEB addressed the possibility of discussions and recommended that the Army not conduct them. Id. at 4347. Specifically, the SSEB reasoned: 1) We do not have a meaningful reason to open discussions 2) Opening discussions would significantly delay award of ADMC-3 because:  Past performance team would have to evaluate and write past performance reports for 46 remaining offerors  All evaluation teams would have to evaluate final proposal revisions after discussions are opened 3) Based on the prices and items being offered, opening discussions would not result in a greater variety of laptops, desktops, etc. Id. at 4348. Therefore, the Army did not conduct discussions, and it awarded contracts to the nine technically acceptable offerors on February 16, 2017 (it notified the unsuccessful offerors on the same date). See AR Tabs 75–84. The Army’s letters to the unsuccessful offerors disclosed the nine awardees’ total proposed prices. AR Tab 84. C. The GAO Protests and the Army’s Corrective Action Twenty-one of the unsuccessful offerors filed protests with the GAO between February 21 and March 9, 2017 challenging the Army’s award decisions. See AR Tabs 85–105. The GAO protesters primarily alleged that clerical errors and other misunderstandings concerning the Equipment Submission Form spreadsheet had led them 6 to submit technically unacceptable proposals. Several protesters also argued that the Army should have engaged in discussions with offerors to resolve these spreadsheet-related misunderstandings. In response to the protests, the Army instructed the nine awardees to stop work under their contracts on February 22, 2017. AR Tab 106. On March 21, 2017, the Army advised the GAO that it planned to take corrective action in response to the twenty-one protests. AR Tab 107a. The Army announced that it would open discussions with all remaining offerors, request final proposal revisions with revised pricing, and issue new award decisions. Id. The Army documented its reasons for taking corrective action in a Memorandum for Record (“MFR”) dated March 22, 2017. AR Tab 110b. The MFR mainly quotes a previous memorandum prepared by George Farley, an Army Attorney-Advisor. Id. Mr. Farley explained the possible impact of DFARS § 215.306(c) on the pending GAO protests. Id. at 5832. That section states, “for acquisitions with an estimated value of $100 million or more, contracting officers should conduct discussions.” Mr. Farley noted that while no GAO decision had overturned an agency decision not to conduct discussions in a procurement valued over $100 million, “the GAO will review these cases to ensure the agency’s rationale for not holding discussions is reasonable.” Id. at 5832. Through the lens of a hypothetical GAO review, Mr. Farley found that the Army’s grounds for not conducting discussions likely were unreasonable. First, he found that the agency’s desire for convenience in not evaluating and writing past performance reports for the forty-six remaining offerors did not pass muster. Id. at 5833–34. He noted that “[b]eing convenient or providing an efficiency to the Agency is rarely, if ever, a reasonable rationale for the Agency to not comply with a provision of law.” Id. at 5834. He further found the Army’s “no greater variety of laptops, desktops, etc.” reason unavailing: This stand-alone statement, which does not specifically address the more advantageous pricing of the majority of the unacceptable offerors’ proposals, is the Agency’s best argument for not opening discussions. But, in order to determine reasonableness, we must look at the totality of the circumstances. Therefore, we must weigh the reasonableness of this statement, along with the RFP language that the Agency intended to award without Discussions, against the issues raised regarding unreasonable behavior by the 20 protesters. As summarized above, these issues lend themselves to showing that the spreadsheet errors could have easily and quickly been resolved. Additional issues raised impart either an ambiguity in the requirements or the Government’s instructions how to fill out the spreadsheet. A couple of these issues are: 7  a. The hard-line issue regarding Hard-Drive versus Solid- State Drives; b. Stating that an upgrade must be an increase in capability but then stating that selection of an item in a drop-down is acceptable when there are items in the dropdown that are not upgrades to a base model. These specific issues are detrimentally supported by the Agency’s own evaluation when it states that the fifth (5th) most common reason that proposals were found Technically Unacceptable was “the offeror proposed items that did not meet the minimum requirements” of the Agency. Given that the language for the first two (2) reasons is that “the offeror selected ‘NA’ instead of filling in a required field” and the “offeror provided an incomplete or blank entry which indicates” the item does not meet our requirements, the logical conclusion is that the first two (2) reasons were merely compliance issues with filling out the form rather than a deficiency in the item proposed. Id. He concluded that, because of these issues, there was “significant litigation risk in defending these [GAO] protests.” Id. Mr. Farley then suggested a possible course for corrective action: If the Agency were to take corrective action based on the litigation risk, we would be able to resolve all issues alleged in these protests and make a new award decision that is simply based on price alone. . . . By only allowing revisions to areas previously determined as deficiencies and allowing Offerors to change price the evaluation would be a reassurance that the Offerors changed the spreadsheet in accordance with our evaluation notice. Allowing Offerors to change price would also benefit the Agency by getting offers that are a better value to the Government. RECOMMENDATION: Due to the significant litigation risk, the ambiguities in the spreadsheet and SOW, and a matter of policy to do what is right, I recommend that we take limited corrective action to resolve the issues with Offerors’ Technical Proposals.” 8 Id. at 5835. The Army MFR adopts Mr. Farley’s position, and does not give further reasons for the Army’s corrective action. On March 23, 2017, the GAO dismissed all twenty-one protests as academic in response to the Army’s notice of corrective action. AR Tab 110c at 5836–37. The next day, the Army sent letters to the fifty-five evaluated offerors. See AR Tab 112. In the letters, the Army advised technically unacceptable offerors of the deficiencies in their original proposals and instructed them to submit their “best and final” proposals. See, e.g., id. at 6013. To the previous awardees, the Army stated, “If you make changes to areas of your technical proposal that have already been found acceptable, you are at risk of being found technically unacceptable.” See, e.g., id. at 5861. In all of its letters, the Army further added, “For the Price proposal, you are authorized to change your prices to your best and final prices.” Id. D. The Original Awardees’ Current Protest Dell Federal Systems, L.P. filed this bid protest challenging the Army’s corrective action on March 31, 2017. The protest seeks a declaratory judgment that the corrective action is unlawful, as well as a permanent injunction barring the corrective action. See Dell Compl. at 8, Dkt. No. 1. Blue Tech Inc. brought a related protest, and the Court consolidated the two protests on April 3, 2017. Dkt. No. 29. The Government notified the Court on the same date that the Army would voluntarily stay its corrective action for the duration of this protest. Dkt. No. 22. Five other original awardees—Iron Bow Technologies, LLC, Govsmart, Inc., Ideal System Solutions, Inc., NCS Technologies, Inc., and Red River Computer Company, Inc.—have joined this case as plaintiff-intervenors. Similarly, six of the losing offerors have joined this case as defendant-intervenors: Alphasix Corp., HPI Federal, LLC, CDW Government LLC, Insight Public Sector, Inc., Integration Technology Groups, Inc., and Sterling Computers Corp. The Government and all but one of the defendant-intervenors (Integration Technology Groups) filed motions for judgment on the administrative record on May 3, 2017. The plaintiffs and all but one of the plaintiff-intervenors (Iron Bow Technologies) filed cross-motions on May 17, 2017. The parties completed briefing on May 31, 2017, and the Court heard oral argument on the cross-motions on June 14, 2017. Discussion A. Jurisdiction and Standard of Review The Tucker Act grants this Court subject matter jurisdiction over bid protests. 28 U.S.C. § 1491(b)(1) (2012). The protesters also have standing to challenge the Army’s proposed corrective action despite their status as current contract awardees, as a protest of corrective action “is in the nature of a pre-award claim.” Sheridan Corp. v. United States, 9 95 Fed. Cl. 141, 148 (2010) (quoting IMS Servs., Inc. v. United States, 32 Fed. Cl. 388, 398 (1994)). In a bid protest, the Court reviews agency decisions—including decisions pertaining to corrective action—pursuant to the standards set out in the Administrative Procedure Act (“APA”). 28 U.S.C. § 1491(b)(4) (2012); 5 U.S.C. § 706 (2012). Under the APA, this Court shall set aside an agency action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) (2012); see Banknote Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1350–51 (Fed. Cir. 2004). An agency’s decision does not violate the APA if the agency “provided a coherent and reasonable explanation of its exercise of discretion.” Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1332–33 (Fed. Cir. 2001). This standard is the same when a Court must consider an agency’s corrective action. “Contracting officers are provided broad discretion to take corrective action where the agency determines that such action is necessary to ensure fair and impartial competition.” Sheridan, 95 Fed. Cl. at 151 (citation omitted). Therefore, in cases involving corrective action, “the agency’s corrective action must be rationally related to the defect to be corrected.” Id. (citation omitted). The evidence in the record must show that the agency (1) identified a defect in the procurement, and (2) considered the ways in which its corrective action would remedy the defect. See id. The Court’s review is deferential to the agency as long as the agency has rationally explained its corrective action decision. Id. (citing Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1057–58 (Fed. Cir. 2000). Finally, even if the agency acted without a rational basis, the Court cannot grant relief unless the agency’s action prejudiced the protester. Bannum, Inc. v. United States, 404 F.3d 1346, 1351 (Fed. Cir. 2005). B. The Army’s Contemplated Corrective Action is not Rationally Related to Defects in the Procurement The parties’ dispute encompasses both elements of the corrective action analysis. First, the parties dispute the existence of a procurement defect in need of correction. Next, the parties disagree as to the appropriate scope of the Army’s corrective action. The Court will address each of the parties’ arguments in turn. 1. The Army Rationally Identified Procurement Defects The Government and Defendant-Intervenors have pointed to two defects in the Army’s procurement. First, they argue that the Equipment Submission Form spreadsheet the offerors were required to submit with their proposals contained latent ambiguities. Second, they argue that DFARS § 215.306(c) required the Army to conduct discussions unless it reasonably concluded that discussions were unnecessary. According to this view, the Army’s decision not to conduct discussions had no reasonable basis in the record, so 10 the failure to conduct discussions was itself a defect. The Protesters argue that any claims predicated upon these alleged defects were waived after the close of the bidding process, so it was irrational for the Army to decide to take corrective action to remedy the defects. In the alternative, they argue that there were no defects in the procurement that could serve as the basis for corrective action. a. The Timeliness of the GAO Protests has no Bearing on the Rationality of the Army’s Decision to Take Corrective Action As a threshold matter, the Protesters maintain that any claims the GAO protesters might have made about the Army’s failure to conduct discussions and ambiguities in the solicitation were waived under Blue & Gold Fleet, L.P. v. United States, 492 F.3d 1308 (Fed. Cir. 2007). Pursuant to Blue & Gold Fleet, “a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection” after the close of the bidding process. Id. at 1313. This waiver rule ensures that protesters do not sit on their rights and thereby force more expensive litigation after the agency has closed the bidding process. Id. at 1314 (citation omitted). The protesters here argue that if the GAO protesters’ claims were waived, then it was irrational for the Army to conclude that it faced litigation risk from the GAO protests, and therefore also irrational to institute corrective action. The Court disagrees. Even if the GAO protesters had waived their claims under Blue & Gold Fleet—a question the Court need not address—it still would be reasonable for the Army to decide to institute corrective action. While the MFR did cite litigation risk as a reason for instituting corrective action, that litigation risk did not stand alone. Rather, the MFR predicates its litigation risk assessment on two apparent procurement defects: (1) common errors offerors made when completing their Equipment Submission Forms, and (2) the Army’s decision to forgo discussions. Therefore, it is important conceptually to separate the litigation risk assessment from the procurement defects that caused the risk. Litigation risk itself is not a procurement defect that can be the predicate for corrective action. Rather, when agency counsel acknowledges litigation risk in a bid protest, he acknowledges that the procurement may have contained defects. When the agency takes corrective action in response to its counsel’s assessment, the agency’s corrective action targets these defects rather than any legal liability. Therefore, it is reasonable for an agency to take corrective action to remedy procurement defects even where the agency may have faced no litigation risk because it may have won a protest on procedural grounds. Both the Federal Acquisition Regulation (“FAR”) and applicable case law support this view. FAR § 1.602-2(b) requires contracting officers to ensure “that contractors receive impartial, fair, and equitable treatment.” Similarly, as this Court noted in Sheridan, contracting officers are vested with broad discretion to take corrective action when doing so would ensure fair and impartial competition. 95 Fed. Cl. at 151. Neither the FAR nor 11 any other law limits the contracting officer’s discretion to decide to take corrective action when confronted with a procurement defect, even where a protest founded upon that defect might be untimely. Furthermore, the GAO has found that contracting officers have discretion to take corrective action in a situation similar to the case at bar: [I]t is not necessary for an agency to conclude that the protest is certain to be sustained before it may take corrective action; rather, where the agency has reasonable concern that there were errors in the procurement, we view it as within the agency’s discretion to take corrective action even if the protest could be denied. In re Integrated Sci. Sols., Inc., B-406025, 2012 WL 362186, at *2 (Jan. 17, 2012). The GAO’s approach is especially prudent where a protest could be denied as untimely under Blue & Gold Fleet. The Blue & Gold Fleet waiver rule protects agencies from expensive litigation; it is not meant to deter agency action that would remedy procurement defects. It would therefore be illogical to allow the Protesters here to use this waiver rule as a club to prevent the Army from addressing errors it has discovered in its procurement. Thus, the Court finds that the timeliness or untimeliness of the GAO protests alone does not render the Army’s corrective action irrational. b. The Army Rationally Determined That Spreadsheet Ambiguities and the Failure to Conduct Discussions Were Procurement Defects It stands to reason that an agency cannot take action to correct a procurement if the procurement is not defective. See Sheridan, 95 Fed. Cl. at 151. Here, the Army (through agency counsel) identified two procurement defects in its MFR: (1) ambiguities in the spreadsheets that offerors were required to submit as part of their proposals, and (2) the Army’s failure to conduct discussions (or adequately consider the reasonableness of conducting discussions). First, it was rational for the Army to find defects in the ambiguous spreadsheets. In the MFR, Mr. Farley identified “a couple” examples of spreadsheet ambiguities. See AR Tab 110b at 5834. He also noted that the Army had recognized offerors’ common failure to fill out certain parts of the Equipment Submission Form correctly. Id. As set out in full above, he identified two representative examples of ambiguity: (a) “The hard-line issue regarding Hard-Drive versus Solid-State Drives”; and (b) “Stating that an upgrade must be an increase in capability but then stating that selection of an item in a drop-down is acceptable when there are items in the dropdown that are not upgrades to a base model.” 12 Id. He found that these mistakes were not substantive, but merely “compliance issues with filling out the form.” At oral argument, the Government discussed the “hard line issue” the MFR cites as an example. See Oral Arg Tr. at 65–67, Dkt. No. 135 (June 14, 2017). This issue can be seen in AR Tab 18 (performance notebook sheet). A slightly thicker black line appears between the top three rows of the “operating system” column and the bottom three rows. This circumstance could have led offerors to believe that the top three line items relate to the hard disk drive component, whereas the bottom three line items relate to the solid state disk drive. As the Government notes, “if an offeror was to propose a hard disk drive, it would reasonably understand the spreadsheet’s instructions to mean that the offeror did not have to complete rows 27 and 28 and could simply select ‘NA.’” This was not the case, as the Army expected offerors to fill in all line items. The hard line issue misled an astonishing nineteen offerors, who were then found technically unacceptable. See Def. Demonstrative 2. Therefore, it was rational for the Army to conclude that spreadsheet ambiguities such as the hard line issue represented a procurement defect. Put simply, the Army’s spreadsheet confused offerors and led many of them to input their line item responses incorrectly. As a result, the Army found many offerors technically unacceptable. The Court also finds that the Army reasonably considered its failure to conduct discussions to be a procurement defect. The MFR devotes the bulk of its analysis to this issue. See AR Tab 110b at 5832–34. The argument starts with DFARS § 215.306(c), which states, “for acquisitions with an estimated value of $100 million or more, contracting officers should conduct discussions.” The MFR then discusses In re Science Applications International Corp., B-413501.2, 2016 WL 6892429 (Nov. 9, 2016) (“SAIC”), a recent GAO case that interprets DFARS § 215.306(c). In SAIC, the GAO found that the regulation means “discussions are the expected course of action in DoD procurements valued over $100 million, but that agencies retain the discretion not to conduct discussions if the particular circumstances of the procurement dictate that making an award without discussions is appropriate.” Id. at *8. Therefore, the GAO reviewed the record to determine whether, “given the particular circumstances of this procurement, . . . there was a reasonable basis for the agency’s decision not to conduct discussions.” Id. This was the correct standard of review in spite of the agency’s statement in the solicitation that it intended to award a contract without conducting discussions. Id. In the end, the GAO examined the reasonableness of the agency’s decision to forgo discussions using three factors: (1) whether there were deficiencies in the protester’s proposal, (2) whether “the awardee’s proposal was evaluated as being technically superior to the other proposals,” and (3) whether “the awardee’s price was reasonable.” Id. at *9. The solicitation met these criteria, so the agency’s decision to forgo discussions in SAIC was reasonable. Id. The MFR addresses SAIC warily, noting, “Because the SAIC case has now incorporated a means for the GAO to give greater scrutiny to the reasonableness of the Agency’s decision to not open discussions, we must also look at the underlying rationale, 13 and not just give automatic deference to the contracting officer’s decision.” AR Tab 110b at 5833. The MFR then turns to the reasons the Army (through the SSEB) gave for not conducting discussions—the effort involved in evaluating forty-six more proposals, as well as the fact that there would be no greater variety of computer equipment—and finds them wanting. First, the MFR states, “Being convenient or providing an efficiency to the Agency is rarely, if ever, a reasonable rationale for the Agency to not comply with a provision of law. Therefore, the first reason annotated for not conducting Discussions is not reasonable.” Id. at 5834. The MFR also notes that the “totality of the circumstances” showed that the Army’s “no greater variety of laptops, desktops, etc.” reason was better, but predicted that this reason might not withstand scrutiny given the ease with which the offerors could have revised their proposals. Id. Therefore, the MFR identified the failure to conduct discussions as a procurement defect. The Court finds the MFR’s interpretation of DFARS § 215.306(c) and SAIC reasonable. Here, it is important to note that the Court does not review an agency’s legal conclusions about potential procurement defects de novo, as would an appellate tribunal. Rather, the Court’s role is to review agency decisions for their rationality. Therefore, the Court finds that it was rational for the Army to find that it may have failed the reasonableness test articulated in SAIC when it decided to forgo discussions. The Court finds that the Army’s reasons for forgoing discussions, which are only articulated on one slide in a PowerPoint presentation, are threadbare and conclusory. It is true that here, as in SAIC, the Army announced that it would not conduct discussions. However, when confronted by a situation in which the majority of the offerors appear to have been disqualified because of minor spreadsheet errors, one would expect the Army to explain its reasoning a bit more. After all, had the Army conducted discussions before it awarded its nine contracts, several of the lower-priced offerors may have revised their proposals and been found technically acceptable. Therefore, it was rational for the MFR to find that the Army’s failure to conduct discussions constituted a procurement defect. In sum, the Army rationally identified two procurement defects: (1) ambiguities in the Equipment Submission Form, and (2) the Army’s failure to hold discussions. 2. The Army’s Contemplated Corrective Action is Overbroad Even where an agency has rationally identified defects in its procurement, its corrective action “must narrowly target the defects it is intended to remedy.” Amazon Web Servs., Inc. v. United States, 113 Fed. Cl. 102, 115 (2013) (citing Sheridan, 95 Fed. Cl. at 153). For example, in Amazon, the GAO found two defects. Id. at 115–16. The first defect was a “price evaluation error” that only affected one part of the procurement. Id. at 115. Therefore, the agency should have simply reevaluated the proposals rather than opening discussions and soliciting final proposal revisions. Id. For the second defect, the GAO found that the agency had impermissibly waived one of the solicitation’s material terms. Id. at 116. Instead of targeting its corrective action to the affected portion of offerors’ 14 proposals, the agency impermissibly “elected to use [the defect] as an opportunity to amend other aspects of the solicitation.” Id. (citation omitted). This case differs from Amazon in that the defects here are not mere evaluation errors. Still, the same overbreadth principle applies: an agency cannot use relatively minor defects to justify the full-scale opening of discussions and allowing revisions to proposals that do not relate to the defects. Here, the Army attempted to craft corrective action that addressed both defects (the ambiguous spreadsheet and the failure to conduct discussions). It opened discussions with all fifty-five remaining offerors and allowed wholesale proposal revisions as long as those revisions responded to the Army’s Evaluation Notices (“ENs”). See, e.g., AR Tab 112 at 5960. Those ENs targeted errors not only on the Equipment Submission Form, but also on the Business Process Form. See, e.g., id. at 5914. The Army also allowed offerors to revise their final prices in any way they desired. The broad scope of the corrective action is puzzling because the Army’s requirements had not changed, and the contracting officer did not amend the Solicitation when it opened discussions (as the agency had done in Amazon). In sum, the Army opened discussions in which all remaining offerors, no matter how egregiously they had erred in their initial proposals, simply received a second chance at submitting compliant proposals under an unchanged solicitation. If the Army wished to comply with the GAO’s SAIC decision, it would have been reasonable for the Army to conduct open-ended discussions before it awarded its contracts. However, now that the contracts have been awarded, any damage caused by not holding discussions—including the disqualification of several offerors as a result of clerical errors—has been done. The question now is whether holding post-award discussions is a rational remedy for failing to hold pre-award discussions, and the Court finds that this conclusion does not follow. After all, constructing a henhouse gate is not an appropriate remedy after the fox has done its work—one instead needs new chickens. With that heavy-handed analogy in mind, there is a more narrowly targeted post- award solution that the Army entirely failed to consider: clarifications and reevaluation. After the agency has received proposals, it may engage in clarification exchanges with offerors pursuant to FAR § 15.306(a). These clarifications “are limited exchanges, between the Government and offerors, that may occur when award without discussions is contemplated.” 48 C.F.R. § 15.306(a)(1). Furthermore, “[i]f award will be made without conducting discussions, offerors may be given the opportunity to clarify certain aspects of proposals . . . or to resolve minor or clerical errors.” Id. § 15.306(a)(2). Though they address minor or clerical errors, clarifications can result in substantive changes to an offeror’s proposal; for example, “clarifications by one offeror could lead to an increase in its past performance score or perhaps tilt the award in its favor.” Info. Tech. & Appl. Corp. v. United States, 316 F.3d 1312, 1323 (Fed. Cir. 2003) (citation omitted). Still, clarifications “are not to be used to cure proposal deficiencies or material omissions, materially alter the technical or cost elements of the proposal, or otherwise revise the 15 proposal.” JWK Int’l Corp. v. United States, 52 Fed. Cl. 650, 661 (2002), aff’d, 56 F. App’x 474 (Fed. Cir. 2003) (quoting Charleston Marine Containers, Inc., B-283393, 1999 WL 101556884, at *4 (Nov. 8, 1999)). Thus, the general rule is that clarifications are appropriate for correcting non-material or clerical errors. More substantive exchanges require discussions. Griffy’s Landscape Maintenance LLC v. United States, 46 Fed. Cl. 257 (2000) aptly illustrates the purpose and proper use of clarifications. In Griffy’s Landscape, the Court addressed a negotiated procurement in which a bidder’s “insurance point of contact information” was missing from its proposal. Id. at 257. Therefore, the Army evaluated the bidder negatively under the past performance factor. Id. The Army did not hold discussions with offerors, but simply awarded the contract to a different bidder, even though that bidder had submitted a much higher price. Id. at 258. The Court found that the Army had a “duty to inquire” about the absence of this point of contact information, noting that “the government should not be deprived of the best possible contract because of a contractor’s clerical error.” Id. at 259–60. Faced with such a minor omission, the Army’s decision not to seek clarification from the bidder was irrational. Id. at 261. In reaching its conclusion, the Court distinguished GAO decisions such as Charleston Marine, finding that in such cases “the contractors both failed to submit important information and submitted incorrect or non-responsive information. There was no indication this was due to a clerical error. There is a world of difference between material deficiencies and a lost name and number.” Id. The Court concluded, “The government’s obligation is clear and simple. If it suspects a clerical error, it must ask.” Id. at 261. Though Griffy’s Landscape did not analyze clarifications as a means of corrective action, the Court finds that the principles articulated in that case are relevant here. As in Griffy’s Landscape, the Court finds that many of the losing offerors in this procurement made minor or clerical errors that fall within the purview of FAR § 15.306(a).4 Many of the offerors here did not make material mistakes; rather, they filled out a confusing Excel spreadsheet incorrectly. Mistakenly omitting information from a spreadsheet in this way is akin to the bidder’s omission of minor point-of-contact information in Griffy’s Landscape. Furthermore, as in Griffy’s Landscape, the Army had notice that a clerical error had likely occurred. In Griffy’s Landscape, the Army had previously contracted with the bidder, so it should have known that the bidder had compliant insurance information. Id. at 260. Similarly, the Army here knew that ambiguities in its spreadsheet had likely caused offerors to make clerical errors. Indeed, the MFR itself acknowledges the “logical conclusion” that offerors were disqualified because of “mere[] compliance issues with filling out the form rather than a deficiency in the item proposed.” If this language does 4 Courts have since maintained that the holding in Griffy’s Landscape should be limited to clerical errors. See, e.g., C.W. Over & Sons, Inc. v. United States, 54 Fed. Cl. 514, 521 n.10 (2002). In citing Griffy’s Landscape here, the Court does not disturb their conclusion, as the errors many of the offerors made here were clerical. 16 not suggest the Army knew that offerors had made clerical errors, it is difficult to see what would. As such, it was irrational for the Army not to seek clarification from all offerors it knew had been directly affected by the ambiguities it had identified in its own spreadsheet. Doing so would not have given all offerors the chance to make their proposals technically acceptable—there are several offerors who made more wide-reaching errors—but it would have given the offerors who justifiably thought they were proposing compliant equipment the chance to show that they were in fact proposing compliant equipment. The Army then could have reevaluated the offerors’ proposals instead of resoliciting new proposals. In sum, it was irrational for the Army to fail to consider clarifications and reevaluation of proposals as a more natural expedient for the minor clerical errors it had identified. The Army instead opened wide-reaching discussions with all remaining offerors and allowed all offerors to submit modified proposals with new prices, despite having disclosed the awardees’ winning prices.5 This is manifestly overbroad; in fact, it is akin to killing an ant with a sledgehammer when a rolled-up newspaper would have sufficed. Therefore, the Court finds that the Army’s corrective action is not rationally related to any procurement defects. C. The Army’s Action Prejudiced the Protesters A court cannot grant relief in a bid protest unless the agency’s unlawful action has prejudiced the protesters. See Bannum, 404 F.3d at 1351. In pre-award protests and, consequently, in protests challenging corrective action, a protester establishes prejudice by showing “a non-trivial competitive injury which can be addressed by judicial relief.” Square One Armoring Serv., Inc. v. United States, 123 Fed. Cl. 309, 320 (2015) (quoting Sys. Appl. & Techs., Inc. v. United States, 691 F.3d 1374, 1382 (Fed. Cir. 2012)). Here, the Army’s overbroad corrective action constitutes a non-trivial competitive injury because it substantially decreases the chance each of the Protesters otherwise has of receiving an award. Had the agency followed the more logical step and engaged in clarification exchanges, the Protesters would have had a greater likelihood of receiving contract awards because their initial proposals were compliant and all but one of their proposed prices were in the lower half of the fifty-five offers. See Def. Demonstrative 1 (highlighting awardees’ 5 Disclosure of the awardees’ winning prices here was lawful. See Wildflower Int’l, Ltd. v. United States, 105 Fed. Cl. 362, 391 (2012). Allowing wholesale price revisions without any record support was not. Neither the MFR nor the rest of the administrative record provide support for allowing price revisions. The MFR states merely that “[a]llowing Offerors to change price would also benefit the Agency by getting offers that are a better value to the Government.” While true, this statement on its face does not provide a rational basis for soliciting new prices. See, e.g., WHR Grp., Inc. v. United States, 115 Fed. Cl. 386, 398 (2014) (“[T]he contracting officer’s bald assertions in the notes to file will not suffice because the agency failed to examine the relevant data and articulate a coherent and reasonable explanation for their decision.”) (citation omitted). 17 prices amid all proposed prices). As it is, the Army’s round of discussions opens the door for all offerors to revise their proposals and prices such that they become more competitive. The Court is capable of fashioning relief to address this competitive injury. Therefore, the Protesters have established prejudice. D. The Protesters are Entitled to Relief The Protesters seek both declaratory relief and a permanent injunction on the Army’s corrective action. The Court may award “any relief that [it] considers proper, including declaratory and injunctive relief.” 28 U.S.C. § 1491(b)(2). First, the Court grants declaratory relief for the reasons stated above. The Court finds the Army’s contemplated corrective action manifestly overbroad, and therefore irrational and unlawful. Second, the Court grants the Protesters’ request for a permanent injunction. A court may grant injunctive relief if “(1) the plaintiff has succeeded on the merits, (2) the plaintiff will suffer irreparable harm if the court withholds injunctive relief, (3) the balance of hardships to the respective parties favors the grant of injunctive relief, and (4) the public interest is served by a grant of injunctive relief.” Centech Grp., Inc. v. United States, 554 F.3d 1029, 1037 (Fed. Cir. 2009) (citation omitted). Here, the Protesters have succeeded on the merits. Second, the Court finds that the Protesters would suffer irreparable harm if the court withholds injunctive relief. The Protesters would be forced to recompete wholesale for contracts they have already won. Further, as in Sheridan, discussions would also force the Protesters to bid against their own prices. See 95 Fed. Cl. at 155. The Court also finds that the balance of hardships favors the Protesters here. The Government would suffer some hardship if it decided to engage in more limited clarification exchanges, as this would require more effort on top of the effort already expended in drafting its ENs. Still, in fashioning its clarification questions, the Government would be free to look to offerors who stand a realistic chance of receiving an award after clarifications; in other words, the Army would not need to review every single proposal anew, as it would if it followed its current corrective action plan.6 In contrast, the Protesters would face an elevated risk of losing their awards if the Army were to conduct discussions. Thus, the balance of hardships favors the Protesters. Finally, the public interest favors granting injunctive relief here. Corrective action is something the judicial system should and does encourage. Still, allowing an agency to respond disproportionately to minor procurement errors harms the integrity of the procurement system because it introduces an unfair and unanticipated additional layer of competition to a procurement. Agencies have broad discretion to institute corrective 6 Moreover, counsel for the Government indicated at oral argument that it would be “a very easy fix” to craft more narrowly-targeted corrective action if the Court were to find the Army’s current corrective action plan too broad. See Oral Arg. Tr. at 74. 18 action, but offerors should be secure in the knowledge that any corrective action an agency implements will narrowly target the procurement defects the agency has identified. Finally, enjoining the Army’s current corrective action plan does not mean the Army cannot pursue more reasonable corrective action within the boundaries described above. Therefore, granting a permanent injunction is in the public interest in this case. Conclusion Plaintiffs and Plaintiff-Intervenors’ cross-motions for judgment on the administrative record are GRANTED. Defendant and Defendant-Intervenors’ motions for judgment on the administrative record are DENIED. Having found that the prerequisites for entering a permanent injunction are satisfied, the Court hereby permanently ENJOINS Defendant from conducting its proposed corrective action. The Clerk is directed to enter judgment for Plaintiffs and Plaintiff-Intervenors. IT IS SO ORDERED. s/Thomas C. Wheeler THOMAS C. WHEELER Judge 19 

NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit 2009-3032 IRENE M. MOORE, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Petition for review of the Merit Systems Protection Board in DC0752080462-I-1. ON MOTION Before PROST, Circuit Judge. ORDER Irene M. Moore moves for reconsideration of the court's January 16, 2009 order revising the official caption to designate the Merit Systems Protection Board as respondent. Upon consideration thereof, IT IS ORDERED THAT:  The motion is denied. FOR THE COURT MAR 13 2009 /s/ Jan Horbaly Date Jan Horbal4 Clerk thStlidasejrci recLur—li P cc: Irene M. Moore Joyce Friedman, Esq. MAR 1 3 2009 Tara J. Kilfoyle, Esq. s20 JAN HORbsAY CLERK 2009-3032 2 

164 B.R. 180 (1993) In re JARAX INTERNATIONAL, INC., Debtor. Jeanette E. TAVORMINA, Trustee, Plaintiff, v. CAPITAL FACTORS, INC., and Capital Bank, Defendants. Bankruptcy No. 86-04029. Adv. No. 88-0567-A. United States Bankruptcy Court, S.D. Florida. November 29, 1993. *181 *182 Irving M. Wolff, P.A., Miami, FL, for trustee. Jeanette E. Tavormina, Trustee, North Miami Beach, FL. Michael W. Ullman, Ullman & Ullman, P.A., North Miami Beach, FL, for Capital Factors, Inc. Gregory A. Martin, Coffey, Aragon, Martin, Burlington and Serota, P.A., Miami, FL, for Capital Bank. ORDER DISPOSING OF THE TRUSTEE'S AND THE DEFENDANTS' CROSS MOTIONS FOR SUMMARY JUDGMENT A. JAY CRISTOL, Chief Judge. THIS CAUSE came before the Court for hearing on February 4, 1993, on the motion of the Defendants, Capital Factors, Inc. and Capital Bank ("DEFENDANTS"), for summary judgment and on the cross motion for summary judgment of the Plaintiff, Jeanette E. Tavormina, Trustee in Chapter 7 ("TRUSTEE") for the Debtor, Jarax International, Inc. ("DEBTOR"). In her Second Amended Complaint, the TRUSTEE seeks to avoid and to recover preferential transfers, fraudulent transfers, and post-petition transfers. Further, she seeks to assess surcharges against the DEFENDANTS, to subordinate the claims of the DEFENDANTS, and to recover monetary damages and to obtain declaratory relief. According to the record, the DEBTOR and the DEFENDANTS entered into a factoring agreement on February 28, 1986. (C.P. # 151). Pursuant to the agreement, the DEFENDANTS made cash advances to the DEBTOR, and in exchange, the DEBTOR gave the DEFENDANTS a security interest in its accounts receivables. (Factoring Agreement, Exhibit B attached to Second Amended Complaint). Subsequently, the *183 DEFENDANTS filed the necessary documents to perfect their security interest under Florida law. (C.P. # 151). The factoring agreement provided that the invoices directed to the account debtors of the DEBTOR would indicate that payment should be forwarded to the DEFENDANTS. (Factoring Agreement, Exhibit B attached to the Second Amended Complaint). Further, the agreement stipulated that any money paid to the DEBTOR by its account debtors would be held in trust for the benefit of the DEFENDANTS. Id. In time, the DEBTOR's financial position began to deteriorate, and on September 23, 1986, it filed a bankruptcy petition under Chapter 11. For at least one year prior to the filing of the petition, the DEBTOR transferred to the DEFENDANTS the proceeds generated from the liquidation of the DEBTOR's accounts receivables to satisfy the DEFENDANTS' claim against the DEBTOR for the cash advances made under the factoring agreement. (C.P. # 151). After the filing of the petition, the Debtor in Possession collected monies from the DEBTOR's account debtors and continued to transfer these proceeds to the DEFENDANTS until the case was converted to a Chapter 7 proceeding on September 10, 1987. (C.P. # 151). Papers filed by the parties to this adversary proceeding reveal that, as of the conversion of this case to Chapter 7, the DEFENDANTS were undersecured creditors of the DEBTOR. THE BURDEN FOR SUMMARY JUDGMENT Pursuant to Bankruptcy Rule 7056(c), a motion for summary judgment must demonstrate that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. In opposing a motion for summary judgment, the non-moving party may not rest upon mere allegations, but must demonstrate an issue of disputed material fact by rebutting any facts presented by the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 1609-10, 26 L.Ed.2d 142 (1970). According to the United States Supreme Court, summary judgment is mandated if, after adequate time for discovery, the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Overall, in considering a motion for summary judgment, a court must determine whether there is evidence on which the finder of fact could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). COUNT II: SURCHARGE & DECLARATORY RELIEF[1] A. Pursuant to § 506(c) of the Bankruptcy Code[2], the TRUSTEE seeks to impose a surcharge on the DEFENDANTS for the expenses incurred by the Debtor in Possession in collecting the proceeds of the DEBTOR's accounts receivables subsequent to the filing of the Chapter 11 petition in bankruptcy. In reviewing the record and the papers submitted by the parties to this adversary proceeding, it is apparent that employees of the Debtor in Possession worked to collect outstanding accounts receivables for the benefit of the DEFENDANTS. (C.P.# 151). This Court finds that, in these collection efforts, the Debtor in Possession expended monies which otherwise would have been distributed to the other creditors of the DEBTOR. Consequently, this Court rules that the TRUSTEE has sustained her burden under B.R. 7056(c) for summary judgment in showing that the DEFENDANTS are liable to the TRUSTEE under § 506(c) for the expenses incurred by the Debtor in Possession *184 in collecting the accounts receivables proceeds. However, because the facts are unclear as to the precise amount expended by the Debtor in Possession in this regard, the Court further rules that the parties have not sustained their burden under B.R. 7056(c) for summary judgment as to the amount for which the DEFENDANTS are liable to the TRUSTEE. Accordingly, the Court GRANTS the TRUSTEE's motion for summary judgment in part as to the issue of the DEFENDANTS' liability for the monies expended by the Debtor in Possession in collecting the accounts receivables proceeds and DENIES the parties' cross motions for summary judgment as to the amount for which the DEFENDANTS are liable. B. Pursuant to § 506(c) of the Bankruptcy Code, the Trustee seeks to impose a surcharge on the DEFENDANTS for the fees, costs, and expenses incurred by the TRUSTEE in bringing this adversary proceeding to preserve the property of the estate. However, for the reasons discussed infra, the Court finds that the proceeds which the TRUSTEE seeks to recover for the benefit of the estate are not property of the estate. As such, the TRUSTEE may not recover these proceeds under the avoidance provisions of the Bankruptcy Code. 11 U.S.C. §§ 547-49 (1992). Since the TRUSTEE's efforts to preserve the estate by avoiding the transfer of these proceeds have not proven to be successful, the Court finds that the TRUSTEE cannot recover the fees, costs, and expenses incurred in bringing this adversary proceeding. Therefore, this Court rules that the DEFENDANTS have sustained their burden under B.R. 7056(c) for summary judgment in showing that the TRUSTEE may not impose a surcharge under § 506(c) for administrative expenses. Accordingly, the Court GRANTS the DEFENDANTS' motion for summary judgment on this issue of surcharge for administrative expenses. C. Pursuant to §§ 506(a), (b), (c), the TRUSTEE moves this Court to enter a declaratory judgment as to the amount, validity, priority, and extent of the lien of the DEFENDANTS on the accounts receivables of the DEBTOR. While the parties agree that the DEFENDANTS have duly perfected their security interest under Florida law, the parties are not in agreement as to the exact amount by which the DEFENDANTS were unsecured (under-secured). According to the DEBTOR's Account Summary, the DEFENDANTS were unsecured by the amount of $847,125.06. (Memorandum of Law Submitted by the TRUSTEE in Support of Her Motion for Summary Judgment, Exhibit T). On the other hand, the DEFENDANTS fail to state the precise amount by which they are unsecured. Therefore, because the facts are unclear as to the nature and extent of the DEFENDANTS lien, the Court rules that neither party has sustained its burden under B.R. 7056(c) for summary judgment on this issue. Accordingly, the Court GRANTS the DEFENDANTS' motion for summary judgment as to the issue of whether the DEFENDANTS have a perfected security interest and DENIES the parties' cross motions for summary judgment on the issue of the nature and extent of the DEFENDANTS' lien. COUNT III/COUNT VII: PREFERENTIAL TRANSFER[3] The TRUSTEE seeks to avoid the pre-petition transfer of accounts receivables proceeds from the DEBTOR to the DEFENDANTS as preferential transfers under Section 547(b) of the Bankruptcy Code.[4] To *185 successfully avoid a transfer of property under Section 547(b), the TRUSTEE must show, inter alia, that there has been a "transfer of an interest of the debtor in property". 11 U.S.C. Sec. 547(b). As such, the TRUSTEE's argument turns on whether the DEBTOR retained an interest in the proceeds of the accounts receivables when the transfer was made to the DEFENDANTS. In addressing the issue of what constitutes a preferential transfer, the United States Supreme Court has stated that a court must look to the effect of the transfer in question on the bankruptcy estate. Begier v. I.R.S., 496 U.S. 53, 110 S.Ct. 2258, 110 L.Ed.2d 46 (1990); National Bank of Newport v. National Herkimer County Bank, 225 U.S. 178, 32 S.Ct. 633, 56 L.Ed. 1042 (1912). The Supreme Court has further held, "[The] purpose of the [preference] provision is to preserve property includable within the [estate]", i.e. property that would have been part of the estate but for the transfer. Begier, 496 U.S. at 58, 110 S.Ct. at 2263. According to the Supreme Court, there must be a depletion of the estate for there to be a preferential transfer. Herkimer, 225 U.S. at 184, 32 S.Ct. at 635. The Eleventh Circuit has established a test to determine whether a transfer of property has caused a depletion of the bankruptcy estate. In re Chase & Sanborn Corp., 813 F.2d 1177 (11th Cir.1987). According to the Eleventh Circuit, "any funds under the control of the debtor, . . . are properly deemed to be the debtor's property, and any transfers that diminish that property are subject to avoidance [under Section 547(b)]." In re Chase & Sanborn, 813 F.2d at 1181. Therefore, where the debtor cannot exert control over property, such property cannot be the subject of a preferential transfer. Id. A review of the factoring agreement between the DEBTOR and the DEFENDANTS shows that the DEFENDANTS held a security interest in the proceeds of the DEBTOR's accounts receivables that was duly perfected under Florida law. (C.P.# 151). Under F.S. § 679.503, the DEBTOR only retained control over that portion of the value of the accounts receivables which exceeded the value of the DEFENDANTS' security interest. However, it is undisputed that the DEFENDANTS were undersecured creditors, and as such, there was no surplus in the value of the accounts receivables over which the DEBTOR could exert control. Further evidence of the DEBTOR's lack of control over the proceeds of the accounts receivables is found in the fact that all invoices directed to the DEBTOR's account debtors instructed them to forward payment to the DEFENDANTS. (Factoring Agreement, Exhibit B attached to the Second Amended Complaint). That is, the account debtors of the DEBTOR were specifically instructed to forward payment to the DEFENDANTS and not to the DEBTOR. Since, subsequent to the factoring agreement, the DEBTOR, could no longer exert influence over the flow of payment from its account debtors, the DEBTOR lacked control over the accounts receivables proceeds. In addition, the factoring agreement provided that any payment inadvertently forwarded to the DEBTOR by its account debtors would be held in trust for the benefit of the DEFENDANTS. (Factoring Agreement, Exhibit B attached to Second Amended Complaint). In In re Inca Materials, 880 F.2d 1307,1311 (11th Cir.1989), the Eleventh Circuit held that property which a debtor holds in trust for the benefit of a third party does not become part of the bankruptcy estate. Therefore, the fact that any monies received by the DEBTOR from account debtors were held in trust by the DEBTOR for the benefit of the DEFENDANTS is further evidence that the DEBTOR could not exert the control over the proceeds necessary to support a finding that they constituted property of the estate. *186 Therefore, because the transferred funds were not "under the control of the DEBTOR" as required by the Eleventh Circuit, the Court finds that the transfer of the proceeds of the accounts receivables did not cause a depletion of the bankruptcy estate. Where the debtor cannot exert control over the property (accounts receivables), such property cannot be the subject of a preferential transfer. In re Chase & Sanborn, 813 F.2d at 1181. As such, this Court rules that the DEFENDANTS have sustained their burden under Bankruptcy Rule 7056(c) for summary judgment in showing that the transfer of the accounts receivables proceeds may not be avoided as a preference under Section 547(b). Accordingly, the Court GRANTS the DEFENDANTS' motion for summary judgment on this issue dealing with § 547(b). COUNT IV: FRAUDULENT TRANSFER The TRUSTEE also seeks to avoid the pre-petition transfer of accounts receivables proceeds from the DEBTOR to the DEFENDANTS as fraudulent transfers under Section 548(a) of the Bankruptcy Code.[5] In considering the issue of whether a transfer of property may be avoided as a fraudulent transfer, the Eleventh Circuit has held that "the rules established in the avoidable preference cases are applicable to a certain extent in the context of fraudulent transfers." In re Chase & Sanborn, 813 F.2d at 1181. According to the court, a transfer may be avoided under Section 548 only where there has been a transfer of an interest of the debtor in property, i.e. the transfer must cause a depletion of the bankruptcy estate. Id. Further, as with Section 547, a court must apply the control test to determine whether a transfer has caused a depletion of the estate. Id. As discussed supra, this Court finds that there has been no transfer of an interest of the DEBTOR in property because the DEBTOR lacked the requisite control over the funds to satisfy the Eleventh Circuit's control test. As such, the Court rules that the DEFENDANTS have sustained their burden under Bankruptcy Rule 7056(c) for summary judgment in showing that the transfer of the accounts receivables proceeds may not be avoided as a fraudulent transfer under Section 548(a). Accordingly, the Court GRANTS the DEFENDANTS' motion for summary judgment on the issue dealing with § 548(a). COUNT V: POST-PETITION TRANSFER The TRUSTEE also seeks to avoid the post-petition transfer of accounts receivables proceeds from the Chapter 11 Debtor in Possession to the DEFENDANTS as avoidable post-petition transfers under Section 549(a).[6] According to the Eighth Circuit, a central issue in determining whether a transfer of property is avoidable under Section 549 is whether there has been a transfer of an interest of the debtor in property. In re Russell, 927 F.2d 413, 417-18. (8th Cir.1991). As discussed supra, this Court finds that there has been no transfer of an interest of the DEBTOR in property because the DEBTOR lacked the requisite control over the funds to satisfy the Eleventh Circuit's control test. As such, this Court rules that the DEFENDANTS have sustained their burden under Bankruptcy Rule 7056(c) for *187 summary judgment in showing that the transfer of the accounts receivables proceeds may not be avoided as an avoidable post-petition transfer under Section 549(a). Accordingly, the Court GRANTS the DEFENDANTS' motion for summary judgment on the issue dealing with § 549. COUNT VI: EQUITABLE SUBORDINATION Pursuant to § 510(c) of the Bankruptcy Code[7], the TRUSTEE seeks to subordinate DEFENDANTS' claim to the claims of the other creditors of the DEBTOR. As a preliminary issue, this Court must determine whether any part of the DEFENDANTS' claim is subject to equitable subordination. In considering a similar issue, the First Circuit held that § 510(c) may not be used to avoid a transfer of property. Max Sugarman v. A.D.B. Investors, 926 F.2d 1248, 1253 n. 10 (1st Cir.1991). The court reasoned that this provision is simply a means by which to subordinate "allowed claims" and does not constitute a tool by which the TRUSTEE may recover property which has been transferred. Id. This Court is persuaded by the reasoning of the First Circuit, and therefore, it rules that the only portion of the DEFENDANTS' claim which is subject to subordination under § 510(c) is the amount by which they were unsecured, i.e. that portion remaining after the transfer of the accounts receivables proceeds was completed. To succeed in her efforts to subordinate the DEFENDANTS' unsecured claim, the TRUSTEE must satisfy a three prong test. Matter of Lemco Gypsum, 911 F.2d 1553, 1556 (11th Cir.1990). First, the TRUSTEE must show that the DEFENDANTS have engaged in inequitable conduct. Second, the TRUSTEE must show that the other creditors of the DEBTOR have been injured as a result of the DEFENDANTS' inequitable conduct. Id. Finally, the TRUSTEE must show that subordination is consistent with the other provisions of the Bankruptcy Code. Id. In reviewing the record, it is unclear as to whether the DEFENDANTS have engaged in the inequitable conduct necessary to meet the first prong of the Lemco test. While the TRUSTEE alleges in her Second Amended Complaint that the DEFENDANTS have engaged in fraudulent conduct, this Court finds that the facts supporting these allegations are entirely in dispute. Moreover, the record is completely unclear as to whether the other creditors of the DEBTOR have been injured as a result of the conduct of the DEFENDANTS. The second prong of the Lemco test has not been satisfied because there is no clear indication as to whether monies which otherwise would have been distributed to the other creditors was not so distributed as a consequence of the alleged inequitable actions of the DEFENDANTS. Consequently, the parties have failed to sustain their burden under B.R. 7056(c) for summary judgment on the equitable subordination claim. Accordingly, the Court DENIES the parties' cross motions for summary judgment on the issue dealing with equitable subordination. Accordingly it is ORDERED that: 1. As to Count II, the TRUSTEE's motion for summary judgment is GRANTED as to the issue of the DEFENDANTS' liability to the TRUSTEE under § 506(c) for the monies expended by the Debtor in Possession in collecting the accounts receivables proceeds on behalf of the DEFENDANTS subsequent to the filing of the Chapter 11 petition in bankruptcy. Further, the DEFENDANTS' motion for summary judgment is GRANTED as to the issue of the DEFENDANTS' liability to the TRUSTEE under § 506(c) for the monies expended by the TRUSTEE in bringing this adversary proceeding to preserve the estate and as to the issue that the DEFENDANTS' possess a perfected security interest. In all other respects, *188 the cross motions of the parties are DENIED as to Count II. 2. As to Counts III, IV, V, and VII, the DEFENDANTS' motion for summary judgment is GRANTED. 3. As to Count VI, the cross motions of the parties are DENIED. 4. The parties shall schedule a hearing to resolve the remaining issues which shall be limited to the amount for which the DEFENDANTS are liable under § 506(c) for the expenses incurred by the Debtor in Possession in collecting the accounts receivables proceeds subsequent to the Chapter 11 petition; the nature and extent of the security interest held by the DEFENDANTS in the accounts receivables proceeds of the DEBTOR; and the appropriateness of subordinating the DEFENDANTS unsecured claim under § 510(c). DONE and ORDERED. NOTES [1] Count I has been resolved in a separate hearing. As such, this Order only deals with Counts II-VII of the TRUSTEE's Second Amended Complaint. [2] § 506(c) provides in relevant part, (c) The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit of the holder of such claim. [3] Count VII deals with what the TRUSTEE refers to as a triangular preference. Since the rules which apply to Count III also apply to Count VII, this Court will dispose of these Counts in this section dealing with preferential transfers. [4] § 547(b) provides in relevant part, [T]he Trustee may avoid any transfer of an interest of the debtor in property — (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made — (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if such creditor at the tie of such transfer was an insider; and (5) that enables such creditor to receive more than such creditor would receive if — (A) the case were a case under Chapter 7 of this title . . . (emphasis added). [5] § 548(a)(1) provides in relevant part, (a) The Trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily — (1) made such transfer or incurred such obligation with actual intent to hinder, delay, or defraud any entity to which the debtor was or became, on or after the date that such transfer was made or such obligation was incurred, indebted . . . (emphasis added). [6] § 549(a) provides in relevant part, (a) Except as provided in subsection (b) or (c) of this section, the trustee may avoid a transfer of property of the estate — (1) that occurs after the commencement of the case; and (2)(A) that is authorized only under § 303(f) or § 542(c) of this title; or (B) that is not authorized under this title or by the court. (emphasis added). [7] § 510(c) provides in relevant part, (c) Notwithstanding subsections (a) and (b) of this section, after notice and a hearing, the court may — (1) under principles of equitable subordination, subordinate for purposes of distribution all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest . . .

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS UNPUBLISHED April 11, 2019 In re ALEXANDER, Minors. No. 346129 Oakland Circuit Court Family Division LC No. 2018-859909-NA Before: LETICA, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ. PER CURIAM. Respondent appeals by right the trial court’s order terminating his parental rights to three minor children, BA, AA and LA, under MCL 712A.19b(3)(b)(i) (physical or sexual abuse), (g) (failure to provide proper care and custody), (j) (child is reasonably likely to be harmed if returned to the parent’s home), (k)(iii) (severe physical abuse of the child or a sibling), and (k)(ix) (parent sexually abused the child or a sibling). We affirm. I. PERTINENT FACTS AND PROCEDURAL HISTORY Respondent is the biological grandfather and adoptive father of the three minor children. The parental rights of the children’s biological parents were terminated in 2008, and they were not a party to these proceedings. In January 2018, petitioner filed a petition requesting removal of the children from respondent’s home and termination of his parental rights. The petition alleged ongoing physical abuse of all three children, which the children had disclosed during forensic interviews following a December 31, 2017 incident in which respondent had physically abused BA in the presence of the other two children. AA called the police during this incident, and respondent was arrested. The petition also alleged that AA had disclosed that respondent had inappropriately touched her on her waist, upper thighs, and stomach. The trial court authorized the petition and removed the children from respondent’s care. The children were initially placed with their adult sister, but were later placed with a niece of respondent. The trial court held a jurisdictional trial and termination hearing in April 2018. The children all testified to an incident in December 2017 in which respondent repeatedly held BA -1- down, slapped her face and forearms, threw her on the floor, and kicked her. LA testified that respondent had also hit her on the face, neck, and arm, and had grabbed her and thrown her on the couch during this incident. Police officers responding to the incident testified that they found the girls terrified and crying in the bathroom. Respondent was arrested for domestic violence. Several officers also testified that the house was very dirty and messy, and smelled of cigarettes and cat urine. Margaret Klenner, a nurse practitioner at Henry Ford Macomb Hospital who had examined all three girls at the hospital’s emergency room after the incident, testified that none of the children appeared to be dressed sufficiently for the cold weather and that they were not wearing bras, were dirty, and smelled like they had not bathed in days. BA had abrasions on her forehead and face. The three children told Klenner that respondent had been abusing them physically for years as well as calling them names and swearing at them. AA also disclosed the inappropriate touching described earlier in this opinion. Tara Allender, a Child Protective Services (CPS) investigator, testified that there had been a total of 14 complaints of physical abuse of the children against respondent and his live-in female partners. An allegation in 2010 had been substantiated and respondent had been referred for parenting classes, although it was not known whether he completed the classes. Allender opined that the children would be in imminent risk of physical and mental harm, as well as the potential for sexual abuse, if they were returned to respondent. The trial court found sufficient grounds to terminate respondent’s parental rights to the children under MCL 712A.19b(3)(b)(i), (g), (j), (k)(iii), and (k)(ix), finding that all three children had suffered from years of physical abuse, “extreme mental anguish” and fear for their safety. The trial court additionally found that respondent’s home was not a suitable living environment for the children. A best-interest hearing was held immediately after the trial court’s determination. Diana Vitale, a psychiatric nurse practitioner, testified that she had prescribed an antidepressant for BA and LA, but that respondent had refused to provide parental consent for the children to take the medication. The trial court ordered that the children be given the medication. Christina Markarov, the children’s therapist, testified that all of the children suffered from post-traumatic stress disorder (PTSD) and that BA and LA suffered from depression. Andrea Killips, the children’s foster care specialist, testified that, since their removal, the children had improved significantly with hygiene, grades, and gaining weight, and were eating appropriately (whereas they previously were emaciated from being underfed); however, they still had behavioral issues. Killips further testified that she had conducted home visits and that the condition of respondent’s home had not improved. She testified that respondent had sought to have the children removed from their placement several times, had resisted the provision of medication to the children, and had resisted allowing the children to travel with their foster parent, necessitating court involvement. Killips opined that this behavior was “spiteful” rather than rooted in a concern for the children’s best interests. Following the best-interest hearing, but before the trial court issued its decision, petitioner requested that the children’s placement be changed to unrelated caregivers whom the children had visited several times in the past. At the hearing on the motion, the prospective -2- foster parents stated that they lived close to the children’s current foster parent and could continue to facilitate that family relationship, but that they had more time and resources to accommodate the children’s needs, such as giving transportation to various therapy appointments. The trial court allowed the change, but only on the condition that the prospective foster parents would meet with the therapist to discuss the move and how to communicate about the move with the children. The trial court proposed shared parenting time between the two foster homes initially to ease the transition. The trial court issued a written opinion and order concluding that it was in the best interests of the children to terminate respondent’s parental rights. The trial court noted that respondent and his partner continued to be angry and aggressive, despite being monitored during the proceedings. The trial court also noted that respondent did not believe that his actions, such as his refusal to allow BA and LA to take medication, were harmful to the children. The trial court found that the children had improved since their removal from respondent’s care and that they were terrified of being returned to him. The trial court noted that the children needed the permanency and stability of a suitable home environment. This appeal followed. II. STANDARD OF REVIEW We review for clear error a trial court’s determination regarding a child’s best interests. MCR 3.977(K); In re Mason, 486 Mich 142, 152; 782 NW2d 747 (2010). “A trial court’s decision is clearly erroneous ‘[i]f although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made.’ ” In re Olive/Metts Minors, 297 Mich App 35, 41; 823 NW2d 144 (2012). III. ANALYSIS Respondent’s sole argument on appeal is that, in making its best-interest determination, the trial court failed to consider that the children were in relative placement at the time of the termination hearing. We disagree. Once a statutory ground for termination is established, the trial court shall order termination of parental rights if it finds that termination is in the child’s best interests. MCL 712A.19b(5). “[W]hether termination of parental rights is in the best interests of the child must be proved by a preponderance of the evidence.” In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). The trial court should weigh all the evidence available to it in determining the child’s best interests. In re White, 303 Mich App 701, 713; 846 NW2d 61 (2014). Factors relevant to a determination of the child’s best interests include the child’s bond to the parent, the parent’s compliance with his or her case-service plan, the parent’s history of visitation with the child, the child’s need for permanency, stability, and finality, the advantages of a foster home over the parent’s home, and the possibility of adoption. Id. at 713-714. In In re Mason, 486 Mich 142, 164; 782 NW2d 747 (2010), our Supreme Court stated that a child’s placement with relatives “was an explicit factor to consider in determining whether termination was in the children’s best interests,” explaining that a parent’s voluntary placement -3- of his children with relatives was relevant to whether a parent could fulfill his duty to provide proper care and custody in the future. Id. at 163; see also In re Mays, 490 Mich 993 (2012) (holding that the factual record was inadequate to make a best-interest determination because there was no evidence in the record that the trial court considered whether termination of the respondent’s parental rights was appropriate given the children’s placement with their maternal grandmother). In Olive/Metts, this Court stated: [b]ecause “a child’s placement with relatives weighs against termination under MCL 712A.19a(6)(a),” the fact that a child is living with relatives when the case proceeds to termination is a factor to be considered in determining whether termination is in the child’s best interests. Although the trial court may terminate parental rights in lieu of placement with relatives if it finds that termination is in the child’s best interests, the fact that the children are in the care of a relative at the time of the termination hearing is an “explicit factor to consider in determining whether termination was in the children’s best interests[.]” A trial court’s failure to explicitly address whether termination is appropriate in light of the children’s placement with relatives renders the factual record inadequate to make a best-interest determination and requires reversal. [In re Olive/Metts, 297 Mich App at 43 (emphasis added; citations omitted).] In this case, respondent’s argument that the trial court failed to consider the children’s relative placement at the time of the termination hearing is belied by the trial court’s opinion. Contrary to respondent’s argument, the trial court acknowledged the children’s relative placement several times, and made reference to the issues respondent had with that placement. Specifically, the trial court referenced the foster care worker’s testimony that Father has had a problem with the relative placement and has made things difficult in this regard, which is troubling to her. He has requested multiple times that Minors be moved from their placement despite the girls doing well. During a family team meeting, Father made enough inappropriate comments that Ms. Killip[s] had to conclude the meeting. The trial court concluded that respondent was unlikely to rectify any of the conditions that brought the children into care, in part because of his continued angry and aggressive behavior. The trial court also noted that the children had made improvements in the foster home, and needed permanency and stability in a suitable home environment. The record therefore establishes that the trial court considered the children’s relative placement at the time of the termination hearing. Moreover, given that respondent repeatedly refused to facilitate the children’s placement with their foster-parent relative by permitting the children to take medication and travel with the foster parent, but at the same time failed to make the necessary changes to provide them with a home, the trial court did not clearly err by finding -4- that termination of respondent’s parental rights was in the children’s best interests despite the relative placement.1 In re Olive/Metts, 297 Mich App at 43. Affirmed. /s/ Anica Letica /s/ Amy Ronayne Krause /s/ Mark T. Boonstra 1 As stated, the relative placement changed to a non-relative placement after the best-interest hearing, but before the trial court issued its best-interest decision. The prosecutor and the lawyer-guardian ad litem for the children therefore argue that there would be no error even if the trial court had failed to consider the issue of relative placement. But because the trial court actually considered the children’s relative placement, notwithstanding that the placement was changed before it is issued its best-interest opinion, it is unnecessary to address whether the trial court would have reversibly erred had it failed to consider that placement in these circumstances. By our reading, however, the pertinent holding of Olive-Metts related not to the precise time frame within which to consider relative placement, but the need to consider relative placement on an individual basis where the circumstances of the children differ. See In re White, 303 Mich App 701, 715; 846 NW2d 61 (2014). -5- 

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 08-2563 _____________ UNITED STATES OF AMERICA v. ROMANUS OKORIE, Appellant _____________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2:07-cr-00477) District Judge: Hon. William H. Walls Submitted Under Third Circuit LAR 34.1(a) March 18, 2011 Before: BARRY, CHAGARES, and ROTH, Circuit Judges. (Filed April 26, 2011) _____________ OPINION _____________ CHAGARES, Circuit Judge. Romanus Okorie appeals his conviction, asserting that the District Court erred in admitting various pieces of evidence during his trial. For the reasons set forth below, we will affirm the District Court‟s evidentiary decisions and Okorie‟s conviction.  I. Because we write solely for the benefit of the parties, we will only briefly recite the facts. Okorie ran a business preparing taxes. The allegations of the underlying conviction were that he falsely claimed that his clients were sole proprietors of businesses and then created excessive business expenses to decrease his clients‟ taxable incomes. He would then file tax returns without first presenting them to his clients for review and signature, and also failed to identify himself as the preparer of the returns. His scheme was discovered when one client, Maria Brown, received her refund check, realized that it was for far too much, returned it to the IRS, and began cooperating in an investigation of Okorie. As part of this investigation, the Government received a warrant to search Okorie‟s home and to seize any documents relating to the preparation of taxes for the years 2003 and 2004. In executing this warrant, the Government agents were required to sort through stacks of papers that had not been separated by year, and noticed that forms from 2002 also contained suspicious information. The Government then received a second search warrant and seized all documents relating to 2002 as well. Okorie was indicted on June 11, 2007, and charged with ten counts of preparing and filing false tax returns only for the years 2003 and 2004, in violation of 26 U.S.C. § 7206(2). He was convicted by a jury on all counts on January 22, 2008, and was sentenced to 72 months of imprisonment on May 14, 2008. The instant appeal was filed on May 15, 2008. 2  II. The District Court had jurisdiction over this case pursuant to 18 U.S.C. § 3231 and this Court has jurisdiction under 28 U.S.C. § 1291. We review the underlying factual findings of a District Court‟s refusal to suppress evidence for clear error, but exercise plenary review over the application of the law to these factual findings. United States v. Brown, 595 F.3d 498, 514 (3d Cir. 2010). On issues regarding the District Court‟s decision to admit evidence, we review for abuse of discretion, United States v. Kemp, 500 F.3d 257, 295-96 (3d Cir. 2007), and this includes consideration of whether the admission of evidence violated the Sixth Amendment‟s Confrontation Clause. United States v. Jimenez, 513 F.3d 62, 76-77 (3d Cir. 2008). III. Okorie first argues that the District Court erred in denying his application to suppress all evidence seized from his residence because the Government conducted a broader search than authorized by the first warrant when it looked at documents from 2002 as well as 2003 and 2004. He argues that all evidence seized, including the evidence that was plainly within the scope of the first search warrant, must be suppressed “due to the blatant Fourth Amendment violation” that occurred when the executing officials viewed his 2002 documents, which were not within the scope of the first warrant. As a general matter, the exclusionary rule is used only in circumstances where it will have a deterrent effect. United States v. Leon, 468 U.S. 897, 906 (1984). “Whether the exclusionary sanction is appropriately imposed in a particular case . . . is „an issue 3 separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.‟” Id. (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)). We see no reason that would justify the suppression of the 2003 and 2004 documents that were collected under the first warrant. Okorie does not allege that the first warrant was defectively obtained or executed. Instead, he argues that the overbreadth of the first search justifies the suppression of all evidence obtained during that search, regardless of whether it was plainly within the scope of the warrant. The conduct at issue in this case, however, is insufficient to impose the “substantial social costs exacted by the exclusionary rule.” Id. at 907. Okorie‟s files were not neatly organized or easily separable, and the agents were required to look through all of Okorie‟s papers in order to separate out those that were from the years 2003 and 2004. The evidence introduced at trial was obtained as a result of a valid warrant that was properly executed, and we will affirm the District Court‟s refusal to suppress this evidence.1 1 We also note, per Okorie‟s contention that the search exceeded the scope of the initial warrant, that the Supreme Court has made clear that “elaborate specificity” in a warrant is not required. United States v. Ventresca, 380 U.S. 102, 108 (1965). Whether evidence is within a search warrant‟s scope requires not a “hypertechnical” analysis, but a “common- sense, and realistic” one. United States v. Srivastava, 540 F.3d 277, 291 (4th Cir. 2008). In line with such reasoning, we have observed that “[w]hen an entire, discrete body of evidence is described, the naming of every component of that body is mere surplusage.” United States v. Kepner, 483 F.2d 755, 763 (3d Cir. 1988) (quotation marks omitted). In addition, “the government is to be given more flexibility regarding the items to be searched when criminal activity deals with complex financial transactions.” United States v. Yusuf, 461 F.3d 374, 395 (3d Cir. 2006). On the facts here, both the warrant and the search executed pursuant to it easily pass muster. 4  Okorie next argues that the District Court erred in allowing Maria and Raymond Brown to testify as to their dealings with Okorie, despite the fact that their experience did not form one of the underlying counts of Okorie‟s indictment. He argues that the evidence was cumulative and that the Browns‟ testimony could not have served any non- cumulative purpose other than to encourage the jury to convict based upon prior bad acts or a propensity to commit crime, neither of which is permitted under Federal Rule of Evidence 404(b). Federal Rule of Evidence 404(b) provides as follows: [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, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. This Court has noted that the threshold established by this rule is not overly high, and that almost all evidence can be admitted under 404(b) so long as it is for a purpose other than to demonstrate the defendant‟s bad character in order to encourage the jury to convict on the basis of a propensity to commit crime. United States v. Green, 617 F.3d 233, 248-29 (3d Cir. 2010). In this case, the testimony of the Browns went to the non-propensity purpose of demonstrating motive, voluntariness, and lack of mistake, as well as providing background information regarding how the IRS began its investigation. The testimony helped demonstrate that the criminal conduct was initiated by Okorie and not his clients, 5 and, because Maria Brown returned her refund check, provided testimony from individuals without any motivation to lie. In addition, the District Court provided a limiting instruction immediately after each of the Browns testified, and then again when charging the jury. The District Court did not abuse its discretion in allowing this testimony, and we will affirm its decision on this issue. Finally, Okorie asserts that the District Court‟s decision to allow Deborahann Westwood, the custodian of records for the New Jersey Department of the Treasury, and Margaret Coe, a Human Resources specialist with the IRS, to testify regarding the results of employment-records searches in their respective departments. Although the Government initially planned to introduce only a certification of the non-existence of an official record, the District Court directed that individuals be produced to testify to this fact in order to avoid Confrontation Clause issues. This testimony was introduced to demonstrate that Okorie never worked for either of these agencies, despite his representations to the contrary to his clients. Okorie argues that he has a Sixth Amendment right to cross-examine those who actually performed the searches of the records, and that the production of a supervisor is insufficient to meet the Constitution‟s demands. The Sixth Amendment prevents, with limited exceptions, the introduction of any testimonial statement at trial without the opportunity for the defendant to cross-examine the individual who made the statement. Crawford v. Washington, 541 U.S. 36, 50-51 (2004). The Supreme Court‟s more recent decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), makes clear that the type of report produced in this case would 6 certainly constitute a testimonial statement. Unlike Melendez-Diaz, however, where only a single analyst‟s report was at issue, this case deals with a report that was produced through the work of multiple individuals. In the present case, although Westwood and Coe did not conduct the entire search personally, the testimonial import of the report that was produced was simply that Okorie had not worked in either of their organizations. Westwood and Coe certainly had sufficient knowledge about this report to justify the admission of their testimony; both had knowledge of their institutions‟ records, the searches conducted, and their results, and both were subject to cross-examination on these issues. That they were not the individuals who physically sorted through every piece of paper or who personally typed the search into the computer program does not cause a constitutional problem. They both had knowledge of the ultimate testimonial fact supplied by the report (that Okorie had not worked in either agency), and had knowledge of the process that produced this testimonial fact. We certainly are not prepared to state the District Court abused its discretion in its decision to admit the evidence, and we therefore will also affirm its decision to allow the testimony of Westwood and Coe. IV. For the foregoing reasons, we will affirm the judgment of the District Court. 7 

945 So.2d 1113 (2006) Arthur Dennis RUTHERFORD, Petitioner(s) v. Charles J. CRIST, Jr., etc., et al., Respondent(s). No. SC06-2023. Supreme Court of Florida October 17, 2006. Arthur Rutherford, who is under a pending death warrant, has filed a Petition Seeking to Invoke this Court's All Writs Jurisdiction and a Motion for Stay of Execution, which is scheduled for October 18, 2006. Rutherford's petition concerns the Department of Corrections' denial of a public records request for current lethal injection procedures, followed by the circuit court's denial of a motion to compel production. The State has filed a response to which it has attached the Department's procedures governing execution by lethal injection, effective August 16, 2006. We permitted Rutherford to file a reply. We deny relief. Our review of the current lethal injection procedures, attached to the State's response, reveals nothing that would cause this Court to revisit our previous conclusions "that procedures for administering the lethal injection as attested do not violate the Eighth Amendment's prohibition on cruel and unusual punishment." Rutherford v. State, 926 So.2d 1100, 1113 (Fla.2006) (quoting Hill v. State, 921 So.2d 579, 583 (Fla.2006), and Sims v. State, 754 So.2d 657, 668 (Fla. 2000)). Accordingly, Rutherford's petition and motion for a stay of execution are hereby denied. No motion for rehearing will be allowed. It is so ordered. LEWIS, C.J., and WELLS, PARIENTE, QUINCE and CANTERO, JJ., concur. ANSTEAD, J., concurs specially with an opinion. BELL, J., recused. ANSTEAD, J., concurring specially. I concur in the majority's denial of relief because I, too, am bound by the rulings of this Court rejecting similar challenges to the State's procedures for execution by lethal injection in Hill and Rutherford as cited by the majority. I am troubled, however, by the fact that the State has not at all times made its execution procedures and protocols a matter of public record, and by the fact that since our initial decision in Sims approving the use of lethal injection based substantially on theory, there has been no public evidentiary hearing focused on the purpose and effectiveness of the State's procedures, and on what actually takes place during the course of an execution by lethal injection. Now that this method of execution has been in place for a number of years we would all benefit by such a hearing.

988 F.2d 322 Bankr. L. Rep. P 75,161In re CHATEAUGAY CORPORATION, Reomar, Inc., and LTVCorporation, Inc., et al., Debtors.OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF LTV AEROSPACEAND DEFENSE CO. INC., Appellant,v.OFFICIAL COMMITTEE OF UNSECURED CREDITORS OF LTV STEEL CO.,INC., Chateaugay Corporation, Reomar, Inc., et al., PensionBenefit Guaranty Corporation, LTV Corporation, et al.,Official Parent Creditors' Committee of the LTV Corporation,Appellees. No. 759, Docket 92-5056. United States Court of Appeals,Second Circuit. Argued Jan. 6, 1993.Decided March 9, 1993. Max O. Truitt, Jr., Washington, DC (William J. Perlstein, Stephen M. Cutler, Anne D. Bolling, Gregory S. Lane, Wilmer, Cutler & Pickering, Washington, DC, Carla E. Craig, Steven M. Schwartz, Hertzog, Calamari & Gleason, New York City, on the brief), for appellant. Brian M. Cogan, New York City (Mark S. Wintner, Mark A. Speiser, Leslie Payson, David Simonetti, James McGovern, Stroock & Stroock & Lavan, Harold S. Novikoff, Wachtell, Lipton, Rosen & Katz, New York City on the brief), for appellee Official Committee of Unsecured Creditors of LTV Steel Co., Inc. Lewis B. Kaden, New York City (Karen E. Wagner, Lawrence J. Portnoy, Davis Polk & Wardwell, Michael J. Crames, Kaye, Scholer, Fierman, Hays & Handler, New York City on the brief), for appellees LTV Corp. and LTV Steel Co., Inc. James J. Armbruster, Asst. Gen. Counsel, Pension Benefit Guar. Corp., Washington, DC (Carol Connor Flowe, Gen. Counsel, William G. Beyer, Deputy Gen. Counsel, Pension Benefit Guar. Corp., Charles G. Cole, Nancy K. Hayes, Sara E. Hauptfuehrer, Carina J. Campobasso, Steptoe & Johnson, Washington, DC, on the brief), for appellee Pension Benefit Guar. Corp. Thomas E. Biron, Philadelphia, PA (Raymond L. Shapiro, Blank, Rome, Comisky & McCauley, Philadelphia, PA, on the brief), for appellee Official Parent Creditors' Committee of the LTV Corp. Before: KEARSE, WINTER, and WALKER, Circuit Judges. KEARSE, Circuit Judge: 1 The Official Committee of Unsecured Creditors of LTV Aerospace and Defense Co. ("Aerospace Committee" or "Committee") appeals from an order of the United States District Court for the Southern District of New York, David N. Edelstein, Judge, dismissing its appeal from a November 5, 1991 order of the United States Bankruptcy Court for the Southern District of New York, Burton R. Lifland, Chief Judge, which, inter alia, authorized the payment of funds from the estate of LTV Steel Co. ("LTV Steel") to a pension plan through the end of September 1992. The district court dismissed Aerospace Committee's appeal on the ground that the Committee lacked standing to attack the bankruptcy court's order. See In re Chateaugay Corp., 141 B.R. 794 (S.D.N.Y.1992). On appeal, the Committee challenges the district court's standing ruling. For the reasons below, we conclude that the present appeal is moot, and we accordingly vacate the district court's order and remand with instructions to dismiss the Committee's appeal to the district court on the ground of mootness. I. BACKGROUND 2 In July 1986, LTV Corporation ("LTV") and 66 of its subsidiary and affiliated companies (collectively "debtors"), including LTV Steel and LTV Aerospace and Defense Co. ("Aerospace"), filed voluntary petitions for relief under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. § 1101, et seq. (1988) ("Code"). The individual cases were consolidated for procedural, though not substantive, purposes and are being jointly administered. 3 A. Proposed Settlement of LTV Steel's Pension Fund Liabilities 4 At the time of the Chapter 11 filings, LTV Steel was the sponsor of four pension plans administered by LTV, including the Jones & Laughlin Hourly Pension Plan ("J & L Hourly Plan" or "Plan"). The Pension Benefit Guaranty Corporation ("PBGC") at first terminated these plans and took over their assets and liabilities. It subsequently reinstated the J & L Hourly Plan and two others, see generally Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 640-44, 110 S.Ct. 2668, 2672-75, 110 L.Ed.2d 579 (1990), returning responsibility for their administration and funding to LTV, see generally In re Chateaugay Corp., 973 F.2d 141, 142 (2d Cir.1992). 5 Since both Aerospace and LTV Steel are subsidiaries of LTV, Aerospace is a member of LTV Steel's "controlled group" for purposes of the Employee Retirement Income Security Act ("ERISA") and is jointly and severally liable with LTV and other LTV subsidiaries for claims made against the LTV Steel pension plans upon termination. See 29 U.S.C. § 1362(a) (1988 & Supp. I 1989); In re Chateaugay Corp., 973 F.2d at 142. Accordingly, PBGC filed proofs of claim against Aerospace, as well as against LTV Steel and the remaining controlled group members, for the amount by which the terminated plan and the three restored plans were underfunded--a total of more than $3 billion. With respect to the restored pension plans, the PBGC claims are, in effect, contingent claims to be pressed if one or more of those plans terminates prior to the confirmation of a reorganization plan. 6 Any reorganization of the debtors' estates will have to resolve these claims in a manner acceptable to PBGC. To this end, the debtors filed a proposed joint plan of reorganization in May 1991, the catalyst for which was a tentative settlement between the debtors and PBGC with respect to the pension obligations. The debtors' Disclosure Statement Pursuant to § 1125 of the Bankruptcy Code, dated May 1, 1991, described the proposed plan as "dependent to a great extent upon [the debtors'] reaching final agreement with the PBGC substantially in accordance with the terms of the tentative Pension Settlement," and stated that one of the chief goals of the tentative settlement was to have the debtors provide sufficient funds to the plans to "ensure that beneficiaries of the restored pension plans will be paid in full." 7 B. The Orders for Interim Funding of the J & L Hourly Plan 8 During the reorganization proceedings, the J & L Hourly Plan was continuing to pay benefits to its participants, though it was not receiving postpetition contributions from the debtors. In May 1991, the debtors estimated that the Plan's liquid assets would be exhausted by the end of July 1991. Seeking to avoid a mandatory termination of the plan under § 4042(a) of ERISA, 29 U.S.C. § 1342(a) (1988 & Supp. I 1989), and to preserve the tentative settlement with PBGC, the debtors sought authorization from the bankruptcy court for the "immediate payment by LTV to the J & L Hourly Plan of an amount equal to the benefit payments expected to be due under such plan for July, August and September, 1991, but not exceeding $40 million." (Application in Support of Order Authorizing Payments to J & L Hourly Pension Plan, dated May 13, 1991, at 9.) Over the objections of certain creditor committees, the bankruptcy court entered an order in June 1991 authorizing the immediate payment by LTV Steel to the J & L Hourly Plan of $27 million, representing two months of benefit payments. The Official Committee of Unsecured Creditors of LTV Steel Company, Inc. ("Steel Committee"), and Cold Spring Management, Inc., a creditor of Aerospace and then-chair of an unofficial Aerospace creditors' committee, appealed that order. Their appeals were subsequently withdrawn pursuant to an accord in which the two appellants agreed not to oppose any application by the debtors to fund the J & L Hourly Plan through November 30, 1991, and the debtors agreed not to seek authorization for any additional funding beyond that date without the consent of the two appellants. 9 On October 30, 1991, the Steel Committee, having also reached a tentative settlement with PBGC, sought an order authorizing the immediate payment by LTV to the J & L Hourly Plan of an amount equal to three months' benefits and, subject to the occurrence of certain events, any additional monthly payments necessary thereafter to provide sufficient funding through June 1992. Following a hearing, the bankruptcy court issued an order on November 5, 1991 ("November 1991 Order") granting the request, finding that additional payments to the J & L Hourly Plan were "necessary to the process of developing a plan of reorganization for The LTV Corporation and its affiliates." Accordingly, the November 1991 Order authorized and directed LTV Steel (a) to make an immediate payment to the J & L Hourly Plan sufficient to fund three months' benefits, providing a "Three-Month Cushion," and (b) thereafter to make monthly contributions to the Plan from December 1991 through September 1992 of amounts "sufficient to fund benefits in each month and thereby replenish the Three-Month Cushion." November 1991 Order at 2. The order also provided, inter alia, that these payments would constitute a dollar-for-dollar offset against any ultimate distributions to the J & L Hourly Plan or the other restored plans, or to PBGC with respect to any of the plans pursuant to a plan of reorganization. 10 The Aerospace Committee timely appealed from the November 1991 Order. It did not, however, request a stay pending appeal. Its appeal remained pending until July 7, 1992. 11 In the meantime, LTV Steel made the required payments to the J & L Hourly Plan; by September 30, 1992, its payments totaled approximately $163 million. All of these funds have been paid out as pension benefits to the Plan's participants. 12 In addition, after lengthy negotiations, LTV Steel and the United Steelworkers of America reached an agreement governing their continued relationship ("Collective Bargaining Agreement"). A key provision of this agreement is LTV Steel's commitment "to continue the funding of the J & L Hourly Pension Plan through the earlier of the effective date of the Plan of Reorganization or September 5, 1993." In an order dated August 12, 1992 ("August 1992 Order"), the bankruptcy court approved the Collective Bargaining Agreement, including LTV Steel's commitment to continue funding the J & L Hourly Plan. After the September 1992 expiration of the funding requirement contained in the November 1991 Order, LTV Steel continued to fund the Plan pursuant to the August 1992 Order. The Aerospace Committee neither objected to nor appealed from the August 1992 Order. C. The District Court's Decision 13 The district court dismissed the Aerospace Committee's appeal from the bankruptcy court's November 1991 Order. In an Opinion and Order dated July 7, 1992, the district court ruled that the Committee did not have standing to appeal because the creditors of Aerospace are not creditors of LTV Steel and therefore lack a direct pecuniary interest in the November 1991 Order. The present appeal followed. II. DISCUSSION 14 On appeal, the Aerospace Committee contends that it had standing to appeal the November 1991 Order because (1) the sole purpose of that order was to preserve the tentative settlement with PBGC, which purports to bind Aerospace, (2) under the proposed reorganization plan, the claims of Aerospace's creditors will be satisfied with LTV common stock, and (3) Aerospace has a claim for contribution and indemnification against LTV Steel. The appellees, which include LTV, LTV Steel, creditors' committees of both, and PBGC, are divided on the question of whether or not the Aerospace Committee had standing to challenge the November 1991 Order; but all of the appellees contend that intervening events have made the appeal moot. We do not reach the merits of the Committee's present appeal because we agree with appellees that, since the Committee did not obtain a stay of the November 1991 Order, and as a result LTV Steel made the required payment to the J & L Hourly Plan, which in turn distributed the funds to the pensioners, its appeal to the district court became moot, and this appeal is likewise moot. 15 The duty of an Article III court is to decide live controversies, "not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293 (1895); see Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam); Blackwelder v. Safnauer, 866 F.2d 548, 550-51 (2d Cir.1989). Accordingly, when, during the pendency of an appeal, events occur that would prevent the appellate court from fashioning effective relief, the appeal should be dismissed as moot. Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 1253-54, 108 L.Ed.2d 400 (1990); Mills v. Green, 159 U.S. at 653, 16 S.Ct. at 133. 16 An appeal should also be dismissed as moot when, even though effective relief could conceivably be fashioned, implementation of that relief would be inequitable. In re AOV Industries, Inc., 792 F.2d 1140, 1147 (D.C.Cir.1986); In re Roberts Farms, Inc., 652 F.2d 793, 798 (9th Cir.1981). Such a dismissal is appropriate when the "appellant has made no effort to obtain a stay and has permitted 'such a comprehensive change of circumstances to occur as to render it inequitable' for the appellate court to reach the merits of the appeal." In re Crystal Oil Co., 854 F.2d 79, 82 (5th Cir.1988) (quoting In re Roberts Farms, Inc., 652 F.2d 793, 798 (9th Cir.1981)). 17 These principles are especially pertinent in bankruptcy proceedings, where the ability to achieve finality is essential to the fashioning of effective remedies. See, e.g., In re Stadium Management Corp., 895 F.2d 845, 848 (1st Cir.1990); In re Public Service Co. of New Hampshire, 963 F.2d 469, 471-72 (1st Cir.) (equitable considerations reflecting "the important public policy favoring orderly reorganization and settlement of debtor estates" may render an appeal moot), cert. denied, --- U.S. ----, 113 S.Ct. 304, 121 L.Ed.2d 226 (1992). As a practical matter, completed acts in accordance with an unstayed order of the bankruptcy court must not thereafter be routinely vulnerable to nullification if a plan of reorganization is to succeed. See, e.g., In re Stadium Management Corp., 895 F.2d at 848-49; In re Highway Truck Drivers Local 107, 888 F.2d 293, 297-98 (3d Cir.1989); In re Onouli-Kona Land Co., 846 F.2d 1170, 1174-75 (9th Cir.1988); In re Tiana Queen Motel, Inc., 749 F.2d 146, 152 (2d Cir.1984), cert. denied, 471 U.S. 1138, 105 S.Ct. 2681, 86 L.Ed.2d 699 (1985); In re Combined Metals Reduction Co., 557 F.2d 179, 188-89 (9th Cir.1977). Thus, though the Code itself does not require a party to seek a stay pending appeal except in limited circumstances, see 11 U.S.C. § 363(m) (1988) (sale or lease of estate property to good faith purchaser or lessor not affected by reversal or modification on appeal absent stay); id. § 364(e) (1988) (same with respect to debt or lien granted good faith creditor), Bankruptcy Rule 8005 sets forth a procedure by which a party may seek a general stay of a bankruptcy court's order pending appeal so that the estate and the status quo may be preserved pending resolution of the appeal. See In re Onouli-Kona Land Co., 846 F.2d at 1172. The party who appeals without seeking to avail himself of that protection does so at his own risk. 18 These principles guide our consideration of the present case. In failing to request a stay of the November 1991 Order, the Aerospace Committee allowed that order to be fully implemented. As a consequence, LTV Steel has paid into the J & L Hourly Plan all of the funds that order required it to pay. Those funds have been disbursed to the Plan's participants in payment of their benefits; and the order has expired of its own terms. The Plan's numerous participants have presumably used the benefits they have received to meet their living expenses. The recoupment of these funds from them, in addition to being impracticable, would impose an unfair hardship on faultless beneficiaries who are not parties to this appeal. Moreover, the continued funding of the J & L Hourly Plan was apparently a key component of the Collective Bargaining Agreement reached by LTV Steel in the aftermath of the November 1991 Order, an agreement that appears to have cleared the way for a reorganization of all the debtors' estates. Undoing these events at this juncture would be contrary to the Code's strong policies favoring finality and settlement. 19 The Aerospace Committee advances a number of suggestions as to why its appeal may not be moot, all of which are meritless. It contends first that it was not required to seek a stay because it was "highly unlikely" that the bankruptcy court would have granted one. A party cannot escape the obligation to protect its litigation position by so facile an argument. If the Committee wished to prevent LTV Steel from making payments to the J & L Hourly Plan pursuant to the November 1991 Order, it should have requested a stay from the bankruptcy court; if that request had been denied, the Committee could have appealed from the denial of the stay and moved in the district court for a stay pending that appeal. We suspect, however, that the real reason for the Committee's failure to seek a stay may be found in its statement that "[i]f the funding authorized by the November 5 Funding Order were stayed, the J & L Hourly Plan would have run out of money and been forced to terminate." (Aerospace Committee's reply brief at 8.) As indicated in Part I.A. above, termination of the Plan prior to reorganization would have removed any contingency from PBGC's claims with respect to the J & L Hourly Plan against Aerospace as an ERISA "controlled group" member. 20 The Aerospace Committee argues also that its appeal is not moot because either the J & L Hourly Plan, which currently has funds, or PBGC could be ordered to repay the $163 million paid by LTV Steel pursuant to the November 1991 Order. Both suggestions are specious. An order requiring PBGC to reimburse LTV Steel, if lawful, would likely trigger termination of the Plan, resulting in liability for funding the Plan promptly being shifted back to the debtors. Further, an attempt to shift the burden of funding the Plan to PBGC would be inconsistent with the tenor of the tentative settlement agreements and would likely impede the settlement and result, similarly, in termination of the Plan. The Committee's suggestion that this Court order the Plan itself to repay the moneys to LTV Steel has a parallel flaw, for it ignores the obligation imposed on LTV Steel by the August 1992 Order, from which the Committee did not bother even to appeal. Under the latter order, funds paid out by the Plan must be replenished by LTV Steel, an entity with which Aerospace is jointly and severally liable. In sum, the relief that the Committee contends is still available is illusory. 21 Indeed, the practical thrust of the Aerospace Committee's arguments here is to ask this Court to provide it with an advisory opinion as to the validity of, and its standing to assert, claims it may seek to press against LTV Steel or against PBGC. We decline the invitation. CONCLUSION 22 We have considered all of the Aerospace Committee's arguments in support of the viability of this appeal and have found them to be without merit. The present appeal is moot, and we express no view as to the merits of the Committee's challenge to the district court's July 7, 1992 order. The order of the district court is vacated, see Great Western Sugar Co. v. Nelson, 442 U.S. 92, 99 S.Ct. 2149, 60 L.Ed.2d 735 (1979) (per curiam), and the matter is remanded for entry of an order dismissing the Aerospace Committee's appeal from the November 1991 Order as moot. 23 Costs to appellees.

275 B.R. 593 (2002) In re Stanley Dean HANSON, OSD Stanley D. Hanson, O.D.P.C. FDBA Optical Expressions, Debtor. No. 01-22379 EEB. United States Bankruptcy Court, D. Colorado. April 3, 2002. *594 John F. Head, Denver, CO, for Moving Creditors. Sonja Ann Becker, Denver, CO, for debtor. AMENDED ORDER ELIZABETH E. BROWN, Bankruptcy Judge. THIS MATTER comes before the Court after an evidentiary hearing on the Motion to Dismiss, filed by creditors Janenne M. Wall, Thomas P. Malone & Associates, P.C., Daniel L. Woodrow, Terry Bernuth and James TenBrook (the "Moving Creditors"). *595 The Moving Creditors seek dismissal on two bases: (1) that the Debtor does not qualify for Chapter 13 relief because his debts exceed the debt limitations imposed by 11 U.S.C. § 109(e); and (2) for bad faith filing. Given the Court's ruling on the eligibility issue, it is not necessary to consider the bad faith claim. FACTUAL BACKGROUND In connection with the Debtor's divorce proceedings, the Arapahoe County District Court ("the state court") issued Permanent Orders and a separate Attorney Fees Order, requiring the Debtor to pay sums certain to various persons. The Debtor is presently appealing these awards, but did not obtain a stay pending appeal. As a result, during the ninety-day preference period before this bankruptcy filing, the Moving Creditors reduced their awards to judgment and obtained judgments liens against the Debtor's various real estate interests. Another group of creditors, who were also awarded amounts in these state court orders, had not yet obtained judgments or liens prior to the bankruptcy filing, nor have they formally joined on the pending Motion to Dismiss (the "Non-Moving Creditors"). The Debtor contends that the judgments held by the Moving Creditors and the amounts awarded to the Non-Moving Creditors are neither liquidated nor contingent because he disputes these claims. In his Schedules, he lists the claims of these creditors on either Schedule E or F at a "zero" amount or at an amount significantly lower than the amount of the judgment. Thus, based on a cursory look at the Schedules, the Debtor appears to be within the eligibility parameters. Each of the Moving and Non-Moving Creditors, however, filed timely claims. Each claim is based on the specific amount awarded in a state court order, with a copy of the applicable order attached, and a breakdown of the precise dollar amounts owed for principal and prepetition interest. At the hearing, the Debtor did not dispute that the Moving Creditors had obtained judgments, that the Non-Moving Creditors were awarded certain amounts in the state court orders, or that the judgment liens of the Moving Creditors were acquired during the preference period. The claims filed by the Moving Creditors total $213,620.98.[1] The claims filed by the Non-Moving Creditors total $88,426.25.[2] On his Schedule F, the Debtor lists undisputed, liquidated unsecured debts owed to other creditors, totaling $57,386.51.[3] Thus, based on a review of the Schedules and the timely-filed proofs of claim in this case, the combination of the undisputed debts, the claims of the Moving Creditors and the claims of the Non-Moving Creditors aggregates $359,433.74. ELIGIBILITY DEBT LIMITATIONS If the liens of the Moving Creditors were to be avoided as preferences, the amount of these judgments would cause the Debtor to exceed the amount of unsecured debt allowed under the eligibility requirements of 11 U.S.C. § 109(e). Section 109(e) provides, in relevant part, that *596 "[o]nly an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $290,525 and noncontingent, liquidated, secured debts of less than $871,550 . . . may be a debtor under chapter 13 of this title."[4] In determining eligibility under Section 109(e), the Court must rely primarily on the debtor's schedules and the timely-filed proofs of claim. In re Barcal, 213 B.R. 1008, 1015 (8th Cir. BAP 1997). Whether a debt is liquidated turns on whether it is subject to "ready determination and precision in computation of the amount due." In re Sylvester, 19 B.R. 671, 673 (9th Cir. BAP 1982), quoting In re Bay Point Corp., 1 B.C.D. 1635 (Bankr.D.N.J.1975); In re Fostvedt, 823 F.2d 305, 306 (9th Cir.1987). In other words, a debt is considered to be "liquidated" if the amount is readily ascertainable. See In re Burgat, 68 B.R. 408 (Bankr.D.Colo.1986). In the present action, the debts totaling $359,433.74 are either undisputed or readily ascertained from the state court orders. A debt is noncontingent when all events giving rise to liability occurred prior to the debtor's filing for bankruptcy. In re Mazzeo, 131 F.3d 295, 303 (2nd Cir.1997). "Only if liability relies on some future extrinsic event which may never occur will the debt be held to be contingent." In re Nesbit, 2000 WL 294834, at *2 (Bankr.W.D.Pa.2000). "It is generally agreed that a debt is contingent if it does not become an obligation until the occurrence of a future event, but is noncontingent when all of the events giving rise to liability for the debt occurred prior to the debtor's filing for bankruptcy." In re Mazzeo, 131 F.3d at 303. See In re Knight, 55 F.3d 231, 236 (7th Cir.1995). See also In re Blehm, 33 B.R. 678, 680 (Bankr.D.Colo.1983); In re All Media Properties, Inc., 5 B.R. 126 (Bankr.S.D.Tex.1980), aff'd, 646 F.2d 193 (5th Cir.1981); 2 L. King, COLLIER ON BANKRUPTCY ¶ 109.06[2][b] (15th ed. rev.2001) ("In deciding whether a claim is noncontingent, and therefore counted toward the debt limits, courts have generally ruled that if a debt does not come into existence until the occurrence of a future event, the debt is contingent. . . . [A] creditor's claim is not contingent when the `triggering event' occurred prior to the filing of the chapter 13 petition.") "The majority of courts considering the question have held that merely because a debtor disputes a debt, or has potential defenses or counterclaims that might reduce the creditors' actual collection, the debt is not thereby rendered `contingent' or `unliquidated.'" In re Crescenzi, 69 B.R. 64, 65 (S.D.N.Y.1986); In re Jordan, 166 B.R. 201, 202 (Bankr.D.Me.1994) ("[T]he vast majority of courts have held that the existence of a dispute over either the underlying liability or the amount of a debt, does not automatically render the debt either contingent or unliquidated."). This District has previously adopted the majority approach: In Blehm and Burgat, each Court rejected the view that a disputed debt is unliquidated and thus must be excluded from Section 109(e) calculations. The Courts, instead, adopted the generally accepted notions that a "debt" is (a) essentially synonymous with a "claim" and (b) a claim qualifies as liquidated, if it is readily calculable or ascertainable as to amount, and (c) a debtor's dispute, defenses or counterclaims, do not affect *597 the character and classification of claim as being liquidated. [In re Blehm, 33 B.R. 678, 679 (Bankr.D.Colo.1983); In re Burgat, 68 B.R. 408, 411 (Bankr.D.Colo.1986); In re Sylvester, 19 B.R. 671, 673 (9th Cir. BAP 1982)]; See, In re Thomas, 211 F.Supp. 187, 192 (D.Colo.1962), aff'd, 327 F.2d 667 (10th Cir.1964). In re Clark, 91 B.R. 570, 574 (Bankr.D.Colo.1988) (citations supplemented). In re Cluett, 90 B.R. 505, 507 (Bankr.M.D.Fla.1988) ("the judgment obtained by [the creditor] clearly represents a liability which is fixed and which is noncontingent and remains a final and enforceable judgment until it is reversed, if ever, upon appeal"); In re Redburn, 193 B.R. 249, 259 (Bankr.W.D.Mich.1996) ("A noncontingent and liquidated state court judgment debt is not turned into a `contingent' debt merely because an appeal is lodged by a debtor."). Consequently, the Moving and Non-Moving Creditors' awards are noncontingent and liquidated. The only remaining issue is whether the Moving Creditors' judgment lien claims are deemed secured or unsecured for eligibility purposes under Section 109(e). In In re Toronto, 165 B.R. 746 (Bankr.D.Conn.1994), the creditor held a judicial lien on the debtors' homestead which the debtors avoided postpetition as a preference. The creditor filed a motion to dismiss, alleging that the debtors did not qualify for Chapter 13 relief because, with the avoidance of the judicial lien, they exceeded the unsecured debt limitations set forth in Section 109(e). The debtors argued that, for Section 109(e) purposes, the unsecured claim arose only with the entry of the judgment setting aside the lien. The bankruptcy court disagreed, specifically finding that, for the purposes of Section 109(e), the unsecured claim did not arise when the post-petition judgment voiding the lien was entered, but rather existed as of the date of the filing of the petition. The court held that the debt limitations of Section 109(e) must be construed to include claims deemed unsecured by operation of the Bankruptcy Code. The movant's unsecured claim arose as a result of the debtors' "recovery" of their residence, see § 550(a), by the avoidance of the involuntary "transfer" of a lien to the movant, see § 101(54)[58]. Section 502(h) therefore mandates that the movant's claim be determined and allowed as though it had arisen before the date the petition was filed. See Allied Cos., Inc. v. Broughton Foods Co. (In re Allied Cos., Inc.), 155 B.R. 739, 744 (Bankr.S.D.Ind.1992) ("[S]ubsequent avoidance of the [preferential] payment relates back to the time before bankruptcy, so the claim is deemed to have been unpaid at the time the petition was filed."). . . . . . . The specificity of those limitations [§ 109(e)] reflects a congressional intent that they be strictly applied. When a preferential transfer reduces prepetition unsecured debt, § 547 effectuates the code policy of reversing that transfer. . . . That policy prevents the payment of certain creditors at the expense of others through the voluntary or involuntary transfer of property that should have been estate property. The transferee receiving a prohibited transfer is returned to its pre-transfer status, i.e. the holder of an unsecured, prepetition claim. Thus, § 547 "essentially treats the estate as if it were already created during the preference period." County of Sacramento v. Hackney, 93 B.R. 213, 218 (Bankr.N.D.Cal.1988). If a debtor was ineligible for chapter 13 relief at the start of the preference period, eligibility cannot be created by a preferential transfer which the debtor subsequently avoids and which is treated under the code as though it had never occurred. Id. at 753-754 (some citations omitted). The Toronto court analogized its decision *598 to the line of cases holding that the unsecured portion of undersecured claims should be included in the calculation of the unsecured debt limitation under Section 109(e). See also In re Scovis, 249 F.3d 975 (9th Cir.2001) (holding a judgment lien subsequently avoided must be treated as unsecured for Chapter 13 eligibility purposes even though it was not avoided until after the petition date). CONCLUSION In summary, the Moving Creditors' judgment liens, filed during the preference period, are subject to avoidance and must be treated as unsecured for the purpose of determining eligibility under Section 109(e). Since the Moving Creditors' judgments are not contingent or unliquidated, and must be treated as unsecured, the Debtor's aggregate unsecured debt exceeds the statutory limitations, and this Debtor is ineligible for Chapter 13 relief. Accordingly, the Motion is granted and this case shall be dismissed. NOTES [1] The breakdown of these claims is as follows: Thomas P. Malone & Associates — $70,076.50; Terry Bernuth — $18,752.63; Jannene M. Wall — $75,211.15; Daniel L. Woodrow — $21,206.57; James TenBrook — $28,374.13. [2] The breakdown of these claims is as follows: Joshua Wall — $35,137.60; Gouldian Finch, LLC — $22,299.73; Catherine Hanson — $15,494.46; Christina Hanson — $15,494.46. [3] Debtor's Schedule F values total claims at $75,386.51. Of this amount, debtor lists $18,000 owed to James TenBrook as disputed, leaving $57,386.51 as the total undisputed liquidated debt owed to creditors. [4] Unless otherwise specified, all references to "Sections" are to sections in Title 11, United States Code.

Fourth Court of Appeals San Antonio, Texas July 7, 2016 No. 04-16-00424-CV IN RE RPH CAPITAL PARTNERS, LP Original Mandamus Proceeding1 ORDER Sitting: Karen Angelini, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice On June 30, 2016, Relator filed a petition for writ of mandamus. This court is of the opinion that a serious question concerning the mandamus relief sought requires further consideration. See TEX. R. APP. P. 52.8(b). The respondent and the real parties in interest may file a response to the petition in this court no later than July 22, 2016. Any such response must conform to Texas Rule of Appellate Procedure 52.4. It is so ORDERED on July 7, 2016. PER CURIAM ATTESTED TO: _____________________________ Keith E. Hottle, Clerk 1 This proceeding arises out of Cause No. 2016-CI-05251, styled Peridot Joint Venture, Millennium Exploration Company, LLC and Richard Monroy v. RPH Capital Partners, LP, pending in the 57th Judicial District Court, Bexar County, Texas, the Honorable Antonia Arteaga presiding. 

57 F.Supp. 14 (1944) DEFENSE PLANT CORPORATION v. UNITED STATES BARGE LINES, Inc. (two cases). District Court, S. D. New York. April 15, 1944. Order Affirmed November 27, 1944. *15 Bigham, Englar, Jones & Houston, of New York City (F. Herbert Prem, of New York City, of counsel), for libelant Defense Plant Corporation. Maurice A. Krisel, of New York City (Israel J. Beck, of Freeport, N. Y., of counsel), for intervenors Ida W. Barnes and Thomas C. Fisher. Kirlin, Campbell, Hickox, Keating & McGrann, of New York City, for garnishee Standard Oil Co. of New Jersey. Otterbourg, Steindler & Houston, of New York City (E. Robert Marks, of New York City, of counsel), for trustee in bankruptcy. Order Affirmed November 27, 1944. See 145 F.2d 766. CAFFEY, District Judge. I think there are several reasons why the motion should not be granted. Two of these, each of which seems to me sufficient, will be stated. I. On January 19 or 22, 1944, the respondent was adjudicated a bankrupt by the United States District Court for the Western District of Kentucky. At the time, so far as the papers disclose, no proceeding with respect to an alleged bottomry lien had been instituted by either movant. The notice of motion before me is dated March 25, 1944,—more than two months subsequent to the adjudication. As I view the matter, by force of the Bankruptcy Act, 11 U.S.C.A. § 1 et seq., the court which adjudicated the respondent a bankrupt is vested with exclusive jurisdiction to determine the claims of the movants (including their claims of liens) described in their notice of motion and the papers annexed thereto. Isaacs v. Hobbs Tie & T. Co., 282 U.S. 734, 739, 51 S.Ct. 270, 75 L.Ed. 645. See also Straton v. New, 283 U.S. 318, 322-327, 51 S.Ct. 465, 75 L.Ed. 1060, and New York Casualty Co. v. City of Lagrange, Ky., D.C.W.D.Ky., 33 F.Supp. 993, 994. II. It is urged by the movants that The Philomena, D.C.D.Mass., 200 F. 859, 861, is the other way; but I regard that case as inapplicable. There a suit for enforcement of an admiralty lien was instituted prior to the respondent being adjudicated a bankrupt. Here the adjudication in bankruptcy preceded the making of the motion now under consideration. In the Philomena case the libel in admiralty was filed and the vessel was arrested September 9, 1911. The petition in bankruptcy was filed September 14, 1911. This difference in the facts from the facts in the instant case is crucial. As I read the opinion, the significance of the difference was thoroughly recognized by Judge Dodge, who wrote the opinion. When speaking about the superiority of the jurisdiction of the admiralty there declared, at page 861 of 200 F., he went no further than to state it to be in a case "wherein its [the admiralty court's] jurisdiction over the property was complete before the bankruptcy proceedings were inaugurated." The position of the District Court in Massachusetts on the issue now presented was additionally clarified and emphasized in a subsequent decision by that court. Five years afterwards in The Casco, D.C. D.Mass., 230 F. 929, 930, on facts in substance identical with those in the case at *16 bar, the same court seems to me squarely to have held that the Philomena decision was confined to a case wherein the vessels involved "had been seized under the admiralty process, before the bankruptcy proceedings [against the owner of the vessels] were begun." In those circumstances the later decision, in conformity with the earlier decision, said that "the admiralty court would not surrender" the vessels and that admiralty jurisdiction was paramount. But in the later decision of a case on facts indistinguishable from those here, the court denied the request that the vessels be released by the bankruptcy court to the admiralty court. At pages 930 and 931 of 230 F., Judge Morton wrote as follows: "It is settled that the admiralty jurisdiction over vessels is not of such exclusive and fundamental character that, for the purpose of enforcing maritime liens against them, they will be taken from anybody in whose possession they may be found. * * * "Again, it is doubtful whether a bankruptcy court may, under the present [1898] act, properly surrender property admittedly belonging to a bankrupt estate to another court for the determination of liens and claims against it." As I construe the second Massachusetts District Court ruling, in principle at least, it accords with the Isaacs case, supra. If, however, I be mistaken with respect to what is contained in subdivisions I and II of this memorandum, I believe there is another ground on which the present motion cannot properly prevail. III. In the one of the actions designated above as A 128-59 there was an interlocutory decree for the libellant on September 29, 1943, and the cause was terminated by final decree in favor of the libellant on March 6, 1944. In the other, designated as A 129-129, brought by the same libellant, on March 29, 1944, an order was made dissolving and vacating the attachment. This was at the instance of the bankruptcy trustee. As stated in the brief of his counsel, and not controverted in the movants' reply brief, with respect to case A 129-129, "* * * on March 29, 1944, an order was entered in this court pursuant to Section 67A [sub. a] of the Bankruptcy Act [11 U.S.C.A. § 107, sub. a] dissolving and disattaching the judgment obtained by Defense Plant Corporation [the libellant] in that proceeding." In effect this was a termination of that proceeding. It follows that there is no admiralty litigation now pending between the parties to the actions whose titles are given in the caption of the notice of motion. Since those actions ended, there has been no admiralty litigation between the parties. It follows that at present there is no suit in this court such as that into which the movants seek leave to intervene. IV. On March 20, 1944, the Standard Oil Company of New Jersey instituted in this court an interpleader suit, Standard Oil Co. v. Defense Plant Corp., 57 F.Supp. 13, and deposited in the registry of the court the fund in controversy, which grew out of freights owing by the Standard Company to the respondent in the two previously commenced admiralty suits (A 128-59 and A 129-129). The defendants in the interpleader case include that respondent and the bankruptcy trustee. In its answer therein the trustee has set up a claim to the entire fund. The movants do not desire to become parties to that suit and, therefore, for the purposes of the present motion, it may be disregarded. Nevertheless, in addition to its appearing that there is no action such as that into which the movants seek admission, it further appears that already the bankruptcy trustee has asserted his claim to possession of the fund. V. As previously indicated, there are additional reasons for refusing the relief sought. Motion denied. Settle order on two days' notice.

United States Court of Appeals Fifth Circuit FILED IN THE UNITED STATES COURT OF APPEALS April 7, 2006 FOR THE FIFTH CIRCUIT _____________________ Charles R. Fulbruge III Clerk No. 05-50964 _____________________ UNITED STATES OF AMERICA Plaintiff - Appellee v. ARMANDO MARTINEZ-LOPEZ Defendant - Appellant --------------------- Appeal from the United States District Court for the Western District of Texas, Del Rio 2:05-CR-72 --------------------- Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges. PER CURIAM:* IT IS ORDERED that appellee’s unopposed motion to vacate sentence is GRANTED. IT IS FURTHER ORDERED that appellee’s unopposed motion to remand case to the district court for resentencing is GRANTED. IT IS FURTHER ORDERED that appellee’s unopposed alternative motion to extend time to file appellee’s brief until 14 days after denial of motion to vacate and remand is DENIED as moot. * 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. 

212 S.W.3d 277 (2006) Xavier SIKORA v. Douglas A. VANDERPLOEG. Court of Appeals of Tennessee, at Nashville. October 12, 2005 Session. July 3, 2006. Permission to Appeal Denied December 27, 2006. *280 Kenneth R. Jones, Jr. and William B. Hawkins, III, Nashville, Tennessee, for the appellant, Douglas A. VanderPloeg. Susan D. Bass and Thomas M. Pinckney, Nashville, Tennessee, for the appellee, Xavier Sikora. Permission to Appeal Denied by Supreme Court December 27, 2006. OPINION WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and FRANK G. CLEMENT, JR., JJ., joined. This appeal involves a dispute over the sale of a chiropractic practice. The purchaser made several significant changes in the practice following the sale and, when the practice began to fail, filed an action for breach of warranty against the seller in the Circuit Court for Davidson County. The seller attributed the failure of the practice to the seller's poor business judgment and counterclaimed for unpaid lease payments. Following a three-day bench trial, the trial court found that the seller had breached the warranties of sale and awarded the purchaser $34,443 in damages. The trial court offset this award with a $18,294 judgment in favor of the seller for unpaid lease payments and then awarded the purchaser an additional $52,592 in attorney's fees and costs. We have determined that the trial court erred by failing to reform the purchase agreement to reflect the true agreement between the parties and by concluding that the seller violated his warranty to disclose all material or significant information regarding the practice. I. In 1985, Douglas A. VanderPloeg established VanderPloeg Chiropractic on Murfreesboro Road in Nashville. Ten years later, in 1995, he joined forces with a physician and formed a second, affiliated practice, Priority One Medical, P.C., to provide integrated medical and chiropractic services at the same Murfreesboro Road location. At the same time, Dr. VanderPloeg incorporated Priority One Staff & Equipment, Inc. (Priority One Staff) to furnish management, administrative, and personnel services to VanderPloeg Chiropractic and Priority One Medical. The integrated practice did not perform as well as Dr. VanderPloeg had hoped, and four years later, on May 15, 1999, he dissolved VanderPloeg Chiropractic's relationship with Priority One Medical and Priority One Staff. Later in 1999, Dr. VanderPloeg decided to sell VanderPloeg Chiropractic and to move to Maine. He hired the Paragon Group, Inc., a New Jersey company specializing in the valuation of chiropractic and other professional practices, to appraise *281 the business and serve as the exclusive listing agent for the sale. The Paragon Group's detailed appraisal report dated December 23, 1999 placed the fair market value of the tangible and intangible assets of VanderPloeg Chiropractic at $200,000 excluding the value of the accounts receivable. The Paragon Group appraisal report emphasized that the most valuable transferable asset a professional practice like VanderPloeg Chiropractic has is its professional goodwill, i.e., the likelihood that existing patients will continue to purchase chiropractic services in the future as long as patient care remains satisfactory and the practice's professional standards are maintained. Moreover, the report made it clear that the $200,000 figure was based largely on the professional goodwill Dr. VanderPloeg had built up over the preceding fourteen years of successful chiropractic practice at the same location. Xavier Sikora followed an unconventional path to becoming a chiropractor. He held a number of jobs following his graduation from high school in 1979, including a ten-year stint as a prison guard in Illinois. After receiving chiropractic treatment for a workplace injury, he decided to return to school in 1996 and study to become a chiropractor. He took out loans to support himself and his family while he was in school and received his chiropractic degree from Palmer College in Iowa in October 1999. Immediately upon receiving his chiropractic degree, Dr. Sikora began looking for an established practice to purchase and operate as a solo practitioner. As part of his search, he contacted the Paragon Group in New Jersey. The Paragon Group sent him its appraisal report for VanderPloeg Chiropractic. Dr. Sikora reviewed the report carefully but, by his own admission, did not understand the analysis and financial data contained in it.[1] Nevertheless, impressed by the professionalism of the report and the amount of information it contained, Dr. Sikora decided to investigate VanderPloeg Chiropractic further. After a single brief trip to Nashville to visit the practice, Dr. Sikora decided to purchase it from Dr. VanderPloeg for $200,000. Thus, on January 27, 2000, he entered into a non-binding letter of intent with Dr. VanderPloeg. Dr. Sikora hired a Nashville attorney, Arshad (Paku) Khan,[2] to prepare the necessary documents. On February 22, 2000, Mr. Khan sent Dr. VanderPloeg's transactional attorney a draft purchase agreement. It contained a warranty from Dr. VanderPloeg regarding VanderPloeg Chiropractic's total billings and collections for the 1999 calendar year with blanks where the appropriate figures could be inserted. On February 28, 2000, Dr. VanderPloeg's attorney wrote to Mr. Khan thanking him for the draft and suggesting a variety of changes. He advised Mr. Khan that the warranty provision regarding the practice's 1999 billings and collections should be removed because the months prior to "June 1999" would reflect not only the performance of VanderPloeg Chiropractic but also the performance of the integrated practice with Priority One Medical and Priority One Staff. At some point during the next few weeks, Dr. VanderPloeg provided Dr. Sikora with a handwritten chart showing VanderPloeg Chiropractic's monthly billings *282 for June through December 1999. At the bottom of the column showing each month's billings, the chart indicated that VanderPloeg Chiropractic's total billings for the seven-month period were "[$]257,952." On March 19, 2000, Dr. Sikora sent his attorney, Mr. Khan, a copy of this chart along with two sheets of paper with notes in Dr. Sikora's handwriting. The chart from Dr. VanderPloeg showed each month's billings from June through December 1999, and one of the sheets in Dr. Sikora's handwriting laid out VanderPloeg Chiropractic's monthly collections for the same period. Dr. Sikora's handwritten notes contained the figures "$257,952" and "$146,609" for billings and collections and indicated clearly that the figures covered the seven-month period from June through December 1999. However, when Mr. Khan inserted the figures into the warranty provision of the purchase agreement, he erroneously indicated that they represented the billings and collections for the six-month period from July through December 1999 instead of the seven-month period from June through December 1999 as indicated in the information Dr. VanderPloeg provided to Dr. Sikora and that Dr. Sikora then forwarded to Mr. Khan. No one noticed Mr. Khan's mistake in the dates, and four days later, on March 23, 2000, Dr. Sikora and Dr. VanderPloeg executed the flawed purchase agreement. A week later, Dr. Sikora executed a separate agreement assuming the lease for the office space on Murfreesboro Road. However, Dr. VanderPloeg remained secondarily liable for the lease payments. In addition, Dr. VanderPloeg stayed on as a consultant to the practice for sixty days following the sale under a collateral arrangement with Dr. Sikora. During this time, the practice continued to perform well, and new patient flow was satisfactory. However, as soon as Dr. VanderPloeg left, Dr. Sikora began making significant changes to the practice, and business dropped off sharply.[3] In spite of the fact that the primary asset he had purchased from Dr. VanderPloeg was professional goodwill, Dr. Sikora changed the name of VanderPloeg Chiropractic to Absolute Care Chiropractic so that it would be listed first among the chiropractors in the Yellow Pages. He dismissed Dr. VanderPloeg's insurance clerk and receptionist and replaced them with his wife even though she lacked experience in these areas. He changed the professional atmosphere of the office by having his youngest child spend every workday at the office because he and his wife lacked childcare alternatives. Finally, Dr. Sikora relocated the practice to a less desirable building in a deteriorating neighborhood. Dr. Sikora blamed Dr. VanderPloeg rather than himself for the decline in business. On February 12, 2002, he filed suit against Dr. VanderPloeg in the Circuit Court for Davidson County. Dr. Sikora alleged that Dr. VanderPloeg had falsely warranted that the practice had billings and collections of $257,952 and $146,609, *283 respectively, for the six-month period from July through December 1999. He also alleged that Dr. VanderPloeg had violated his warranty to disclose all material or significant information known to him relating to his operation of the practice. Dr. VanderPloeg denied Dr. Sikora's allegations and counterclaimed to recover the unpaid lease payments on the office space following Dr. Sikora's abandonment of the premises.[4] Following a three-day bench trial, the court entered an order on August 4, 2003 concluding that Dr. VanderPloeg breached his warranties to Dr. Sikora. The trial court acknowledged that the parties intended the billings and collections figures warranted in the purchase agreement to apply to the seven-month period from June through December 1999 instead of the six-month period from July through December 1999. Morover, the trial court found that the billings and collections figures contained in the purchase agreement were correct for June through December 1999 but not for July through December 1999. Even though it was Dr. Sikora's lawyer, Mr. Khan, who inserted the incorrect dates into the purchase agreement, the trial court determined that Dr. VanderPloeg and his lawyer were responsible for the error because they failed to discover it. The trial court cited Myrick v. Johnson, 25 Tenn.App. 483, 488, 160 S.W.2d 185, 188 (1941), for the proposition that "[i]nattention, as distinguished from mistake, is no ground for reformation" and refused to reform the purchase agreement on the ground of mutual mistake. Dr. VanderPloeg conceded at trial that the warranty, as written, was not accurate. Accordingly, the trial court found that Dr. VanderPloeg violated the warranty regarding VanderPloeg Chiropractic's 1999 billings and collections. The trial court also determined that Dr. VanderPloeg breached his warranty to disclose to Dr. Sikora all material or significant facts known to him regarding his operation of the practice. The trial court based its determination on a February 7, 2000 letter that Dr. VanderPloeg wrote to Dr. Sikora's commercial lender in support of Dr. Sikora's attempt to secure the loan to purchase the practice. In the letter, Dr. VanderPloeg stated that VanderPloeg Chiropractic had experienced a 30% drop in new patient flow during the transition from a combined medical and chiropractic practice back to a chiropractic practice alone following the termination of the integrated practice with Priority One Medical in May 1999. The trial court concluded that this information was a material or significant fact regarding Dr. VanderPloeg's operation of the practice, that Dr. VanderPloeg should have specifically and directly disclosed this information to Dr. Sikora, and that his failure to do so violated the disclosure warranty. The trial court stated that the proper measure of damages was the difference between the $200,000 contract price and the actual value of VanderPloeg Chiropractic at the time of the sale, plus any contemplated consequential or incidental damages. However, during the three-day trial, Dr. Sikora failed to produce a single expert witness to testify regarding the value of the practice on the date of purchase, and Dr. VanderPloeg's expert witness testified that the value of the practice at that time was at least $200,000 if not more. The *284 trial court allowed Dr. Sikora, as the owner of the practice, to testify that it was worth "less than zero" when he purchased it. However, Dr. Sikora's own testimony demonstrated clearly that his "valuation" of the practice was purely speculative.[5] Faced with this conundrum, the trial court devised a curious method for determining the difference between the contract price and the actual value of the practice on the date of purchase. The court determined that the billings and collections figures contained in the purchase agreement were off by approximately 17% as a result of the drafting errors and then applied this percentage to the $200,000 purchase price to obtain the figure of $34,443. The trial court awarded this sum to Dr. Sikora as damages on his breach of warranty claims.[6] The court also found that Dr. VanderPloeg was entitled to a setoff of $18,294 as a result of his secondary liability for the lease payments on the office space that Dr. Sikora had failed to pay. However, the court ruled that Dr. VanderPloeg would be entitled to receive the setoff only if he presented proof showing that he had actually paid the amount still due under the lease agreement. The trial court later awarded Dr. Sikora $52,592 in attorney's fees and costs and directed that its present and prior orders be entered as final judgments subject to immediate appeal under Tenn. R. Civ. P. 54.02. Dr. VanderPloeg appealed. II. THE STANDARDS OF REVIEW The standards this court uses to review the results of bench trials are well settled. With regard to a trial court's findings of fact, we will review the record de novo and will presume that the findings of fact are correct "unless the preponderance of the evidence is otherwise." We will also give great weight to a trial court's factual findings that rest on determinations of credibility. In re Estate of Walton, 950 S.W.2d 956, 959 (Tenn.1997); B & G Constr., Inc. v. Polk, 37 S.W.3d 462, 465 (Tenn.Ct.App. 2000). If, however, the trial court has not made a specific finding of fact on a particular matter, we will review the record to determine where the preponderance of the evidence lies without employing a presumption of correctness. Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.1997). Reviewing findings of fact under Tenn. R.App. P. 13(d) requires an appellate court to weigh the evidence to determine in which party's favor the weight of the aggregated evidence falls. There is a "reasonable probability" that a proposition is true when there is more evidence in its favor than there is against it. The prevailing party is the one in whose favor the evidentiary scale tips, no matter how slightly. Parks Props. v. Maury County, 70 S.W.3d 735, 741 (Tenn.Ct.App.2001); Realty Shop, Inc. v. RR Westminster *285 Holding, Inc., 7 S.W.3d 581, 596 (Tenn.Ct. App.1999). Tenn. R.App. P. 13(d)'s presumption of correctness requires appellate courts to defer to a trial court's findings of fact. Fell v. Rambo, 36 S.W.3d 837, 846 (Tenn. Ct.App.2000). Because of the presumption, an appellate court is bound to leave a trial court's finding of fact undisturbed unless it determines that the aggregate weight of the evidence demonstrates that a finding of fact other than the one found by the trial court is more probably true. Parks Props. v. Maury County, 70 S.W.3d at 742. Thus, for the evidence to preponderate against a trial court's finding of fact, it must support another finding of fact with greater convincing effect. Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn.Ct.App.2000). The presumption of correctness in Tenn. R.App. P. 13(d) applies only to findings of fact, not to conclusions of law. Accordingly, appellate courts review a trial court's resolution of legal issues without a presumption of correctness and reach their own independent conclusions regarding these issues. Johnson v. Johnson, 37 S.W.3d 892, 894 (Tenn.2001); Nutt v. Champion Int'l Corp., 980 S.W.2d 365, 367 (Tenn.1998); Knox County Educ. Ass'n v. Knox County Bd. of Educ., 60 S.W.3d 65, 71 (Tenn.Ct.App.2001); Placencia v. Placencia, 48 S.W.3d 732, 734 (Tenn.Ct.App. 2000). III. DR. SIKORA'S BREACH OF WARRANTY CLAIMS Dr. VanderPloeg takes issue with the trial court's decision regarding both of Dr. Sikora's breach of warranty claims. First, he contends that the billings and collections figures in the purchase agreement were the product of a mutual mistake, not a misrepresentation of the practice's actual billings and collections. Second, he contends that the trial court erred by concluding that he breached the disclosure warranty by failing to inform Dr. Sikora specifically of the decline in the number of new patients because he had fully and accurately disclosed the practice's billings and collections for the relevant period along with a wealth of other information regarding his operation of the practice. We will address each argument in turn. A. The Nature of Dr. VanderPloeg's Warranties The warranties involved in this case are contractual in nature. Au v. Au, 63 Haw. 210, 626 P.2d 173, 180 (1981); Flaherty v. Weinberg, 303 Md. 116, 492 A.2d 618, 627 (1985); Boudreau v. Baughman, 322 N.C. 331, 368 S.E.2d 849, 854 (1988). A contractual warranty is an assurance by one party to the contract of the existence of a fact upon which the other contracting party may rely. Advantage Funding Corp. v. Mid-Tenn. Mfg. Co., No. M1997-00133-COA-R3-CV, 2000 WL 64118, at *5 (Tenn.Ct.App. Jan.27, 2000) (No Tenn. R.App. P. 11 application filed). It is intended to relieve the promisee of any duty to ascertain the fact for himself or herself, and it amounts to an agreement by the promisor to indemnify the promisee for any loss if the warranted fact later proves to be untrue. Lilly Indus., Inc. v. Health-Chem Corp., 974 F.Supp. 702, 711 (S.D.Ind.1997); Walter Dawgie Ski Corp. v. United States, 30 Fed. Cl. 115, 126 (1993); Hoover v. Nielson, 20 Ariz.App. 130, 510 P.2d 760, 763 (1973); Sterling Capital Advisors, Inc. v. Herzog, 575 N.W.2d 121, 127 (Minn.Ct.App.1998). A contractual warranty may be express or implied, Ramage v. Forbes Int'l, Inc., 987 F.Supp. 810, 816 (C.D.Cal. 1997); Camino Real Mobile Home Park P'ship v. Wolfe, 119 N.M. 436, 891 P.2d *286 1190, 1196 (1995); Lucas v. Canadian Valley Area Vocational Technical Sch., 824 P.2d 1140, 1141 (Okla.Civ.App.1992), and it need not be stated in any particular or technical language, Taratus v. Smith, 245 Ga. 107, 263 S.E.2d 145, 146 (1980); County of Somerset v. Durling, 174 N.J.Super. 52, 415 A.2d 371, 374 (Ch. Div.1980). A breach of warranty occurs when the warranted fact or condition is in reality not as it was represented. Dailey v. Holiday Distrib. Corp., 260 Iowa 859, 151 N.W.2d 477, 482 (Iowa 1967). A person seeking to prove a breach of warranty has the dual burden of proving the pertinent terms of the warranty and the fact that those terms were breached. Collier v. Rice, 233 Va. 522, 356 S.E.2d 845, 847 (1987). B. The Warranties Involving the Practice's Billings and Collections There is no dispute that the billings and collections figures in the purchase agreement did not accurately reflect the practice's actual billings and collections for the stated period. Dr. VanderPloeg insists that the error regarding the dates included in the billings and collections information was the result of a drafting error by Dr. Sikora's lawyer and that the trial court should have invoked the doctrine of mutual mistake to correct this error. We agree. The courts must interpret contracts as they are written, Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn.1975); Bradson Mercantile, Inc. v. Crabtree, 1 S.W.3d 648, 652 (Tenn.Ct.App.1999), and are not at liberty to make a new contract for parties who have spoken for themselves, Petty v. Sloan, 197 Tenn. 630, 640, 277 S.W.2d 355, 359 (1955); Hillsboro Plaza Enters. v. Moon, 860 S.W.2d 45, 47 (Tenn.Ct.App.1993). Accordingly, the courts do not concern themselves with the wisdom or folly of a contract, Chapman Drug Co. v. Chapman, 207 Tenn. 502, 516, 341 S.W.2d 392, 398 (1960); Brooks v. Networks of Chattanooga, Inc., 946 S.W.2d 321, 324 (Tenn.Ct.App.1996), and will not relieve parties from contractual obligations simply because they later prove to be burdensome or unwise, Atkins v. Kirkpatrick, 823 S.W.2d 547, 553 (Tenn.Ct.App.1991); Ballard v. N. Am. Life & Cas. Co., 667 S.W.2d 79, 82 (Tenn.Ct.App.1983); Carrington v. W.A. Soefker & Son, Inc., 624 S.W.2d 894, 897 (Tenn.Ct.App.1981).[7] Nevertheless, the law's strong policy favoring the enforcement of contracts as written must occasionally give way. Thus, it is well settled that the courts have the power to alter the terms of a written contract where, at the time it was executed, both parties were operating under a mutual mistake of fact or law regarding a basic assumption underlying the bargain. Alexander v. Shapard, 146 Tenn. 90, 105-15, 240 S.W. 287, 291-94 (1922); Cromwell v. Winchester, 39 Tenn. (2 Head) 389, 390-91 (1859). The courts are also empowered to modify the provisions of a written contract where only one of the parties was operating under a mistake of fact or law if the mistake was influenced by the other party's fraud. Dickens v. St. Paul Fire & Marine Ins. Co., 170 Tenn. 403, 414-17, 95 S.W.2d 910, 914-15 (1936); Jones v. Jones, 150 Tenn. 554, 596, 266 S.W. 110, 121 (1924); Pittsburg Lumber Co. v. Shell, 136 Tenn. 466, 472, 189 S.W. 879, 880 (1916); Pierce v. Flynn, 656 S.W.2d 42, 46 (Tenn.Ct.App. *287 1983); RESTATEMENT (SECOND) OF CONTRACTS §§ 152 & cmt. a, at 385-86, 153 & cmt. a, at 394 (1981). The judicial alteration of the provisions of a written agreement is an equitable remedy known as "reformation." Greer v. J.T. Fargason Grocer Co., 168 Tenn. 242, 244-45, 77 S.W.2d 443, 443-44 (1935); Tenn. Valley Iron & R.R. Co. v. Patterson, 158 Tenn. 429, 433, 14 S.W.2d 726, 727 (1929).[8] The basic purpose of reformation is to make the contract "conform to the real intention of the parties." Lebo v. Green, 221 Tenn. 301, 314, 426 S.W.2d 489, 494 (1968). It is "driven by a respect for the parties' intent and gives effect to the terms mutually agreed upon by the parties." 27 WILLISTON ON CONTRACTS § 70:2, at 210. Because the law strongly favors the validity of written instruments, a person seeking to reform a written contract must do more than prove a mistake by a preponderance of the evidence. Instead, the evidence of mistake must be clear and convincing. Hazlett v. Bryant, 192 Tenn. 251, 263, 241 S.W.2d 121, 125-26 (1951); Tenn. Hoop Co. v. Templeton, 151 Tenn. 375, 379-80, 270 S.W. 73, 75 (1925); Sawyer v. Sawyer, 106 Tenn. 597, 603, 61 S.W. 1022, 1023 (1901); Bailey v. Bailey, 27 Tenn. (8 Hum.) 230, 233 (1847); RESTATEMENT (SECOND) OF CONTRACTS § 155 cmt. c, at 410.[9] An important subcategory of mistake is mistake in the expression, or integration, of the agreement. Jones v. Jones, 150 Tenn. at 595, 266 S.W. at 121; Alexander v. Shapard, 146 Tenn. at 106-07, 240 S.W. at 291; RESTATEMENT (SECOND) OF CONTRACTS ch. 6 introductory note, at 379, 381, § 155 & cmt. a, at 406-07.[10] A mistake in expression occurs where one or both parties to a written contract erroneously believe that the contract embodies the agreement that both parties intended it to express. In such cases, the courts may adjust the provisions of the written contract to make it express the true agreement reached by the parties. Alexander v. Shapard, 146 Tenn. at 107, 240 S.W. at 291; 27 WILLISTON ON CONTRACTS § 70:20, at 257. In order to obtain reformation on the basis of mistake in expression, a party must present clear and convincing evidence that: (1) the parties reached a prior agreement regarding some aspect[11] of the bargain; (2) they intended the prior agreement[12] to be included in the written *288 contract; (3) the written contract materially differs from the prior agreement; and (4) the variation between the prior agreement and the written contract is not the result of gross negligence on the part of the party seeking reformation. 7 CORBIN ON CONTRACTS § 28.45, at 283; 27 WILLISTON ON CONTRACTS §§ 70:19, at 256, 70:23, at 264-65. Reformation is not automatically barred simply because one of the parties denies that there was an antecedent agreement or claims that the mistake was not mutual. 27 WILLISTON ON CONTRACTS §§ 70:13, at 231, 70:21, at 258-59. As long as the party seeking reformation establishes the elements of a mistake in expression, any discrepancy between the parties' prior agreement and their written contract is presumed to be the result of a mutual mistake (unless, of course, there is evidence of fraud). Alexander v. Shapard, 146 Tenn. at 108, 111, 240 S.W. at 292-93. As a noted commentator on the law of contracts has explained: [E]very unintended variance between the prior agreement and the writing is deemed to constitute a mutual mistake. . . . When courts speak of mutuality of the mistake, they usually mean that a mistaken belief by one party alone that the writing will contain a given provision is not a ground for reformation. But this is encompassed in the requisite that there be a prior agreement that the provision be included in the writing. 7 CORBIN ON CONTRACTS § 28.45, at 283-84 (footnotes omitted).[13] The record on appeal contains overwhelming evidence of a prior agreement between Dr. VanderPloeg and Dr. Sikora to the effect that VanderPloeg Chiropractic's 1999 billings and collections were $257,952 and $146,609, respectively, for the seven-month period from June through December 1999. In addition, it is beyond cavil that the parties intended to include a warranty in the written contract containing Dr. VanderPloeg's representation regarding these figures.[14] Moreover, it is undisputed that the billings and collections warranty contained in the purchase agreement does not accurately express this prior understanding. There is also no evidence in the record to suggest that the incorrect dates were incorporated into the written contract as a result of gross negligence on the part of Dr. VanderPloeg or his attorney. Accordingly, the legal criteria for reformation were met. *289 Dr. Sikora nevertheless contends that the trial court properly denied reformation for two reasons. First, he claims that the mistake regarding the dates covered by the warranty was not mutual and, therefore, cannot serve as a basis for reformation of the purchase agreement. In other words, Dr. Sikora maintains that he thought all along that the billings and collections figures of $257,952 and $146,609 were for the six-month period from July through December 1999, not for the seven-month period from June through December of that year. Dr. Sikora's claim strains credulity, to put it mildly. The evidence in the record—some of which is in Dr. Sikora's own handwriting—shows clearly that both Dr. Sikora and his attorney knew four days prior to the execution of the purchase agreement that the precise numbers ultimately included in the warranty provision were for the seven-month period from June through December 1999, not the six-month period from July through December 1999. The most charitable interpretation of Dr. Sikora and Mr. Khan's conduct is that Mr. Khan inadvertently included the wrong dates in the purchase agreement, that Mr. Khan then failed to catch his error before the closing date, and that Dr. Sikora and Dr. VanderPloeg then executed the twelve-page agreement without noticing that the dates in the warranty provision were off by two letters (i.e., July instead of June). Thus, the evidence in the record shows clearly that the mistake regarding the dates was mutual as a matter of fact. Moreover, as explained above, a mistake in expression is deemed to be mutual as a matter of law if the party seeking reformation establishes by clear and convincing evidence that there was a prior agreement, the parties intended it to be included in the later written contract, the written contract is at variance with the prior agreement, and the party seeking reformation is not guilty of gross negligence. Accordingly, we find Dr. Sikora's argument against reformation based on an alleged lack of mutuality in the mistake insupportable on both the facts and the law. In his second argument against reforming the warranty provision, Dr. Sikora reiterates the trial court's reasoning, i.e., he contends that reformation is unavailable as a matter of law because the mistake in the dates resulted from the "inattention" of Dr. VanderPloeg and his attorney in failing to discover Mr. Khan's drafting error. In support of this claim, Dr. Sikora cites this court's statement in Myrick v. Johnson, 25 Tenn.App. at 488, 160 S.W.2d at 188, that "[i]nattention, as distinguished from mistake, is no ground for reformation." Dr. Sikora has taken this statement out of context. Taken as an abstraction, the quote from Myrick v. Johnson is not a correct statement of the law regarding mistake. While a handful of Tennessee cases contain comments along the lines of the quote from Myrick v. Johnson relied on by Dr. Sikora, see, e.g., Jones v. Jones, 150 Tenn. at 594-95, 266 S.W. at 120-21; Silsbe v. Houston Levee Indus. Park, LLC, 165 S.W.3d 260, 266 (Tenn.Ct.App.2004); Henry v. S. Fire & Cas. Co., 46 Tenn.App. 335, 344, 330 S.W.2d 18, 23 (1958), it is clear from the context that the courts were using the word "inattention" as a synonym for, or one aspect of, negligence. Moreover, other cases, including some going back to the first part of the last century, make it clear that "inattention," at least as that word is used in common parlance, is not an absolute bar to reformation under Tennessee law. Alexander v. Shapard, 146 Tenn. at 109, 240 S.W. at 292; Feder v. Gass, 59 S.W. 175, 176 (Tenn.Ch.App. 1900). It would make little sense to impose a categorical exemption to the doctrine *290 of mistake whenever the underlying mistake could accurately be described as resulting from "inattention" as opposed to some other cause. If inattention were enough to defeat a claim for reformation based on a mistake in expression, the remedy would almost never be available to correct typographical mistakes and scriveners errors, because parties have a duty to read the written contracts they enter into and are ordinarily charged with knowledge of their contents regardless of whether they have actually read them.[15] Accordingly, reformation is denied only in "extreme cases" where a party's fault "amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing." RESTATEMENT (SECOND) OF CONTRACTS § 157 & cmt. a, at 416; accord 27 WILLISTON ON CONTRACTS § 70:48, at 345. Thus, the level of negligence required to defeat a claim for reformation based on a mistake in execution is often described as "gross negligence." See, e.g., Rentenbach Eng'g Co. v. Gen. Realty Ltd., 707 S.W.2d at 527; see also Rotenberry v. Hooker, 864 So.2d 266, 271-278 (Miss. 2003); 27 WILLISTON ON CONTRACTS §§ 70:49, at 346, § 70:113, at 561. A party's failure to catch a drafting error when reading over a written contract does not normally rise to the level of "gross negligence" that will bar reformation. Rentenbach Eng'g Co. v. Gen. Realty Ltd., 707 S.W.2d at 527; 27 WILLISTON ON CONTRACTS §§ 70:48, at 346, 70:113, at 561. This is true even where the party seeking reformation is the one who drafted the contract. Cincinnati Ins. Co. v. Fred S. Post, Jr., Co., 747 S.W.2d at 781; 27 WILLISTON ON CONTRACTS § 70:93, at 497;[16]InvesSys, Inc. v. McGraw-Hill Cos., 369 F.3d 16, 17-18 (1st Cir.2004) (reforming sales contract that inadvertently included rights to a software program that was not intended to be part of the deal even though a provision was added by seller's own attorney and company officials reviewed the contract prior to executing it but failed to catch the error) The only reasonable interpretation of the evidence in this record is that Dr. Sikora's lawyer made an error when he drafted the purchase agreement. The language he drafted regarding the history of the practice's billings and collections differed from the information both parties had in their possession and from the information that Dr. Sikora had provided him. In light of the fact that both parties had been privy to the correct billings and collections figures for some time when they executed the purchase agreement, the trial court erred by placing the entire burden of the drafting error on Dr. VanderPloeg's shoulders and by declining to invoke the doctrine of mutual mistake to conform the *291 language in the agreement to the information the parties possessed. C. The Disclosure of the Decline in New Patients Dr. VanderPloeg also contends that the trial court erred by concluding that he breached his warranty to disclose all the material or significant information regarding his operation of the practice. He insists that his disclosures regarding the practice's billings and collections and the termination of its relationship with Priority One Medical and Priority One Staff obviated the need to provide more specific information regarding the percent of decrease in the number of new patients during the transition period following the dissolution of the integrated practice ten months prior to the execution of the purchase agreement. Dr. Sikora has failed to explain, much less prove, how Dr. VanderPloeg's failure to provide him with specific information regarding the decrease in the number of new patients ten months prior to the execution of the purchase agreement was material to, or even a significant factor in, his decision to purchase VanderPloeg Chiropractic for $200,000. The trial court specifically found, and the evidence in the record confirms, that the primary factors in Dr. Sikora's decision to purchase the practice were the billings of $257,952 and collections of $146,609 during the seven-month period in 1999 after Dr. VanderPloeg terminated the practice's relationship with Priority One Medical. However, this time frame is precisely the period of time Dr. VanderPloeg was referring to when he wrote to Dr. Sikora's commercial lender[17] in February 2000 that the practice has experienced a 30% drop in new patient flow following the transition from an integrated practice back to a chiropractic practice alone. Moreover, the evidence in the record does not suggest any particular reason that there would have been a significant lag time between May 15, 1999, when the integrated practice shut down and the time when the effects of the drop in new patient flow would start to appear in VanderPloeg Chiropractic's billings figures. It is true that the Paragon Group report indicates that VanderPloeg Chiropractic typically scheduled its patients for six appointments at a time. However, there is nothing in the record to suggest that most or even many of Dr. VanderPloeg's patients usually saw him on only a monthly basis. For example, the Paragon Group report defines "maintenance visits" as visits that occur weekly or less frequently. In addition, the practice's patient billing records suggest that in most cases, Dr. VanderPloeg saw clients for multiple sessions on a weekly basis or with even greater frequency, and not on a monthly basis only. The evidence in the record shows that VanderPloeg Chiropractic's billings and collections dropped off immediately after the termination of the integrated practice in May 1999. For example, while the integrated practice had monthly billings of $93,933 and $62,580 in March and April 1999, respectively, VanderPloeg Chiropractic had monthly billings of only $35,381 and $26,337 in July and August *292 1999.[18] Moreover, the practice's average monthly billings dropped from $76,911 during the first four months of 1999 to just over $36,850 in the last seven months of 1999 (due in part, no doubt, to the decrease in new patient referrals to which Dr. VanderPloeg alluded in his February 7, 2000 letter to Dr. Sikora's lender.) Thus, the information on which Dr. Sikora primarily relied in deciding to purchase the practice—i.e., the billings and collections figures for June through December 1999—already reflected the impact of the decrease in new patient flow following VanderPloeg Chiropractic's termination of its relationship with Priority One Medical and Priority One Staff in mid-May 1999. In other words, Dr. Sikora decided to purchase VanderPloeg Chiropractic based primarily on figures compiled for the seven-month period after the drop in new patient referrals had already occurred. We fail to see—and Dr. Sikora has not provided a satisfactory explanation on his own—how the additional information regarding the percentage drop in the number of patients would have been material or significant to his decision to purchase VanderPloeg Chiropractic for $200,000 given all the other information Dr. VanderPloeg had already disclosed to him. Accordingly, the trial court erred in concluding that Dr. VanderPloeg violated the disclosure warranty contained in the purchase agreement. IV. THE AWARD OF ATTORNEY'S FEES AND COSTS Finally, Dr. VanderPloeg takes issue with the trial court's decision to award Dr. Sikora $52,592 in attorney's fees and costs. This award is based on the provision in the purchase agreement permitting either party to recover fees and costs if he is required to seek judicial enforcement of his rights under the purchase agreement and the court enters a judgment substantially in his favor. We need not address Dr. VanderPloeg's argument that the trial court did not decide the case "substantially" in Dr. Sikora's favor because we have determined that the trial court erred by concluding that Dr. VanderPloeg breached his warranties at all. In light of our ruling that Dr. Sikora has not prevailed on any of his claims, he is not entitled to attorney's fees and costs under the purchase agreement, and the award for these fees and costs must be vacated. V. We reverse the portions of the trial court's August 4, 2003 and December 17, 2003 orders awarding judgments to Dr. Sikora. Accordingly, we remand the case with directions to enter a revised judgment dismissing Dr. Sikora's complaint and for any other proceedings consistent with this opinion that may be required. We tax the costs of this appeal to Xavier Sikora for which execution, if necessary, may issue. NOTES [1] The report contained a wealth of information regarding the practice and its recently terminated relationship with Priority One Medical and Priority One Staff. In addition, it specifically disclosed that Paragon Group was both the appraiser and the exclusive listing agent for the seller, Dr. VanderPloeg. [2] Mr. Khan later left the country and did not testify at trial. [3] The practice's performance during the sixty-day consulting period is attributable in part to the fact that Dr. Sikora was able to continue billing certain health insurance plans for the services he provided as long as Dr. VanderPloeg remained on staff. As noted in the appraisal report, Dr. VanderPloeg was a member of the provider panels for more than a dozen health insurance companies, and 80% of VanderPloeg Chiropractic's revenue consisted of payments from insurance carriers. However, Dr. Sikora failed to determine prior to purchasing the practice whether he could become a designated provider for all the same insurers. The insurers that provided coverage for a significant number of Dr. VanderPloeg's patients later denied Dr. Sikora's request to become a member of their provider panels. [4] Dr. VanderPloeg filed cross-claims against the Paragon Group and his own attorneys and accountants as a precaution in the event the court found him liable to Dr. Sikora for breach of warranty. However, the trial court severed the cross-claims and ordered that they be tried separately from the underlying complaint and counter-complaint. Dr. VanderPloeg's cross-claims are not at issue in this appeal. [5] In Tennessee, as in most states, a property owner is automatically deemed qualified to offer an opinion as to the value of his or her own property simply by virtue of owning it. State ex rel. Smith v. Livingston Limestone Co., 547 S.W.2d 942, 943 (Tenn.1977); Stinson v. Stinson, 161 S.W.3d 438, 446 (Tenn.Ct.App. 2004). However, a property owner's opinion regarding valuation cannot be given any weight where, as here, it is clear that the owner's testimony is founded on pure speculation. Airline Constr., Inc. v. Barr, 807 S.W.2d 247, 256 (Tenn.Ct.App.1990) ("There must be some evidence, apart from mere ownership, that this `value' is a product of reasoned analysis."); accord Whitley v. Whitley, No. M2003-00045-COA-R3-CV, 2004 WL 1334518, at *8 (Tenn.Ct.App. June 14, 2004) (No Tenn. R.App. P. 11 application filed). [6] On appeal, both parties agree that the formula devised by the trial court to calculate Dr. Sikora's damages was unsound. Naturally, they disagree regarding the approach the trial court should have taken. [7] See also 28 SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS § 70:209, at 232 (4th ed. 2003) (WILLISTON ON CONTRACTS) ("Courts are not in the business of rewriting contracts to bail out parties who have failed to prudently construct their business transactions.") [8] See also 7 JOSEPH M. PERILLO, CORBIN ON CONTRACTS § 28.45, at 281 (rev. ed. 2002) (CORBIN ON CONTRACTS); 28 WILLISTON ON CONTRACTS § 70:209, at 230. The remedy of reformation finds its roots in the maxim that "equity treats that as done which ought to have been done." 27 WILLISTON ON CONTRACTS § 70:19, at 255. [9] See 7 CORBIN ON CONTRACTS § 28.45, at 281 ("A court will decree reformation of a written instrument if it is conclusively shown that the words of the writing do not correctly express the meaning that the parties agreed upon."). [10] See, e.g., Cincinnati Ins. Co. v. Fred S. Post, Jr., Co., 747 S.W.2d 777, 781 (Tenn.1988); Lebo v. Green, 221 Tenn. at 314, 426 S.W.2d at 494; Dickens v. St. Paul Fire & Marine Ins. Co., 170 Tenn. at 414, 95 S.W.2d at 914; Greer v. J.T. Fargason Grocer Co., 168 Tenn. at 244-45, 77 S.W.2d at 443-44; Barnes v. Barnes, 157 Tenn. 332, 338, 8 S.W.2d 481, 482 (1928). [11] See 27 WILLISTON ON CONTRACTS § 70:21, at 260 ("If the parties reach agreement as to only part of a prospective bargain, . . . reformation is still an appropriate remedy."); Cerberus Int'l, Ltd. v. Apollo Mgmt., L.P., 794 A.2d 1141, 1152 (Del.2002) (holding that the party seeking reformation must prove "a specific prior understanding that differed materially from the written agreement," and that "[t]his understanding need only be complete as to the issue involved [and] need not constitute a complete contract in an of itself"). [12] The prior agreement need not rise to the level of a separately enforceable contract. Alexander v. Shapard, 146 Tenn. at 107, 240 S.W. at 292; see also 7 CORBIN ON CONTRACTS § 28.45, at 283 ("It is not a prerequisite to an action for reformation that the antecedent agreement be a contract."); 27 WILLISTON ON CONTRACTS § 70:21, at 260 ("The prior agreement need not . . . be complete and certain enough to be a contract."). [13] See also Dickens v. St. Paul Fire & Marine Ins. Co., 170 Tenn. at 414, 95 S.W.2d at 914 ("Certainly it will be conceded that the insurance company intended to name as the assured the owners of the property [in the policy]. To assume otherwise would be to impute to the company a willful purpose to defraud. The draftsman for the insurance company then clearly made a mistake."); 27 WILLISTON ON CONTRACTS § 70:93, at 495 ("To reform a contract based on mistake, a plaintiff must establish that the contract was executed under mutual mistake or a unilateral mistake induced by the defendant's fraudulent misrepresentation. However, where there is no mistake about the agreement and the only mistake is in the reduction of the agreement to writing, such mistake of the scrivener or of either party, no matter how it occurred, may be corrected."). [14] For example, the record contains a fax Dr. Sikora sent to his attorney, Mr. Khan, on March 19, 2000, just four days prior to the execution of the purchase agreement on March 23, 2000. The fax contains Dr. Sikora's handwritten notations showing that he knew not only the seven-month totals for billings and collections for June through December 1999, but also the billings and collections numbers for each month within this seven-month period. [15] See Rentenbach Eng'g Co. v. Gen. Realty Ltd., 707 S.W.2d 524, 527-28 (Tenn.Ct.App. 1985) ("In this regard, it would appear that if mere negligence precludes relief, very few if any instruments could be reformed on the ground of mutual mistake, because if a party uses due care in reading an instrument he would never sign one which did not contain the parties' agreement."); RESTATEMENT (SECOND) OF CONTRACTS § 157 cmt. a, at 416 ("The mere fact that a mistaken party could have avoided the mistake by the exercise of reasonable care does not preclude either avoidance or reformation. Indeed, since a party can often avoid a mistake by the exercise of such care, the availability of relief would be severely circumscribed if he were to be barred by his negligence.") (citations omitted); accord 27 WILLISTON ON CONTRACTS § 70:48, at 344-45. [16] As one commentator put it, "Where there is a mutuality of assent but the resulting document intended to express such agreement fails to do so by reason of the mistake of the drafter, it is immaterial who employed the scribe. . . . No matter even if one of the parties is the drafter as the real concern is: Does the document express the agreement of the parties?" 27 WILLISTON ON CONTRACTS § 70:93, at 499. [17] We note the fact that Dr. VanderPloeg provided this information, in writing, to Dr. Sikora's own lender, not because the knowledge of the information is, therefore, imputed to Dr. Sikora, but rather because it suggests that Dr. VanderPloeg was making no effort to conceal the one-time decrease in new patient flow from Dr. Sikora. As explained below, Dr. VanderPloeg had no reason to hide the information, because the impact on the practice was reflected in the financial information he had already provided directly to Dr. Sikora. [18] The billings and collections figures for the months prior to the dissolution of the integrated practice on May 15, 1999 reflect the performance of the entire integrated practice, not the chiropractic portion alone.

68 U.S. 221 (1863) 1 Wall. 221 GELPCKE ET AL. v. THE CITY OF DUBUQUE. No. 79. Supreme Court of United States. *222 Mr. JUSTICE SWAYNE delivered the opinion of the court: The counsel of the plaintiffs in error have submitted no argument in regard to the two first causes assigned for the demurrer. We have not therefore considered the questions which they present. They relate to certain provisions of the contract which are claimed to be invalid. Conceding this to be so, they are clearly separable and severable from the other parts which are relied upon. The rule in such cases, where there is no imputation of malum in se is, that the bad parts do not affect the good. The valid may be enforced.[*] That part of the complaint only which relates to the stipulations claimed to be valid will be considered. The residue of the complaint may be laid out of view as surplusage. The demurrer is to the whole complaint. If the part to be considered shows a sufficient cause of action, the court below should have overruled the demurrer. *223 I. It is claimed that the contract is for the borrowing of money, and that the complaint is bad, because it does not aver the sanction of two-thirds of the electors of the city. If the fact were so, the consequence would not follow. If the city could make such a contract with that sanction, the sanction will be presumed until the contrary is shown. The non-existence of the fact is a matter of defence which must be shown by the defendant. II. We are also of the opinion that the contract, except the provision for an advance to the city of $20,000, which it is stated has been repaid, is not for borrowing money. It bound the plaintiffs to pay the interest for the city upon the debts of the city already created and presumed to be valid. The city agreed to refund the amount so paid at the times and in the manner specified. Such a contract is neither within the terms nor the spirit of the provisions of the charter upon the subject of borrowing. JUDGMENT REVERSED AND CAUSE REMANDED. N.B. The dissenting opinion of Mr. Justice Miller, given in the principal case, No. 80, applied to Nos. 79 and 81. See also the dissenting opinion of that Justice in Meyer v. City of Muscatine (post), as well as that case generally. NOTES [*] United States v. Bradley, 10 Peters, 360.

[Cite as State v. Cheatham, 2014-Ohio-1545.] COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 13-COA-028 EAFROM O. CHEATHAM : : Defendant-Appellant : OPINION CHARACTER OF PROCEEDING: Criminal appeal from the Ashland Municipal Court, Case No. 13-CRB-467 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: April 10, 2014 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant W. DAVID MONTAGUE MATTHEW MALONE Assistant Law Director 11 1/2 East Second Street 1213 East Main Street Ashland, OH 44805 Ashland, OH 44805 [Cite as State v. Cheatham, 2014-Ohio-1545.] Gwin, P.J. {¶1} Appellant Eafrom O. Cheatham [“Cheatham”] appeals his convictions and sentences for five counts of theft in violation of R.C. 2913.02, misdemeanors of the first degree and one count of possessing criminal tools in violation of R.C. 2923.24, a misdemeanor of the first degree after a jury trial in the Ashland Municipal Court. Facts and Procedural History {¶2} Cheatham was charged with seven counts of theft and one count of possessing criminal tools as a result of stealing gasoline from a Circle K gas station on various occasions during February, March and April of 2013. The matter proceeded to jury trial on August 29, 2013. {¶3} On April 13, 2013, a Circle K cashier obtained the license plate of a silver Ford Focus suspected of being involved in drive-offs at the location. At trial, that employee, Tiffany Pirtle, testified that on April 13, 2013, she observed a silver Ford Focus during a time in which she was cleaning up the parking lot. Pirtle was able to obtain the license plate of the vehicle. In this instance, the driver of the vehicle did not steal any gas, but the vehicle returned on April 15 and April 20 and did successfully steal gas on those occasions. Pirtle authenticated and described a video of the April 20, 2013 event, which was viewed by the jury, and a "drive-off report" generated by her describing the event. {¶4} The Manager of the Circle K, Jill Kopchak, authenticated and described videos of February 2, February 6, March 2, March 10, March 26, and April 15, 2013 drive-offs. She also testified concerning the drive-off reports generated by store employees on each of those dates. These videos showed a black male matching the Ashland County, Case No. 13-COA-028 3 description of Cheatham and the same silver Ford Focus. In each instance, the front license plate had been removed from the Ford Focus and car was driven into the station’s parking lot and backed out of the parking lot so that store security cameras could not view the rear license plate. No witness ever identified the driver, but simply described him as a black male. The documentation of these drive-offs does not indicate the sex or race of the driver of the vehicle. {¶5} Officer Kiley of the Ashland Police Department testified that on April 20, 2013 he executed a search warrant at Cheatham’s residence. Officer Kiley found the silver Ford Focus matching the license plate number obtained by Tiffany Pirtle parked in front of Cheatham’s home. When Officer Kiley explained to Cheatham that he had a warrant, Cheatham laughed and asked "for gas?" Officer Kiley then questioned Cheatham at the police department. Cheatham first claimed that he had paid for the gas with his debit card. He then changed this account to he paid for gas using his wife debit card. Cheatham then claimed that it was his son driving. Cheatham finally agreed with Officer Kiley that he had gone to the Circle K with intent to steal gas and had not paid for gas. Inside the residence, a 3XL red hooded sweatshirt, a 2XL plaid hooded sweatshirt and an XL back Carhart coat were obtained. This clothing was consistent with clothing worn by the suspect. {¶6} Cheatham’s daughter, Tiesha Cheatam testified that her brother sometimes drive’s Cheatham’s car. She further testifed that her mother did not have a debit card. Tiesha further testified that her father had taken her to apply for a job at the Circle K and to a job interview at the station. However, the dates did not correspond to any of the dates on which gasoline was stolen. Ashland County, Case No. 13-COA-028 4 {¶7} At the conclusion of the trial, the jury found Cheatham was guilty of five counts of theft and the single possessing criminal tools count. The jury found Cheatam not guilty on two of the theft charges, specifically the February 6 and March 2, 2013 offenses. Assignment of Error {¶8} Cheatham raises ones assignment of error, {¶9} “I. APPELLANT'S CONVICTIONS FOR THEFT IN VIOLATION OF OHIO REVISED CODE SECTION 2913.02, MISDEMEANORS OF THE FIRST DEGREE, AND FOR POSSESSING CRIMINAL TOOLS IN VIOLATION OF REVISED CODE SECTION 2923.24, A MISDEMEANOR OF THE FIRST DEGREE, WERE AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.” Analysis {¶10} Our review of the constitutional sufficiency of evidence to support a criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶68. {¶11} Weight of the evidence addresses the evidence's effect of inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded Ashland County, Case No. 13-COA-028 5 by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law Dictionary (6th Ed. 1990) at 1594. {¶12} When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a “’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983). Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case in which the evidence weighs heavily against the conviction.’” Id. “[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every Ashland County, Case No. 13-COA-028 6 reasonable presumption must be made in favor of the judgment and the finding of facts. *** “If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978). {¶13} There is no dispute in the case at bar that theft and possession of criminal tools as alleged had in fact occurred. Cheatham’s first argument is that there was insufficient evidence to identify him as the perpetrator of those crimes. {¶14} In the case at bar, it is true that no witness was able to identify Cheatham as having been the perpetrator of any of the offenses. However, evidence was submitted to tie him to the crimes. {¶15} The car that Cheatham owned and drove was consistent with the vehicle involved in the drive-offs. When Officer Kiley observed it parked by Cheatham’s home, he noticed that the front license plate was loose and could easily be removed by hand. {¶16} In addition, Cheatham’s interviews with the police show inconsistencies in his explanation. Cheatham told the police he used his debit card. He then switched to he had used his wife’s debit card. He further inquired about striking a deal in exchange for his truthfulness. Ashland County, Case No. 13-COA-028 7 {¶17} The jury was shown the video of each incident with which Cheatham was charged, the clothing taken from his home and photographs taken by Officer Kiley of Cheatham’s car. {¶18} Ultimately, “the reviewing court must determine whether the appellant or the appellee provided the more believable evidence, but must not completely substitute its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635, ¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964 (2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, it is not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th Dist. 1999). {¶19} The weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011- Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). {¶20} The jury as the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness’s credibility. "While the jury may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant's conviction against the manifest weight or Ashland County, Case No. 13-COA-028 8 sufficiency of the evidence". State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness' testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have been circumstantial, we note that circumstantial evidence has the same probative value as direct evidence. State v. Jenks, supra. {¶21} We find that this is not an “‘exceptional case in which the evidence weighs heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The judge neither lost his way nor created a miscarriage of justice in convicting Cheatham of the charges. {¶22} Based upon the foregoing and the entire record in this matter, we find Cheatham’s convictions were not against the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears to have fairly and impartially decided the matters before them. The jury as a trier of fact can reach different conclusions concerning the credibility of the testimony of the officer and Cheatham. This court will not disturb the jury's finding so long as competent evidence was present to support it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard the witnesses, evaluated the evidence, and was convinced of Cheatham’s guilt. Ashland County, Case No. 13-COA-028 9 {¶23} Finally, upon careful consideration of the record in its entirety, we find that there is substantial evidence presented which if believed, proves all the elements of the crimes beyond a reasonable doubt. {¶24} Cheatham next argues that the verdicts are inconsistent because the jury found him not guilty of the February 6 and March 2, 2013 theft offenses. {¶25} The United States Supreme Court has held that multiple counts of an indictment are not interdependent. Each count in an indictment is regarded as if it was a separate indictment. State v. Hicks, 43 Ohio St.3d 72, 78, 538 N.E.2d 1030(1989), citing United States v. Powell, 469 U.S. 57, 68, 105 S.Ct. 471, 83 L.Ed.2d 461(1984); see, also, State v. Mapes, 19 Ohio St.3d 108, 112–113, 484 N.E.2d 140(1985). Even if the verdicts were inconsistent, inconsistency of verdicts is not grounds to overturn a conviction. Powell, 105 S.Ct. at 476, 83 L.Ed.2d 461. A criminal defendant is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence. Id. at 478. {¶26} As we have previously discussed, Cheatham’s convictions are not against the sufficiency of the evidence. Accordingly, we reject Cheatham’s argument alleging inconsistent verdicts as it is based on different counts. Ashland County, Case No. 13-COA-028 10 {¶27} Cheatham’s sole assignment of error is overruled in its entirety, and the judgment of the Ashland Municipal Court, Ashland County, Ohio is affirmed. By Gwin, P.J., Wise, J., and Delaney, J., concur 

281 Wis.2d 1 (2005) 2005 WI 59 697 N.W.2d 49 In the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Michael J. BACKES, Attorney at Law: OFFICE OF LAWYER REGULATION, Complainant, v. Michael J. BACKES, Respondent. No. 2002AP3238-D. Supreme Court of Wisconsin. Submitted on briefs December 14, 2004. Decided May 25, 2005. For the respondent there were briefs by Michael J. Backes, Milwaukee. For the complainant there was a brief by Gregg Herman, Matthew J. Price, and Loeb & Herman, S.C., Milwaukee. *3 ¶ 1. PER CURIAM. Attorney Michael Backes seeks review of a report and recommendation filed by Referee Joan Kessler on or about October 2, 2003.[1] ¶ 2. Attorney Backes attended law school following a career in real estate. He was admitted to practice in Wisconsin in 1986. He has no prior disciplinary history. ¶ 3. On December 5, 2002, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney Backes, alleging some 15 disciplinary violations stemming from five separate client matters. *4 ¶ 4. Attorney Backes filed a timely answer and the parties stipulated to two exhibits, which were admitted at the hearing before the referee, conducted on July 8 and 9, 2003. The first exhibit was entitled "Binding Stipulation as to Findings of Fact and Conclusions of Law." This constituted a "no contest plea" to the factual allegations and four violations charged in connection with one of the client matters which is referred to herein as "J.J." The parties also stipulated to a document entitled "Facts Admitted by Respondent..." that summarized the other facts admitted by Attorney Backes in connection with the other allegations made against him. The matter proceeded to a hearing before the referee. ¶ 5. Ultimately, the referee concluded that Attorney Backes had committed misconduct in connection with nine[2] of the 15 counts with which he was originally charged. He was cleared of six counts alleged in connection with two client matters. The referee recommended a public reprimand and restitution in the form of fee refunds to two clients. The referee recommended further that Attorney Backes pay the costs of the disciplinary proceeding. ¶ 6. Attorney Backes contends that a public reprimand is excessive discipline in view of the facts of this matter. He suggests that the recommended discipline was derived from considering all the charges against him and is no longer appropriate considering that the referee cleared him of the allegations made in connection with two client matters. Indeed, he points out that he was cleared of one of the most serious allegations, an alleged violation of SCR 20:8.4, which involves conduct *5 involving dishonesty, fraud, deceit or misrepresentation. He suggests further that the referee erred with respect to certain factual findings made in two client matters. He asserts that a private reprimand is sufficient discipline for his misconduct. ¶ 7. For clarity, the allegations against Attorney Backes will be discussed in connection with the client matters to which they relate. MATTER OF J.J. ¶ 8. Pursuant to the terms of the stipulation entered by the parties, Attorney Backes conceded he committed misconduct in this matter. As background, in 1994, the client, J.J., was convicted of one count of attempted first-degree murder and four counts of sexual assault. His conviction was affirmed on appeal. ¶ 9. In March 1998, J.J. contacted Attorney Backes about possible postconviction representation. He suggested he might be entitled to a new trial based on newly discovered evidence. Attorney Backes sent J.J. two letters, explaining first that he charged a flat fee, and later stating that fee would be $2500. On April 16, 1998, J.J. mailed Attorney Backes a check for $2500. There was no formal written fee agreement. ¶ 10. Attorney Backes visited J.J. in prison on June 26, 1998. At that meeting he stated that he would file a postconviction motion on J.J.'s behalf within 60 days of the meeting. ¶ 11. Despite several letters from Attorney Backes promising to take action in the near future, no pleading was ever filed on J.J.'s behalf. J.J. made several attempts to ascertain the status of the matter, including three attempts to terminate representation and obtain a refund of the retainer. *6 ¶ 12. In May 2002, during the course of the ensuing grievance investigation, Attorney Backes did refund the full $2500 retainer to J.J. ¶ 13. The OLR alleged and Attorney Backes conceded that (1) by failing to file a postconviction motion or to conclude his review of J.J.'s file for more than 2½ years, Attorney Backes failed to act with reasonable diligence in representing J.J. in violation of SCR 20:1.3[3]; (2) by failing to respond to J.J.'s correspondence, Attorney Backes failed to keep J.J. reasonably informed about the status of a matter and promptly comply with reasonable requests for information in violation of SCR 20:1.4(a)[4]; (3) by failing to respond to J.J.'s specific inquiries about various postconviction relief issues, Attorney Backes failed to explain a matter to the extent reasonably necessary to permit J.J. to make informed decisions regarding the representation in violation of SCR 20:1.4(b)[5]; and (4) by failing until May 2002, to refund the $2500 fee that J.J. had paid, Attorney Backes failed, upon termination of representation, to refund an advance payment of fees that had not been earned in violation of SCR 20:1.16(d).[6] *7 MATTER OF D.M. ¶ 14. Counts V through VIII of the complaint involved allegations of misconduct with respect to the matter of D.M. The referee concluded that Attorney Backes did not commit misconduct in his handling of the D.M. matter, and the OLR did not appeal that conclusion. Therefore, these facts and conclusions are not in dispute, but are discussed herein for reference because Attorney Backes contends this matter was wrongly considered by the referee in her decision to recommend a public reprimand. ¶ 15. D.M. was convicted of one count of second-degree sexual assault of a child in 1993. His motion for plea withdrawal was denied and the matter affirmed on appeal. ¶ 16. In May 1996, D.M. met with Thomas Russell, another lawyer at Backes' law firm, to discuss filing a possible postconviction motion. D.M. signed a fee agreement with this attorney. ¶ 17. A short time later, D.M. met with Attorney Backes and executed a new written fee agreement, for "post judgment matters" in which he agreed that the initial retainer would be $2500. The agreement provided: "This fee is a minimum and non refundable fee and is to be paid as follows: $1500.00 Down, Bal. 45 Days." The agreement goes on to discuss the possibility of a higher fee "if an appeal is required." D.M. paid Attorney Russell $1500 when he signed the fee agreement. ¶ 18. D.M. then "effectively disappeared." From May 1996 to May 1997, he neither initiated contact *8 with Attorney Backes nor responded to Attorney Backes' attempts to contact him. In September 1997, D.M. "reappeared" and requested legal action from Attorney Backes on a matter apparently unrelated to the earlier fee agreement. ¶ 19. On September 18, 1997, Attorney Russell provided Attorney Backes with a written analysis of D.M.'s case, concluding that there was no good-faith basis upon which a postconviction motion could be filed. At this point, the $1000 balance on the fee agreement was still due and owing. ¶ 20. In October 1997, Attorney Backes wrote to D.M. and asked for the additional $1000 to proceed with the case. The complaint indicates that "[t]hereafter, for over a year [D.M.] was unable to obtain $1,000.00 to pay [Attorney Backes]." In December 1998, D.M. gave Attorney Backes $1000 to proceed. ¶ 21. In a letter dated January 18, 1999, after some additional review of the file, Attorney Backes informed D.M. that there were no grounds upon which to proceed with a postconviction motion. Correspondence between the two ensued. It appears that D.M. was unwilling to accept Attorney Backes' conclusion, and repeatedly insisted some motion be filed. Attorney Backes declined to file a motion and declined to refund the $1000 payment, asserting that this fee was earned. ¶ 22. On March 21, 2002, four months after D.M. filed a grievance against him, Attorney Backes refunded D.M. $1000. ¶ 23. The OLR complaint alleged that Attorney Backes' conduct with respect to the D.M. matter violated SCR 20:1.3 (reasonable diligence), SCR 20:1.4(b) (failure to adequately explain matter), SCR 20:1.16(d) (failure to refund unearned payment), and the most *9 serious charge levied against Attorney Backes, SCR 20:8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). ¶ 24. The referee, however, concluded that Attorney Backes did not commit misconduct with respect to his handling of the D.M. matter, noting that a fixed fee agreement is not a per se violation of rules of professional conduct, so long as the fee is reasonable in relation to the work performed. The referee observed that there was no evidence that the fee here was unreasonable. The referee noted further that there was no indication that D.M. objected to the delay or to the fee "until after he was told that ... nothing could be done to reopen the case." MATTER OF C.D. ¶ 25. The referee also exonerated Attorney Backes from the OLR's charges against him in respect to the matter of C.D. The OLR does not appeal that conclusion. Therefore, again these findings and conclusions are not in dispute and are only summarized here for purposes of evaluating whether they were improperly considered in recommending discipline. ¶ 26. In November 1998, C.S. retained Attorney Backes to pursue a sentence modification motion for her fiancé, C.D., who had been incarcerated since 1991 following his conviction for armed robbery and threats to injure. C.S. paid Attorney Backes $1250 and agreed to pay him another $1250 within 30 days. There was no written fee agreement. C.S. duly paid the remaining $1250 on December 31, 1998. The premise of the requested motion was that C.D.'s parents were ailing and needed C.D. to care for them. ¶ 27. On February 24, 1999, Attorney Backes wrote to C.D. advising him that he had spoken to the *10 parents and had questions about whether the requested motion was appropriate. On March 9, 1999, Attorney Backes contacted C.D. to state that C.D.'s parents had informed him that they were not in ill health, and did not need C.D. to come home to care for them. He advised C.D. that there was thus no basis for filing a motion for sentence modification. ¶ 28. Over the following months, a series of correspondence ensued between C.D. and Attorney Backes, with C.D. demanding Attorney Backes either file a motion or refund $2000 of his fee, and Attorney Backes explaining he had earned his fee. ¶ 29. In October 1999, C.D. wrote to Attorney Backes, asking him to pursue whether a potential witness was available and stating that he had been assaulted by another inmate. Attorney Backes did contact C.D.'s former attorney regarding the potential witness, and on December 20, 1999, forwarded C.D. a letter from that attorney stating that the witness was not available. On January 5, 2000, C.D. was attacked by another inmate and seriously injured. In June 2000, another attorney represented C.D. in a sentence modification motion. The motion was denied. ¶ 30. The referee concluded that Attorney Backes had not committed misconduct with respect to his handling of the C.D. matter, noting that there was no evidence that a flat fee was unreasonable. ¶ 31. Attorney Backes agrees with this conclusion, but emphasizes that the injury C.D. sustained in the altercation with another inmate did not establish a basis for a sentence modification. We acknowledge the point, but conclude that the referee included these facts to establish the chronology; it was not the basis for the referee's decision, nor does it appear to have affected the referee's recommendation with respect to discipline. *11 MATTER OF D.L.S. ¶ 32. The referee concluded that Attorney Backes committed misconduct in his handling of the matter of D.L.S. Attorney Backes challenges the referee's factual findings on several points. ¶ 33. On January 28, 2000, D.L.S. retained Attorney Backes to defend her son, M.L., against a charge of repeated acts of sexual assault against a child. D.L.S. signed a fee agreement in which she agreed to pay a flat, nonrefundable fee of $2500 to resolve the case short of trial. ¶ 34. On January 31, 2000, Attorney Backes met with M.L. in jail. M.L. requested that Attorney Backes file an immediate motion to reduce his bail. D.L.S. also asked Attorney Backes to file a motion to reduce her son's bail, explaining this was a high priority. ¶ 35. On February 25, 2000, Attorney Backes had not filed the requested motion, and D.L.S. discharged Attorney Backes, requesting an itemization and return of any unearned fees. On February 28, 2000, D.L.S. retained another attorney who promptly entered an appearance and moved for bail modification on March 7, 2000. The motion was granted the same day. M.L. was released on cash bond a few days later. ¶ 36. D.L.S. made two subsequent requests for a refund of unearned fees on March 29 and May 3, 2000. Although Attorney Backes admitted he had worked only five to seven hours on the matter, he did not send D.L.S. a refund until March 21, 2002, more than two years after he was discharged. The refund was in the amount of $1500, leaving a balance of $500 in dispute. ¶ 37. The parties disputed the reason Attorney Backes did not promptly file a motion for bail modification. *12 The referee made findings that Attorney Backes testified that he delayed bringing the motion because he thought the motion would require the support of the district attorney and he was trying to obtain that support, and because it was his understanding that his clients could raise no more than $5000 for bail. ¶ 38. On appeal, Attorney Backes challenges these findings. The record does reflect statements indicating that he thought the clients could only produce $2500 for bail. Bail was ultimately reduced to $5000, indicating it was reasonable for him to be concerned about the client's inability to raise more than $2500. Indeed, Attorney Backes implies that it would have been futile to bring a motion. He adds that he, in fact, had established the court date for the bail hearing although he concedes that he had not yet prepared a written bail motion. ¶ 39. Attorney Backes also challenges the referee's conclusion that he did not adequately communicate his strategic reasoning to the clients. He points to testimony elicited on cross-examination at the hearing in which the clients acknowledge that Attorney Backes did have discussions with them about various aspects of the case. ¶ 40. While there is record evidence of some misunderstanding as to the amount of money the client had available for bail, the record supports the referee's conclusion that the clients did not understand Attorney Backes' strategic decisions, nor did they believe that Attorney Backes had the matter in hand. M.L. wrote Attorney Backes several letters and D.L.S. telephoned Attorney Backes several times in an effort to obtain information about the status of the bail hearing, without receiving a response from Attorney Backes. Although Attorney Backes may indeed have intended to *13 raise the question of bail at a scheduled pretrial hearing, he never formally filed a motion for bail modification. And, it is undisputed that it took more than two years for Attorney Backes to refund even a portion of the retainer, despite his admission that he spent no more than five to seven hours on the client's file. ¶ 41. We are persuaded that the referee's conclusions that Attorney Backes failed to act with reasonable diligence and promptness in violation of SCR 20:1.3, and failed to timely refund an advance payment that had not been earned in violation of SCR 20:1.16(d) are supported by the record and are not clearly erroneous. We agree further with the referee's recommendation that Attorney Backes be required to refund D.L.S. the balance of the fee retainer in this matter. MATTER OF C.B. ¶ 42. The referee concluded that Attorney Backes committed misconduct in his handling of the C.B. matter. Attorney Backes challenges the referee's factual findings on several points. ¶ 43. C.B. was convicted of first-degree intentional homicide, while armed, in 1993. In November 1999, C.B.'s mother and aunt retained Attorney Backes to file a motion for postconviction relief on behalf of C.B. ¶ 44. On C.B.'s behalf, a fee agreement was signed by his mother in which a nonrefundable fee of $2500 was to be paid. C.B.'s aunt paid $1500 on November 18th, and the remaining $1000 was paid 30 days later. The women understood that they were paying to bring the motion to court. They testified that they would *14 never have paid $2500 for an attorney to simply review C.B.'s case. Attorney Backes spoke with C.B. on January 17, 2000. On January 27, 2000, C.B. wrote to Attorney Backes with various suggestions and questions. Attorney Backes never responded to this letter and refused to accept C.B.'s telephone calls from prison. He also failed to return telephone calls from C.B.'s family members, and was repeatedly unavailable to meet with them, even when they went to his office seeking information about the status of C.B.'s case. ¶ 45. C.B. wrote to Attorney Backes again on April 20, 2000. Attorney Backes responded in writing on April 25, 2000, advising him that he had "reviewed the materials we have been sent and the input you have provided and have scheduled this matter for further review to determine what cause of action may have merit and how to bring it forward." The letter concluded: "I would certainly acknowledge that more time has passed on this than I would have liked, and we will proceed to re-review this matter and get back to you before too long." ¶ 46. On April 29, 2000, C.B.'s aunt wrote to Attorney Backes, stating she had reviewed his letter to C.B. and she was terminating Attorney Backes' representation. She requested a refund of the retainer and return of C.B.'s transcripts. Initially, Attorney Backes refused to refund any portion of the retainer, asserting that he had completed extensive document review in the matter. On March 21, 2002, Attorney Backes did refund the clients $2250 of the retainer, leaving a balance of $250 in dispute. ¶ 47. The OLR alleged and the referee concluded that by (1) not completing a review of C.B.'s case between November 19, 1999 and April 29, 2000, Attorney Backes failed to act with reasonable diligence in his *15 representation of C.B. in violation of SCR 20:1.3; (2) failing to respond to C.B.'s letter and the telephone calls from C.B. and his family members, Attorney Backes failed to keep his client reasonably informed about the status of a matter in violation of SCR 20.1.4(a); and (3) failing to return $2250 to C.B. until March 2002, Attorney Backes failed to timely return fees that had not been earned in violation of SCR 20:1.16(d). The referee recommended that Attorney Backes be required to refund the client the remainder of the retainer fee. ¶ 48. Attorney Backes challenges the referee's findings and conclusions of law regarding this matter. The referee stated that she found the witnesses in this matter "substantially believable." Attorney Backes vigorously disputes this finding, asserting that their testimony was "clearly exaggerated" and suggesting that the testimony of C.B.'s mother was "driven by her son's relentless prodding to obtain a refund of the entire legal fee after an excessive amount of work was completed, for purposes of retaining another attorney and getting another `kick at the can.'" Attorney Backes concedes that he should have accepted the calls from C.B., but explains that his failure to do so was due to the mistaken belief that the telephone calls were collect calls. ¶ 49. He maintains he did work on the matter and cites as evidence the fact that C.B.'s mother "peeked" into his office in one of her attempts to contact him and saw for herself the transcripts stacked next to his desk. He adds that he testified that he performed work on the matter. Attorney Backes asserts that the referee's finding that "it does not appear that any significant work was done to review [C.B.'s] undoubtedly thick file" is in error. *16 ¶ 50. We disagree. Attorney Backes was unable to produce documentation reflecting substantial work on the C.B. matter. He could only document having researched and copied two appellate decisions, and had no notes or other documentation to support his claim that he had reviewed voluminous transcripts. The referee was entitled to disbelieve Attorney Backes' assertions to the contrary. Similarly, there is no reason to disregard the referee's credibility determinations with respect to the witnesses in this matter. We recognize that Attorney Backes maintains that he earned the fee and returned it only to appease the OLR, however, absent documentary evidence of work performed on these files, we will not deem the referee's findings clearly erroneous. ¶ 51. Indeed, having reviewed the record in this matter we adopt the referee's findings of fact and conclusions of law and commend the referee for her detailed report and recommendation and careful citations to the record evidence. The few arguable discrepancies identified by Attorney Backes do not alter the conclusions we reach in this matter. ¶ 52. Turning to the question of the appropriate discipline, Attorney Backes points to statements by the OLR indicating it considered the alleged misconduct committed in the C.D. matter to be the most serious charge levied against Attorney Backes, as well as to statements indicating that it was the combination of incidents of alleged misconduct that warranted a public reprimand. Attorney Backes was, of course, absolved of the allegations of misconduct in the C.D. matter, and also in the D.M. matter. *17 ¶ 53. In considering the appropriate discipline for professional misconduct, we consider a variety of factors, including the seriousness, nature and extent of the misconduct; the level of discipline needed to protect the public, the courts and the legal system from repetition of the lawyer's misconduct; the need to impress upon the attorney the seriousness of the misconduct; and the need to deter other attorneys from committing similar misconduct. See In re Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 876, 498 N.W.2d 380 (1993). ¶ 54. We consider Attorney Backes' lack of previous discipline and the fact that he was cleared of several charges. We recognize his extensive cooperation with the OLR and his acknowledgement that he committed certain errors, and that a "lesson has been learned." We are mindful that he did return fees to clients. ¶ 55. However, we share the OLR's concern about "the distressing patterns of behavior ... carried out against some of the most vulnerable and undereducated clients." Attorney Backes' repeated incidents of failure to proceed with reasonable diligence, failure to keep clients informed of the progress of their cases, and failure to return unearned fees owed to clients does constitute a pattern of conduct that warrants the imposition of public discipline. ¶ 56. Therefore, we adopt the report and recommendation. We order Attorney Backes to pay restitution in the form of a $250 fee refund to C.B., and a $500 fee refund to D.L.S., reflecting the unreimbursed portion of the $2000 fee retainer. In addition, we order Attorney Backes to pay the costs of the disciplinary proceeding. ¶ 57. IT IS ORDERED that Attorney Michael J. Backes is publicly reprimanded for professional misconduct. *18 ¶ 58. IT IS FURTHER ORDERED that Attorney Michael J. Backes make restitution in the amount of $250 to C.B., and $500 to D.L.S. ¶ 59. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Michael J. Backes pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Attorney Michael J. Backes to practice law in Wisconsin shall remain suspended until further order of the court. ¶ 60. SHIRLEY S. ABRAHAMSON, C.J. (concurring). My concurrence in In re Disciplinary Proceedings Against Konnor, 2005 WI 37, 279 Wis. 2d 284, 694 N.W.2d 376, provides context and perspective regarding costs in disciplinary proceedings and also stands as a concurrence in the present case. See also In re Disciplinary Proceedings Against Polich, 2005 WI 36, 279 Wis. 2d 266, 694 N.W.2d 367 (Abrahamson, C.J., concurring). ¶ 61. Keith Sellen, Director of the Office of Lawyer Regulation, has filed an administrative rules petition proposing certain changes to the Supreme Court Rules relating to assessment of costs. The court will hear the petition in the fall of this year. See Rules Petition 05-01, In the Matter of the Petition for Amendment to Supreme Court Rule 22.0001(3) Relating to Cost Assessments in the Lawyer Regulation System (Jan. 18, 2005). ¶ 62. Until the court decides the petition, I would continue the court's practice of generally assessing full costs. ¶ 63. I am authorized to state that Justice N. PATRICK CROOKS joins this opinion. ¶ 64. ANN WALSH BRADLEY, J. (concurring). I have not yet written in what has become a continuing *19 discussion on the issue of imposition of costs in disciplinary cases. Much has been written and the topic has consumed, in my opinion, an undue amount of this court's time and resources.[1] A petition has been filed for the court to consider new guidelines and standards in the imposition of such costs.[2] Let us hear the petition, make changes to our current procedures as we deem necessary, and get on with the business of this court. ¶ 65. Both my life experience and my experience on this court impel me to the conclusion that we need uniform procedures and they need to be uniformly applied. Each case has its unique facts which result in differing levels of discipline. But no matter what the circumstances involved, the procedures should be the same. ¶ 66. The procedures and standards must apply equally regardless if the respondent is with a large firm or small firm, specialized practice or general practice, urban or rural. I believe it to be laudatory that the *20 dissent envisions new approaches and considers better ways of doing things. However, to apply a new standard in this case, which has not been applied in others, only because some justices have a new idea for a temporary standard, promotes instability and lack of uniformity in our procedures. It is also unfair to others who have not had the benefit of catching the attention and imagination that prompts this new stopgap approach. ¶ 67. Notably, this new approach will likely be more costly, which may exacerbate rather than minimize the concern regarding high costs advanced by the dissent. It will require a determination by a fact finder as to what is "substantially related." Although the dissent suggests that such a determination is "simple," I do not think so. ¶ 68. It may not be so simple to parse what part of trial preparation is attributed to which count. Likewise, in my experience, it may not be able to easily determine what fraction of the hearing before the referee or the oral argument in this court is as a result of what count. Are we to add the total minutes or hours of the proceeding, and then analyze the questions and answers to determine how each is to be allocated? ¶ 69. After we have a hearing on the newly filed petition and consider the positions advanced by those who appear, the court may well embrace the position set forth by the dissent. Or, it may consider an alternative. But whatever we do, we must be consistent in the application of our standards and procedures. ¶ 70. Let's have the hearing on the filed petition, decide it, and turn our attention to the many other pressing issues before this court. *21 ¶ 71. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON, JUSTICE JON P. WILCOX, and JUSTICE N. PATRICK CROOKS, join this concurrence. ¶ 72. LOUIS B. BUTLER, JR., J. (concurring in part, dissenting in part). I join the per curiam's decision and order as to the discipline imposed in this action. I write separately because I disagree with the court that full costs should be imposed in this case. Because Attorney Backes was absolved of any allegations of misconduct in both the C.D. and D.M. matters, I would not assess any costs for the counts associated with those complaints. ¶ 73. On December 5, 2002, Attorney Backes was charged with 15 disciplinary violations stemming from five separate client matters. Ultimately, the referee concluded that Attorney Backes had committed misconduct in connection with nine of the 15 counts concerning three separate client matters. We accept the referee's findings of fact and conclusions of law with respect to the disciplinary proceedings.[1] Those findings include a determination that Attorney Backes did not commit misconduct with respect to his handling of the D.M. matter contained in counts five through eight of the complaint,[2] and that he did not commit misconduct with respect to his handling of the C.D. matter contained in counts 11 and 12 of the complaint.[3] ¶ 74. Given our determination, we must now determine the appropriate discipline for the professional misconduct found. As the per curiam opinion indicates, we consider a variety of factors, including the seriousness, *22 nature, and extent of the misconduct; the level of discipline needed to protect the public, the courts, and the legal system from repetition of the lawyer's misconduct; the need to impress upon the attorney the seriousness of the misconduct; and the need to deter other attorneys from committing similar misconduct. Per curiam op., ¶ 53. See also Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 876, 498 N.W.2d 380 (1993). In considering these factors, the critical term used in the evaluation is "misconduct." Where no misconduct occurs, by definition nothing serious has happened. Where no misconduct occurs, the public, courts, and legal system are not in need of protection from its repetition. Where no misconduct occurs, there is no need to impress upon the attorney the seriousness of a nonexistent violation. Where no misconduct occurs, the need to deter other attorneys is absent. ¶ 75. We have determined that Attorney Backes has committed nine counts of misconduct against three different clients. Of course, he should be held responsible for the costs of the proceeding with respect to these counts, as well as the restitution ordered by the court. Per curiam op., ¶ 56. He did not commit any misconduct with respect to C.D. and D.M., however. ¶ 76. For the reasons stated in my concurring in part, dissenting in part opinion in In re Disciplinary Proceedings Against Polich, 2005 WI 36, ¶¶ 39-40, 279 Wis. 2d 266, 694 N.W.2d 367, I would adopt a "substantially related" approach to ordering costs in Office of Lawyer Regulations ("OLR") proceedings. In other words, where evidence is introduced that relates to multiple violations, I would assess costs associated with the prosecution of both the successful and the related unsuccessful counts. See United States v. Pieper, 854 F.2d 1020, 1027-28 (7th Cir. 1988). Costs should not be *23 assessed against an attorney in unrelated, unsuccessful counts where no misconduct has been found concerning a particular client. Such an assessment simply does not support the purposes underlying the factors we consider in determining the appropriate level of discipline where misconduct has occurred, but in unrelated matters. ¶ 77. I recognize that the "substantially related" approach that I would apply in this matter may not be a long-term solution as to how costs should be awarded in attorney-discipline cases. Supreme Court Rule 22.24 (1) establishes that this court has discretion to apportion costs in OLR proceedings. Until we establish standards, guidelines, and procedures for how to exercise our discretion, I propose the "substantially related" approach as a temporary measure so that we do not abdicate our responsibility to exercise our discretion in cases like this where discretion is warranted.[4] Accordingly, I would follow the rationale set forth in Pieper until we devise our own procedures. *24 ¶ 78. Applying the "substantially related" test is simple in this case. I conclude that imposing costs on Attorney Backes regarding the allegations of misconduct with respect to handling C.D.'s and D.M.'s matters is not warranted. Attorney Backes was acquitted of all allegations of misconduct regarding these clients, and there is no basis upon which to conclude that these allegations were in any way, much less substantially, related to the misconduct that was established. ¶ 79. In view of his lack of prior discipline, his "extensive cooperation with the OLR," his acknowledgement that he committed certain errors, and the fact that he returned fees to clients,[5] imposing full costs on Attorney Backes is not justified. The factors we are to consider when imposing discipline simply do not warrant that result. ¶ 80. I therefore respectfully dissent from that portion of the per curiam opinion that assesses full costs against the respondent. I concur with the remainder of the decision. ¶ 81. I am authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins this opinion. *25 NOTES [1] Attorney Backes' notice of appeal was untimely. The Office of Lawyer Regulation (OLR) moved to dismiss the entire appeal. This court acknowledged that the appeal was untimely but directed the parties to file briefs in the matter pursuant to SCR 22.17(2), which provides that "[i]f no appeal is filed timely ... [t]he court, on its own motion, may order the parties to file briefs in the matter." [2] These nine violations include the four counts to which Attorney Backes stipulated. [3] SCR 20:1.3 provides that "[a] lawyer shall act with reasonable diligence and promptness in representing a client." [4] SCR 20:1.4(a) provides: "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information." [5] SCR 20:1.4(b) provides: "(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." [6] SCR 20:1.16(d) provides: (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. [1] See, e.g., OLR v. Trewin, 2004 WI 116, 275 Wis. 2d 116, 684 N.W.2d 121; OLR v. Polich, 2005 WI 36, 279 Wis. 2d 266, 694 N.W.2d 367; OLR v. Konnor, 2005 WI 37, 279 Wis. 2d 284, 694 N.W.2d 376. [2] Petition Number 05-01, In the Matter of the Petition For Amendment to Supreme Court Rule 22.001(3) Relating to Cost Assessments in the Lawyer Regulation System, filed by Keith Sellen, Director, Office of Lawyer Regulation. The petition requests that the court amend SCR 22.001(3) to define "costs" in the Lawyer Regulation System to include "the compensation and necessary expenses of referees [and] litigation expenses other than counsel fees of the office of lawyer regulation...." As a result, counsel fees would not be assessed against the respondent in a disciplinary case, but would be absorbed by the Office of Lawyer Regulation's operating expenses, paid for by all of the members of the Bar. [1] Per curiam op., ¶ 51. [2] Per curiam op., ¶ 24. [3] Per curiam op., ¶ 30. [4] We agree with the concurrence that one way to handle the lack of standards for assessing costs is by rule petitions. Bradley, J., concurrence, ¶¶ 64, 70. Nevertheless, Supreme Court Rule 22.24 (1) unequivocally vests this court with discretion to apportion costs in OLR proceedings. "The fact that we have not established standards, guidelines, and procedures for when we exercise that discretion does not abdicate our responsibility to do so in cases like this where discretion is warranted." In re Disciplinary Proceedings Against Polich, 2005 WI 36, ¶ 43, 279 Wis. 2d 266, 694 N.W.2d 367 (Butler, J., dissenting). The key word is "discretion." As this court reaffirmed just last term in State v. Gallion, 2004 WI 42, ¶ 3, 270 Wis. 2d 535, 678 N.W.2d 197, discretion is not synonymous with decisionmaking. The exercise of discretion "`contemplates a process of reasoning.'" Id. (quoting McCleary v. State, 49 Wis. 2d 263, 280-81, 182 N.W.2d 512 (1971)). [5] Per curiam op., ¶ 54.

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________ No. 95-40972 Conference Calendar __________________ MELVIN LEE JOHNSON, Plaintiff-Appellant, versus BETO I UNIT; UNIDENTIFIED JOHNSON, Lieutenant at Beto I Unit; KEN E. KUYKENDALL, Doctor at Beto I Unit; HERBERT SCOTT, Warden, Defendants-Appellees. - - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:95-CV-511 - - - - - - - - - - June 26, 1996 Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* Melvin Johnson, #643399, appeals from the magistrate judge's dismissal as frivolous pursuant to 28 U.S.C. § 1915(d) of his civil rights complaint. He contends that the magistrate judge erred by dismissing his complaint as frivolous. We have reviewed the record and the magistrate judge's memorandum opinion and * Pursuant to Local Rule 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 Local Rule 47.5.4.  No. 95-40972 -2- order and AFFIRM the dismissal of Johnson's complaint for essentially the reasons set forth by the magistrate judge. See Johnson v. Beto I Unit et al., No. 6:95-CV-511 (E.D. Tex. Nov. 6, 1995). Johnson's motion for a default judgment is DENIED. AFFIRMED. 

10-285-cr United States of America v. Joshua Acoff 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 5 August Term, 2010 6 7 (Submitted on: January 31, 2011 Decided: February 9, 2011) 8 9 Docket No. 10-285-cr 10 11 12 UNITED STATES OF AMERICA, 13 14 Appellant, 15 16 — v.— 17 18 JOSHUA ACOFF, 19 20 Appellee. 21 22 23 24 B e f o r e: 25 26 CALABRESI, and LYNCH, Circuit Judges, MURTHA, District Judge.* 27 28 __________________ 29 30 Appellee Joshua Acoff pled guilty to possessing five or more grams of cocaine base with 31 intent to distribute, in violation of 21 U.S.C. § 841. Although the district court accepted 32 Acoff’s plea of guilty to that offense, it declined to sentence him pursuant to Section * The Honorable J. Garvan Murtha of the United States District Court for the District of Vermont, sitting by designation.  1 841(b)(1)(B), the penalty provision that covers the conduct charged in the indictment and 2 admitted to by Acoff. The government appealed. We find that the district court acted 3 unlawfully in sentencing Acoff to a term of imprisonment below the mandatory minimum. 4 Accordingly, we vacate the judgment of the district court and remand the case so that Acoff 5 can be resentenced consistent with the statutory mandate. 6 VACATED and REMANDED. 7 8 9 Brian P. Leaming, Assistant United States Attorney, and Sandra S. 10 Glover, Assistant United States Attorney (of counsel), for David B. 11 Fein, United States Attorney for the District of Connecticut, for 12 Appellant. 13 14 Thomas G. Dennis, Federal Defender, Sarah A.L. Merriam, Assistant 15 Federal Defender, Hartford, Connecticut, for Appellee. 16 17 PER CURIAM: 18 Appellee Joshua Acoff pled guilty to possessing five or more grams of cocaine 19 base with intent to distribute, in violation of 21 U.S.C. § 841. Although the district court 20 accepted Acoff’s plea of guilty to that offense, it declined to sentence him pursuant to 21 Section 841(b)(1)(B), the penalty provision that covers the conduct charged in the indictment 22 and admitted to by Acoff. In lieu of the sixty-month sentence mandated by the statute, the 23 district court sentenced Acoff to fifteen months in prison, over the government’s objection. 24 The district court justified its decision by observing that the 100-to-1 ratio between crack and 2  1 powder cocaine sentences established by the statute then in force “does not make sense at 2 all.” The government appealed. 3 The district court manifestly erred in sentencing Acoff to a term below the 4 statutory minimum. As the Supreme Court has explained, “the scope of judicial discretion 5 with respect to a sentence is subject to congressional control.” Mistretta v. United States, 6 488 U.S. 361, 364 (1989). Accordingly, except in circumstances not applicable here,1 district 7 courts lack the authority to impose a sentence below the statutory minimum. See Kimbrough 8 v. United States, 552 U.S. 85, 108 (2007). 9 Acoff contends that the mandatory minimum sentence no longer applies to him 10 in light of intervening congressional legislation that reduced sentences for certain crack 11 cocaine offenses. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, § 2, 124 Stat. 2372 12 (amending 21 U.S.C. § 841) (“FSA”). This argument is unavailing. Under the general 13 savings statute, 1 U.S.C. § 109, “[t]he repeal of any statute shall not have the effect to release 14 or extinguish any penalty . . . incurred under such statute, unless the repealing Act shall so 15 expressly provide, and such statute shall be treated as still remaining in force for the purpose 16 of sustaining any proper action or prosecution for the enforcement of such penalty.” 1 A district court may sentence a defendant below the statutory minimum (1) where the defendant provided substantial assistance and the government moves to release the defendant from the statutory minimum under 18 U.S.C. § 3553(e), and (2) where the “safety-valve” exception (18 U.S.C. § 3553(f)) applies. In the present case, the government did not move pursuant to Section 3553(e), and Acoff did not qualify for safety valve consideration pursuant to Section 3553(f). 3  1 Although Acoff argues that the savings statute does not foreclose retroactive application of 2 the FSA, we have recently held otherwise. See United States v. Diaz, 627 F.3d 930 (2d Cir. 3 2010). 4 The fact that Acoff, unlike the defendant in Diaz, had not yet exhausted his 5 appeals when the FSA came into force does not change our analysis. Relying on Griffith v. 6 Kentucky, 479 U.S. 314 (1987), Acoff argues that principles of equal protection require us 7 to read the FSA as applying not only to future offenders, but also to those who violated the 8 statute before it was amended but whose sentences were not yet final when the FSA was 9 enacted. That is not correct. The constitutional concern that occupied the court in Griffith 10 was “the actual inequity that results when the Court chooses which of many similarly situated 11 defendants should be the chance beneficiary of a new rule.” Id. at 323 (internal quotation 12 marks and emphasis omitted). The Court’s holding, which required lower courts to apply 13 new constitutional rules of criminal procedure to all cases not yet final, was intended to 14 account for the injustice that would result if the Court were to grant certiorari and reverse one 15 defendant’s conviction, while otherwise applying the new rule only prospectively. There is 16 no suggestion in Griffith that similar constitutional concerns would apply to a new rule 17 announced by Congress. To the contrary, the Court found it necessary to adopt the rule that 18 it did precisely because “[u]nlike a legislature, we do not promulgate new rules of 19 constitutional criminal procedure on a broad basis.” Id. at 322. It is not irrational for 20 Congress to impose a penalty on those who committed their offenses at a time when they 4  1 knew or should have known the severity of the applicable penalty, even while reducing the 2 penalty as to future offenders. Accordingly, “because the FSA took effect . . . after [the 3 defendant] committed his crimes 1 U.S.C. § 109 bars the Act from affecting his punishment.” 4 Diaz, 627 F.3d at 391, quoting United States v. Gomes, 621 F.3d 1343, 1346 (11th Cir. 2010) 5 (omission in the original). 6 Acoff next contends that the mandatory sentencing scheme in former 21 U.S.C. 7 § 841(b) violates the Equal Protection Clause of the Fourteenth Amendment, because there 8 is no rational basis for the disparity between sentences for crack and powder cocaine. We 9 have repeatedly rejected this argument. See United States v. Regalado, 518 F.3d 143, 149 10 n. 3 (2d Cir. 2008) (per curiam); United States v. Then, 56 F.3d 464, 466 (2d Cir. 1995); 11 United States v. Moore, 54 F.3d 92, 97-99 (2d Cir. 1995); United States v. Stevens, 19 F.3d 12 93, 96-97 (2d Cir. 1994). Nothing in the text or legislative history of the Fair Sentencing Act 13 undermines the validity of these prior decisions. As we have noted in another context, “[a] 14 congressional decision that a statute is unfair, outdated, and in need of improvement does not 15 mean that the statute when enacted was wholly irrational or, for purposes of rational basis 16 review, unconstitutional.” Smart v. Ashcroft, 401 F.3d 119, 123 (2d Cir. 2005). 17 We have considered Acoff's remaining arguments and find them to be without 18 merit. Because we reject Acoff’s arguments on the merits, we need not address the 19 government’s argument that Acoff waived his right to defend the sentence on appeal in his 20 plea agreement. 5 1 CONCLUSION 2 For the foregoing reasons, the judgment of the district court is VACATED and 3 the case is REMANDED for resentencing consistent with this decision. 6  1 GUIDO CALABRESI, Circuit Judge, concurring: 2 I believe the per curiam opinion accurately describes U.S. law and that of our 3 circuit, so I join it fully. That is, its treatment of the effect of a change in law on previously 4 imposed sentences in the absence of a clear statement of retroactivity is the normal—and 5 normally appropriate—procedure and leads to the result in this case. And, yet, there is 6 something troubling about this result with regard to a statute whose grossly different 7 treatment of chemically identical drugs—the rock and powder forms of cocaine—has been 8 criticized and questioned, particularly on grounds of racial injustice. E.g., U.S. Sentencing 9 Comm’n, Special Report to Congress: Cocaine and Federal Sentencing Policy 192 (1995) 10 (concluding that “the vast majority of those persons most affected by such an exaggerated 11 ratio are racial minorities,” which creates a perception—if not a reality—of injustice). As 12 we have learned more about the drugs’ similarities in terms of effect and addictiveness and 13 about the racially disparate impact the statute’s mandatory minimum provisions have had, 14 these criticisms have intensified. See, e.g., ACLU, With the Stroke of a Pen, a Fairer 15 Criminal Justice System, Aug. 3, 2010 (calling the crack-powder disparity “one of the most 16 dysfunctional and needlessly cruel aspects of the federal criminal justice system”). 17 European courts have developed a way of dealing with statutes that though 18 valid when enacted, come, over time, to raise significant constitutional questions. These 19 courts have engaged in a dialogue with their legislatures, explaining that though the courts 20 were not prepared—or possibly even able—to say that the statute was unconstitutional, 1  1 nevertheless, it was the court’s role to inform the legislature that the statute was “heading 2 towards unconstitutionality.” Not surprisingly, in such situations, it sometimes happens that 3 the legislature responds to cure the rising defects in the statute. See United States v. Then, 4 56 F.3d 464, 468–69 (2d Cir. 1995) (Calabresi, J., concurring) (explaining this process). 5 One could describe the crack-powder disparity in the same way. The dialogue 6 here has involved not just courts but the Sentencing Commission, the academy, and the press. 7 See, e.g., U.S. Sentencing Comm’n, Special Report to Congress: Cocaine and Federal 8 Sentencing Policy (1995, 1997, 2007) (recommending reducing or eliminating the crack- 9 powder disparity); Steven L. Chanenson, Booker on Crack: Sentencing’s Latest Gordian 10 Knot, 15 Cornell J. L. & Pub. Pol'y 551, 583-86 (2006) (describing the difficulties and 11 disparities in the crack sentencing Guidelines and urging Congress to act); Editorial, Bad 12 Science and Bad Policy, N.Y. Times, at A30 (Mar. 2, 2010). 13 To the extent that one could have viewed what occurred in Congress as a response to 14 a suggestion by courts that the sentencing statutes were heading towards unconstitutionality, 15 one might question whether the traditional presumption against retroactivity should apply. 16 In circumstances where the legislature has responded to a judicial suggestion of 17 unconstitutionality, the appropriate starting point might well be the opposite: to assume that 18 the change reaches back—at the very least to cover cases pending on appeal at the time of 19 enactment (and perhaps further)—in the absence of a specific statement that some other 20 metric should be used. The import of this shift in presumption would be to force Congress 2  1 to focus specifically on the impact of a legislative change resolving a potential constitutional 2 problem, a focus that is not necessary in the run-of-the-mill situation where no countervailing 3 constitutional-level values suggest that a statute’s official “effective date” and its practical 4 application date should be different. If the statute’s validity was becoming dubious, why 5 should we assume that the legislature wished the statute’s constitutional dubiousness to apply 6 in any case? 7 Nonetheless, U.S. courts have failed to adopt this European dialogic approach. 8 Indeed, with regard to the very question of the crack-powder disparity, it has been rejected 9 by our circuit. Then, 56 F.3d at 466 (majority opinion). In Then, the majority expressly 10 declined to adopt this technique.1 I believe they were wrong then and that following this 11 approach would be desirable now. But, I am bound by that decision and cannot argue that 12 this case should be treated differently from the standard presumption. 1 An ongoing debate exists on the propriety and desirability of U.S. courts learning from what foreign courts are doing in general and especially in constitutional matters. See generally David J. Seipp, Our Law, Their Law, History, and the Citation of Foreign Law, 86 B.U. L. Rev. 1417 (2006) (describing this debate); see also Justices Antonin Scalia & Stephen Breyer, Discussion at the American University Washington College of Law: Constitutional Relevance of Foreign Court Decisions (Jan. 13, 2005) (engaging in this debate). Whatever one’s views are on this issue when it deals with reliance on foreign courts with regard to the import of substantive values, see, e.g., Roper v. Simmons, 543 U.S. 551, 624–28 (2005) (Scalia, J., dissenting) (admonishing the Court for looking to foreign nations’ application of the juvenile death penalty), that is very different from what is involved in this case—whether doctrinal approaches, interpretative methods, and judging techniques for considering constitutional questions that have been developed abroad might be of use to us here. And it is important to realize that one could decline to consider the former but nonetheless adopt the latter as insightful or useful. See, e.g., Steven G. Calabresi, Importing Constitutional Norms from a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L.J. 1283, 1288–97 (2004) (comparing expository, empirical, and substantive uses of foreign law and approving of the first two while disapproving of the third). 3  1 GERARD E. LYNCH, Circuit Judge, concurring: 2 As our per curiam opinion demonstrates, through the combination of the 3 savings statute, 1 U.S.C. § 109, and the provisions of the Fair Sentencing Act of 2010, Pub. 4 L. No. 111-220, § 2, 124 Stat. 2372 (amending 21 U.S.C. § 841) (“FSA”), which fails to 5 provide for any retroactive application of its reform of the sentences for crack cocaine 6 offenses, Congress has commanded that offenders who committed such offenses before the 7 effective date of the FSA but are to be sentenced after that date must be sentenced under the 8 harsh terms of the prior law, now recognized by virtually everyone, including Congress, to 9 have imposed unnecessarily and unfairly severe mandatory sentences. As Judge Calabresi 10 acknowledges, this result is consistent with the Constitution, and – short of adopting a novel 11 theory of constitutional adjudication – courts have no power to alter it. 12 There is a reasonable argument that Congress’s recognition that the prior law 13 was unfair should have led to complete retroactivity, that is, to revisiting the sentences of the 14 thousands of prisoners serving long terms of imprisonment pursuant to the now-abandoned 15 policy. At the same time, it is understandable why Congress would have been reluctant to 16 make its salutary reform fully retroactive. Doing so would not only have imposed a huge 17 burden on the criminal justice system; prosecutorial and judicial decisions in many of those 18 cases – including decisions to drop other, valid charges in return for a plea to a crack offense 19 in the belief that the severe narcotics sentences would adequately protect society – may have 20 been made in reliance on the existence of the prior law. Congress may well have decided 1  1 that it is simply too difficult to rewind these cases to the beginning, unscramble all of the 2 decisions that had been made, and reprosecute the cases as they might have played out had 3 the provisions of the FSA been in effect all along. 4 It is more difficult, however, to understand why Congress would want to 5 continue to require that courts impose unfair and unreasonable sentences on those offenders 6 whose cases are still pending. Such defendants still need to be sentenced, and there are few 7 persuasive reasons why they should be sentenced pursuant to an unjust law when Congress 8 has already replaced it with a more just one. It seems likely that simple congressional 9 inattention produced this result: understandably focused on the much larger question of full 10 retroactivity, when Congress decided against making the provisions of the FSA fully 11 retroactive, it may simply have overlooked the distinguishable, and much smaller, category 12 of past offenders who are still being sentenced for pre-FSA crimes. 13 This is simply a transitional problem. The class of affected past offenders who 14 are still subject to mandatory sentences calculated pursuant to the old and unjust 100-to-1 15 ratio is presumably small. But it is no comfort to those, like the defendant in this case, who 16 are sentenced unduly harshly under a now-discredited and repealed law, to know that a 17 relatively small number of offenders share their predicament. 18 It may now be too late for Congress to affect many of these cases. The number 19 of pre-FSA crack offenders whose sentences are not yet final shrinks with every day that 20 Congress fails to act. But at least some such offenders will remain in the system for years 2 1 to come. With the enactment of the FSA, Congress has finally remedied a glaring injustice 2 in our narcotics laws. Perhaps some day it will revisit the fates of all those who are serving 3 excessive sentences under those now-repealed laws. But even if the arguments against full 4 retroactivity continue to prevail, Congress would do well to quickly and seriously consider 5 whether it has inadvertently required courts to continue an unjust practice in a small but 6 significant number of on-going cases. 3 

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ' BILL GRANT No. 08-13-00087-CR ' Appellant, Appeal from the ' v. County Criminal Court No. 4 ' THE STATE OF TEXAS, of El Paso County, Texas ' State. ' (TC# 20100C08307) ORDER Pending before the Court is a motion to withdraw as counsel by Appellant=s retained attorney, which the trial court granted on April 3, 2013. However, the motion does not comply with Texas Rule of Appellate Procedure 6.5 in the following respects: 1) it does not contain a list of the current deadlines and settings on appeal (in particular, it does not advise Appellant of the deadline for responding to the Clerk=s notice dated April 4, 2013 regarding the certification of the right to appeal); 2) it does not contain the Appellant’s last known address; 3) it does not contain a statement that the Appellant was notified in writing of the right to object to the motion; and 1  4) it does not reflect that it was delivered to Appellant in person or mailed by both first-class and certified mail. See TEX. R. APP. P. 6.5(b). It is therefore ORDERED that the motion to withdraw is denied without prejudice to the filing of an amended motion that cures these defects. IT IS SO ORDERED this 15th day of May, 2013. PER CURIAM Before McClure, C.J., Rivera and Rodriguez, JJ. 2 

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 97-6263 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DANIEL A. VOGEL, JR., Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, District Judge. (CR-91-440, CA-96-170-2-18) Submitted: May 29, 1998 Decided: June 30, 1998 Before MURNAGHAN and ERVIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Susan Graham James, Montgomery, Alabama, for Appellant. Alfred William Walker Bethea, Assistant United States Attorney, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant appeals the district court’s order denying his motion filed under 28 U.S.C. § 2255 (1994) (current version at 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998)). We have reviewed the record and the district court’s opinion and find no reversible error. Accordingly, we affirm on the reasoning of the district court. United States v. Vogel, Nos. CR-91-440; CA-96-170-2-18 (D.S.C. Jan. 27, 1997). See Lindh v. Murphy, 521 U.S. ___, 1997 WL 338568 (U.S. June 23, 1997) (No. 96-6298). We grant the motion to file a reply brief. We deny the motion for oral argument because the facts and legal contentions are adequately presented in the ma- terials before the court and argument would not aid the decisional process. AFFIRMED 2 

Filed 2/10/14 P. v. Berner CA6 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 SIXTH APPELLATE DISTRICT THE PEOPLE, H040079 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1356190) v. CHRISTOPHER DEWEY BERNER, Defendant and Appellant. I. INTRODUCTION Defendant Christopher Dewey Berner pleaded no contest to failing to update his sex offender registration within five working days of his birthday. (Pen. Code, §290.012, subd. (a).)1 In accordance with the plea agreement, the trial court suspended imposition of sentence, placed defendant on probation on the condition that he serve 90 days in the county jail, and stayed the jail term while defendant was on electronic monitoring. Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant. 1 All statutory references hereafter are to the Penal Code unless otherwise indicated.  Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court’s direction in People v. Kelly, supra, at page 110, we provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.” II. FACTUAL AND PROCEDURAL BACKGROUND In this case, no preliminary hearing was conducted and the waived referral report submitted by the probation officer did not include a summary of the facts of the instant offense. Defendant was required to register as a sex offender pursuant to section 290 based on a prior felony conviction for possession of child pornography in violation of section 311.11, subdivision (a). The felony complaint filed on May 3, 2013, charged defendant with one count of willfully failing to update his sex offender registration within five working days of his birthday. (§290.012, subd. (a).) On June 4, 2013, defendant entered into a plea agreement whereby he pleaded no contest to the charge of violating section 290.12, subdivision (a) in exchange for three years of probation, 90 days on the electronic monitoring program, and a continuing obligation to register. During the hearing held on August 9, 2013, the trial court denied defendant’s motion pursuant to People v. Marsden (1970) 2 Cal.3d 118 and also denied defendant’s motion to withdraw his plea. The sentencing hearing was also held on August 9, 2013. The trial court suspended imposition of sentence, placed defendant on probation for three years on the condition that he serve 90 days in the county jail, and stayed the jail term while defendant was on electronic monitoring. Due to defendant’s economic status, the trial court stated on the record that the court declined to impose a restitution fine (§ 1202.4, subd. (b)(2)) and suspended a $240 parole revocation restitution fine (§ 1202.45). The minute order of 2 August 9, 2013, indicates that both fines were waived. The court also ordered payment of a court security fee of $40 (§ 1465.8, subd. (a)(1)), a criminal conviction assessment fee of $30 (Gov. Code, § 70373), and a criminal justice administration fee of $129.75 to the City of San Jose (Gov. Code, § 29550.2). Additionally, the court directed that the the probation supervision fee not exceed $35 per month. III. APPEAL On August 16, 2013, defendant filed a notice of appeal challenging the validity of the plea. The trial court granted defendant’s request for a certificate of probable cause, which stated: “The defendant believes that the judge abused his discretion in denying the motion to withdraw the plea based on ineffective assistance of trial counsel. The defendant believes that trial counsel was not competent in advising the defendant to enter a plea of guilty and in investigating and preparing the case. Thus the plea was also improperly induced by representations which interfered with the defendant’s ability to make informed decisions. These issues go to the legality of the proceedings and may be reviewed on appeal. [Citations.]” Having carefully reviewed the entire record, we conclude that there are no arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.) IV. DISPOSITION The judgment is affirmed. 3  ____________________________________ BAMATTRE-MANOUKIAN, ACTING P.J. WE CONCUR: _________________________________ MIHARA, J. _________________________________ GROVER, J. 4 

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-13-00543-CR Billy Ray Byers, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT NO. D-1-DC-11-302268, THE HONORABLE BOB PERKINS, JUDGE PRESIDING MEMORANDUM OPINION A jury convicted appellant Billy Ray Byers of murder, see Tex. Penal Code § 19.02(b)(1), and assessed his punishment at confinement for life in the Texas Department of Criminal Justice, see id. § 12.32. Appellant’s court-appointed attorney has filed a motion to withdraw supported by a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744 (1967); Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75 (1988).  Appellant’s counsel sent appellant a copy of the brief along with a letter advising appellant of his right to examine the appellate record and file a pro se brief. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766. No pro se brief or other written response has been filed. We have conducted an independent review of the record and find no reversible error. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree with counsel that the record presents no arguably meritorious grounds for review and the appeal is frivolous. Counsel’s motion to withdraw is granted. The trial court’s judgment of conviction is affirmed. __________________________________________ J. Woodfin Jones, Chief Justice Before Chief Justice Jones, Justices Pemberton and Rose Affirmed Filed: July 23, 2014 Do Not Publish 2 

Cite as 2014 Ark. App. 507 ARKANSAS COURT OF APPEALS DIVISIONS II & III No. CV-14-56 OPINION DELIVERED OCTOBER 1, 2014 ROBERT A. BUTLER APPEAL FROM THE SEBASTIAN APPELLANT COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. DR-2007-871(II)] V. HONORABLE ANNIE POWELL HENDRICKS, JUDGE KARLA GLASS BUTLER APPELLEE AFFIRMED ROBERT J. GLADWIN, Chief Judge The Sebastian County Circuit Court granted judgment on September 25, 2013, to appellee Karla Butler in the amount of $52,471.99 for arrearages in alimony, insurance payments, and child support; denied appellant’s request for a reduction in alimony and claim for offset; and found appellant in contempt, ordering him to comply within six months or be incarcerated. On appeal, appellant argues that the trial court erred (1) by finding him in contempt, (2) in its analysis of a material change in circumstances, (3) in its analysis of appellant’s claim for offset, and (4) in applying unclean hands to the offset analysis. We affirm. I. Procedural History Appellant filed for divorce on October 10, 2007, and appellee counterclaimed, asking for custody of their two children and for appellant to be responsible for all marital debt. By temporary order of July 14, 2008, appellant was ordered to pay $2500 in alimony and child  Cite as 2014 Ark. App. 507 support, as well as certain bills, including the mortgage, homeowner’s insurance, and medical insurance for the children. Appellant filed a motion for reconsideration on July 23, 2008, claiming that he had presented testimony that he makes no income; however, if the circuit court had used the 2007 income in setting support, then the amount ordered was above the amount listed in Administrative Order No. 10. An amended temporary order was filed on September 15, 2008, ordering appellant to pay $2500 in temporary alimony and child support effective July 1, 2008, with $1666.67 designated as child support and $833.33 as alimony. He was further ordered to continue paying the bills. The circuit court noted that, regardless of appellant’s testimony, he had continued to pay alimony and the bills as ordered. On September 19, 2008, the Child Support Enforcement Unit (CSEU) intervened and filed a motion for contempt against appellant claiming that he was in arrears in child support in the amount of $5000.01. On September 29, 2008, CSEU filed a motion to modify, claiming that appellant had been ordered to pay $2500 per month in child support, and asked for a wage-assignment order. This motion was modified on October 6, 2008, to reflect the designated child-support obligation of $1667.67.1 On December 29, 2008, the circuit court ordered that the payments continue as ordered, plus an additional $500 for “any” arrearage. The court found that appellant was 1 We recognize the one-dollar difference in the amount as set forth in the September 15, 2008 order and the October 6, 2008 motion. 2  Cite as 2014 Ark. App. 507 current on child support through November 30, 2008. Further, the court ordered that the payments to appellee be made directly to her by wire transfer. The court also ordered that any “payor” deduct child-support payments from appellant’s pay. On June 11, 2009, CSEU filed a motion for citation for a child-support arrearage of $7500 since December 20, 2008. A hearing was set for September 22, 2009, and on that day, a decree was filed granting the parties a divorce and awarding custody to appellee. A support and property-settlement agreement was attached. The parties agreed that appellant would pay $1282 per month child support beginning July 2009. The child-support amount was to decrease to $894 monthly on August 16, 2009, when the oldest child turned eighteen. Alimony was set at $1000 per month beginning July 2009 through May 2023. They agreed that any modification would be based on a substantial change in appellant’s income before June 30, 2012. Appellant was also to reimburse appellee $250 per month for medical insurance. On January 15, 2010, appellant’s lawyer filed a motion to withdraw because his client had not paid his fees or those of the ad litem, who had been appointed on January 8, 2009. An order was entered allowing withdrawal on January 20, 2010. On January 28, 2010, appellee filed a motion for contempt for appellant’s failure to pay bills in violation of the September 15, 2008 amended temporary order. Included were the internet bill, real-estate taxes for 2008, medical insurance, and alimony for April, May, and June 2009. Further, appellee alleged that she was forced to pay car and mortgage payments and insurance on both. She also claimed that appellant had failed to pay the child support, 3  Cite as 2014 Ark. App. 507 medical insurance, and alimony payments as called for in the property settlement and decree. On February 18, 2010, the attorney ad litem filed a contempt motion against appellant for nonpayment of fees in the amount of $1239.58. On April 22, 2010, appellant filed a countermotion for abatement of alimony, reduction in child support, and for contempt, claiming a substantial change in his income. He alleged that appellee contacted a third party to complain online about his company. Also, he alleged that she had thwarted visitation and communication with his child. An agreed order was filed September 23, 2010, wherein appellant was to make an immediate payment of $15,648 to CSEU for child support and insurance from July 2009 through July 2010. He was also to pay $3000 in outstanding attorney’s fees and $1240 to the attorney ad litem. In exchange, he was not to begin alimony payments until May 2011, when he would then owe for twenty-two months of alimony. The agreement was for him to pay an extra $1000 per month at that time, making his payments $2000 per month from May 2011 through February 2013. In March 2013, he would go back to paying $1000 per month through May 2023. All previous orders not conflicting with the new agreement stayed in effect. Appellee preserved her argument regarding alimony for April–June 2009. On May 22, 2012, appellee filed a contempt petition alleging that appellant was behind $4300 in child support, $3000 in insurance, and $44,000 in alimony. On August 27, 2012, appellant filed a counterclaim alleging that he was entitled to a modification in alimony and asked for a decrease in child support as well. He also asked for a set-off against moneys owed him for repairs he had made to the marital home. 4  Cite as 2014 Ark. App. 507 After a hearing on July 9, 2013, an order was filed September 25, 2013, denying appellant’s motion for reduction in alimony and disallowing any offset. Judgment was awarded to appellee in the amount of $52,471.99. The circuit court noted that appellant had unclean hands for not paying alimony and child support during the time appellee occupied the home. The circuit court found as follows: The Plaintiff is ordered and directed to comply with all Orders in the future and that if the judgment is not satisfied within a reasonable period of time not to exceed six (6) months from the date this Order is entered, a Body Attachment shall issue and the Plaintiff shall be incarcerated in the Sebastian County Detention Center until such time as he brings current all of his obligations under the previous Order and current Orders of this Court. This appeal timely followed. II. Contempt Civil contempt protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Ward v. Ward, 2014 Ark. App. 261, 434 S.W.3d 923. Because appellant was held in civil contempt, we apply our standard of review for civil contempt, which is whether the finding of the circuit court is clearly against the preponderance of the evidence. Id. Appellee claims that because appellant has not been imprisoned as yet for his failure to comply, the order is not final and appealable. Appellant replies that Ark. R. App. P.–Civ. 2(a)(13) (2014) addresses this issue and that the order is appealable. Rule 2(a)(13) allows that an appeal may be taken from a circuit court to the Arkansas Supreme Court from a civil- contempt order, which imposes a sanction and constitutes the final disposition of the contempt matter. 5  Cite as 2014 Ark. App. 507 In Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992), our supreme court stated that suspension of a sentence for contempt is in effect a complete remission of the contempt. However, the court noted that when part of the sentence is suspended, the portion that was suspended is remitted, but the remaining portion of the contempt still exists. Henry, 309 Ark. at 342, 832 S.W.2d at 470. The supreme court held that a partial suspension of a contempt sentence did not render the appeal moot. Id. The supreme court noted that a conditional suspension was a “mere postponement of the contempt rather than a remission.” Id. Here, because the circuit court issued the judgment and found appellant in contempt, sentencing him to jail time if he did not satisfy the judgment within six months from the date of the order, we hold that there was a postponement rather than a remission of the contempt and a final, appealable order resulted. Appellant argues that his inability to pay is a defense to contempt for his failure to pay alimony. Griffith v. Griffith, 225 Ark. 487, 283 S.W.2d 340 (1955) (In a contempt proceeding to coerce the payment of money, inability to pay is a complete defense against enforcing payment by imprisonment.). Appellant points to his testimony that he was working twelve- hour days and did not have the money to pay it. He contends that the circuit court made no findings on this issue. He claims that the undisputed evidence was that he could not comply with the terms of the decree and settlement agreement. He argues that his obligations were $27,000 more than his income as reflected in tax years 2009–2011. He admits that he agreed to the first two settlement orders “for reasons that are highly unclear from the record,” but 6  Cite as 2014 Ark. App. 507 claims that there is “no evidence that he has ever had even the prospective capacity to pay for either of them.” He argues that if the contempt order is carried out, it would ensure that he would never be able to pay his alimony because he owns his own company and generates the income that he does have. If he were jailed, therefore, he contends that he would be financially wiped out. Appellee contends that the circuit court could see that appellant stopped paying child support when the younger reached eighteen, but did not pay anything toward his other obligations thereafter, even though his child-support obligation had abated completely. She reasons that appellant knew that failure to pay child support is a criminal matter, but failure to pay alimony is not. We hold that the circuit court’s contempt finding was not clearly against the preponderance of the evidence given appellant’s willingness to enter into agreed orders, his failure to pay, and the circuit court’s superior position to determine the credibility of witnesses and the weight to be given their testimony. Brave v. Brave, 2014 Ark. 175, 433 S.W.3d 227. III. Change in Circumstances Modification of an award of alimony must be based on a change of circumstances of the parties. Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998). The burden of showing a change of circumstances is always on the party seeking the change in the amount of alimony. Hass v. Hass, 80 Ark. App. 408, 97 S.W.3d 424 (2003). 7  Cite as 2014 Ark. App. 507 The primary factors to be considered in changing an award of alimony are the needs of one party and the ability of the other party to pay. Parker v. Parker, 97 Ark. App. 298, 248 S.W.3d 523 (2007). Secondary factors that may also be considered include (1) the financial circumstances of both parties; (2) the couple’s past standard of living; (3) the value of jointly owned property; (4) the amount and nature of the income, both current and anticipated, of both parties; (5) the extent and nature of the resources and assets of each of the parties; (6) the amount of each party’s discretionary income; (7) earning ability and capacity of both parties; (8) the property awarded to each party; (9) the disposition of the homestead or jointly owned property; (10) the condition of health and medical needs of the parties; (11) the duration of the marriage. Delacey v. Delacey, 85 Ark. App. 419, 155 S.W.3d 701 (2004). Each case is to be judged upon its own facts. Id. Discretion is vested in the circuit court, and we will not reverse absent an abuse of discretion. Id. Appellant argues that the circuit court failed to consider the parties’ material change of circumstances. He contends that the circuit court made no findings and took no notice of his inability to pay. The court determined that his income had not changed between entry of the 2010 settlement agreement and the hearing on his motion for reduction. He agrees that in that time period, his income did not change. However, he argues that other circumstances did: (1) He took on additional debt to comply with part of prior orders. He borrowed money against his car and from family, and incurred a debt of $98,000 against unpaid portions of the mortgage on the house, and the failure of a prior business that he owes $2000 per month on; (2) Appellee was able to put ten percent down on a new house and has 8  Cite as 2014 Ark. App. 507 had a $6,000 annual-pay increase; (3) The parties contemplated an increase in his income when the 2010 settlement was entered, or they would not have agreed to make him pay more than his available income. He offers to pay $250 per month in alimony. Appellee argues that the alimony order of 2010 is not modifiable. First, appellant filed his motion after the June 20, 2012 deadline; second, he had an opportunity in 2010 to modify his obligations and did not do so; and third, his income has not decreased since the last order filed in September 2010. She argues that it was appellant’s duty to make clear the reasons for the first two settlement orders. She argues that he cannot vaguely allude to possible improvidence and demand that she surrender what she contracted to receive. Appellant contracted to pay the alimony, and it is not modifiable outside the parameters of the contract. The contract allowed modification based on his income. However, appellant admitted that his income had not changed. We hold that there was no abuse of discretion in finding that appellant failed to meet his burden of proof and denying appellant’s request for a modification in alimony. IV. Offset In Duncan v. Duncan, 2011 Ark. 348, at 8, 383 S.W.3d 833, 838, our supreme court held as follows: Although equity cases are reviewed de novo, and the whole case is open for review, the findings of fact by the circuit judge in equity cases are not to be set aside unless clearly erroneous. Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009); see also Ark. R. Civ. P. 52(a) (2011). In determining whether the circuit judge clearly erred with regard to a factual finding, the appellate court may look to the whole record to reach that decision. Stehle, 375 Ark. at 455, 291 S.W.3d at 580. A finding of fact is clearly erroneous when the reviewing court, based on the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id. Therefore, “a 9  Cite as 2014 Ark. App. 507 complete review of the evidence and record may take place as part of the appellate review to determine whether the trial court clearly erred in either making a finding of fact or in failing to do so.” Id. at 456, 291 S.W.3d at 580. Appellant contends that the original divorce-settlement agreement provided that he was to make payments to his stepmother for the continued use of the residence at 6512 Park Avenue. However, appellee lived there and was to maintain the residence in good condition and repair. He argues that she did not keep up her end of the contract and that some issues regarding the condition of the house came up in the divorce, and the contract resolved them, making her responsible for some unrepaired items in the house. These items included gutters, roof and skylight, fence, and damage to the wall. He complains about the pool repairs that appellee had made that left damage in the amount of $10,000; that she left with fixtures to the house, including the dishwasher, light fixtures, and ceiling fans; that he would have to fix the furnace because appellee did not maintain it; and that he had to have trash bins brought in to clean up trash that appellee left. He argues that even if the circuit court found appellee’s version of events more credible, the decree provided that she would keep things in good condition and repair, and this was not done. He argues, therefore, that credibility is not at issue. He claims that, had she received her alimony and been able to pay for it, she would have been responsible for it then, so she should be responsible for it now. Appellee claims that appellant’s plea for set-off fails for lack of sufficient evidence. The circuit court wrote: 10. With respect to the plaintiff’s request for repairs made and repairs to be made, the court notes that a number of these items include airline tickets, hotel expenses, rental 10  Cite as 2014 Ark. App. 507 car expenses, which are clearly not repairs to the Arkansas home and furthermore, the evidence is conflicting as to the condition of the real estate and home at the time the parties separated and there was no independent witness or photograph introduced into evidence depicting the conditions at separation or the time of the divorce. As mentioned above, under the Agreement that the Plaintiff made with his stepmother, he was to be solely responsible for any repairs, upkeep and maintenance on the home; therefore, he would have been responsible for any of the upkeep, care and maintenance up until the time of separation. Again, there is no evidence of the condition of the real estate and home at the time of separation. The evidence is clear that the carpet was original, the fence was ill constructed from the onset, there was no irrigation system to ensure the life of the existing original landscaping and the heat and air-conditioning was in ill repair while the Plaintiff resided in the home. Therefore, based on all of the above, the Court denies the Plaintiff’s claim for offset against the alimony for the mortgage payments, repairs paid and repairs required for lack of proof and lack of evidence. Appellee argues that the evidence was that the swimming pool needed repair before the divorce, but that appellant had let the insurance lapse and that the necessary repairs were not made. Appellant cannot now seek an offset for those repairs. Appellee refers to other testimony regarding the harsh summer and the conditions of the original carpet and gutters. In reviewing equity cases, appellate courts conduct a de novo review of the record and do not reverse a finding by the circuit court unless it is clearly erroneous or clearly against the preponderance of the evidence. Chastain v. Chastain, 2012 Ark. App. 73, 388 S.W.3d 495. We also give due deference to the circuit court in judging the credibility of the witnesses. Id. Given our standard of review and the circuit court’s evident evaluation of the witness’s credibility, we hold that there was no clear error in the circuit court’s order denying an offset. 11  Cite as 2014 Ark. App. 507 V. Unclean Hands The clean-hands doctrine bars relief to those who are guilty of improper conduct in the matter in which they seek relief. Nationsbanc Mtg. Corp. v. Hopkins, 87 Ark. App. 297, 190 S.W.3d 299 (2004). Appellant contends that this doctrine does not apply to him because he was unable to pay his alimony and because his actions were not driven by disobedience. Appellee argues that appellant came to court with unclean hands, and he should have shown compliance with the court’s orders or at least that he tried to pay something. She claims that his debts in business and to his mother should not be above the debt that he owes her. She points out that appellant did not even pay the $250 he now offers as a show of good faith. Again, giving due deference to the circuit court’s judgment of the credibility of the witnesses, we hold that there was no clear error in the circuit court’s order. Affirmed. WALMSLEY, GLOVER, WHITEAKER AND VAUGHT, JJ., agree. PITTMAN, J., dissents. JOHN MAUZY PITTMAN, Judge, dissenting. This case should be dismissed because the order of contempt is not final. Although it is true that Ark. R. App. P.–Civ. 2(a)(13) permits an appeal from a civil contempt order that imposes a sanction, this is so only where such an order constitutes the final disposition of the contempt matter. The order appealed is not a final disposition of the contempt matter in this case. The order provides: [T]he Court finds Plaintiff in contempt and awards the Defendant judgment in the sum set forth above. The Plaintiff is ordered and directed to comply with all Orders 12  Cite as 2014 Ark. App. 507 in the future and that if the judgment is not satisfied within a reasonable period of time not to exceed six (6) months from the date this Order is entered, a Body Attachment shall issue and Plaintiff shall be incarcerated in the Sebastian County Detention Center until such time as he brings current all of his obligations under the previous orders and current orders of this Court. The lack of finality is demonstrated by our inability to decide the question argued. Appellant claims that he will not be able to pay these obligations because of his financial situation; he asks us to make a finding regarding his ability to pay in futuro and to reverse the trial court’s finding of contempt based upon that finding. We cannot do so. First, it is for the trial court, not the appellate court, to make initial findings regarding a contemnor’s ability to purge the contempt by payment. Second, the condition that would give rise to the sanction necessary to finality of this order—failure to pay—has not yet occurred. Appellant argues that this is in fact a final order by reference to the 2010 Reporter’s Notes to Rule 2 that state “when a contempt sanction is suspended conditionally for a specific period of time, our supreme court has concluded that the suspension amounts to a postponement of the contempt rather than a remission,” and that “[a]n order with postponed sanctions is appealable.” However, to consider the order in the present case as containing postponed sanctions, we would have to construe the trial court’s order as providing for immediate imprisonment upon failure to pay, without regard to whether the failure to pay was willful and without a hearing to determine ability to pay. Such a construction would assume that the trial court intended to violate appellant’s due-process rights by depriving him of a hearing on the issue of willfulness before imprisonment is imposed, Griffith v. Griffith, 225 Ark. 487, 283 S.W.2d 340 (1955), and would be contrary to the presumption of regularity 13  Cite as 2014 Ark. App. 507 that attaches to all orders issued by courts of general jurisdiction. See American States Insurance Co. v. Williams, 2010 Ark. App. 840; see generally 31A C.J.S. Evidence § 234 (2014). Because I would dismiss for lack of a final order, I respectfully dissent. Jeremy B. Lowrey, for appellant. Smith, Cohen & Horan, PLC, by: Matthew T. Horan, for appellee. 14 

57 F.Supp.2d 681 (1999) ARMAMENT SYSTEMS & PROCEDURES, INC., Plaintiff, v. DOUBLE 8 SPORTING GOODS CO., INC., and Double 8 Trading Company, Inc., Defendants. Civil Action No. 95-C-0400. United States District Court, E.D. Wisconsin. July 2, 1999. *682 Bruce C. O'Neill, Fox, O'Neill & Shannon, Milwaukee, WI, Richard S. Kuhlman, Wolin & Rosen, Chicago, IL, Wanda E. Jones, Cappas & Jones, Highland, IN, James M. McCarthy, Bradley J. Hulbert, McDonnell Boehnen, Hulbert & Berghoff, Chicago, IL, for plaintiff. Mitchell P. Novick, Attorney-at-Law, Montclair, NJ, for defendant Double 8 Trading Co. ORDER 1) FINDING DEFENDANT DOUBLE 8 TRADING COMPANY, INC., IN CIVIL CONTEMPT FOR VIOLATING THE COURT'S OCTOBER 13, 1995 CONSENT JUDGMENT AND ORDER, 2) GRANTING PLAINTIFF'S MOTION TO COMPEL, and 3) ESTABLISHING SCHEDULE FOR FUTURE PROCEEDINGS REYNOLDS, District Judge. I. INTRODUCTION This patent infringement action has been awakened from a nearly four-year dormancy. Before the court are two motions by plaintiff Armament Systems & Procedures, Inc. ("ASP"), one to find defendant Double 8 Trading Company, Inc. ("Double 8 Trading"), in civil contempt for violating a consent judgment issued by the court on October 13, 1995, and the other to compel production of documents. The court conducted a hearing on ASP's motions on June 24, 1999. Pursuant to that hearing, the court grants ASP's motions and establishes a schedule for further proceedings. II. MOTION FOR CIVIL CONTEMPT A. Findings of Fact[1] ASP manufactures steel expandable metal batons that are used primarily by law enforcement agencies. On April 14, 1995, ASP brought this patent infringement action against Double 8 Trading and a related company, Double 8 Sporting Goods Co., Inc. ("Double 8 Sporting Goods"). ASP accused the defendants of selling expandable batons that infringed three of ASP's patents. Those patents are: U.S. Patent No. 5,110,375 ("the '375 patent"), entitled "Baton Method of Heat Treating Expandable"; U.S. Patent No. 5,348,297 ("the '297 patent"), entitled "Expandable Baton With Locking Joints"; and U.S. Patent No. 5,161,800 ("the '800 patent"), entitled "Retainer Clip for Expanding Baton". ASP's action was initially resolved with a minimum of court intervention: Double 8 Sporting Goods failed to answer the complaint and the court entered default judgment *683 against it on November 9, 1995.[2] Double 8 Trading, on the other hand, reached a settlement with ASP, and both parties stipulated to the entry of a consent judgment and order governing the resolution of their dispute ("the Consent Judgment"). Double 8 Trading's then-president, Daric Kwoc, signed the stipulation. The court issued the Consent Judgment on October 13, 1995. Under the terms of the Consent Judgment, Double 8 Trading conceded that all three of ASP's patents are "valid and enforceable as between these parties." (Consent Judgment ¶¶ 2-4.) Double 8 Trading also conceded that it had infringed the '800 patent by selling steel expandable batons and steel spring batons incorporating the retaining[3] clip claimed in that patent.[4] The Consent Judgment prohibited Double 8 Trading and its agents, employees, officers, directors and shareholders, from directly or indirectly infringing the claims of all three patents. The Consent Judgment provided, however, that Double 8 Trading would be "relieved of its obligations under this Consent Judgment and Order ... in the event a final decision is rendered in any Court of competent jurisdiction that said U.S. Patents are invalid or unenforceable." (Id. ¶ 11.) The court retained jurisdiction over the action for purposes of enforcing compliance with the Consent Judgment. The court did not hear from the parties again until this year. On March 17, 1999, ASP moved for an order finding Double 8 Trading, and its former president, Daric Kwoc, in civil contempt for violating the terms of the Consent Judgment. ASP alleged that on multiple occasions Double 8 Trading had violated the Consent Judgment by selling expandable batons that infringed all three of ASP's patents. Counsel for Double 8 Trading filed a notice of appearance on April 13. On April 22, ASP filed a motion to compel the production of documents and to schedule a deposition. On May 14, the court issued an order establishing a hearing date and briefing schedule for ASP's motions. The hearing took place on June 24. ASP focuses its case primarily on alleged violations of the '800 patent covering the retaining clip. A little more than a year after the court issued the Consent Judgment, in December of 1996, ASP's chief executive officer, Dr. Kevin Parsons ("Dr.Parsons"), purchased two 16 inch steel expandable batons from Double 8 Trading. Those Double 8 Trading batons contained retaining clips that were similar to the retaining clip claimed in the '800 patent. The opposed legs of the retaining clips on the Double 8 Trading batons were tapered at the ends. In a letter dated March 25, 1997, counsel for ASP informed Double 8 Trading that ASP believed the sale of these batons constituted a violation of the Consent Judgment. (Mar. 17, 1999 Pl.'s Mem. of Law, Ex. H.) Counsel for Double 8 Trading responded in a letter dated April 11, 1997, and explained that any sales of infringing batons were inadvertent and possibly the result of "old stock" being accidentally sold. (Hr'g Ex. 6.) Counsel for Double 8 Trading assured ASP that his client would "take care to see that no old products are available for an accidental sale to occur." (Id. at 2.) Counsel for Double 8 Trading also stated that his client had been informed by its baton manufacturer that all batons sold by Double 8 Trading would use a retaining clip that did not infringe the '800 patent. (See id.) In an effort to resolve this dispute, Double 8 Trading agreed to redesign the retaining clip on its batons before any *684 future sales were made. (See Hr'g Ex. 8 at 1.) Double 8 Trading also agreed to send ASP a sample of the redesigned clip for pre-approval to ensure that the new clip did not violate the Consent Judgment. (Id. at 2.) Contrary to these representations, Double 8 Trading never provided ASP with a redesigned clip for pre-approval. More than a year later, in July of 1998, Dr. Parsons noticed an advertisement for Double 8 Trading expandable steel batons in a catalogue distributed by a company named Smokey Mountain Knife Works ("Smokey Mountain"). The batons were described in the catalogue as "Double 8 Telescoping baton". (Hr'g Ex. 9.) Dr. Parsons ordered two Double 8 Trading batons from Smokey Mountain. Dr. Parsons inspected the batons and found that although the retaining clips had been redesigned, they were extremely similar to the retaining clips that had been held to infringe the '800 patent in the Consent Judgment. In August of 1998, Dr. Parsons visited a trade show in Las Vegas. Double 8 Trading had a large exhibit at the show and the exhibit included a large display of expandable batons. Dr. Parsons examined the retaining clips on the batons and found no difference between those retaining clips and the retaining clips contained in the batons held to infringe the '800 patent in the Consent Judgment. In February of 1999, Dr. Parsons again discovered Double 8 Trading batons offered for sale in the Smokey Mountain catalogue. The catalogue described the batons as "Double 8 Telescoping baton". (Hr'g Ex. 12.) On February 24, Dr. Parsons ordered two Double 8 Trading batons from Smokey Mountain. (See Hr'g Ex. 13.) Dr. Parsons inspected the retaining clips contained in the batons and found no difference between those retaining clips and the retaining clips found in the batons held to infringe the '800 patent in the Consent Judgment. On April 9, 1999, counsel for Double 8 Trading and counsel for ASP had a phone conversation in which counsel for Double 8 Trading represented that his client had ceased the manufacture, sale, and shipment of expandable batons. Counsel for Double 8 Trading also agreed that within ten days he would confirm that Double 8 Trading's distributors did not have any inventory of Double 8 Trading batons and had stopped taking orders for such batons. The conversation between counsel for Double 8 Trading and counsel for ASP is memorialized in a letter dated April 9, 1999, from counsel for ASP. (See Hr'g Ex. 30.) On April 14, 1999, Dr. Parsons again ordered Double 8 Trading batons from Smokey Mountain. (See Hr'g Ex. 14.) Again, Dr. Parsons found little difference between the retaining clips in these batons and the retaining clips in the batons found to infringe the '800 patent in the Consent Judgment. One of the batons ordered by Dr. Parsons on April 14 has been provided to the court as Exhibit 15. B. Scope of the Court's Proceedings The court intended to limit the scope of the June 24, 1999 hearing to the issue of whether there was more than a "colorable difference" between the newly-accused batons and the batons governed by the Consent Judgment. The Federal Circuit has held that "colorable difference" is a threshold issue in patent infringement contempt proceedings; contempt proceedings are not appropriate if there is more than a colorable difference between an accused device and the device identified as infringing in a consent judgment. See KSM Fastening Sys., Inc. v. H.A. Jones Co., 776 F.2d 1522, 1528-32 (Fed.Cir.1985). Admissions by Double 8 Trading prior to the hearing made evidence relevant to the "colorable difference" issue unnecessary and enabled the court to proceed to the issue of whether Double 8 Trading should be found in contempt. In a letter brief submitted ten days after the filing deadline, and just three days *685 prior to the hearing, Double 8 Trading admitted that there is no colorable difference between the claims of the '800 patent and the retaining clips contained in the batons identified by ASP as having been sold in violation of the Consent Judgment. Double 8 Trading contended that, despite this admission, it could not be found in contempt because the '800 patent was invalid. With regard to the '297 patent and the '375 patent, Double 8 Trading contended that ASP had failed to present any evidence of violations of the Consent Judgment. Double 8 Trading reasserted these arguments at the June 24 hearing. Representations made at the hearing by counsel for Double 8 Trading lead the court to conclude that Double 8 Trading admits there is no colorable difference between the retaining clips contained in the batons sold after entry of the Consent Judgment, the claims of the '800 patent, and the retaining clips contained in the batons held to infringe the '800 patent in the Consent Judgment. Double 8 Trading also argued that the terms of the Consent Judgment permit Double 8 Trading to contest the validity of the '800 patent in this proceeding. Double 8 Trading relied on the provision of the Consent Judgment stating that Double 8 Trading is relieved of its obligations under the Consent Judgment if an appropriate court finds ASP's patents invalid. As discussed below, the court rejects Double 8 Trading's contention that it can contest the validity of the '800 patent in this proceeding. Because that was the only defense proffered by Double 8 Trading in its brief and proposed findings of fact and conclusions of law, the court found it appropriate to rule on ASP's contempt motion in its entirety. C. Validity of the '800 Patent In general, "[w]hether there is infringement may not be challenged in contempt proceedings on the basis that the patent is invalid. The validity of the patent is the law of the case in such proceedings." KSM Fastening, 776 F.2d at 1529. The court finds no reason to stray from that rule here. In stipulating to the terms of the Consent Judgment, Double 8 Trading agreed that the '800 patent was "valid and enforceable," and agreed not to directly or indirectly infringe that patent. The provision of the Consent Judgment relieving Double 8 Trading of this obligation in the event a court finds ASP's patents invalid does not grant Double 8 Trading permission to violate the Consent Judgment before such an finding is made. The provision of the Consent Judgment raised by Double 8 Trading affords only prospective relief. The provision states: [Double 8 Trading] shall be relieved of its obligations under this Consent Judgment and Order ... in the event a final decision is rendered in any Court of competent jurisdiction that said U.S. Patents are invalid or unenforceable. (Consent Judgment ¶ 11.) Under the plain language of that provision, the obligations imposed on Double 8 Trading are not lifted until a court finds the patents invalid. The undisputed facts in this proceeding show that no court has issued a decision finding ASP's patents invalid, and yet Double 8 Trading admits to selling products that are not more than colorably different from the claims of the '800 patent itself. Double 8 Trading may be correct that the '800 patent is invalid, but Double 8 Trading must prove that contention before it can ignore the court's decree. Moreover, reading the provision in the manner Double 8 Trading suggests would be poor policy. Giving res judicata effect to this type of consent decree increases the efficiency of patent litigation by encouraging parties to press their case when a patent's validity is legitimately in question, and encouraging parties to settle when it is not. See Foster v. Hallco Mfg. Co., 947 F.2d 469, 476-77 (Fed.Cir.1991). In addition, a consent decree does not merely impose obligations between the parties, it also imposes obligations to the court. Violation *686 of a consent decree constitutes an affront to the court. See KSM Fastening, 776 F.2d at 1524. If a party wishes to take actions that would violate the terms of a consent decree, it should request the court's leave to do so. Double 8 Trading argues that it should not be barred from challenging the validity of the '800 patent in this proceeding because it did not have a full and fair chance to litigate the validity of that patent prior to signing the Consent Judgment. According to Double 8 Trading, it would not have agreed to the Consent Judgment had it known of the existence of prior art invalidating the '800 patent. The court rejects this argument. There is nothing in the record to show that Double 8 Trading made any effort to contest ASP's claims. Double 8 Trading never filed an answer to ASP's complaint. No attorney filed a notice of appearance on Double 8 Trading's behalf prior to the signing of the Consent Judgment. The record suggests that Double 8 Trading found it more beneficial to quickly settle this action than to expend the time and effort required to mount a challenge to ASP's claims. Double 8 Trading cannot now argue that ASP denied it the chance to fully litigate this action when Double 8 Trading never sought to do so in the first place. D. Infringement of the '800 Patent To find Double 8 Trading in contempt for violating the Consent Judgment, the court must find that the batons Double 8 Trading sold infringe ASP's patents. The court finds there is insufficient evidence to conclude that Double 8 Trading's batons infringe the '297 patent and the '375 patent. However, sufficient evidence has been offered with regard to the '800 patent. A copy of the '800 patent is attached to this order. In support of its argument that Double 8 Trading has been selling batons that violate the '800 patent, ASP has provided one of the batons purchased by Dr. Parsons from Smokey Mountain on April 14, 1999 ("Exhibit 15"), and the expert testimony of Albert V. Karvelis. In his testimony, Karvelis compared the claims of the '800 patent to the retaining clip found in Exhibit 15. The court has also conducted its own comparison of Exhibit 15 to the claims of the '800 patent. This evidence leads the court to conclude that Double 8 Trading infringed claims 1 and 4 of the '800 patent in violation of the Consent Judgment. E. Duration of Double 8 Trading's Infringing Sales ASP asserts that Double 8 Trading continues to sell batons that violate the Consent Judgment. The court finds there is insufficient evidence to show that Double 8 Trading continued to violate the Consent Judgment after April 9, 1999. On April 9, 1999, counsel for Double 8 Trading represented that his client had ceased the manufacture, sale, and shipment of expandable batons. On that same day, counsel for Double 8 Trading agreed that, within ten days, he would confirm that Double 8 Trading's distributors did not have any inventory of Double 8 Trading batons and had stopped taking orders for such batons. Although Dr. Parsons purchased an infringing baton from Smokey Mountain on April 14, 1999, that sale occurred prior to the expiration of the ten-day deadline promised by Double 8 Trading. Thus, that sale could be the result Double 8 Trading not having had the opportunity to contact Smokey Mountain regarding the need to stop selling batons from its existing stock, rather than a product of a continuing violation on the part of Double 8 Trading. On the current record, the court cannot find that Double 8 Trading violated the Consent Judgment after April 9, 1999. However, sales of Double 8 Trading batons made by Double 8 Trading distributors and retailers after April 9, 1999, may be relevant to the calculation of the proper remedy for Double 8 Trading's contempt. *687 F. Double 8 Trading's Former President Daric Kwoc ASP has moved that Double 8 Trading's former president, Daric Kwoc ("Kwoc"), also be found in civil contempt for his role in violating the Consent Judgment. Counsel for Double 8 Trading has represented to the court that Kwoc is no longer employed by the company. There is nothing in the record suggesting that ASP personally served Kwoc with its motion. No attorney has filed a notice of appearance for Kwoc, and Kwoc was not present or represented at the hearing. ASP has not produced evidence regarding Kwoc's role in violating the Consent Judgment. Given these facts, the court will deny ASP's motion as it relates to Kwoc. ASP is free to renew its motion as to Kwoc should it discover evidence implicating Kwoc in the violation of the Consent Judgment. G. Conclusions of Law In light of Double 8 Trading's admissions, the court finds there is no colorable difference between (a) the retaining clips contained in the batons sold by Double 8 Trading after entry of the Consent Judgment, (b) the retaining clips contained in the batons identified in the Consent Judgment as violating the '800 patent, and (c) the claims of the '800 patent itself. The court finds there is insufficient evidence at this time to support a finding that Double 8 Trading violated the Consent Judgment with regard to the '297 and '375 patents. The court finds that principles of res judicata bar Double 8 Trading from contesting the validity of the '800 patent in this proceeding. Having compared the retaining clip contained in Exhibit 15 to the claims of the '800 patent, the court finds that Double 8 Trading has infringed claims 1 and 4 of the '800 patent in violation of the Consent Judgment. The court finds that Double 8 Trading sold batons in violation of the Consent Judgment until April 9, 1999. Accordingly, the court will grant ASP's motion to find Double 8 Trading in civil contempt. The court finds there is insufficient evidence to hold Daric Kwoc in civil contempt. III. MOTION TO COMPEL On April 22, 1999, ASP filed a motion to compel Double 8 Trading to produce various categories of documents and to schedule a deposition with a person designated by Double 8 Trading to discuss those documents. At the court's June 24 hearing, Double 8 Trading expressed its willingness to comply with ASP's discovery requests to the fullest degree possible. However, Double 8 Trading suggested that it may not have many of the records ASP seeks. At the hearing, the court ordered that Double 8 Trading produce its president, Henry Lee, for a deposition on or before July 22, 1999. The parties agreed that on or before June 28, 1999, ASP would provide Double 8 Trading with a letter detailing the information it needs to prepare for that deposition. Double 8 Trading agreed to respond to ASP's letter on or before July 12, 1999. The court finds that the above agreements adequately address ASP's motion to compel. IV. CONCLUSION That portion of the March 17, 1999 motion by plaintiff Armament Systems and Procedures, Inc., seeking to find defendant Double 8 Trading Company, Inc., in civil contempt is GRANTED. That portion of plaintiff's March 17, 1999 motion seeking to find Daric Kwoc in civil contempt is DENIED WITHOUT PREJUDICE. The April 22, 1999 motion by plaintiff to compel the production of documents and to schedule a deposition is GRANTED. *688 On or before July 22, 1999, defendant shall produce its president, Henry Lee, for a deposition by plaintiff. On or before July 12, 1999, defendant shall respond to any written request plaintiff has made for documents or other information needed to prepare for the deposition of Henry Lee. The court will conduct a hearing on Friday, September 10, 1999, at 10:00 a.m., to determine plaintiff's remedy for defendant's contempt. APPENDIX A *689 *690 *691 *692 NOTES [1] The court bases its findings of fact on the evidence presented at the June 24, 1999 hearing, the proposed findings of fact submitted by the parties, and the materials filed with the parties' briefs. Citations are provided for direct quotations and for facts supported by exhibits presented at the hearing. In general, citations are not provided for findings based on the parties' proposed findings of fact or hearing testimony. [2] Double 8 Sporting Goods' current status is unclear. Counsel for Double 8 Trading asserts that the company is defunct. [3] Although the '800 patent is entitled "retainer clip," the parties refer to it as a "retaining clip." [4] A copy of the '800 patent is attached to this order as Appendix A.

814 F.2d 1363 59 A.F.T.R.2d 87-950, 87-1 USTC P 9277 Howard S. SCAR and Ethel M. Scar, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 85-7212. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 6, 1986.Decided April 14, 1987. Mark Bernsley, Los Angeles, Cal., for petitioners-appellants. Francis Allegra, David I. Pincus, Washington, D.C., for respondent-appellee. Petition to Review a Decision of the Tax Court of the United States. Before FLETCHER, NELSON and CYNTHIA HOLCOMB HALL, Circuit Judges. FLETCHER, Circuit Judge: 1 Taxpayers Howard and Ethel Scar petition for review of the Tax Court's denial of their motion to dismiss for lack of jurisdiction and denial of their two summary judgment motions. Taxpayers argue that the Tax Court lacked jurisdiction because the Commissioner of the Internal Revenue Service (IRS) issued an invalid notice of deficiency. Alternatively, they argue that the Tax Court incorrectly denied their motions for summary judgment and should not have granted the Commissioner's request to amend his answer. We reverse. BACKGROUND 2 On September 3, 1979, petitioners Howard and Ethel Scar filed a joint return for tax year 1978.1 The Scars claimed business deductions totaling $26,966 in connection with a videotape tax shelter,2 and reported total taxes due of $3,269. 3 On June 14, 1982, the Commissioner mailed to the Scars a letter (Form 892); it listed taxpayers' names and address, the taxable year at issue (the year ending December 31, 1978), and specified a deficiency amount ($96,600). The body of the letter stated in part: 4 We have determined that there is a deficiency (increase) in your income tax as shown above. This letter is a NOTICE OF DEFICIENCY sent to you as required by the law. 5 It informed the taxpayers that if they wished to contest the deficiency they must file a petition with the United States Tax Court within 90 days. 6 Attached to the letter was a Form 5278 ("Statement--Income Tax Changes") purporting to explain how the deficiency had been determined. It showed an adjustment to income in the amount of $138,000 designated as "Partnership--Nevada Mining Project." The Form 5278 had no information in the space on the form for taxable income as shown on petitioners' return as filed. It showed as the "total corrected income tax liability" the sum of $96,600 and indicated that this sum was arrived at by multiplying 70 percent times $138,000. 7 Another attached document, designated as "Statement Schedule 2," with the heading "Nevada Mining Project, Explanation of Adjustments," stated as follows: 8 In order to protect the government's interest and since your original income tax return is unavailable at this time, the income tax is being assessed at the maximum tax rate of 70%. 9 The tax assessment will be corrected when we receive the original return or when you send a copy of the return to us. 10 The increase in tax may also reflect investment credit or new jobs credit which has been disallowed. 11 Also attached to the letter was a document, designated as "Statement Schedule 3," with the heading "Nevada Mining Project, Explanation of Adjustments." This document explained why the Nevada Mining Project deductions were being disallowed. 12 On July 7, 1982, the taxpayers filed a timely petition with the Tax Court to redetermine the deficiency asserted. In their petition, they alleged that they had never been associated with the "Nevada Mining Project Partnership" and had not claimed on their 1978 return any expenses or losses related to that venture. The Commissioner, on August 30, 1982, filed an answer denying the substantive allegations of the petition. 13 Sometime in September 1982, the Commissioner conceded in a telephone conversation with the taxpayers that the June 14 notice of deficiency was incorrect because it overstated the amount of disallowed deductions and wrongly connected taxpayers with a mining partnership. Nevertheless, the Commissioner maintained that the notice of deficiency was valid. The Commissioner confirmed his position in a letter dated November 29, 1982, stating "the taxpayers should not be surprised by the fact that the Commissioner means to disallow the deductions claimed in 1978 for Executive Productions, Inc." because similar objections had been made to the deductions claimed for the same tax shelter on taxpayers' 1977 return. The Commissioner enclosed with this letter a revised Form 5278, which contained the appropriate shelter explanation and decreased the amount of tax due to $10,374, and notified the taxpayers that he intended to request leave from the Tax Court to amend his answer. 14 On December 6, 1982 the taxpayers filed a motion to dismiss for lack of jurisdiction, claiming that the June 14 notice of deficiency was invalid because the Commissioner failed to make a "determination" of additional tax owed before issuing the notice of deficiency. The Commissioner filed a response which conceded the inaccuracy of the notice of deficiency but maintained that it was sufficient to give the Tax Court jurisdiction. On March 21, 1983, the Tax Court held a hearing on the taxpayers' motion to dismiss. At the hearing, counsel for the Commissioner attempted to explain why the Form 5278 sent to the taxpayers contained a description of the wrong tax shelter. He stated that an IRS employee transposed a code number which caused the IRS to assert the deficiency on the basis of the Nevada mining project instead of the videotape tax shelter. No witness, however, testified to this fact at the hearing,3 and no explanation was ever offered for the discrepancy of over $80,000 between the deficiency notice assessment and that later conceded to be the correct amount. 15 Following the March 21 hearing, the taxpayers filed a motion for summary judgment based on the Commissioner's concession that they had not been involved in any mining partnerships. The Commissioner shortly thereafter filed his motion to amend his answer to correct the error made in the notice of deficiency and accompanying documents. On November 17, 1983 the Tax Court, in an opinion reviewed by the full court, ruled on these various motions. The Tax Court majority upheld the validity of the June 14 notice of deficiency, finding that it satisfied section 6212(a),4 which states the formal requirements for a deficiency notice. The Tax Court further ruled that the Commissioner could amend his answer as requested, and denied taxpayers' motion for summary judgment. The reviewed opinion contained several concurring and dissenting opinions. Five dissenting judges would have denied jurisdiction on the basis that the deficiency notice was invalid and four dissenting judges would not have permitted the Commissioner to amend his answer. 16 The Commissioner amended his answer and asserted in it, despite the patent incorrectness of the notice of deficiency and the acknowledgment of error by the Service, that the taxpayer had the burden of disproving the correctness of the Commissioner's revised determinations. The taxpayers renewed their motion for summary judgment. The Tax Court denied this second motion for summary judgment on the ground that triable issues of fact remained concerning whether the taxpayers' primary motivation for entering the videotape venture was the prospect of earning a profit or avoiding tax. On February 22, 1985, the Tax Court entered a decision, pursuant to a stipulation, that taxpayers owed $10,377 in additional tax.5 The stipulation afforded the taxpayers the right to file a petition for review of the Tax Court's adverse rulings. DISCUSSION 17 In order to decide whether the Tax Court had jurisdiction we review de novo the Tax Court's interpretation of section 6212(a). Orvis v. Commissioner, 788 F.2d 1406, 1407 (9th Cir.1986); Ebben v. Commissioner, 783 F.2d 906, 909 (9th Cir.1986). 18 Section 6212(a) states in part: "If the Secretary determines that there is a deficiency in respect of any tax imposed ... he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail." Section 6213(a) provides in part: "Within 90 days ... after the notice of deficiency authorized in section 6212 is mailed ... taxpayer may file a petition with the Tax Court for a redetermination of the deficiency." The Tax Court has jurisdiction only when the Commissioner issues a valid deficiency notice, and the taxpayer files a timely petition for redetermination. "A valid petition is the basis of the Tax Court's jurisdiction. To be valid, a petition must be filed from a valid statutory notice." Stamm International Corp. v. Commissioner, 84 T.C. 248, 252 (1985). See Midland Mortgage Co. v. Commissioner, 73 T.C. 902, 907 (1980). 19 The taxpayers correctly note that section 6212(a) authorizes the Commissioner to send a notice of deficiency only if he first "determines that there is a deficiency." Because the deficiency notice mailed to the taxpayers contained an explanation of a tax shelter completely unrelated to their return, contained no adjustments to tax based on their return as filed, and stated affirmatively that the taxpayers's return is "unavailable at this time," taxpayers maintain that the Commissioner could not have "determined" a deficiency with respect to them. The taxpayers assert that, in the absence of a determination, the deficiency notice was invalid and therefore the Tax Court lacked jurisdiction. 20 The Tax Court rejected this argument, finding that "[t]he requirements of section 6212(a) are met if the notice of deficiency sets forth the amount of the deficiency and the taxable year involved." Scar v. Commissioner, 81 T.C. 855, 860-61 (1983). 21 We agree with the Tax Court that no particular form is required for a valid notice of deficiency, Abrams v. Commissioner, 787 F.2d 939, 941 (4th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 271, 93 L.Ed.2d 248 (1986); Benzvi v. Commissioner, 787 F.2d 1541, 1542 (11th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 273, 93 L.Ed.2d 250 (1986), and the Commissioner need not explain how the deficiencies were determined. Barnes v. Commissioner, 408 F.2d 65, 68 (7th Cir.) (citing Commissioner v. Stewart, 186 F.2d 239, 242 (6th Cir.1951)), cert. denied, 396 U.S. 836, 90 S.Ct. 94, 24 L.Ed.2d 86 (1969). The notice must, however, "meet certain substantial requirements." Abrams, 787 F.2d at 941. "The notice must at a minimum indicate that the IRS has determined the amount of the deficiency." Benzvi, 787 F.2d at 1542. The question confronting us is whether a form letter that asserts that a deficiency has been determined, which letter and its attachments make it patently obvious that no determination has in fact been made, satisfies the statutory mandate.6 22 In none of the cases on which the Tax Court relied was the notice challenged on the basis that there was no determination. See Abatti v. Commissioner, 644 F.2d 1385, 1389 (9th Cir.1981) (notice valid although it did not advise the taxpayer under which code section the IRS would proceed because fair warning was given before trial); Barnes, 408 F.2d at 68 (notice need not state the basis for the deficiency determination nor contain particulars of explanations concerning how alleged deficiencies were determined); Foster v. Commissioner, 80 T.C. 34, 229-30 ((1983) (notice must advise taxpayer that Commissioner has, in fact, determined a deficiency, and must specify the year and amount), aff'd in part and vacated in part, 756 F.2d 1430 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 793, 88 L.Ed.2d 770 (1986); Hannan v. Commissioner, 52 T.C. 787 (1969) (deficiency notice valid where record did not show that Commissioner had not assessed a deficiency even though Commissioner asserted that no deficiency existed and that the notice had been issued in error).7 The cases assume that the deficiency determination was made. With the exception of Hannan, they deal instead with the question of whether the notice imparted enough information to provide the taxpayer with fair notice. 23 The Tax Court asserts that it is following long-established policy not to look behind a deficiency notice to question the Commissioner's motives and procedures leading to a determination. See, e.g., Riland v. Commissioner, 79 T.C. 185, 201 (1982) (notice valid, even though IRS agents violated procedures set forth in internal manual and failed to forward relevant documents to agents handling the case); Estate of Brimm v. Commissioner, 70 T.C. 15, 23 (1978) (notice valid despite taxpayer's argument that procedures followed were not valid, the amount of time spent evaluating a case and the extent to which review functions were perfunctorily performed are irrelevant; even if Commissioner's procedures are flawed, the proper remedy would not be dismissal); Greenberg's Express, Inc. v. Commissioner, 62 T.C. 324, 327 (1974) (court will not look behind notice to examine whether Commissioner discriminatorily selected taxpayer for audit; even if his actions are discriminatory, notice not void). 24 We agree that courts should avoid oversight of the Commissioner's internal operations and the adequacy of procedures employed. This does not mean, however, that the courts cannot or should not decide the validity of a notice that can be determined solely by references to applicable statutes and review of the notice itself. 25 In this case, we need not look behind the notice sent to the taxpayers to determine its invalidity. The Commissioner acknowledges in the notice that the deficiency is not based on a determination of deficiency of tax reported on the taxpayers' return and that it refers to a tax shelter the Commissioner concedes has no connection to the taxpayers or their return. 26 Section 6212(a) "authorize[s]" the sending of a deficiency notice "[i]f the Secretary determines that there is a deficiency." (emphasis added). We agree with Judge Goffe's statement in this case that "[e]ven a cursory review of this provision [section 6212(a) ] discloses that Congress did not grant the Secretary unlimited and unfettered authority to issue notices of deficiency." Scar, 81 T.C. at 872 (Goffe, J., dissenting). In Appeal of Terminal Wine Co., 1 B.T.A. 697, 701 (1925), the Board of Tax Appeals construed the meaning of the term "determine" as applied to deficiency determinations: "By its very definition and etymology the word 'determination' irresistibly connotes consideration, resolution, conclusion, and judgment." 27 The term "deficiency" is defined in section 6211(a) as the amount by which tax due exceeds "the amount shown as the tax by the taxpayer upon his return" (provided that a return showing an amount has been filed), plus previously assessed deficiencies over rebates made. A literal reading of relevant code sections, and the absence of evidence of contrary legislative intent, leads us to conclude that the Commissioner must consider information that relates to a particular taxpayer before it can be said that the Commissioner has "determined" a "deficiency" in respect to that taxpayer.8 To hold otherwise would entail ignoring or judicially rewriting the plain language of the Internal Revenue Code.9 28 This reading of the Code is not a new one. Almost sixty years ago, the Board of Tax Appeals, while refusing to examine the intent, motive or reasoning of the Commissioner, emphasized that 29 the statute clearly contemplates that before notifying a taxpayer of a deficiency and hence before the Board can be concerned, a determination must be made by the Commissioner. This must mean a thoughtful and considered determination that the United States is entitled to an amount not yet paid. If the notice of deficiency were other than the expression of a bona fide official determination, and were, say, a mere formal demand for an arbitrary amount as to which there were substantial doubt, the Board might easily become merely an expensive tribunal to determine moot questions and a burden might be imposed on taxpayers of litigating issues and disproving allegations for which there had never been any substantial foundation. 30 Couzens v. Commissioner, 11 B.T.A. 1040, 1159-60 (1928). 31 Recently, taxpayers who had invested in a "tax shelter" known as the "Liberty Financial 1983 Government Securities Trading Strategy" argued that so-called pre-filing notifications (PFNs) sent to them by the IRS were in fact deficiency notices entitling them to a Tax Court redetermination. The notices, which in most if not all cases were received after filing, informed the taxpayers that the IRS believed that deductions or credits claimed pursuant to Liberty Financial were not allowable; that the IRS would review the taxpayers' deductions and reduce returns or adjust the returns as required; that various penalties could be assessed; and that the taxpayers might wish to amend previously filed returns. Abrams v. Commissioner, 787 F.2d 939, 940-41 (4th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 271, 93 L.Ed.2d 248 (1986). In agreeing with the IRS that the PFNs did not qualify as deficiency notices, the Fourth Circuit found the obvious lack of an actual determination of deficiency crucial: 32 As the letter ... made pellucidly clear, examination of the returns of each individual taxpayer had not as yet been made. The most important observation to be made about the letter is that it left no doubt that, as yet, there had been no general review of any return, no computation of any deficiency nor reduction in refunds to which the taxpayers might otherwise be entitled. It was in essence only fair warning of what the taxpayers ... might expect. 33 Abrams, 787 F.2d at 941. Similarly, the Eleventh Circuit found the lack of a determination dispositive: "We cannot conclude that a PFN is a notice of deficiency absent a clear indication that the IRS has reviewed the PFN recipient's return and determined that a deficiency of a stated amount exists." Benzvi v. Commissioner, 787 F.2d 1541, 1543 (11th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 273, 93 L.Ed.2d 250 (1986). 34 These cases inform our judgment here. They support the view that the "determination" requirement of section 6212(a) has substantive content.10 The Commissioner's and the dissent's contention that the issuance of a formally proper notice of deficiency11 of itself establishes that the Commissioner has determined a deficiency must be rejected. To hold otherwise, would read the determination requirement out of section 6212(a).12 35 Finally, the Commissioner asserts that the proper remedy in this case is to eliminate the presumption of correctness that normally attaches to deficiency determinations, see, e.g., Dix v. Commissioner, 392 F.2d 313 (4th Cir.1968), not to dismiss for lack of jurisdiction. He relies, however, on cases that challenge the correctness of the determination, and not its existence. The Commissioner's belated willingness to assume the burden of proof before the Tax Court cannot cure his failure to determine a deficiency before imposing on taxpayers the obligation to defend themselves in potentially costly litigation in Tax Court. Jurisdiction is at issue here. Failure to comply with statutory requirements renders the deficiency notice null and void and leaves nothing on which Tax Court jurisdiction can rest. See Sanderling Inc. v. Commissioner, 571 F.2d 174, 176 (3d Cir.1978) ("The Tax Court has held that it has no jurisdiction where the deficiency notice does not cover a proper taxable period.") (citing Columbia River Orchards, Inc. v. Commissioner, 15 T.C. 253 (1950)); McConkey v. Commissioner, 199 F.2d 892 (4th Cir.1952), cert. denied, 345 U.S. 924, 73 S.Ct. 782, 97 L.Ed. 1355 (1953) (where taxpayer paid alleged deficiency before notice of deficiency was mailed, Tax Court lacked jurisdiction as there was no deficiency on which the court's jurisdiction could operate); United States v. Lehigh, 201 F.Supp. 224 (W.D.Ark.1961) (statement of "Income Tax Due" was invalid deficiency notice where it was not labeled as a deficiency notice, incorrectly stated the tax year involved, and was confusing in that it did not provide certain figures that the terms of the statement said were provided). Cf. Mall v. Kelly, 564 F.Supp. 371 (D.Wyo.1983) (deficiency assessments void where IRS had failed to meet requirement of reasonably and diligently determining and mailing sufficient notice to taxpayers' last known address). 36 Section 6212(a) of the Internal Revenue Code requires the Commissioner to determine that a deficiency exists before issuing a notice of deficiency. Because the Commissioner's purported notice of deficiency revealed on its face that no determination of tax deficiency had been made in respect to the Scars for the 1978 tax year, it did not meet the requirements of section 6212(a). Accordingly, the Tax Court should have dismissed the action for want of jurisdiction.13 37 Petition for review granted. 38 CYNTHIA HOLCOMB HALL, Circuit Judge, dissenting: 39 Today, the majority fortifies the impediments to tax collection on behalf of errant taxpayers seeking "no taxation without litigation." R. Jackson, Struggle for Judicial Supremacy 141 (1941). I believe the majority undermines the jurisdiction of the Tax Court by constructing a superfluous yet substantial hurdle to its jurisdiction. In reaching the conclusion that section 6212(a) of the Internal Revenue Code, 26 U.S.C. Sec. 6212(a), imposes a substantive requirement on the Commissioner of the Internal Revenue Service to prove that he has reviewed specific data before making a determination, the majority eagerly expands jurisdictional requirements while discarding the carefully-honed and expedient jurisdictional rules that exist. 40 * The majority first turns a blind eye to reality when it finds that the incorrect explanation for the deficiency "[makes] it patently obvious that no determination has in fact been made." See ante at 1367. The 1978 tax return of taxpayers Howard and Ethel Scar was hardly an unlikely object of the Commissioner's suspicion. In 1977 the taxpayers participated in a videotape tax shelter, investing $6,500 in cash, signing a promissory note for $93,500, and then deducting over $15,000 in depreciation and other expenses from their 1977 tax return based on their "investment." The Commissioner audited this 1977 return and determined a deficiency of $15,875, finding that the taxpayers' "purchase of the film was lacking in profit motive and economic substance other than the avoidance of tax." The Commissioner mailed a notice of deficiency to the taxpayers, who responded by filing a petition for redetermination of the deficiency with the Tax Court on June 30, 1981. 41 The taxpayers' 1978 return included additional deductions totaling $27,040 based upon the now suspect videotape shelter. In all likelihood, the Commissioner's decision to issue a second deficiency notice regarding this 1978 return resulted from the continuation of the audit process which began with the previous year's tax return. This second deficiency notice, however, incorrectly explained the deficiency in terms of a Nevada mining venture in which the taxpayers had never participated. At the Tax Court hearing on March 21, 1983, counsel for the Commissioner explained that this misdescription resulted from a technical error: an IRS employee had transposed a code number, resulting in the incorrect identification of the basis of the deficiency as being the Nevada mining project instead of the videotape tax shelter. The Commissioner argues that a witness able to testify to this numerical error was present at the hearing, but was not called since the taxpayers did not object to this explanation of the IRS' mistake. 42 The procedural history of the taxpayers' efforts to challenge the 1978 deficiency consists largely of motions attempting to exploit this apparent mishap. These motions evince the tactics of delay employed by "every litigious man or every embarrassed man, to whom delay [is] more important than the payment of costs." Tennessee v. Sneed, 96 U.S. (6 Otto) 69, 75, 24 L.Ed. 610 (1877). II 43 The majority correctly recognizes that section 6212(a) authorizes the Commissioner to send a notice of deficiency only if he first determines that there is a deficiency. The taxpayers themselves concede that the notice of deficiency in this case satisfied section 6212(a)'s formal requirements of stating the amount of the deficiency and the taxable year involved. See Stamm International Corp. v. Commissioner, 84 T.C. 248, 253 (1985); Foster v. Commissioner, 0 T.C. 34, 229-30 (1983), aff'd in part and vacated in part, 756 F.2d 1430 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 793, 88 L.Ed.2d 770 (1986); Ziegler v. Commissioner, 49 T.C.M. (CCH) 182, 189 (1984); Stevenson v. Commissioner, 43 T.C.M. (CCH) 289, 290-91 (1982) (citing Commissioner v. Stewart, 186 F.2d 239, 242 (6th Cir.1951)). See also Andrews, The Use of the Injunction as a Remedy for an Invalid Federal Tax Assessment, 40 Tax L. Rev. 653, 661 n. 39 (1985). 44 The majority then proceeds to overload the statutory requirement of a "determination" of a deficiency with burdensome substantive content. First, the majority ignores the rule that a deficiency notice need not contain any explanation whatsoever. Abatti v. Commissioner, 644 F.2d 1385, 1389 (9th Cir.1981); Barnes v. Commissioner, 408 F.2d 65, 69 (7th Cir.), cert. denied, 396 U.S. 836, 90 S.Ct. 94, 24 L.Ed.2d 86 (1969); Stevenson, 43 T.C.M. (CCH) at 290. See also B. Bittker, Federal Taxation of Income, Estates and Gifts p 115.2.2 at 115-14 (1981) ("Federal Taxation"). 45 Second, the majority fails to grasp the function of the deficiency notice. It is nothing more than "a jurisdictional prerequisite to a taxpayer's suit seeking the Tax Court's redetermination of [the Commissioner's] determination of the tax liability." Stamm, 84 T.C. at 252. "[T]he notice is only to advise the person who is to pay the deficiency that the Commissioner means to assess him; anything that does this unequivocally is good enough." Olsen v. Helvering, 88 F.2d 650, 651 (2nd Cir.1937).1 Nothing more is required as a predicate to Tax Court jurisdiction.2 In fact, this Circuit has recognized that " 'it is not the existence of a deficiency that provides a predicate for Tax Court jurisdiction.' " Stevens v. Commissioner, 709 F.2d 12, 13 (5th Cir.1983) (quoting Hannan v. Commissioner, 52 T.C. 787, 791 (1969) (emphasis in original)). The Stevens court lucidly commented: 46 That seems obvious: the very purpose of the Tax Court is to adjudicate contests to deficiency notices. If the existence of an error in the determination giving rise to the notice deprived the Court of jurisdiction, the Court would lack power to perform its function. 47 709 F.2d at 13. 48 Therefore, the deficiency notice is effectively the taxpayer's "ticket" to the Tax Court. This "ticket" gives the taxpayer access to the only forum where he can litigate the relevant tax issue without first paying the tax assessed. If a properly-addressed deficiency notice states the amount of the deficiency, the taxable year involved, and notifies the taxpayer that he has 90 days from the date of mailing in which to file a petition for redetermination, then the notice is valid. The merits of the Commissioner's deficiency should not be litigated in the form of a motion to dismiss for lack of jurisdiction; once jurisdiction has been established, both sides will have the opportunity to press their views before the Tax Court. 49 The majority escapes from under the undesirable weight of authority requiring that the validity of a deficiency notice be determined primarily by its form by distinguishing these cases as not addressing the challenge that no determination was made by the Commissioner. In light of the emphasis of this authority on the form of the deficiency notice, I cannot agree with such a strained interpretation of these cases. See B. Bittker, Federal Taxation p 115.2.2 at 115-12 ("[t]he requirement of an IRS determination coalesces with the requirement of a notice of deficiency, since the usual evidence that a deficiency has been 'determined' is the notice") (emphasis in original). 50 For example, in Hannan v. Commissioner, 52 T.C. 787 (1969), the Tax Court concluded that there was a valid notice of deficiency, despite the Commissioner's contentions that he neither determined a deficiency nor sought to collect one.3 The Tax Court rejected the Commissioner's position and found it had jurisdiction: 51 Here petitioners were sent a letter which admittedly meets all the formal requirements of a statutory notice of deficiency, notifying them that "We [respondent] have determined the income tax deficiencies shown above" and listing tax deficiencies and additions to tax under section 6651(a). This was a determination of a deficiency in tax, even though, as respondent argues, on trial it may develop that there is in fact no deficiency. 52 Id. at 791 (footnotes omitted). 53 The majority misreads Hannan in denying that Hannan stands for the proposition that deficiency notices are to be judged on their face, rather than on the substance of the Commissioner's determination. See ante at 1367 n. 7. It is true that the Tax Court partly explained its decision by stating that there was no proof that the Commissioner was not in fact asserting a deficiency and that the taxpayers could only protect their interests by filing a petition. Although one might read this statement as implying that the Tax Court based its decision on more than a facial examination of the deficiency notice, I understand the Tax Court to mean that because the notice was ambiguous, the taxpayers had no alternative but to file a petition. This concern does not detract from the court's emphasis on the form of the deficiency notice. 54 Judging the deficiency notice in this case by the standards discussed above, I believe that the notice warned the taxpayers that the Commissioner had, rightly or wrongly, determined a deficiency and that the notice complied with the formal requirements of section 6212(a). The Commissioner clearly determined that the taxpayers had invested in a tax shelter without economic substance in order to avoid taxes. The inclusion of an erroneous explanation of the basis of the deficiency should not in itself deprive the Tax Court of jurisdiction to decide the question of whether the Commissioner can sustain the asserted deficiency. 55 The majority contends that here, it "need not look beyond the notice sent to the taxpayers to determine its invalidity." See ante at 1368. This, however, is exactly what the majority requires when it concludes that the "determination" requirement is only satisfied where the Commissioner shows he has determined a deficiency with respect to a particular taxpayer beyond the notice itself.4 56 As a matter of tax policy, the rule against looking behind the deficiency notice appears to be well-grounded in the administrative necessities of the Commissioner's job. The Commissioner must administer tens of thousands of deficiency notices per year. A requirement that he prove the basis of his determination before the Tax Court can assert jurisdiction would unduly burden both the Commissioner and the Tax Court. 57 In addition, the majority's ruling that the inclusion of an erroneous explanation invalidates a deficiency notice creates an incentive for the Commissioner not to disclose his theory for asserting a deficiency when he sends the deficiency notice. If the Commissioner discloses his theory at this stage, the majority's rule invites every taxpayer to litigate whether the Commissioner has made a determination before litigating the merits.5 Because it is to the taxpayer's advantage that the Commissioner disclose his theory when the notice is sent, I believe it is undesirable to establish a rule which would discourage him from doing so. See Stewart v. Commissioner, 714 F.2d 977, 986 (9th Cir.1983). 58 I view this case as presenting two related policy goals. One goal is to ensure that early in the assessment procedure each individual taxpayer receives fair notice as to the theory on which the Commissioner based his deficiency. The other goal is to encourage the Commissioner to disclose the theory on which he intends to rely in the deficiency notice whenever possible. However, because the Commissioner is not required to disclose his theory in the notice, the majority's rule that invalidates a deficiency notice accompanied with an erroneous description encourages the Commissioner to issue deficiency notices without any explanation. Such a rule detracts from the goal of early notice and taxpayers, on the whole, will suffer because the Commissioner is likely to use the deficiency notice solely for jurisdictional purposes and only thereafter reveal his reasons for issuing the notice. I believe that preserving the Tax Court tradition of not looking behind the deficiency notice promotes the goal of ensuring early notice to the taxpayer. 59 Finally, alternative remedies exist to protect the taxpayer's interests besides dismissal of the case for lack of jurisdiction. If the taxpayers are confused by the Commissioner's theory or explanation supporting the deficiency, they may seek clarification prior to trial. The Tax Court Rules "contemplate that after the case is at issue the parties will informally confer in order to exchange necessary facts, documents, and other data with a view towards defining and narrowing the areas of dispute. Rules 38, 70(a)(1), 91(a)."6 Foster, 80 T.C. at 230. See also Stevenson, 43 T.C.M. (CCH) at 291. Here, the informal contacts between the parties resulted in the Commissioner's disclosure of his mistake within two months of when the taxpayers filed their petition for redetermination in the Tax Court. 60 Furthermore, the presumed correctness of the Commissioner's deficiency notice disappears if the deficiency is arbitrary or capricious, since the burden of proof then shifts to the Commissioner. Helvering v. Taylor, 293 U.S. 507, 513-16, 55 S.Ct. 287, 290-91, 79 L.Ed. 623 (1935); Weimerskirch v. Commissioner, 596 F.2d 358, 362 & n. 8 (9th Cir.1979); Jackson v. Commissioner, 73 T.C. 394, 401 (1979). See also Rule 142(a). 61 These measures are more than adequate to prevent the Commissioner from littering the country with baseless deficiency notices. Scar, 81 T.C. at 869 (Sterratt, J., dissenting). The precedent holding that the validity of the deficiency notice is to be determined on its face was effective in furthering policy goals which benefit the taxpayer and the public. The majority's opinion sabotages the machinery of tax collection, thereby portending injury to the taxpayer and to the public. I therefore dissent. 1 The return was timely, the Scars having received an extension of time to file 2 The Scars also claimed deductions and credits with regard to this tax shelter on their 1977 returns. They received a notice of deficiency in April of 1981 and petitioned the Tax Court for a redetermination in June of 1981. In February of 1985 the Tax Court made a deficiency determination of $10,410 for the tax year 1977 3 The Commissioner argues that a witness was present at the hearing, but since taxpayers failed to object to counsel's explanation of the IRS's mistake, the witness was never called 4 All section references are to the Internal Revenue Code of 1954, Title 26 U.S.C., as amended and in effect for the years in issue 5 This amount is inexplicably $3.00 higher than the amount claimed by the Commissioner in his amended answer 6 The dissent misstates this case in complaining that the majority is requiring the Commissioner "to prove that he has reviewed specific data before making a determination." Dissent at 1371. Under normal circumstances it would be presumed that a determination had been made prior to notification. In this case, the taxpayers proved that a determination of their deficiency had not been made. Not only was there no relationship between the Scars and the tax shelter or the amount of the "deficiency," but also the attachment to the notice entitled "Nevada Mining Project, Explanation of Adjustments" stated: "In order to protect the government's interest and since your original income tax return is unavailable at this time, the income tax is being assessed at the maximum tax rate of 70%." Scar v. Commissioner, 81 T.C. 855, 856 (1983). The Scars demonstrated that the Commissioner had not, as the dissent argues at 1373-74, "clearly determined that the taxpayers had invested in a tax shelter" for the tax year 1978. Furthermore, even if the Commissioner had adduced proof through the "stand-by" witness, see supra note 3, that the Commissioner had examined the 1978 tax return of Executive Productions, Inc., a tax shelter, and that it reported an investment by the Scars, the Commissioner could not determine a deficiency for the Scars without examining their return for 1978 to see whether they had claimed a deduction for such an investment 7 In Hannan, the IRS attempted to avoid a Tax Court redetermination by asserting that the deficiency notice had been sent in error and that the taxpayers were liable for an addition in tax not attributable to a deficiency. Such additions can be assessed and collected immediately under Sec. 6662 (formerly Sec. 6659) without resort to the statutory deficiency procedures. The issue in Hannan was not whether a determination had occurred, but rather whether the Commissioner's contention that no deficiency actually existed deprived the Tax Court of jurisdiction In Hannan, the IRS clearly had made a determination of a deficiency in tax owed by taxpayers who were petitioning the tax court; the question was whether it was a determination of deficiency entitling the taxpayers to appeal before payment. The Hannan court found that the act of sending the notice constituted a determination of deficiency. 52 T.C. at 7981. That finding must, however, be read in the context of the case: The IRS had examined the taxpayers returns and made a determination that money was owing and the record did not show that the type of assessment requiring deficiency procedures had not been made. We do not read Hannan to stand for the proposition that the existence of a deficiency letter establishes the existence of a determination. To the extent that the Hannan court intended such a reading, we disagree with its interpretation of the tax code. 8 In construing section 6212(a), we follow some basic, yet fundamental, rules: As in all cases including statutory construction, "our starting point must be the language employed by Congress," Reiter v. Sonotone Corp., 442 U.S. 330, 337 [99 S.Ct. 2326, 2330, 60 L.Ed.2d 931] (1979), and we assume "that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U.S. 1, 9 [82 S.Ct. 585, 591, 7 L.Ed.2d 492] (1962). Thus, "[a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 [100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982). The dissent complains that we are "overload[ing] the statutory requirement of a 'determination' of a deficiency with burdensome substantive content." Dissent at 1372. On the contrary, we work on the premise that Congress does not use words idly, and that "determination" is not devoid of content. If, in fact, that which is required by the unambiguous terms of the statute is more burdensome than Congress envisioned or intended, it is Congress, not the courts, that must remedy the problem. 9 The dissent, characterizing the deficiency notice as a " 'ticket' to the tax court" suggests that the majority fails "to grasp the function of the deficiency notice." Dissent at 1372. What the dissent fails to grasp, however, is that processes that may "serve their intended purposes" nonetheless may be legally insufficient. For example, notice by telephone would not suffice if written notice were required. Here, the statute requires that the Commissioner make a determination. None was made. The fact that the taxpayers received a deficiency notice does not cure the failure to make a determination The dissent in looking only to the fact that notice was sent skips over the Commissioner's failure to make the statutorily required determination. We readily agree with the dissent that in the usual case the sending of the notice of deficiency presumes a determination. See supra note 6. Where, however, the notice belies that presumption, it is both reasonable and necessary that the Commissioner demonstrate his compliance with the statute. 10 It is, of course true, as the dissent points out, that Tax Court jurisdiction does not depend on the existence of an actual deficiency. Dissent at 1372 (quoting Stevens v. Commissioner, 709 F.2d 12, 13 (5th Cir.1983)). It is the purpose of the Tax Court to determine whether the Commissioner's determination is correct. Stevens, 709 F.2d at 13. We agree more fully, however, with the passage quoted in the dissent when that passage is quoted in full: " '[I]t is not the existence of a deficiency but the Commissioner's determination of a deficiency that provides a predicate for Tax Court jurisdiction.' " Id. (quoting Hannan, 52 T.C. at 791) 11 In the case before us the Commissioner argues that, because the notice contained the Taxpayers' names, social security number, the tax year in question, and "the" amount of deficiency, it was "clearly sufficient." It is quite clear, however, that the notice did not contain the amount of deficiency, but rather contained an amount unrelated to any deficiency for which the Scars were responsible 12 Judge Sterrett, in dissenting, offered a sample of a valid deficiency letter under the statutory construction urged by the IRS and accepted by the Tax Court: Dear Taxpayer: There is a rumor afoot that you were a participant in the Amalgamated Hairpin Partnership during the year 1980. Due to the press of work we have been unable to investigate the accuracy of the rumor or to determine whether you filed a tax return for that year. However, we are concerned that the statute of limitations may be about to expire with respect to your tax liability for 1980. Our experience has shown that, as a general matter, taxpayers tend to take, on the average, excessive (unallowable) deductions, arising out of investments in partnerships comparable to Amalgamated that aggregate some $10,000. Our experience has further shown that the average investor in such partnerships has substantial taxable income and consequently has attained the top marginal tax rate. Accordingly, you are hereby notified that there is a deficiency in tax in the amount of $7,000 due from you for the year 1980 in addition to whatever amount, if any, you may have previously paid. Sincerely yours, Commissioner of Internal Revenue Scar, 81 T.C. at 869 (Sterrett, J., dissenting). 13 Cf. United States v. Lehigh, 201 F.Supp. 224, 234 (W.D.Ark.1961) ("The procedures set forth in the Internal Revenue Code were prescribed for the protection of both Government and taxpayer. Neglect to comply with those procedures may entail consequences which the neglecting party must be prepared to face, whether such party be the taxpayer or the Government.") 1 The notice of deficiency mailed to the taxpayers included two forms: Form 892 and Form 5278. Form 892 is the basic deficiency notice. It includes the taxpayer's name, social security number, amount of the deficiency for the taxable year, and a short explanation of the taxpayer's options. Here, the Commissioner properly completed the Form 892. If the Commissioner had mailed only the Form 892, and nothing else, it is clear that this would have been a valid deficiency notice. Abatti, 644 F.2d at 1389; Barnes, 408 F.2d at 69; Stevenson, 43 T.C.M. (CCH) at 290. The Tax Court's jurisdiction would have been established, even though the Commissioner relied on the wrong tax shelter in making the determination 2 "It may well be true that the [Commissioner] erred in his determination that a deficiency existed for this period. But when he once determined that there was a deficiency, that fact gives us jurisdiction to determine whether or not it was correctly arrived at." H. Milgrim & Bros. v. Commissioner, 24 B.T.A. 853, 854 (1931) The key question is whether the inclusion of an erroneous Form 5278, which purports to explain the deficiency in terms of an unrelated tax shelter, invalidates the deficiency notice. I believe the inclusion of the wrong Form 5278 constitutes a preparation error which does not invalidate the deficiency notice. "An error in a notice of deficiency, which otherwise fulfills its purpose, will be ignored where the taxpayer is not misled thereby and is provided by it with information sufficient for the preparation of his case for trial." Meyers v. Commissioner, 81 T.C.M. (P-H) 276, 278 (1981). Here, the taxpayers were not misled by the stray Form 5278 because they had notice from the IRS that a mistake had been made before the Tax Court had set a trial date for either the 1977 or 1978 disputes concerning the videotape tax shelter. 3 In Hannan, the Commissioner assessed additions to tax for late filing. Under 26 U.S.C. Sec. 6662 (formerly section 6659), if additions to tax are not attributable to a deficiency, the Commissioner can immediately assess and collect the additions. On the other hand, if the additions are attributable to a deficiency the Commissioner is required to follow statutory deficiency procedures. In Hannan, the Commissioner sent taxpayers a letter, on the form used for deficiency notices, setting forth amounts referred to as "deficiencies" in one column, together with the "additions to tax" in the next column The Commissioner argued in the Tax Court that no deficiency actually existed and therefore the Tax Court lacked jurisdiction. The Commissioner's attorney stated that the notice of deficiency was issued in error. The figures listed in the "deficiency" column correspond to the figures that the taxpayers had reported as tax due on their returns. The Commissioner presumably was contending that he had used the notice of deficiency form in order to collect additions to tax, and not to notify taxpayers of the existence of deficiencies. Because the Commissioner was not imposing taxes in excess of what taxpayers showed on their returns (i.e., he used the wrong form), he argued there was no deficiency. 4 The majority in footnote 6 makes much of the government's statement that, "In order to protect the government's interest and since your original income tax return is unavailable at this time, the income tax is being assessed at the maximum rate of 70%." The majority points to this statement as evidence supporting their conclusion that the Commissioner did not make a determination. I disagree Although the "unavailability" of the Scars' return may indicate that the Scars' original paper return was not before the Commissioner, it does not show that specific data on that return or relating to the video-tape tax shelter was not considered. Due to the computerization of the IRS, the Commissioner no longer operates from original paper returns. See, e.g., Murphy, Glitches and Crashes at the IRS, TIME, Apr. 29, 1985, at 71; New Machines Helping IRS, Dun's Business Month, Jan. 1984, at 24; IRS, 1980 Annual Report, 9, 14, 42-43 (1981). With well over 100 million income tax returns plus an even larger number of information returns, such as Forms W-2's and 1099's, being filed annually, it is no wonder the Commissioner has turned to the computer. See Klott, Fewer IRS Workers to Process Tax Returns, N.Y. Times, Dec. 24, 1986, at 30, col. 3; IRS, 1981 Annual Report 5, 42-43 (Table 6) (1982). When a return is filed in a Service Center, pertinent summary data is entered into the computer system. 1980 Report at 14; Quaglietta, How IRS Service Centers Process Returns, 16 Prac.Acct. 63 (1983). Such summary data includes the fact that a return was filed, whether the tax was paid or a refund check was mailed, and other data needed to match information returns with the taxpayer's return. See 1980 Report at 4, 14; Cloonan, Compliance Programs, 16 Prac.Acct. 67 (1983). This matching is done by computer. 1980 Report at 4, 14; Walbert, A Net Too Wide, FORBES, Mar. 12, 1984, at 154. It is conceivable that the Commissioner had enough information on the computer to match information regarding both the tax shelter promoted by Executive Productions, Inc. and the Scars' suspect 1977 return to their 1978 income tax taxpayer's return, but not enough to determine the exact amount of a deficiency without calling up from storage the actual return. Thus, the Commissioner assessed the Scars at the 70% rate. As of 1980, the Commissioner had identified approximately 27,000 abusive tax shelters. 1980 Report at 3. In light of this number, the punching of the wrong computer key during an audit at the partnership level is a viable explanation for the unfortunate error of one of the 26,999 inapplicable tax shelters popping up and then being entered on the Scars' Form 5278. So, as a result of the need to computerize information regarding the millions of filed returns and the huge number of tax shelters, we have a reasonable explanation for the two errors on the gratuitously prepared Form 5278 (the wrong shelter and the wrong tax rate of 70%). The taxpayer could have contested these errors and probably would have settled the amount of the tax due promptly. The importance of these errors is further undermined by the fact that they are found in Form 5278, which the Commissioner is not required to send with the basic deficiency notice, Form 892. See ante n. 1. 5 This "invitation to litigation" represents a major step backward for those of us who believe that litigation should be streamlined, attorneys' fees should be kept within reasonable bounds, and courts should not be further over-burdened 6 Any citation to a Rule refers to the Tax Court Rules of Practice and Procedure (codified at 26 U.S.C. Sec. 7453)

974 So.2d 387 (2008) MENDEZ v. JAMES. No. SC07-2420. Supreme Court of Florida. January 11, 2008. Decision without published opinion. Rev.dismissed.