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TALN research group at LS2N lab 18

Moving on, Etienne argues the trial judge erred in permitting Mercer and Bruce to offer specific instances of what he dubs interpretive testimony. He complains both were permitted to testify to their interpretations of the recorded conversations. By this he means that the law enforcement officers told the jury what they thought the conversations were about. They also interpreted the meaning of words they said had to do with drug sales, and testified that an exchange of drugs took place during certain conversations. 6 We also note that Etienne may have waived the objection to overview testimony entirely because the lack of evidentiary challenges throughout trial appears to be the result of his conscious litigation tactics. See United States v. Washington, 434 F.3d 7, 11 (1st Cir. 2006) (finding waiver where counsel made a deliberate strategic choice to admit certain evidence). Etienne's counsel filed a pre-trial motion in limine seeking to preclude overview testimony and was clearly sensitive to the pitfalls of improper overview testimony. During the hearing on his motion, defense counsel explicitly agreed with the trial judge's statements that [s]ome general context is appropriate, and that Mercer's testimony is something we have to police as we go along. Mercer's actual testimony, in defense counsel's eyes, apparently never crossed that line. This provides yet another basis for our refusal to fault the trial judge. -18- Etienne argues this testimony, which we will discuss in more detail momentarily, went hand-in-hand with Mercer's improperly admitted overview testimony and was especially prejudicial because Smith offered his own interpretation (which parroted Mercer's) as to what transpired during those conversations. In Etienne's view, this can only mean the law enforcement officers' testimony unfairly bolstered Smith's testimony and served to shore up his shaky credibility. Taking a contrary viewpoint, the government says the testimony constituted permissible lay opinion based upon the officers' personal knowledge of the drug trade, and particularly, its parlance. [W]e have long held that government witnesses with experience in drug investigations may explain the drug trade and translate coded language for juries, either through lay or, if qualified, expert testimony. Rosado-Pérez, 605 F.3d at 56. Interpretive testimony, we have made clear, is not overview testimony and is properly admitted. Id. Although Etienne raises the issue of interpretive testimony, he cites little authority in support of his belief that the specific testimony at issue here was improper. He has not come forward with a single case in which we have reversed a conviction on plain error review due to erroneously admitted interpretive testimony. To his credit, Etienne forthrightly acknowledges that in the case he highlights most we actually upheld the admission of -19- the challenged interpretive testimony. See United States v. Albertelli, 687 F.3d 439, 446-50 (1st Cir. 2012). We have reviewed the specific testimony challenged as interpretive, and only a few portions can be fairly described as such. First is Mercer's testimony regarding the July 30 deal and several related conversations, all of which he monitored in realtime. Mercer told the jury Smith and Jean-Francois had a telephone conversation in which Jean-Francois used the word cake to mean money. When Smith met with Etienne later, the two men used the number 13 to mean the price of the drugs, $1300. Mercer also testified that while Smith and Etienne were discussing the price, [y]ou could hear [over the recording] what appeared to be the sound of money being handed over, counted out, cash. We are satisfied the district court did not plainly err in admitting this testimony based upon Mercer's twenty-two years of experience as an ATF agent and his contemporaneous monitoring of the conversations as they occurred. Next is Bruce's testimony in which he told the jury that he monitored Smith's body wire on July 30 and heard what sounded like a deal being consummated after initial greetings between Smith and Etienne. At the time of trial, Bruce had been a state trooper for almost twenty years, with more than a decade of experience as a drug detective. He had been actively involved in the ATF's investigation of Etienne and Jean-Francois, and he -20- monitored these particular conversations in realtime. The nature of Bruce's testimony differed little from Mercer's. Accordingly, we cannot say the allowance of his interpretive testimony was error, plain or otherwise.

Interpretive Testimony

We cannot authorize the filing of a second or successive habeas corpus application unless we determine that Chambers has made a prima facie showing that his claims meet the requirements 5 No. 09-6483 In re: Danny Chambers of 28 U.S.C. § 2244(b). Chambers did not raise the claims in the instant motion in his first § 2254 petition. A claim not presented in a prior application must be dismissed unless: (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2). Although Chambers’s allegations of juror misconduct and grand-jury bias are troubling, we must deny Chambers’s § 2244 motion because his claims do not meet the stringent § 2244(b)(2) requirements. First, none of Chambers’s claims “rel[y] on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2244(b)(2)(A). Second, Chambers does not allege facts that were not previously discoverable through due diligence, and that “establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found [Chambers] guilty.” 28 U.S.C. § 2244(b)(2)(B). With respect to his claims of juror misconduct and grand-jury bias, Chambers does not rely on any newly applicable rule of constitutional law, and he fails to meet the § 2244(b)(2)(B) criteria for new evidence. Although Chambers asserts that he did not have personal knowledge of the 6 No. 09-6483 In re: Danny Chambers alleged juror misconduct, Chambers does not explain why he could not have discovered the misconduct earlier through due diligence. Moreover, even if Chambers could make such a showing, he fails to demonstrate that, but for the misconduct, no reasonable factfinder would have found him guilty of murder. In spite of their impropriety, the alleged juror conversations do not bear upon Chambers’s guilt or innocence. Chambers’s allegations of grand-jury bias suffer from the same defects. In light of Elizabeth Hollon’s signature on the indictment, it is unclear why Chambers could not have discovered previously the names and relationship of the grand-jury foreperson and the prosecutor. Nor does Chambers show how the involvement of Elizabeth Hollon in the grand-jury proceedings casts doubt on his guilt as proven at trial. A marital relationship between a member of the grand jury and a prosecutor does raise concerns about the fairness of the grand-jury proceedings against Chambers. However, in the instant motion, Chambers does not present evidence that would prevent any rational factfinder from finding him guilty, as required by § 2244(b)(2)(B)(ii).1 With respect to his claim of sentencing error, Chambers does not present any new evidence. Nor does he rely on a previously unavailable rule of constitutional law, made retroactively applicable to cases on collateral review by the United States Supreme Court.2 Under Kentucky law, if a jury 1 We also note that, according to the trial-court docket, Tom Hollon was appointed as a special prosecutor on or around March 26, 1993 for a pre-trial hearing held in May 1993. These are the only listings on the docket sheet submitted by Chambers noting Hollon’s involvement in Chambers’s case. 2 Chambers claims that the Kentucky Supreme Court held unconstitutional Ky. Rev. Stat. § 532.055, the provision under which the trial court had authority to impose sentence in the event 7 No. 09-6483 In re: Danny Chambers in a felony case is unable to agree on a sentence, “the judge shall impose the sentence within the range provided elsewhere by law.” Ky. Rev. Stat. § 532.055(4) (1990). Five years after Chambers’s conviction became final, and two years after Chambers filed his first habeas petition, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). We first note that the Supreme Court has not held that Apprendi applies retroactively to cases on collateral review. See In re Nailor, 487 F.3d 1018, 1023 (6th Cir. 2007).3 But, in any event, Chambers objects to the imposition of life imprisonment, which did not require additional factfinding to be imposed by the trial court. Kentucky Revised Statute § 532.025(3) provides that “the death penalty, or imprisonment for life without benefit of probation or parole until the defendant has served a minimum of twenty-five (25) years of his sentence” may not be imposed unless a “statutory aggravating circumstance[] . . . is so found.” Ky. Rev. Stat. § 532.025(3) (1990) (emphasis added). Chambers objects to his sentence of life imprisonment, which was not for life without benefit of of jury deadlock. However, only one provision, Ky. Rev. Stat. § 532.055(2)(a)(6), which permits impeachment by use of a juvenile adjudication, was held unconstitutional, and, moreover, it was held by the Kentucky Supreme Court to violate the Constitution of the Commonwealth of Kentucky, not by the United States Supreme Court to violate the United States Constitution. Manns v. Commonwealth, 80 S.W.3d 439, 445-46 (Ky. 2002). 3 In the death-penalty context, the Supreme Court applied Apprendi to hold that a jury must find the aggravating factors necessary for the imposition of the death penalty. Ring v. Arizona, 536 U.S. 584, 609 (2002). But Chambers did not receive a capital sentence, and Ring “does not apply retroactively to cases already final on direct review.” Schriro v. Summerlin, 542 U.S. 348, 358 (2004). 8 No. 09-6483 In re: Danny Chambers probation or parole for twenty-five years, and which, accordingly, requires no finding of an additional aggravating circumstance. Thus, Chambers’s sentence was within the power of the trial court to impose without a jury.

second or successive habeas application

In addition, the Seventh Circuit dismissed appellant's appeal in Hafed v. Government of the State of Israel, No. 08-2744. That court first denied appellant's motion for leave to proceed ifp under Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir.2000), that is, as frivolous. See Government of the State of Israel, No. 08-2744, Doc. 17. When appellant did not pay the filing fee, the Seventh Circuit dismissed the appeal for nonpayment. See id., Doc. 19. A circuit court's dismissal of an appeal on the ground of frivolousness would fall under § 1915(e)(2)(B)(i) and would count as a strike. See Jennings, 175 F.3d at 780-81. In Government of the State of Israel, however, the Seventh Circuit did not actually dismiss the appeal as frivolous, but for nonpayment of the filing fee, that is, for failing to prosecute the appeal. A dismissal for failure to prosecute would not necessarily be a strike because [e]ach of the three categories of strikes in [§ 1915(g)] involves dispositions that look to the merits of the suit[, but] a dismissal for failure to prosecute is made without regard to the merits of the claim[.] Butler v. Dep't of Justice, 492 F.3d 440, 442-44 (D.C.Cir.2007) (holding, where there was no indication in the procedural history that the court had held that the five prior appeals dismissed for failure to prosecute were frivolous, that the dismissals did not count as strikes under § 1915(g)). However, in Thompson v. Drug Enforcement Administration, 492 F.3d 428, 433 (D.C.Cir. 2007), the D.C. Circuit held that a dismissal for failure to prosecute was a strike where the circuit court had previously declared the appeal frivolous when it denied the prisoner's motion to proceed ifp. The D.C. Circuit rejected as hypertechnical the prisoner's argument that the appeal was formally dismissed ... for failure to prosecute, rather than for frivolousness[, because b]ut for the judge declaring it frivolous, [the prisoner's] appeal would have gone forward. Id. In our view, the Seventh Circuit's determination that the appeal in Government of the State of Israel was frivolous when it denied appellant's motion for ifp can properly be termed the but for cause of that court's subsequent dismissal, and we agree with the D.C. Circuit's conclusion that it would be hypertechnical to hold that the resulting dismissal for nonpayment was not a strike. See Thompson, 492 F.3d at 433; see also O'Neal v. Price, 531 F.3d 1146, 1152 (9th Cir.2008) (holding that a district court has `dismissed' the prisoner's case for purposes of § 1915(g) when the court denies the prisoner's application to file the action without prepayment of the filing fee on the ground that the complaint is frivolous, malicious or fails to state a claim, and thereupon terminates the complaint (quoting § 1915(g)). This strike also counts from May 26, 2009, when the Supreme Court dismissed appellant's petition for writ of certiorari. See Hafed v. State of Israel, ___ U.S. ___, 129 S.Ct. 2439, 174 L.Ed.2d 226 (2009) (Mem.) (No. 08-9403). Having concluded that appellant had three clear strikes as of May 26, 2009, before he filed No. 09-1365 on August 17, 2009, we do not address his arguments in that appeal on their merits. See Dubuc, 314 F.3d at 1208-10.

Third Strike

27 Even assuming Pate to be applicable to this case, the evidence presented to the trial court did not raise a bona fide doubt as to Rivers' competency at trial. Initially, the respondents' claim that the state courts' determination that there was no bona fide doubt as to Rivers' competency is a factual determination entitled to a presumption of correctness under Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). However, issues of fact, as used in 28 U.S.C. Sec. 2254(d), are basic, primary, or historical facts: facts 'in the sense of a recital of external events and the credibility of their narrators.' Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755 n. 6, 9 L.Ed.2d 770 (1963) (quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.). The question of bona fide doubt is a conclusion of law, or at the least a mixed determination of law and fact. See Drope v. Missouri, 420 U.S. 162, 175, 95 S.Ct. 896, 905, 43 L.Ed.2d 103 (1975). 4 The state court's determination, therefore, is not entitled to the presumption of correctness under section 2254(d). 28 To establish a bona fide doubt of competency, a federal habeas petitioner seeking relief must show that there were matters known to the trial court 29 [t]hat raised at that time a real, substantial, and legitimate doubt as to the mental capacity of the petitioner to meaningfully participate and cooperate with counsel. The test is an objective one. The duty to hold a competency hearing turns not on what the trial judge in fact had in mind, but whether the facts before him were such as to create a reasonable doubt as to the defendant's competency. 30 Pedrero v. Wainwright, 590 F.2d 1383, 1387-88 (5th Cir.) (citations omitted), cert. denied, 444 U.S. 943, 100 S.Ct. 299, 62 L.Ed.2d 310 (1979). The relevant factors to be considered in assessing the issue of competency are a defendant's irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial. Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975). Evidence establishing only one of these factors may nevertheless be sufficient to raise a bona fide doubt of incompetency. Id. 31 The only medical opinions on Rivers' competence to stand trial were those of Dr. Reifman on July 20, 1972, and on April 19, 1973. In both reports Dr. Reifman concluded that Rivers was competent to stand trial. Dr. Horecker's report six months after trial was limited to Rivers' competency to be sentenced. The district court totally dismissed Dr. Reifman's pre-trial report as being five months prior to trial, and refused to give any weight to both reports as being conclusory. The mere passage of several months from an examination to the time of trial or a plea does not totally undermine the merits of the opinion. See, e.g., Hoornweg v. Smith, 504 F.Supp. 1189, 1193 (W.D.N.Y.1981) (passage of one year from time of examination to time of plea). Moreover, the district court overlooked the fact that Dr. Reifman elaborated on the basis for all his reports in the April 9, 1974 hearing which was held before the trial court determined whether Rivers had demonstrated a bona fide doubt of incompetency at trial. The petitioner cannot now object to this testimony, not having done so before. The April 9 hearing was limited to Rivers' competency to be sentenced, and Rivers' cross-examination of Dr. Reifman was appropriately limited to that issue. Yet to the extent that the direct examination of Dr. Reifman went beyond those parameters, there were grounds for objection and a motion to strike, but not grounds for ignoring that testimony which is now before us as part of the record before the trial court. 32 As to Rivers' demeanor during trial, nothing occurred to evoke a bona fide doubt on the part of the court that Rivers was no longer competent to stand trial. A defense of insanity was withdrawn prior to trial. As the district court conceded, his behaviour at trial was a neutral factor. 522 F.Supp. at 446. The state trial court explicitly stated when first confronted with the issue in the February 23, 1974 post-trial hearing: 33 [I] have had no occasion to talk to Mr. Rivers, nor has he taken the stand in his own behalf, so I have not had the opportunity to observe his manner while participating in any conversation or in any conduct before the court other than to be present throughout the course of the trial. 34 The state appellate court explicitly found that [t]he record demonstrates that defendant performed no acts which could have reasonably caused the court to conclude: (1) that defendant was suffering from a mental disorder during his trial; and (2) that a mental disorder caused him to lose all recognition of the proceeding's nature and purpose, or prevented him from producing an appropriate defense. 61 Ill.App.3d at 384, 18 Ill.Dec. 609, 377 N.E.2d 1245. In sum, neither prior medical opinions or Rivers' demeanor at trial raised a bona fide doubt of Rivers' competency. 35 The petitioner relies solely on the remaining Drope factor, irrational behavior, for establishing a bona fide doubt. The petitioner persuaded the district court that a bona fide doubt of Rivers' competency at trial was raised by evidence which demonstrated only that Rivers was incompetent after trial. Rivers' troubled marital history on its face fails to demonstrate a bona fide doubt about his competency prior to or during trial. The commission of the crime itself was not sufficient to raise a bona fide doubt. See, e.g., Hoornweg v. Smith, 504 F.Supp. 1189, 1192 (W.D.N.Y.1981). Although the earliest of Rivers' letters referred to previous letters, there is no evidence in the record that any of the letters were sent during the trial or even prior to conviction. Although most of the letters were apparently destroyed, counsel had the opportunity by way of affidavit to give some approximation of when and how long the letters were sent, as well as any of his own doubts about Rivers' competency during trial. The only other evidence of allegedly irrational behavior in the Suggestions of Doubt of Competency of Accused was Rivers' disbelief in reaction to his counsel's explanation of the verdict and Rivers' representations to his family after he was found guilty that everything was alright. 36 Rivers asserts that evidence of irrational behavior occurring after trial is sufficient to raise a bona fide doubt of competency during trial. We disagree and find the cases cited by the petitioner to support his position to be distinguishable on their facts. In Osborne v. Thompson, 610 F.2d 461 (6th Cir.1979) (per curiam), the Sixth Circuit found a bona fide doubt of incompetency based on pre-trial evidence of incompetency, the petitioner's conduct during trial, and post-trial incidents. In Pride v. Estelle, 649 F.2d 324 (5th Cir.1981), the Fifth Circuit found a substantial doubt as to the defendant's competency-in-fact to have stood trial based on a post-trial medical opinion that the defendant was mentally defective and a paranoid schizophrenic, the opinion of two medical experts that the defendant was at that time incompetent and the opinion of one medical expert that the defendant was incompetent during his trial. In Kibert v. Peyton, 383 F.2d 566 (4th Cir.1967), testimony of witnesses about the defendant's behavior during trial as well as post-trial expert opinions were held sufficient to establish incompetency in fact. In Stone v. United States, 358 F.2d 503 (9th Cir.1966), cert. denied, 389 U.S. 961, 88 S.Ct. 341, 19 L.Ed.2d 370 (1967), involving a petition under 28 U.S.C. Sec. 2255 (1976), post-trial expert opinions that the defendant was incompetent at the time of trial were unchallenged. The court specifically noted that it was dealing only with the hearing requirements of 18 U.S.C. Sec. 4244 and that the appellant was not contending that the trial court had before it sufficient evidence of defendant's incompetence to stand trial to render the court's failure to hold a competency hearing a violation of due process under Pate. In Beale v. United States, 317 F.Supp. 731 (N.D.Miss.1970), also arising under section 2255, the district court found the defendant to be incompetent in fact based on evidence of incompetency occurring prior to, during, and after trial. None of these cases hold that evidence which demonstrates only incompetency sometime after trial is sufficient in and of itself to raise a bona fide doubt of incompetency during trial. 5 37 Yet even if the evidence of incompetency after trial could have given rise to a bona fide doubt of incompetency during trial, the opposing evidence of competency at trial overcame any such doubt. The conclusion of both Dr. Reifman's pre-trial and post-trial determination 6 of Rivers' competency at trial was that Rivers was competent during trial. As the district court noted, there was certainly no reason for the trial court to doubt Rivers' competency before commencement of trial. Rivers had been found to be competent to stand trial by Dr. Reifman five months earlier, and no evidence was presented to the court to cause it to question that determination. No requests were made by Rivers' counsel, the state, or the court for further inquiry into Rivers' competency. We must assume that the attorneys for both sides, as well as the trial court itself, would have exercised their duty to raise the issue, as was done after trial, had any doubt surfaced as to Rivers' competence during trial. See Reese v. Wainwright, 600 F.2d 1085, 1094 (5th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979). 38 A significant factor upon which the district court did not remark was the failure of Rivers' counsel to raise any question of competency during trial. The petitioner urges that the nature of schizophrenia is such that he could have been suffering from the disease without manifesting symptoms cognizable by counsel. Mental illness, however, does not necessarily mean that a person is legally incompetent to stand trial. The standard for determining competency is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam). Counsel for a defendant, perhaps more than any other party or the court, is in a position to evaluate a defendant's ability to understand the proceedings and assist counsel with his defense. On the facts of this case, the failure of defendant or his counsel to raise the competency issue is persuasive evidence that there was no bona fide doubt as to Rivers' competency during the trial. See, e.g., Pedrero v. Wainwright, 590 F.2d 1383 (5th Cir.), cert. denied, 444 U.S. 943, 100 S.Ct. 299, 62 L.Ed.2d 310 (1979). 39 Indeed, the evidence of Rivers' alleged incompetency strongly suggests that Rivers' schizophrenic condition commenced in reaction to his conviction and not during the trial. Dr. Reifman testified that Rivers was suffering from a schizophrenic condition and that the schizophrenic symptoms did not appear until after the trial. In light of the indicia of competence before and during trial, Rivers' schizophrenia is more plausibly explained as the result of his conviction rather than the stress of the trial. See, e.g., Reese v. Wainwright, 600 F.2d 1085, 1094 (5th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979). The state appellate court found that the expert medical testimony established that defendant's schizophrenic reaction had developed subsequent to trial. 61 Ill.App.3d at 384, 18 Ill.Dec. 609, 377 N.E.2d 1245. This explicit finding of the state appellate court was apparently overlooked by the district court, because it concluded that no hearing would have been required if Dr. Reifman's subsequent examination had explained the probable time and cause of the onset of Rivers' later incompetency. 522 F.Supp. at 447. 40 No court can ascertain for a certainty whether defendant truly comprehended the nature and purpose of the proceedings against him. Procedural due process requires only that certain necessary procedural safeguards be provided to the defendant to ensure a fair evaluation of his competency when a bona fide doubt is raised. Our evaluation of a defendant's competency at trial is even more difficult on collateral review than in the context of a direct appeal. Whatever our resolution of this issue on direct appeal, some deference must be paid to the state courts' scrupulous efforts at providing Rivers a fair trial. As the Supreme Court recently noted, [f]ederal intrusions into state criminal trials frustrate both the States' sovereign power to punish offenders and their good faith attempts to honor constitutional rights. Engle v. Isaac, --- U.S. ----, 102 S.Ct. 1558, 1571, 71 L.Ed.2d 783 (1982). The equivocal evidence of alleged incompetency in this case, confined solely to incompetency after conviction and entry of judgment, is simply insufficient to find error of constitutional dimension in the trial court's failure to hold a competency hearing after trial. 41 The district court, in light of its issuance of the writ based on Rivers' first claim, failed to evaluate the remaining claims of the petition and therefore they were not presented to this court on appeal. By way of guidance for further proceedings, we note that the standard of review for finding incompetency-in-fact as alleged in Rivers' second claim is at least as stringent as the bona fide doubt standard suggested in Pate. See Reese v. Wainwright, 600 F.2d 1085 (5th Cir.), cert. denied, 444 U.S. 983, 100 S.Ct. 487, 62 L.Ed.2d 410 (1979). Rivers' third and fourth claims are variations on Rivers' central argument that the post-trial procedures used by the state trial court were inadequate to determine his competency. The third claim is that Rivers should have been examined after the trial by a physician other than Dr. Reifman since he had an interest in reaffirming the results of his pre-trial examination of Rivers. The fourth claim is that Rivers should have been allowed to cross-examine Dr. Reifman on his opinions. In examining the merits of the third and fourth claims, the district court is directed to consider the applicability of the Supreme Court's recent opinions in Engle v. Isaac, --- U.S. ----, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) and United States v. Frady, --- U.S. ----, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) and this court's recent opinion in Norris v. United States, 687 F.2d 899 (7th Cir.1982), in determining whether these claims were adequately preserved in the state courts for purposes of collateral review. 7 42 Therefore, the judgment of the district court is reversed and the cause is remanded to the district court for further proceedings in accordance with this opinion. Upon remand, Circuit Rule 18 shall be applicable. 43 REVERSED AND REMANDED.

The Existence of a Bona Fide Doubt

21 The burden of proving facts which would establish a reasonable impression of partiality rests squarely on the party challenging the award. Kinney, 756 F.2d at 745; see also Toyota of Berkeley v. Automobile Salesmen's Union, Local 1095, 834 F.2d 751, 755 (9th Cir.1987), cert. denied, 486 U.S. 1043, 108 S.Ct. 2036, 100 L.Ed.2d 620, recalled and amended on other grounds, 856 F.2d 1572 (1988). The party alleging evident partiality must establish specific facts which indicate improper motives on the part of the Board. The appearance of impropriety, standing alone, is insufficient. Kinney, 756 F.2d at 746; see Toyota, 834 F.2d at 755. 22 Jason claims that the following factors show the NJAB panel's partiality: (1) the Miami location, (2) the brief advance notice of the hearing, (3) the fact that the NJAB board was made up of Jason's competitors and the union, (4) the union's possible decertification, and (5) the lack of participation by Jason. 23 Jason, however, agreed to the procedures set forth in the collective bargaining agreement. When the parties have agreed upon a particular method of dispute resolution, it should generally be presumed fair. Kinney, 756 F.2d at 746. By signing the agreement, Jason effectively consented to the NJAB arbitration wherever and whenever the next hearing was to convene. Jason also knew of the NJAB procedures and interest prior to signing the collective bargaining agreement. Jason fails to specify any new bias or partiality on the part of the panel. See id. (holding party bound even though the management representatives on the board were owners of companies that were union contractors in the same geographic area and had a pecuniary interest in the outcome that was adverse to Kinney). 24 Jason's nonparticipation argument also fails. Under a collective bargaining agreement specifically providing for designation of an arbitrator without the participation of both parties, an arbitrator may issue an enforceable default award when one party fails to attend the hearing. Toyota, 834 F.2d at 754. As for Jason's contention that the pendency of the NJAB decertification proceeding should have precluded, or at least postponed arbitration, we reject this argument for the reasons set forth hereafter in Part E of this opinion. 25 We conclude that Jason did not establish facts that create a reasonable impression of partiality. See Kinney, 756 F.2d at 745.

Partiality

The Supreme Court‟s landmark decision in Safeco Insurance Co. of America v. Burr, 551 U.S. 47 (2007), set the framework that the District Court here relied on in granting summary judgment to Southwest. Safeco involved insurance companies that relied in part on credit scores to set auto insurance premiums. Because of unfavorable credit scores, some new applicants were quoted insurance rates that were higher than the best rates available. The applicants argued that they had been subjected to an “increase” in rates (even though they had not previously enjoyed the lower rates) and so had suffered “adverse action” based on their credit reports, which required notice under § 1681m(a) of FCRA. Id. at 5455. The insurance companies argued that they did not have to comply with FCRA‟s notice requirement because the failure to offer the preferred rates to new customers could not constitute an “increase” in rates in the absence of prior dealing. See id. at 69. The plaintiffs sought statutory and punitive damages, which required that they prove that the failure to give notice was “willful.” The Supreme Court held that it was not. Although the Court disagreed with the insurance companies‟ interpretation of “increase,” it concluded that the interpretation was “not objectively unreasonable, and so falls well short of raising the „unjustifiably high risk‟ of violating the statute necessary for reckless liability.” Id. at 70 (emphasis added). The Court thus established a safe harbor against liability for willfulness. A company cannot be said to have willfully violated FCRA if the company acted on a reasonable interpretation of FCRA‟s coverage. 14 The Court derived this “reasonable interpretation” test by deconstructing the word “willfully.” FCRA imposes civil liability where the defendant “willfully fails to comply” with the statute. 15 U.S.C. § 1681n(a).12 The Court noted, however, that “„willfully‟ is a word of many meanings” and that “where willfulness is a statutory condition of civil liability, we have generally taken it to cover not only knowing violations of a standard, but reckless ones as well.” Safeco, 551 U.S. at 57 (citations and internal quotation marks omitted). Drawing on the “essence of recklessness at common law,” the Court said that “a company subject to FCRA does not act in reckless disregard of it unless the action is not only a violation under a reasonable reading of the statute‟s terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless.” Safeco, 551 U.S. at 69 (internal quotation marks omitted). A defendant‟s conduct is reckless only if it was “objectively unreasonable” in light of “legal rules that were „clearly established‟ at the time.” Id. at 69-70 (citing Saucier v. Katz, 533 U.S. 194, 202 (2001)). Thus, even when a court disagrees with a party‟s reading of FCRA, it may not impose liability for a reckless, and therefore willful, violation of the statute unless that party‟s reading is “objectively unreasonable.” See id. at 69 (noting that the Court did not agree with Safeco‟s analysis and that its reading of FCRA was “erroneous”).13 12 FCRA also imposes liability for negligent violations. 15 U.S.C. § 1681o. However, Fuges elected to pursue only her claim for willful violations and not to press her negligence claim. 13 Although the analysis that yielded the Safeco “reasonable interpretation” test followed from the common 15 In short, the Safeco test is one of “objective reasonableness,” and the Court explicitly rejected the argument that subjective bad faith must be taken into account in determining whether a defendant has acted recklessly, and therefore willfully, under FCRA. In deciding that subjective bad faith is irrelevant, the Court said that, “[w]here … the statutory text and relevant court and agency guidance allow for more than one reasonable interpretation, it would defy history and current thinking to treat a defendant who merely adopts one such interpretation as a knowing or reckless violator.” Safeco, 551 U.S. at 70 n.20. Fuges argues in this appeal that Southwest is not entitled to the Safeco “reasonable interpretation” defense, both because Southwest had not actually interpreted FCRA law definition of recklessness, knowing noncompliance also, of course, constitutes a willful FCRA violation. See Safeco, 551 U.S. at 57; see also Cushman v. Trans Union Corp., 115 F.3d 220, 227 (3d Cir. 1997) (acknowledging that an investigative policy could constitute a willful FCRA violation if adopted either “knowing that policy to be in contravention of the rights possessed by consumers pursuant to ... FCRA or in reckless disregard of whether the policy contravened those rights”). Fuges suggests that this may represent an alternative basis on which we may find willful violations on the part of Southwest. (See Appellant‟s Opening Br. at 26 (noting that “recklessness is not the only way for a plaintiff to prove an [sic] FCRA violation was willful” and that “knowing noncompliance may also constitute a willful FCRA violation”).) However, the record contains no evidence that Southwest knew that it was in violation of FCRA, and Fuges did not make that argument in the District Court. 16 before concluding the statute did not apply to its activities and because Southwest‟s interpretation of FCRA was not objectively reasonable.14 We take each of those arguments in turn.

Liability Standard Under Safeco

45 The State argues that in the alternative this Court should find that Zappulla's confession was not coerced. The Appellate Division and the district court both held that the confession was obtained in violation of Zappulla's Miranda rights. This holding is undoubtedly correct. Zappulla was initially questioned upon arrest at the police stationhouse at 1:20 a.m. on March 17, 1998. At that time, the interrogating officers read him his Miranda rights and asked him whether he was willing to speak about the theft of his girlfriend's fur coat and jewelry. He refused to speak about that but spoke about other matters. Late in the afternoon on March 17th, Zappulla broke free from police custody and, as he was fleeing, was struck by a car. He was recaptured and taken to the hospital for examination. Following Zappulla's return to police custody, at 12:30 a.m. on March 18, he was again questioned, but this time without a statement of his Miranda rights and about the much more serious crime of murder. 46 The Appellate Division found that Zappulla's confession was not voluntary and should have been suppressed. People, 282 A.D.2d. at 697-98, 724 N.Y.S.2d 433. The Appellate Division relied on the fact that: (1) 24-hours had lapsed between the giving of Miranda warnings and the questioning of Zappulla about Jennifer's murder; (2) Zappulla was not in continuous police custody between the initial giving of Miranda warnings and the subsequent interrogation; and (3) the second interrogation concerned a crime unrelated to that for which he was initially arrested. On habeas review, the district court properly adopted these finding in affirming the Appellate Division's decision. Zappulla, 296 F.Supp.2d at 318. 47 Considering the totality of the circumstances, Fulminante, 499 U.S. at 286, 111 S.Ct. 1246, we conclude that the admission of Zappulla's confession constitutes a violation of Zappulla's due process rights. See Miranda, 384 U.S. at 444, 86 S.Ct. 1602. Accordingly, we reject the State's alternative argument on appeal. 48 In conclusion, as Judge Richard S. Arnold reminded us: 49 A system of law that not only makes certain conduct criminal, but also lays down the rules for the conduct of authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced. 50 Williams v. Nix, 700 F.2d 1164, 1173 (8th Cir.1983). With Zappulla's unconstitutionally obtained confession in mind, it may not be too difficult to look at other evidence and conclude that Zappulla would have been convicted in any event. The unlawfully obtained confession, however, was far and away the most convincing evidence of his guilt. See Fulminante, 499 U.S. at 296, 111 S.Ct. 1246. We conclude that it was objectively unreasonable for the Appellate Division to decide beyond a reasonable doubt that [the trial court's wrongful introduction of the unlawfully obtained confession into evidence] did not contribute to the verdict obtained. Mitchell, 540 U.S. at 17-18, 124 S.Ct. 7 (emphasis added). We do not think it too much to require the State to return to the trial court and attempt to convict Zappulla without the unconstitutionally obtained confession. If the dissent's analysis is right, by following it, the State should not find it difficult to properly obtain a conviction. Requiring the State to try is one of the costs of having and enforcing a Bill of Rights.

Zappulla's Confession to the Police Was Obtained In Violation Of His Miranda Rights

7 Section 237 of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii), authorizes the removal of aliens who have committed an aggravated felony, as defined at 8 U.S.C. § 1101(a)(43). Subparagraph (R) of § 1101(a)(43) includes any offense relating to ... forgery ... for which the term of imprisonment is at least one year. In determining whether a given state conviction constitutes an aggravated felony under the INA, we do not look to the facts surrounding the particular conviction, but rather take a categorical approach, examining the generic elements of the offense of conviction to determine whether it is any broader than an offense defined as an `aggravated felony' under federal law. Gousse v. Ashcroft, 339 F.3d 91, 95-96 (2d Cir.2003) (some internal quotation marks omitted); see also Jobson v. Ashcroft, 326 F.3d 367, 371-72 (2d Cir.2003). If the criminal statute punishes conduct that falls outside the INA's definition, then the crime does not constitute an aggravated felony. Gousse, 339 F.3d at 96. Applying this categorical approach, Richards argues that Connecticut General Statute § 53a-139 is broader than the federal definition of forgery because it penalizes the mere possession, as opposed to the making or uttering, of a forged instrument. 8 Section 53a-139 provides, in relevant part, that [a] person is guilty of forgery in the second degree when, with intent to defraud, deceive, or injure another, he falsely makes, completes or alters a [specified] written instrument or issues or possesses any [such] written instrument which he knows to be forged. Conn. Gen.Stat. § 53a-139. The fact that Connecticut punishes a given act under the rubric of forgery is not dispositive of whether a conviction under that statute is an offense relating to ... forgery under the federal definition; absent clear evidence to the contrary, we presume that Congress did not intend the meaning of the INA to hinge on state law. See Sui, 250 F.3d at 114 (citing Drakes v. Zimski, 240 F.3d 246, 248 (3d Cir.2001)) (holding that [t]he language of [the INA] must be construed to have the meaning intended by Congress, not the [state] legislature). There is no readily available federal definition of forgery or an offense relating to ... forgery, however. The terms are not defined at § 1101(a)(43)(R) or elsewhere in the INA; so far as we are aware, the BIA has not settled on a general interpretation of either of these terms as employed at § 1101(a)(43). 3 Nor, as the Third Circuit observed in Drakes, has Congress defined the term forgery in any of the numerous criminal statutes in which the term appears. See Drakes, 240 F.3d at 249 (reviewing federal statutes addressing forgery). 9 In general, when a federal statute uses, but does not define, a term of art that carries an established common law meaning, we will give that term its common law definition (unless, again, Congress has clearly evinced intent to the contrary). Moskal v. United States, 498 U.S. 103, 114, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990); Gilbert v. United States, 370 U.S. 650, 655, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962); see, e.g., Drakes, 240 F.3d at 249 (examining common law definition of forgery for the purpose of determining whether Delaware statute constituted an offense relating to ... forgery under § 1101(a)(43)(R)). The sparse case law discussing the scope of forgery at common law tends to support Richards' contention that forgery itself requires a false making. Gilbert, 370 U.S. at 656, 82 S.Ct. 1399 (internal quotation and citation omitted); see also United States v. McGovern, 661 F.2d 27, 29 (3d Cir.1981) (Common law forgery has three elements: (a) The false making or material alteration (b) with intent to defraud (c) of a writing which, if genuine, might be of legal efficacy.); United States v. Maybury, 274 F.2d 899, 903 (2d Cir.1960) (noting that an essential element of the crime of forgery is making the false writing); accord 36 Am.Jur.2d Forgery § 1 (2001) (defining forgery as the fraudulent making or alteration of a writing to the prejudice of another's rights); 37 C.J.S. Forgery § 2 (1997) (defining forgery as the false making or materially altering ... of any writing). In addition, the Model Penal Code, to which we have also referred for definitions of terms that the INA does not define, see Sui, 250 F.3d at 115, does not define forgery to include possessory offenses. Model Penal Code § 224.1 (1980). 10 Thus, if subparagraph (R) defined aggravated felony to include only forgery offenses, Richards' argument would present a close question. But the aggravated felony definition encompasses offense[s] relating to ... forgery. 8 U.S.C. § 1101(a)(43)(R). In Kamagate v. Ashcroft, decided subsequent to the district court's decision and the briefing of this appeal, we considered whether conviction under a federal counterfeiting statute for possession of counterfeit securities was an offense relating to counterfeiting under subparagraph (R). 385 F.3d at 153-56. In holding that § 1101(a)(43)(R) encompassed the possessory crime, we rejected a narrow interpretation of the term relating to under which it would reach only crimes involving counterfeiting itself. Id. In particular, we relied on the Supreme Court's analysis of the term relating to in Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), in which the Court observed that Black's Law Dictionary defines the words expansively: `to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.' Kamagate, 385 F.3d at 154 (quoting Morales, 504 U.S. at 383, 112 S.Ct. 2031 (quoting Black's Law Dictionary 1158 (5th ed.1979)) (further internal quotation marks omitted)). We also looked to the BIA's interpretation of the phrase relating to a controlled substance in the predecessor statute to 8 U.S.C. § 1227(a)(2)(B)(I). Id. (citing In re Beltran, 20 I. & N. Dec. 521, 525-26 (BIA 1992) ([T]he phrase `relating to' ... has long been construed to have broad coverage.... Congress intended to give inclusive meaning in the immigration laws to the phrase `relating to.')). Finally, we indicated our agreement with the Ninth Circuit's conclusion in Albillo-Figueroa v. INS, 221 F.3d 1070, 1073 (9th Cir.2000), that the inclusion of the term relating to in subsection (R) `necessarily' signaled Congress's intent to cover `a range of activities beyond those of counterfeiting or forgery itself,' including those activities made illegal in order to discourage counterfeiting or forgery `through the criminalization of the use of [their] end product [s].' Kamagate, 385 F.3d at 155 (quoting Albillo-Figueroa, 221 F.3d at 1073). 11 The analysis in Kamagate controls the result here: Criminalization of possession of forged instruments with the intent to deceive, defraud or injure, like possession of counterfeit instruments with similar intent, discourages the underlying crime. Cf. 18 U.S.C. §§ 477, 480 (criminalizing possession of specified forged instruments); Cal.Penal Code § 475 (same); Del.Code Ann. tit. 11, § 861 (same); Idaho Code § 18-3603 (same); Me.Rev.Stat. Ann. tit. 17-A § 703 (same). Even if possession of a forged instrument with intent to defraud, deceive or injure is not forgery as defined at common law, it is unarguably an offense relating to forgery within the broad construction we have given that term. 4 See Kamagate, 385 F.3d at 154-56; see also Drakes, 240 F.3d at 250 (reaching the same conclusion with respect to a materially identical Delaware statute). We therefore hold that Connecticut General Statute § 53a-139 punishes only conduct that is covered by 8 U.S.C. § 1101(a)(43)(R), and that a conviction under this statute for which a sentence of one year or more is imposed constitutes an aggravated felony.

Connecticut second-degree forgery is an offense relating to ... forgery under the INA

Ferro competes in the manufacture and sale of plastic additives. It has produced and sold plastic additives since at least 1990 to the present. Prior to October 1995, a Cookson affiliate, Synthetic Products Corporation (Synpro), also competed in the plastic additives market. In October 1995, Ferro purchased certain assets of Synpro, including its plastic additives business. After the sale, Cookson and what was left of Synpro (now named SPC Divestitures) were and continue to be part of the same corporate family. Under the Asset Purchase Agreement (APA), Synpro retained all liabilities not expressly assumed by Ferro (the Retained Liabilities), including any liability it might have had for actual or alleged pre-closing antitrust violations. Cookson also agreed to defend and indemnify Ferro from and against any loss, claim, cause of action or liability, cost, or expense . . . that arise out of . . . [a]ll Retained Liabilities of [Synpro] not expressly assumed by Ferro. (Record on Appeal (ROA) Vol. I, p. 29.) No provision of the APA stated that Cookson or Synpro would defend or indemnify Ferro for Ferro's own conduct.

Synpro Asset Purchase and Agreement

18 As noted, the district court grounded its opinion in what it perceived to be a recognized principle of insurance law, that [a]n insurance company cannot prefer one of its insureds over another. 26 Armed with this article of faith, the district court concluded that [t]he bankruptcy court erred when it ruled that the Homsys ha[d] no property interest in the proceeds, and reversed the bankruptcy court. We discern several difficulties with the district court's determination. 19 Ignoring for a moment that court's failure to refer us to anything other than a single treatise to support this purported canon of insurance law, we perceive a logical contradiction between the court's legal reasoning and the injunctive relief that it ordered. Reduced to its essence, the foundation of the district court's reversal of the bankruptcy court's decision was the court's preliminary conclusion that the Homsys owned some portion of the policy proceeds (or some fractional or undivided interest in all of the proceeds) and that the Homsys' portion of or interest in the proceeds was not--and could not be--property of the Estate. 27 Nevertheless, the district court went on to order the bankruptcy court to extend the umbrella of [its] injunction ... to shield the Homsys from liability and to protect their interest in the policies adequately. But, if the Homsys' portion of the Proceeds is truly not property of the Estate, then the bankruptcy court has no authority to enjoin suits against the Homsys: The bankruptcy court's injunctive powers exist only to ensure the preservation and fair division of Estate assets. 28 Therein lies the apparent contradiction between the district court's legal reasoning and the injunctive relief that it ordered: If the Homsys own a portion of the Proceeds, that portion cannot be deemed property of the Estate; and perforce there can be no justification for shielding such portion under the bankruptcy court's injunctive orders, the reach of which extends only to property of the Estate. 20 More relevant for our purposes, however, is the failure by either the Homsys or the district court to cite us to any binding authority for the proposition that [a]n insurance company cannot prefer one of its insureds over another. 29 The district court anchored its opinion on this principle, yet provided us with neither statutes nor case law indicating that the laws of the State of Texas embrace such a principle. Neither did the district court explain exactly how the principle applies in this case. For their part, the Homsys referred us to two cases--one from New York and one from an intermediate appellate court in Texas--that purportedly support the principle: Smoral v. Hanover Insurance Co. 30 and Texas Farmers Insurance Co. v. Soriano. 31 But these cases are distinguishable. 21 In Smoral, the New York Supreme Court, Appellate Division, held that an insurance company breached its duty of good faith to an insured driver (one of two coinsureds) when it tendered the full limits of an automobile liability policy to a passenger who was injured in a car accident, in exchange for an agreement to release from liability the insured owner of the car (the other of two coinsureds). 32 Far from standing for a broad principle that an insurer may never prefer one of its insureds over another (and thus may be enjoined from entering a settlement that would do so), however, the Smoral case merely indicates that an insured may seek damages under a breach of good faith cause of action if he believes that an unfair settlement has been effected. 33 22 The intermediate appellate court opinion in Soriano likewise reveals only that, under some circumstances, an insured may challenge a settlement between his insurer and another party by filing an action for breach of the duty of good faith and fair dealing. 34 We note first that Soriano does not involve a settlement between an insurer and one of two or more coinsureds but between the insurer and one of several third-party claimants. Second, there is now considerable doubt whether Soriano still stands for the proposition for which it was cited to us by the Homsys in the first place: After the instant case was briefed and argued to us on appeal, the Supreme Court of Texas reversed the intermediate appellate court and rendered a take-nothing judgment against the Soriano plaintiffs. In so doing, the state supreme court noted that it had never recognized a cause of action for breach of the duty of good faith and fair dealing where the insurer fails to settle third-party claims against the insured, 35 emphasizing that [w]e have never held and do not hold today that either of these two standards [ (1) the insurer has no reasonable basis for denying or delaying payment of the claim, or (2) the insurer knew or should have known that there was no reasonable basis for denying or delaying payment of the claim] applies to insurers in responding to third-party claims. 36 Thus the Homsys' reliance on Soriano is even less efficacious now than it was when cited in their brief to this court. 23 Nowhere in either Smoral or Soriano do we find true support for a general principle of insurance law that forbids an insurer from settling with one of its coinsureds to the disadvantage of another one. Rather, those cases recognize nothing more than the aggrieved insured's right to seek damages from the insurance company for making such a settlement, by initiating a suit for breach of good faith. 37 24 In this case, of course, the Homsys have not initiated such a suit. Relying on nothing more than a general statement in a hornbook, the Homsys--and apparently the district court--would have us convert an insured's right to sue for breach of good faith into a general prohibition that forbids an insurer from entering a settlement by which it tenders the full limits of a liability policy exclusively to or for the benefit of one of several coinsureds. We decline the invitation to expand the holdings of Smoral and Soriano so extensively. 38 III

Insurance Aspects

The AG and TIECO were parties in the state criminal proceeding before Judge Garrett. Burr & Foreman represented USX in the proceeding, but USX was not a party. In dismissing the indictments, Judge Garrett issued an opinion which adopted in toto a memorandum of facts prepared by TIECO in connection with its motion to dismiss the indictment. Over Appellants' objection, the district court admitted the opinion, including the memorandum of facts. The memorandum was an exhaustive account that neatly conformed to Appellees' allegations, especially with respect to the malicious prosecution, abuse of process, and civil conspiracy counterclaims. As is set forth in the margin, the memorandum depicted in great detail Appellees' view about the nature of USX's involvement in the AG's investigation of TIECO.10 Furthermore, Judge Garrett did not mince words, as he found, [T]he misconduct of the [AG] in this case far surpasses in both extensiveness and measure the totality of any prosecutorial misconduct ever previously presented to or witnessed by this Court. Judge Garrett's opinion was a significant portion of Appellees' case (as well as their brief on appeal). During the examination of witnesses, Appellees' counsel repeatedly referred to the proceedings before Judge Garrett, and on at least one occasion, counsel read verbatim an extensive portion of the opinion. In closing argument, Appellees' counsel told the jurors if they had any question about the credibility of Appellants' witnesses, they should read Judge Garrett's opinion. Prior to trial, Appellants filed a motion in limine objecting to Judge Garrett's opinion, and they raised the objection again at trial. Appellants argued the opinion should be excluded pursuant to Fed.R.Evid. 401 and Fed.R.Evid. 403. We address solely the Rule 403 argument. 10 The memorandum of fact described, inter alia: (1) cooperation between the AG and USX in reviewing TIECO's seized documents, (2) a meeting on November 8, 1995, where USX informed the AG that it intended to sue TIECO and would be providing the AG with copies of charts; (3) the coordination between the AG and USX in having TIECO's computer tapes reformatted and read; (4) USX's agreement to repay the AG for reformatting the tapes; (5) an implication that either USX's lead auditor, Mr. Wager, or the AG's investigator, John Mulligan, had lied about the repayment agreement; (6) legal advice given to the AG and USX that USX should not be used as quasi government agency; (7) cooperation between the AG and USX in conducting interviews of USX's employees; and (8) the AG's sending TIECO's records to USX in preparation for the interviews. Rulings on the admission of evidence are reviewed for abuse of discretion. See, e.g., United States v. Adair, 951 F.2d 316, 320 (11th Cir.1992). An error on an evidentiary ruling will result in the reversal of a jury's verdict only if a party establishes a substantial prejudicial effect or a manifest injustice. See Anderson v. WBMG-42, 253 F.3d 561, 563 (11th Cir.2001) (citing Piamba Cortes v. Am. Airlines, Inc., 177 F.3d 1272, 1305 (11th Cir.1999)). As a preliminary matter, had Appellants lodged an objection pursuant to Fed.R.Evid. 801(c), the admissibility of Judge Garrett's opinion could be easily resolved. See United States v. Jones, 29 F.3d 1549, 1554 (11th Cir.1994). In Jones, the district court admitted factual findings made in a separate case by another district court. See id. at 1551. We concluded such factual findings were hearsay, and they could not be either judicially noticed or admitted under the public records exception to the hearsay rule. See id. at 1553-54 (citing Fed.R.Evid. 201 and Fed.R.Evid. 803(8)(C)); see also Nipper v. Snipes, 7 F.3d 415, 417-18 (4th Cir.1993). Despite not being raised, the conclusion that Judge Garrett's opinion was inadmissible hearsay is not inconsequential to our analysis under Rule 403.11 Rule 403 involves balancing, on the one side, the evidence's probative value and, on the other side, the evidence's dangers, including its unfairly prejudicial and misleading nature. By comparison, hearsay is disfavored because it is not subjected to the oath, the rigors of cross-examination, or the first-hand scrutiny of the jury. See United States v. Parry, 649 F.2d 292, 294-95 (5th Cir.1981)12 (citing McCormick on Evidence § 245 (2d ed.1972)). As a result, hearsay can be unreliable; for instance, in the context of the Confrontation Clause,13 hearsay that does not fall within a firmly-rooted exception is presumed unreliable. See Idaho v. Wright, 497 U.S. 805, 818, 110 S.Ct. 3139, 3148, 111 L.Ed.2d 638 (1990). Due to its unreliability, hearsay can be misleading and unfairly prejudicial. 11 Rule 403 provides, Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, and needless presentation of cumulative evidence. 12 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 13 Of course, the Confrontation Clause is not applicable to civil cases, but we refer to its jurisprudence to illustrate hearsay's unreliability. The hearsay in Judge Garrett's opinion—which does not satisfy a firmly-rooted exception14—was particularly unreliable and misleading. Although the statement of facts was presented to the jury as Judge Garrett's finding, it was prepared entirely by Appellees' counsel. In effect, the admission of the statement of facts permitted counsel to testify on his client's behalf, without being cross-examined. Further, the statement of facts was intended to exculpate TIECO, and thus, it was self-serving and unreliable. Cf. United States v. Reme, 738 F.2d 1156, 1168-69 (11th Cir.1984). Of course, Judge Garrett accepted the statement of facts by incorporating it into his opinion. But this made the hearsay contained therein even more unfairly prejudicial and misleading. As the Fourth Circuit has stated, [J]udicial findings of fact present a rare case where, by virtue of their having been made by a judge, they would likely be given undue weight by the jury, thus creating a serious danger of unfair prejudice. Nipper, 7 F.3d at 418 (internal quotations omitted). The Fourth Circuit's Nipper decision is particularly pertinent to the instant case. When we ruled in Jones that a judicial finding was inadmissible hearsay, we relied heavily on Nipper. See Jones, 29 F.3d at 1554. In Nipper, like here, the plaintiff introduced the factual findings of a state court to prove a civil conspiracy. See Nipper, 7 F.3d at 416. While reversing on the ground that the judicial findings were inadmissible hearsay, the Fourth Circuit also concluded that judicial findings, due to the danger of unfair prejudice, were inadmissible under Rule 403. See id. at 417-418; see also Carter v. Burch, 34 F.3d 257, 265 (4th Cir.1994); United States v. DeSantis, 134 F.3d 760, 770 (6th Cir.1998) (Nelson, J., concurring); Blue Cross and Blue Shield of N.J., Inc. v. Philip Morris, Inc., 141 F.Supp.2d 320, 324, 325 (E.D.N.Y.2001); Hariston v. Wash. Metro. Area Transit Auth., No. CIV. 93-2127 (D.D.C. April 10, 1997). The district court abused its discretion in admitting Judge Garrett's opinion. The jury, not Judge Garrett, was charged with making factual findings on Appellees' allegations in this case. Moreover, Appellants have shown they were substantially prejudiced by the admission of Judge Garrett's opinion, as Appellees relied on the opinion throughout the trial. Most notably, during closing argument, Appellees' counsel told the jury to use the opinion to make credibility determinations. Therefore, the district court's admission of the opinion constituted reversible error. 14 As we noted in Jones, the common law did not permit the admission of a judgment from another case. 29 F.3d at 1554. One court has found that judicial findings are admissible under the residual exception to the hearsay rule. See Jones v. Wash. Metro. Area Transit Auth., 946 F.Supp. 1011, 1019-20 (D.D.C.1996). But that exception is not firmly rooted. See Wright, 497 U.S. at 817-18, 110 S.Ct. at 3147-48.

Admissibility of State Judicial Opinion

Before we can address the merits of Sprint's appeal, we must decide whether Sprint has standing to bring it. The current Bankruptcy Code prescribes no limits on standing beyond those implicit in Article III of the United States Constitution. See In re Gucci, 126 F.3d 380, 388 (2d Cir.1997). Congress has given us jurisdiction over all final decisions, judgments, orders, and decrees of the district courts in bankruptcy cases, 28 U.S.C. § 158(d)(1), which courts in turn have jurisdiction to review all final judgments, orders, and decrees of the bankruptcy courts, id. § 158(a)(1). Nevertheless, for practical reasons this Court and others have adopted the general rule, loosely modeled on the former Bankruptcy Act, that in order to have standing to appeal from a bankruptcy court ruling, an appellant must be `a person aggrieved'—a person `directly and adversely affected pecuniarily' by the challenged order of the bankruptcy court. [3] Int'l Trade Admin. v. Rensselaer Polytechnic Inst., 936 F.2d 744, 747 (2d Cir.1991) (citation omitted). An appellant like Sprint, therefore, must show not only injury in fact under Article III but also that the injury is direct[] and financial. Kane v. Johns-Manville Corp., 843 F.2d 636, 642 & n. 2 (2d Cir.1988). As a general rule, we grant standing to creditors . . . appeal[ing] orders of the bankruptcy court disposing of property of the estate because such orders directly affect the creditors' ability to receive payment of their claims. Id. at 642; see In re Gucci, 126 F.3d at 388. In Kane, for instance, we did not hesitate to grant standing to an asbestos-injury claimant who appealed the confirmation of a plan of reorganization. The plan in that case was even more generous to the appellant than the plan in this case, since it promised him the full amount of whatever compensatory damages he is awarded. Kane, 843 F.2d at 640. The Court, however, held that Kane was an aggrieved party entitled to appeal: as a creditor, [he had] economic interests . . . directly impaired by the Plan because the plan limited his recourse to the courts, eliminated the possibility of punitive damages, and made his recovery subject to the Trust's being fully funded. Id. at 642. Other courts have generally found standing for impaired creditors [4] when their interests are directly and pecuniarily affected by the order of the Bankruptcy Court. In re Combustion Eng'g, Inc., 391 F.3d 190, 223-24 (3d Cir. 2004); see also In re P.R.T.C., Inc., 177 F.3d 774, 778 (9th Cir.1999) (noting that creditors have a direct pecuniary interest in a bankruptcy court's order transferring the assets of the estate). We likewise hold that Sprint has standing to appeal the confirmation of the plan in this case. Before confirmation, Sprint had a claim that the bankruptcy court valued at $2 million for voting purposes. [5] After confirmation, however, Sprint stood to receive property worth less than half (between 4% and 46%) of that amount. Therefore, confirmation of the plan affected Sprint directly and financially. The appellees challenge the above analysis from two different perspectives, looking both at the confirmation of the plan as a whole and at the gifting provision that Sprint protests. First, and more broadly, they argue that confirmation could not have harmed Sprint's interests because those interests were already worthless: with insufficient value in DBSD to pay off the secured creditors, Sprint's unsecured claim entitled it to nothing. Second, and more narrowly, they argue that the gift to the existing shareholder did not harm Sprint's interests because the absolute priority rule requires either that the objecting class receive the full value of its claim (which would more than double Sprint's recovery) or that junior classes receive nothing (which could lead to a reduced recovery for Sprint), so even a strict interpretation of that rule would not guarantee any benefit for Sprint. None of our cases directly address the level of generality at which we should consider standing; because we reject the appellees' analysis at both levels, however, we need not decide whether either perspective is generally preferable. Taking the broader perspective first, we decline to withhold standing merely because the bankruptcy court's valuation of DBSD put Sprint's claim under water. By the bankruptcy court's estimate—which we accept for purposes of this appeal— DBSD is not worth enough to cover even the Second Lien Debt, much less the claims of unsecured creditors like Sprint who stand several rungs lower on the ladder of priority. But none of our prior appellate standing decisions—at least none involving creditors—have turned on estimations of valuation, or on whether a creditor was in the money or out of the money. We have never demanded more to accord a creditor standing than that it has a valid and impaired claim. Cosmopolitan Aviation, the primary decision on which the appellees rely for their broader argument, is easily distinguishable. See In re Cosmopolitan Aviation Corp., 763 F.2d 507, 513 (2d Cir.1985), abrogated on other grounds by Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). In that case, a state court had held that a debtor's lease had expired before it filed for bankruptcy. Id. at 511. The bankruptcy court found that the debtor was hopelessly insolvent, with or without the lease, and ordered the debtor's liquidation. Id. The debtor did not then appeal. It appealed only a later order to turn over the land—apparently solely for purposes of delay. Id. at 512-13. We held that, because the debtor could no longer contest the first two rulings, it no longer had any interest in the land or even any right to continued existence, and therefore would suffer no injury from the turn-over. Id. at 513. Cosmopolitan Aviation is thus a far cry from this case, where the bankruptcy court provisionally allowed Sprint's claim against the debtor, where the plan already gives Sprint some recovery, and where Sprint has appealed the adverse order directly. The only case the appellees cite that comes close to denying a creditor standing is In re Ashford Hotels, Ltd., 235 B.R. 734 (S.D.N.Y.1999). But in that case the district court never accepted the appellants' attempts to characterize themselves as creditors. Id. at 738. The so-called creditors had sued the debtor in state court, not to win any damages but to rescind a contract under which they were liable to the debtor. Id. at 736. In the bankruptcy proceeding, they sought to stop funding the defense against their lawsuit and, after losing that attempt, they appealed. Id. at 737-38. The district court found that the appellants had no interest in the debtor besides their desire to stop the defense of the rescission lawsuit and thereby thwart the debtor from collecting against them. Id. at 738. Noting that other courts had found no standing where a party's interest in a Bankruptcy Court appeal is (only) that of a potential defendant to another lawsuit, the district court likewise denied standing to the appellants in that case, because they were not `directly and adversely affected pecuniarily' by the Bankruptcy Court's order except as adversaries to the Debtor's estate in other litigations. Id. at 739. That case is therefore nothing like this one, where Sprint is clearly a creditor (albeit one with an unliquidated claim) and where Sprint appeals seeking to enlarge its recovery, not to head off the collection of debts against it. The three additional district court decisions cited by the dissent are equally distinguishable. The first two do not involve creditors. In one, In re Taylor, the appellant was a chapter 7 debtor, see No. 00 Civ. 5021(VM), 2000 WL 1634371, at -2 (S.D.N.Y. Oct.30, 2000), a member of a class that often lacks standing in the bankruptcy court as well as on appeal, see In re 60 E. 80th St. Equities, Inc., 218 F.3d 109, 115-16 (2d Cir.2000). In the other, Freeman v. Journal Register Co., it was a shareholder of the debtor who appealed. See No. 09 Civ. 7296(JGK), 2010 WL 768942, at (S.D.N.Y. Mar.8, 2010). Although this case does not require us to address shareholder standing in bankruptcy cases, we note that some courts have been more cautious in granting standing to shareholders than to creditors. See In re Troutman Enters., Inc., 286 F.3d 359, 364-65 (6th Cir.2002). Finally, in the third case, Bartel v. Bar Harbor Airways, Inc ., the appellant was a creditor, but a creditor whose claim the bankruptcy court disallowed because the debtor had already settled it. See 196 B.R. 268, 271-72 (S.D.N.Y. 1996). There is all the difference in the world between a claim that has already been disallowed by the bankruptcy court, as in Bartel, and one like Sprint's that remains allowed and pending, whatever appellate judges might guess about its chances of success. None of these decisions have any bearing on the case before us. We think it plain that we should not forbid all appeals by out-of-the-money creditors. Such a rule would bar a large percentage of creditors in bankruptcy court, perhaps a majority of them, from ever reaching the district court or this Court, however erroneous the orders of the bankruptcy court might be. In this case, for instance, members of only two classes could appeal under the appellees' proposed rule—the holders of the First Lien Debt and Second Lien Debt—even though the plan involved twenty-six classes of claims and interests in ten different levels. The other twenty-four classes would have to be satisfied with whatever the plan awarded them. This would remain true, under the appellees' theory, even if the bankruptcy court had committed a fundamental error such as not allowing the out-of-the-money creditors to vote or not following another of the numerous requirements of § 1129. Such a result might benefit this Court's docket, but would disserve the protection of the parties' rights and the development of the law. We should not raise the standing bar so high, especially when it is a bar of our own creation and not one required by the language of the Code, which does not contain any express restrictions on appellate standing. Kane, 843 F.2d at 642. The appellees try to soften the negative consequences of their proposed rule by positing that a creditor in Sprint's position may appeal if it at least argues—as Sprint did in the district court but does not in this Court—that the bankruptcy court undervalued the estate and that, under a true valuation, there was enough to cover its claim. But that rule would not separate appropriate from inappropriate appeals by creditors; it would only increase the number of appeals involving frivolous valuation arguments. It would turn an extremely harsh rule into an easily-evaded one. We decline either variation of the proposed rule. Even taking the narrower perspective, focusing not on the plan's confirmation overall but only on the gift to the existing shareholder that Sprint challenges under the absolute priority rule, we still find standing. Sprint argues that the absolute priority rule entitled it to the full value of its claim before the plan could give any equity to the existing shareholder. A plan like this one that gives property to a junior interest-holder (the existing shareholder) must provide the senior claim-holder (Sprint) with property of a value ... equal to the amount of [its] claim. 11 U.S.C. § 1129(b)(2)(B). When the law requires full payment, getting less than full payment surely constitutes direct and financial injury. The appellees respond that Sprint is entitled to nothing under the priority rules and only receives anything because it itself is the beneficiary of a gift under the plan. Rejecting this plan would not give anything to Sprint, they argue: although an alternative plan might give Sprint the full value of its claim in order to maintain the gift to the existing shareholder, an alternative plan might well cut out both Sprint and the shareholder entirely. But we rejected just such an argument in Kane. In that case, we accepted the possibility that the appellant, Kane, actually benefitted from the plan he was challenging and could have fared worse under alternative plans. 843 F.2d at 642. We refused, however, to allow this possibility to defeat Kane's appellate standing: Kane might receive more under this Plan than he would receive in liquidation. However, he might do better still under alternative plans. Since the... Plan gives Kane less than what he might have received, he is directly and adversely affected pecuniarily by it, and he therefore has standing to challenge it on appeal. Id. at 642. We did not investigate any particular alternative plan or estimate the likelihood that a plan more advantageous to Kane would actually be adopted if the existing plan were rejected; rather, we found it sufficient for appellate standing that Kane might receive more under a different plan. Here, too, Sprint might do better still under alternative plans. Id. As the bankruptcy court found, there were good business reasons for the ... gifts to the existing shareholder, DBSD I, 419 B.R. at 212 n. 140, and those reasons might well lead the secured creditors to support the gift even at the price of sufficiently favorable treatment for Sprint to secure its support. Put another way, if the absolute priority rule applies, Sprint may use its unsecured claim as leverage to increase its share in the reorganized entity if the good business reasons for the gift to the existing shareholder are still worth the cost. By rejecting the absolute priority rule, however, the bankruptcy court eliminated Sprint's leverage and reduced its potential financial recovery. To be sure, enforcing the absolute priority rule in this case would make the gift to the existing shareholder more costly to the plan proponents, who would have to pay more to Sprint in order to maintain that gift. Sprint therefore risks receiving nothing by enforcing the absolute priority rule because, if its demands outweigh the gift's perceived benefits to the senior creditors, the latter may cut out the junior classes entirely and leave nothing for Sprint. Whether such a risk is in Sprint's best interests, however, is not the issue here. See Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 207, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988) ([I]t is up to the creditors—and not the courts—to accept or reject a reorganization plan which fails ... to honor the absolute priority rule.) For Sprint to have standing, we need only determine that, whatever the exact odds may be, Sprint at very least stands a reasonable chance of improving its position below. From whatever angle we look at the issue, therefore, we reject the appellees' challenge to Sprint's standing. Like the appellees, our dissenting colleague does not argue that all out-of-the-money creditors lack standing to challenge a plan for violating the absolute priority rule. See Dissent. Op. at 111. Rather, adopting an approach not argued by appellees, Judge Pooler finds that Sprint lacks standing because it is not only out of the money but has an unliquidated claim that might turn out to be valueless on its own merits. We do not find the ultimate merits of Sprint's claim against DBSD relevant. Standing to appeal in no way depends on the merits of the issue appealed, Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), and certainly cannot depend on the merits of an issue that is not before us at all. Here, the bankruptcy court allowed Sprint's claim against a DBSD entity for voting purposes, see Fed. R. Bankr.P. 3018(a), which are the only purposes that matter at this stage. The plan's supporters did not object to this ruling, did not appeal it, and do not argue that any uncertainty about the merits of Sprint's underlying claim against the debtor should deny Sprint standing. They have good reason for their silence before us, as the dissent cites no decision where standing turned on the unliquidated status of a creditor's claim, or on an appellate court's assessment of the likely merits of such a claim. Even if it were appropriate for us to consider the merits or ultimate worth of Sprint's claim, we would have no way to make that determination, lacking any briefing from the parties or much information in the record on appeal regarding the merits of that claim, which will turn not only on the potential offset of its obligations to the government (as the dissent recognizes) but also on the date that the relevant DBSD subsidiary occupied a specific band of the transmission spectrum. See DBSD IV, 427 B.R. at 249 n. 4. Because the parties do not brief the issue and did not raise it below, moreover, our evaluation of Sprint's claim would require piecing together the evidence without a guide. A rule that would turn a claimant's standing to appeal a bankruptcy court's ruling on the as-yet-undetermined merits of the claimant's underlying claim would unduly complicate the standing determination, and require district and circuit courts prematurely to address the merits of issues the bankruptcy court has not yet addressed. We see no need for such an inquiry. The bankruptcy court's temporary allowance of Sprint's claim for voting purposes was enough to allow it to object below, where no one argues that Sprint lacked standing. The ultimate merits of that claim should not determine standing here, where we have less ability than the bankruptcy court to decide those merits. Accordingly, we conclude that Sprint has standing to appeal the denial of its objection to the confirmation of the reorganization plan. We therefore turn to the merits of that objection.

Sprint's Standing to Appeal

119 To invoke the inability to comply exemption, a source must show that its inability was entirely beyond not only its own control, but also the control of those entities controlling it. In the language of section 120, the source must show that the inability results from reasons entirely beyond the control of the owner or operator of such source or of any entity controlling, controlled by, or under common control with the owner or operator of such source. Sec. 120(a)(2)(B)(iv). 120 EPA's implementing regulations look to management structure to interpret this requirement. EPA defines control as follows: 121 Control (including the terms controlling, controlled by, and under common control with) means the power to direct or cause the direction of the management and policies of a person or organization, whether by the ownership of stock, voting rights, by contract, or otherwise. 122 40 C.F.R. Sec. 66.3(f) (1981). The regulations provide that the source must demonstrate inability beyond its own control as well as the control of any affiliated entity. Id. Sec. 66.31(a)(4). Affiliated entity is in turn defined in terms of direct or indirect control: a person who directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the owner or operator of a source. Id. Sec. 66.3(b). 123 Petitioners claim that these definitions make no distinction between actual and ostensible control. They argue that it is not clear how much influence constitutes control and that EPA should have defined the terms management and policies. Accordingly, they ask that we vacate and remand the regulations to EPA for an identification of the basis for so broad a definition of control. 124 We disagree. The relevant issue in terms of the inability to comply exemption is fact oriented, focusing on the source's actual use of, or failure to use, its power. It is neither feasible nor desirable to force EPA to define in the abstract regulations for all possible factual circumstances. The question of whether a source, or an affiliated entity, used its power to create its inability to comply or could have so used its power to comply is properly left to the factfinder. Therefore, we affirm the regulations as to these definitions.

Controlling, Controlled By, or Under Common Control With

29 On appeal, Multi-Tech first challenges the district court's construction of the limitations that refer to sending, transmitting, and receiving data packets in claim 1 of the '649 patent; claims 1, 2, 5, 7, and 13 of the '627 patent; and claim 11 of the '532 patent. Multi-Tech argues that the court erred in restricting those limitations to the transmission of data packets over a direct point-to-point telephone line connection. According to Multi-Tech, the claims are directed only to the ends of the disclosed communications system and do not address what happens once the data packets are sent from the local user to the telephone line. Multi-Tech also argues that the specification describes a telephone line connected to a modem, which may be a direct end-to-end connection or may connect to a packet-switched network such as the Internet. Furthermore, Multi-Tech maintains that it did not disclaim transmission through a packet-switched network during prosecution of the '627 patent because it distinguished the Lewen reference by amending claims 1 and 13 to require a modem. Multi-Tech also argues that the term point-to-point, which it used in remarks made to the PTO during prosecution, can refer to a connection made over a packet-switched network. In any event, Multi-Tech contends, any disclaimer arising from the statements made during prosecution of the '627 patent should not be applied to the other two patents because the '649 patent issued before those statements were made and because the inventions claimed in the '649 and '532 patents are distinct from the invention claimed in the '627 patent. 30 Microsoft and Net2Phone respond that the claim language, particularly that of claim 7 of the '627 patent, and the specification require a direct point-to-point connection over a telephone line. They also argue that the prosecution history of the '627 patent mandates such an interpretation because Multi-Tech defined its invention as establishing a direct connection between the local and remote sites over a telephone line and argued that its claims require a point-to-point connection from the communications system through the [telephone] line to a receiving communications system at the other end of the line. Finally, Microsoft and Net2Phone maintain that the prosecution history of the '627 patent is relevant to an understanding of the other two patents, which stem from the same parent application and share a common specification. 31 Thus, the parties' dispute over the sending, transmitting, and receiving limitations reduces to a single issue: whether those limitations are restricted to communications over a telephone line or whether they may encompass communications over a packet-switched network such as the Internet. For the reasons enumerated below, we agree with Microsoft and Net2Phone that the district court properly construed the sending, transmitting, and receiving limitations in the '649, '627, and '532 patents as being limited to communications over a telephone line and excluding the use of a packet-switched network. 32 Claim interpretation begins with the claims themselves, the written description, and, if in evidence, the prosecution history. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.Cir.2002). Claim language generally carries the ordinary meaning of the words in their normal usage in the field of invention. Invitrogen Corp. v. Biocrest Mfg., L.P., 327 F.3d 1364, 1367 (Fed.Cir.2003). Although it is improper to read a limitation from the specification into the claims, Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed.Cir.1998), [c]laims must be read in view of the specification, of which they are a part, Markman, 52 F.3d at 979; see also United States v. Adams, 383 U.S. 39, 49, 86 S.Ct. 708, 15 L.Ed.2d 572 (1966) ([C]laims are to be construed in the light of the specifications and both are to be read with a view to ascertaining the invention.); Slimfold Mfg. Co. v. Kinkead Indus., Inc., 810 F.2d 1113, 1116 (Fed.Cir.1987) (Claims are not interpreted in a vacuum, but are part of and are read in light of the specification.). Indeed, [o]ne purpose for examining the specification is to determine if the patentee has limited the scope of the claims. Watts v. XL Sys., Inc., 232 F.3d 877, 882 (Fed.Cir.2000). When the specification makes clear that the invention does not include a particular feature, that feature is deemed to be outside the reach of the claims of the patent, even though the language of the claims, read without reference to the specification, might be considered broad enough to encompass the feature in question. SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1341 (Fed.Cir.2001). A patentee may also limit the scope of the claims by disclaiming a particular interpretation during prosecution. Biodex Corp. v. Loredan Biomed., Inc., 946 F.2d 850, 862 (Fed.Cir.1991). 33 We thus begin our analysis with the claim language itself. Claim 1 of the '627 patent recites a modem connected to a telephone line for receiving incoming packets from a remote site and for sending the outgoing packets to the remote site in full duplex communication mode. '627 patent, col. 46, ll. 50-53. Claim 7 of the '627 patent requires sending the outgoing packets to a remote site over a telephone line using a modem and receiving incoming packets through the modem from the remote site. Id. at col. 47, ll. 15-18. Similarly, claim 13 of the '627 patent recites transmitting the compressed outgoing digital voice packets on a communication line using a modem and receiving the compressed incoming digital voice data packets from the communication line. Id. at col. 48, ll. 44-47. Claim 1 of the '649 patent and claim 11 of the '532 patent recite transmitting the outgoing packet stream and receiving multiplexed incoming data. '649 patent, col. 47, ll. 18-19; '532 patent, col. 49, ll. 7-8. 34 From the plain language of those claims, only claim 7 of the '627 patent explicitly states that the transmission of data packets between the local site and the remote site must occur over a telephone line. Claim 1 of the '627 patent similarly refers to a telephone line, but is more ambiguous in that it refers to the modem connection rather than the data transmission. And the language of claim 13 of the '627 patent, claim 1 of the '649 patent, and claim 11 of the '532 patent is even more broad. It makes no reference to a telephone line and standing alone does not exclude data transmission over a packet-switched network. 3 35 Nonetheless, the claims must be interpreted in light of the specification, which is identical for all three patents and which repeatedly and consistently describes the local and remote systems of the claimed inventions as communicating directly over a telephone line. The Summary of the Invention portion of the specification states that the claimed personal communications system includes hardware to enable voice, fax and data communications with a remote site connected through a standard telephone line, '289 patent, col. 1, ll. 48-50, 4 as well as circuitry to transfer [data] over the telephone lines to a remote site, id. at col. 2, ll. 49-50. The specification further discloses that the hardware components of the local system communicate over a standard telephone line ... to one of a variety of remote sites. Id. at col. 5, ll. 63-64. It then describes various preferred embodiments of the invention, in all of which the hardware components of the local system communicat[e] over a standard telephone line to the disclosed hardware components, a facsimile machine, a modem, or a standard telephone at the remote site. Id. at col. 5, l. 64 to col. 6, l. 7; id. at fig. 1. The specification also discloses that the system allows the user to connect to remote locations equipped with a similar system or with modems, facsimile machines or standard telephones over a single analog telephone line. Id. at col. 6, ll. 36-39. 36 Those statements, some of which are found in the Summary of the Invention portion of the specification, are not limited to describing a preferred embodiment, but more broadly describe the overall inventions of all three patents. Indeed, they characterize the entire personal communications system as enabling communications between a local site and a remote site over a telephone line. Moreover, those descriptions of the claimed inventions are by no means limited to just the ends of the communications system as Multi-Tech argues. On the contrary, they explain that data packets from a local site are transferred over or through a telephone line to a remote site, making clear that the communications link between the local and remote systems is a telephone line. In fact, the specification refers to data transmission over or through a telephone line roughly two dozen times. Nowhere does it even suggest the use of a packet-switched network. In light of those clear statements in the specification that the invention (the present system) is directed to communications over a standard telephone line, we cannot read the claims of the '627 patent, the '649 patent, or the '532 patent to encompass data transmission over a packet-switched network such as the Internet. Instead, the specification shared by all three patents leads to the inescapable conclusion that the communications between the local and remote sites of the claimed inventions must occur directly over a telephone line. See SciMed Life Sys., 242 F.3d at 1342 (concluding that the common specification of three patents led to the inescapable conclusion that their claims required coaxial lumens, even though the claim language itself was not so limited); see also Alloc, Inc. v. Int'l Trade Comm'n, 342 F.3d 1361, 1370 (Fed.Cir.2003) (concluding that, read as whole, the common specification of three patents led to the inescapable conclusion that the claimed inventions must include play in every embodiment, even though the claim language was not so limited). Accordingly, we construe the sending, transmitting, and receiving limitations of the '627, '649, and '532 patents to require that the claimed data packets travel directly from a local site to a remote site (and vice versa) over a telephone line and not a packet-switched network. 37 Furthermore, an examination of the '627 patent's prosecution history confirms that Multi-Tech viewed its inventions as being limited to communications over a telephone line. In response to the examiner's first office action, Multi-Tech took the opportunity to provide a summary of the invention before addressing the § 103 rejection. It stated: 38 In their specification, Applicants disclose a communications system which operates over a standard telephone line. Such a telephone line is commonly referred to in the art as a plain old telephone service (POTS) line and establishes a point-to-point connection between telephone equipment on each end of the line. Applicants' invention ... transmits the packets across a POTS line to a remote site.... 39 (citations omitted). That statement, which expressly related to the specification shared by all three patents and the communications system disclosed in all three patents, makes clear that Multi-Tech viewed the local and remote sites of its inventions as communicating directly over a telephone line. Again, it does not describe just the connection at the ends of the claimed communications system, but explicitly states that the data packets travel across a [telephone] line to a remote site and further describes that path as being a point-to-point connection between each end. That statement unambiguously reflects Multi-Tech's own understanding of its inventions in the '627, '649, and '532 patents as being limited to the transmission of data packets over a telephone line. We cannot construe the claims to cover subject matter broader than that which the patentee itself regarded as comprising its inventions and represented to the PTO. 5 40 Moreover, although Multi-Tech made the above-quoted statement during prosecution of the '627 patent, it is also applicable to both the '649 and the '532 patents. In the past, we have held that the prosecution history of one patent is relevant to an understanding of the scope of a common term in a second patent stemming from the same parent application. E.g., Jonsson v. Stanley Works, 903 F.2d 812, 818 (Fed.Cir.1990); see also Laitram Corp. v. Morehouse Indus., Inc., 143 F.3d 1456, 1460 n. 2 (Fed.Cir.1998) (applying the prosecution histories of two sibling patents, which shared a common written description, to one another). We likewise believe that Multi-Tech's statement made during prosecution of the '627 patent is relevant to an understanding of the common disclosure in the sibling '649 and '532 patents. Multi-Tech's statement was expressly directed to the communications system disclosed [i]n the[] specification. That communications system encompasses the inventions of all three patents, see '289 patent, col. 1, ll. 35-37 (stating that the communications system ... contains multiple inventions), and as noted above, the specification is identical for all three patents. Multi-Tech's statement to the PTO was thus not limited to the invention disclosed in the '627 patent, but was a representation of its own understanding of the inventions disclosed in all three patents. We therefore conclude that that statement from the '627 patent's prosecution history is pertinent to an interpretation of the later issued '532 patent. See Elkay Mfg. Co. v. Ebco Mfg. Co., 192 F.3d 973, 980 (Fed.Cir.1999) (applying the prosecution history of one patent to a related, subsequently issued patent). 41 Furthermore, even though the '649 patent had already issued, we think that it is not unsound to apply the same interpretation to that patent. We take the patentee at its word and will not construe the scope of the '649 patent's claims more broadly than the patentee itself clearly envisioned. We also reject Multi-Tech's argument, based on Georgia-Pacific Corp. v. United States Gypsum Co., 195 F.3d 1322, 1333 (Fed.Cir.1999), that the statements made during prosecution of the '627 patent should not be applied to the '649 patent because the examiner could not have relied on those statements in allowing the claims of the '649 patent. We have stated on numerous occasions that a patentee's statements during prosecution, whether relied on by the examiner or not, are relevant to claim interpretation. Laitram Corp., 143 F.3d at 1462 (The fact that an examiner placed no reliance on an applicant's statement distinguishing prior art does not mean that the statement is inconsequential for purposes of claim construction.); E.I. du Pont de Nemours & Co. v. Phillips Petroleum Co., 849 F.2d 1430, 1438 (Fed.Cir.1988) (Regardless of the examiner's motives, arguments made during prosecution shed light on what the applicant meant by its various terms.). Georgia-Pacific is not to the contrary. In that case, we rejected the argument that the patentee was bound by statements made by the applicant in connection with a later application after the patent in suit had already issued. Ga.-Pac. Corp., 195 F.3d at 1333. The accused infringer argued that the patentee was foreclosed by the later statement from arguing in favor of a broader construction of the earlier patent, even though intrinsic evidence supported that broader construction. We rejected the argument that the patentee was bound, or estopped, by a statement made in connection with a later application on which the examiner of the first application could not have relied. We did not suggest, however, that such a statement of the patentee as to the scope of the disclosed invention would be irrelevant. Any statement of the patentee in the prosecution of a related application as to the scope of the invention would be relevant to claim construction, and the relevance of the statement made in this instance is enhanced by the fact that it was made in an official proceeding in which the patentee had every incentive to exercise care in characterizing the scope of its invention. Accordingly, we conclude that Multi-Tech's statements made during the prosecution of the '627 patent with regard to the scope of its inventions as disclosed in the common specification are relevant not only to the '627 and '532 patents, but also to the earlier issued '649 patent. 42 In sum, based on our analysis of the claim language, the specification, and the prosecution history, we conclude that the district court properly interpreted the sending, transmitting, and receiving limitations of the '627, '649, and '532 patents as requiring the direct transmission of data packets between the local and remote sites over a telephone line and excluding the use of a packet-switched network such as the Internet. This conclusion in and of itself leads to our affirmance of the district court's decisions. However, inasmuch as other issues of claim construction were decided by the district court and argued before us, we consider it to be in the interest of judicial efficiency, as well as in the interest of any future litigation concerning these patents, to review the other contested claim limitations. 6 43

The Sending, Transmitting, and Receiving Limitations

17 The district court analyzed the comprehensive scheme established by the three ordinances as a time, place, and manner restriction on speech. It therefore asked whether they are justified without reference to the content of the regulated speech, [whether] they are narrowly tailored to serve a significant governmental interest, and [whether] they leave open ample alternative channels for communication of the information. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). 18 The City argues that the district court should have applied the test for restrictions on commercial speech to the first two ordinances, which addressed only commercial signs, and should have reserved the time, place, and manner analysis for the final ordinance, which included non-commercial signs. The test for purely commercial speech, as articulated in Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 561, 100 S.Ct. 2343, 2348-49, 65 L.Ed.2d 341 (1980), indicates that commercial speech is protected only if it concerns lawful activity and is not misleading. If the speech is protected, then the government may regulate it only if the government has a substantial interest, if the regulation directly advances that interest, and if the regulation is no more extensive than necessary to serve that interest. Id. The City insists that the district court erred by refusing to apply this commercial speech test to the first two ordinances. 19 We conclude that this issue is moot. By the time trial took place, the first two ordinances no longer operated independently because the final ordinance had created a regulation restricting both commercial and non-commercial yard signs. Indeed, in its brief before this court, the City described the three ordinances as a comprehensive sign ordinance which applies even-handedly to all types of signs found in residential neighborhoods. We conclude that use of the commercial speech test would be inappropriate, as well as unhelpful, and we therefore decline to invoke it for purposes of deciding the constitutional issues presented in this case.

The Appropriate Constitutional Standard

In order to comply with the Congressional mandate, the USPS uses both traditional post offices (or classified post offices) as well as CPUs, postal facilities operated by private parties on private property pursuant to revenue-sharing contracts with the government. The CPUs furnish postal services to places where it is not otherwise geographically or economically feasible to build and operate official classified post offices. Originally called contract stations, CPUs have been used by the Postal Service since the 1880s. [3] The Glossary of Postal Terms defines a CPU as: A postal unit that is a subordinate unit within the service area of a main post office. It is usually located in a store or place of business and is operated by a contractor who accepts mail from the public, sells postage and supplies, and provides selected special services (for example, postal money order or registered mail).... United States Postal Service Glossary of Postal Terms, Publication 32, May 1997 (Updated With Revisions Through July 5, 2007) at 27. [4] Five thousand CPUs across the country are in locations as diverse as private homes, gas stations, seminaries, groceries, gift shops, and hardware stores. See Defendants' Statement Pursuant to Local Rule 56 of the Southern District of New York (Local Rule 56(a)1 Statement), ¶ 6, December 27, 2004; Postal Accountability and Enhancement Act § 302 Network Plan, June 2008, at 42-43. [5] Several are operated by faith-based entities. See Defendants' Local Rule 56(a)1 Statement, ¶ 16.

CPUs

8 9 Grandview Care Center, Inc., as an operator of nursing homes and an employer of between sixty and sixty-five individuals on a year-round basis, is an industry affecting commerce which qualifies as an employer under 42 U.S.C. Sec. 2000e(b) and is thereby subject to the antidiscrimination provisions of Title VII. Maddox's claim clearly comes within the purview of Title VII: she meets the statutory definition of employee in section 2000e(f), her claim involves her discharge which is an aspect of employment cognizable under section 2000e(a)(1), and she alleges discrimination on the basis of her pregnancy which is a protected classification under the statute as amended. The statute specifies that women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to do work.... 42 U.S.C. Sec. 2000e(k). Although this provision, known as the Pregnancy Discrimination Act of 1978 (PDA), was not included in the original statute, 3 this court has recognized that claims brought under the PDA should be resolved using the same analysis employed in other Title VII sex discrimination cases. Hayes v. Shelby Memorial Hospital, 726 F.2d 1543, 1547 (11th Cir.1984). 10 In order to prevail on a claim of disparate treatment under Title VII as Maddox alleges, 4 a plaintiff must prove that her employer unlawfully discriminated against her because of her protected classification. There are several methods by which a plaintiff can achieve this. In Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir.1984), this court provided a concise framework for the pursuit of claims under the most prevalent theories. Under the pretext theory, a plaintiff must establish a prima facie case, which gives rise to a rebuttable presumption of unlawful discrimination. Much has been written concerning what constitutes a prima facie case of discrimination under Title VII. The Supreme Court first drew a blueprint for establishing a prima facie case of disparate treatment in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and further refined the procedures in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). A defendant can then rebut this presumption by articulating a legitimate, nondiscriminatory reason for its actions. In order for the plaintiff to prevail, she must persuade the factfinder that the proffered reason is a pretext for discrimination. Under the facial discrimination theory, the plaintiff establishes a presumption that the case is one of facial discrimination by showing that the policy by its terms applies only to women or pregnant women. Hayes, 726 F.2d at 1548. The employer can rebut this presumption by showing that in spite of its appearance of differential treatment, the policy is neutral in that it equally affects all employees or that it is a bona fide occupational qualification. 11 Although these theories provide a framework under which the burdens of persuasion and production can be neatly delegated to the relevant parties, they will not fit every case and were never meant to obscure the fact that the ultimate finding is whether unlawful discrimination occurred. The Supreme Court has explained that 12 when the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff's proof by offering evidence of the reason for the plaintiff's rejection, the fact finder must then decide whether the rejection was discriminatory within the meaning of Title VII. 13 United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (footnote omitted). At this point, the court should no longer concentrate on deciding whether or not the plaintiff did in fact establish a prima facie case. Simply stated, the district court must decide whether the employer treated the plaintiff differently based on a reason prohibited by Title VII. The plaintiff still bears the burden of persuading the court of the unlawful discrimination and may succeed 'directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.' Id. 103 S.Ct. at 1482 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. at 1095). 14 15 Our role as a court of appeals is to review the district court's determination of the factual question of unlawful discrimination under Fed.R.Civ.P. 52(a) and decide whether its finding is clearly erroneous. Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). The Supreme Court recently restated the principles underlying the clearly erroneous standard of review and noted that [w]here there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Anderson v. City of Bessemer City, N.C., --- U.S. ----, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). We must review the district court's finding of unlawful discrimination in the instant case in light of the record viewed in its entirety with proper deference given to the trier of fact. Id. 105 S.Ct. at 1512. 16

The Applicable Legal Standards

Second, the record is unclear as to whether Marvel privately repudiated Friedrich's claim in its communications with Friedrich before April 4, 2004. Although Marvel contends that it told Friedrich that it 14 Under the 1909 Act, copyright protection was not renewed automatically. See 3 Nimmer on Copyright § 9.05[A][1]. Only certain parties could file for renewal and formal renewal was an absolute condition to continued copyright protection. Id. § 9.05[A][1], [D][1][a]. While subsequent amendments made it possible for the renewal rights in works published between 1964 and 1977 to vest without formal registration, see Copyright Renewal Act of 1992, Pub. L. No. 102-307, 106 Stat. 264; 3 Nimmer on Copyright § 9.05[A][1]-[2], this historical fact indicates that the name on the original 1972 copyright notice was not necessarily a public repudiation of Friedrich's claim to ownership of the renewal copyright. - 37 - considered Ghost Rider to be a work made for hire either at the time of the comic book's creation or at the time he executed the Agreement in 1978, the circumstances surrounding those events are in dispute. Only Marvel's letter dated April 16, 2004 clearly communicates that position to Friedrich. Because Friedrich filed his complaint less than three years later, his ownership claim would be timely if that was the first time Marvel privately repudiated his ownership claim. Accordingly, there is a genuine dispute as to when Marvel first told Friedrich that it intended to take sole credit for Ghost Rider.

Private Repudiation

The government crossed the line between permissible commentary on Flores’s testimony about her Facebook messages and that which we have long deemed impermissible. In a message dated June 21, 2012, Flores’s friend asked if she “carried some pot,” to which Flores responded, “yes.”5 In a second pair of June 21 messages, Flores says to a different friend, “come over and have a smoke” “of what I’m bringing.”6 Flores testified that these messages meant that she was bringing marijuana to Mexico and argued that they did not prove that she imported marijuana as charged. The government characterized these messages differently: You heard about some posts on [Flores’s] Facebook account from June 21st 2012 when she said she was carrying marijuana and bringing marijuana. You know what she was carrying on June 21st 2012. She was carrying and bringing marijuana from Mexico into the United States in her car. She tried to convince you. She tried to explain this away. She said, No. No. What I was doing was bringing marijuana from the United States of America into Mexico. 5 The Facebook postings are in Spanish, which the government translated for the jury. Flores translates the conversation differently, asserting that the question was, “Did you take weed.” 6 Flores also translates this conversation differently, asserting that the invitation was to “come so you can smoke out of what I have.” UNITED STATES V. FLORES 9 This argument reflects the government’s apparent strategy for using the Facebook messages to convince the jury that Flores (1) admitted to carrying drugs across the U.S.-Mexico border, and (2) was lying about the direction she carried the drugs. Both parts of this strategy are permissible. Prosecutors are free in argument to suggest that the jury draw reasonable inferences from the evidence presented at trial. United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997); see also Mageno, 762 F.3d at 943; United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991) (holding that prosecutors may argue that a defendant is lying). Here, there was more than enough evidence to support a reasonable inference that the Facebook messages actually meant that Flores was carrying drugs into the United States, rather than to Mexico as she testified. She was, in fact, carrying more than 36 pounds of marijuana in her car as she entered the United States on the very day she sent those messages. She then attempted to delete postings on her Facebook account from jail after the border patrol discovered the marijuana in her car. Of course, the jury was free to believe Flores’s explanation that the messages actually referenced exportation rather than importation, but the evidence adequately supported the government’s characterization of them. Even if we were to accept that those messages conveyed a desire to smoke marijuana in Mexico, nothing in them rules out the possibility that Flores was offering her friends an opportunity to smoke some of the more than 36 pounds of marijuana she picked up in Mexico before she carried it back to the United States. The latter possibility is all the more plausible because when Flores was arrested, she was not carrying any marijuana other than that found hidden in her car. This evidence supports the permissible inference the government asked the 10 UNITED STATES V. FLORES jury to draw—namely, that the Facebook messages referenced the very marijuana found in Flores’s car. This prosecutorial argument also accurately characterized Flores’s insistence that she carried drugs to Mexico but not to the United States. So long as the government accurately recounted what Flores said—and in the statement quoted above, it did—the government was free to ask the jury to disbelieve Flores. Further, the argument accurately states the law by explaining that Flores is guilty because, regardless of her Facebook postings and what she testified about them, Flores brought drugs into the United States. However, the government also strayed beyond the boundaries of permissible questioning and argument. The prosecutor repeatedly asserted that Flores had admitted to “drug smuggling.” As a legal but irrelevant matter, Flores did admit to drug smuggling, see 21 U.S.C. § 960—just not the kind of drug smuggling with which she was charged, which the prosecutor had to know. Labeling Flores an “admitted drug smuggler” when she actually admitted to exportation required the government to walk a very fine line. It was “definitely improper” for the prosecutor to suggest that Flores admitted to “drug smuggling” when the prosecutor used the term as a synonym for importation because that misstated Flores’s testimony. See United States v. Kojayan, 8 F.3d at 1321; see also Mageno, 762 F.3d at 943. At the same time, when loosely referencing “drug smuggling” to encompass exportation, the government could, without misstating testimony, assert that Flores admitted to drug smuggling. However, it was improper to use the “admission to drug smuggling” lingo in this loose manner when suggesting that such an admission was sufficient to warrant a conviction for the crime charged. Doing so misstates the law, because UNITED STATES V. FLORES 11 Flores was not charged with exportation—the only form of drug smuggling to which she actually admitted. The prosecutor improperly used the phrase “drug smuggling” as a synonym for importation frequently, from her opening statement through her last closing line to the jury. The government’s arguments that Flores admitted to drug smuggling at trial were therefore misleading, if not outright false. These misstatements became flat falsehoods with the prosecutor’s coup de grace: “She knows she was smuggling drugs on June 21st, 2012. You heard her say that repeatedly and that’s why she’s guilty beyond a reasonable doubt.” The jurors knew this was an importation case, so the only way Flores’s admission to “drug smuggling” would be a basis for finding her guilty beyond a reasonable doubt is if she had admitted to importation. Because she never made such an admission at trial, this statement falsely characterized Flores’s testimony. Moreover, to the extent that the prosecutor did not misrepresent Flores’s testimony, she misstated the law. Flores admitted at trial to exportation. She therefore could be found guilty beyond a reasonable doubt based on this admission only if exportation were adequate to support a conviction. Because Flores was on trial for importation, however, the argument that knowingly exporting marijuana was sufficient to support a guilty verdict misstated the law. The prosecutor also improperly invited the jury to convict Flores based on exportation rather than importation during cross-examination. After Flores admitted to carrying drugs into Mexico, the prosecutor asked, “That was illegal, wasn’t it?” Similarly, in closing, the prosecutor acknowledged that Flores “claimed she had smuggled drugs from the United 12 UNITED STATES V. FLORES States to Mexico,” then asserted, “[t]hat’s still smuggling drugs.” These statements are not technically untrue, as exportation is drug smuggling and is illegal. By specifically emphasizing the illegality of exportation, however, the government suggested that even if the jury believed that Flores only exported drugs, she “still” acted illegally. In doing so, the prosecutor overstepped by inviting the jury to improperly convict Flores based on exportation. The prosecutor made this worse by purposefully blurring and minimizing the distinction between importation and exportation. During cross-examination, the prosecutor asked whether Flores carried drugs “between” the United States and Mexico and “across” the border, without specifying a direction. In closing, the prosecutor then characterized a dispute over which direction the drugs traveled as a mere “quibble[],” minimizing the significance of that disputed fact. These statements, while again not untrue as an abstract legal matter, furthered the misimpression that the jury could convict Flores based on exportation. The government should have been much more cautious in brandishing the potentially misleading label of “admitted drug smuggler.” Had the government carefully and accurately used the term, it may have been able to avoid misstating the law or the facts. But the government was unable to do so, and in any event should not have tried to “push the envelope” in this manner. Ruiz, 710 F.3d at 1087 (Pregerson, J., concurring). As the Supreme Court has said, “[t]he United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose . . . interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berger v. United States, 295 U.S. 78, 88 (1935). UNITED STATES V. FLORES 13

The Prosecution’s Impermissible Statements

In May 2015, Butka filed a timely petition for review in this Court. The government responded with a motion to dismiss for lack of appellate jurisdiction, citing Lenis v. U.S. Attorney General, 525 F.3d 1291 (11th Cir. 2008). On October 16, 2015, after Butka replied to the motion, this Court issued an order carrying the government’s motion to dismiss with the case. The parties have now filed merits briefs addressing the BIA’s decision and reasserting their arguments concerning this Court’s jurisdiction. The parties debate whether Butka 9 Case: 15-11954 Date Filed: 07/05/2016 Page: 10 of 19 can use a motion to reopen sua sponte to (1) withdraw her earlier concession from January 2008 3 that she had a 1977 conviction in South Korea for possession of 105 grams of marijuana; (2) re-litigate and obtain de novo review of the BIA’s 2010 decision that she was ineligible for adjustment of status due to that 1977 conviction; and (3) submit new evidence and arguments in 2015 that were available in her original removal proceedings, her first BIA review, and her first petition for review before this Court. The government stresses that Butka’s request to reopen is based on changes in the facts, not on changes in the law. We need not reach and decide all these issues because we conclude we lack jurisdiction over Butka’s petition for review. 4

2015 petition for review and motion to dismiss

11 Plaintiff asserted state law breach of contract claims alleging defendants breached the provisions of the employment agreement. Applying Colorado law, we have held that an employer's personnel policies and procedures can form an implied contract. See Bullington, 186 F.3d at 1322. Policies and procedures that are nothing more than 'vague assurances' by the employer will not suffice. Id. (quoting Vasey v. Martin Marietta Corp., 29 F.3d 1460, 1465 (10th Cir. 1994)). 12 Plaintiff also asserted a claim of promissory estoppel premised on his alleged reliance on defendants' affirmative action policy. In order to sustain a claim under the theory of promissory estoppel, plaintiff must demonstrate that the employer should have reasonably expected the employee to consider the policy as a commitment from the employer, that the employee reasonably relied on the statements to [his] detriment, and that injustice can be avoided only by enforcement of the policy. Id. 13 In rejecting these claims, the district court provided a thorough analysis of the facts and the law. In plaintiff's sixty-three page appellate brief, he devotes only one short page to these issues and does not point this court to any error in the district court's analysis or conclusions. 2 This court is not required to manufacture a party's argument on appeal when it has failed in its burden to draw our attention to the error below. National Commodity & Barter Ass'n Nat'l Commodity Exch. v. Gibbs, 886 F.2d 1240, 1244 (10th Cir. 1989); see also Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (holding that perfunctory complaints which fail to frame and develop an issue are insufficient to invoke appellate review). Therefore, we affirm the district court on plaintiff's breach of contract and promissory estoppel issues for substantially the reasons stated in its August 4, 1999 order.

Breach of Contract and Promissory Estoppel Claims

15 No. 07-5466 “A trial court’s Rule 403 determination is reviewed for abuse of discretion.” United States v. Foster, 376 F.3d 577, 592 (6th Cir. 2004). “A district court abuses its discretion when it applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.” United States v. Pugh, 405 F.3d 390, 397 (6th Cir. 2005) (citation and quotation marks omitted). This Court may reverse the district court’s decision “only if [it is] firmly convinced that a mistake has been made.” Id. This Court reviews the district court’s exercise of discretion “in the light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial effect.” United States v. Zipkin, 729 F.2d 384, 389 (6th Cir. 1984). “Rule 403 governs whether evidence that is relevant under Federal Rule of Evidence 401 is admissible.” United States v. Caver, 470 F.3d 220, 240 (6th Cir. 2006). “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403. The district court has “very broad” discretion in weighing the evidence under Rule 403. Caver, 470 F.3d at 240. “The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180 (1997) (citation omitted). Unfair prejudice “refers to the evidence which tends to suggest [a] decision on an improper basis.” Caver, 470 F.3d at 240. Such an improper basis is “commonly, though not necessarily, an emotional one.” Old Chief, 519 U.S. at 180. 16 No. 07-5466 One factor in the “Rule 403 balancing is the availability of other means of proof, which would reduce the need for the potentially confusing evidence.” United States v. Merriweather, 78 F.3d 1070, 1077 (6th Cir.1996). “Another consideration . . . is whether the ‘reverberating clang’” of the prejudicial nature of the evidence will “drown [the] weaker sound” of the probative value of the evidence. Id. (quoting Shepard v. United States, 290 U.S. 96, 104 (1933)). The district court initially determined that the only admissible testimony concerning the bank robbery was Melia’s statement that he was called to the duplex because he was investigating Kellogg’s role in “another crime.” The government argues that Kellogg’s testimony opened the door to the more detailed testimony on the bank robbery by challenging Melia’s credibility and by putting his own credibility at issue. However, maximizing the probative value of the evidence of the bank robbery and minimizing its prejudicial nature, see Zipkin, 729 F.2d at 389, this Court believes the district court abused its discretion in allowing the government to present as much evidence of the robbery as it did. As a preliminary matter, although the government contends the testimony of the bank teller and the FBI agent investigating the bank robbery were necessary to rebut Kellogg’s testimony, the government introduced prejudicial testimony concerning the robbery before Kellogg even took the stand. During Melia’s direct testimony, he stated that Kellogg had told him that forensic testing of the gun found at the duplex would match the shot “fired during the other crime I was investigating.” This statement was highly prejudicial, as it informed the jury that Kellogg may have been involved in a recent shooting; the fact that a shot had been fired was of little to no probative value in proving that Kellogg possessed the gun in the duplex. 17 No. 07-5466 During his testimony, Kellogg accused Melia, in claiming that Kellogg admitted the gun and drugs were his, of “stretching the truth,” and denied that Melia had ever questioned him about the gun. Certainly, the government was entitled to rebut that testimony by allowing Melia to testify as to some of the details of his interrogation of Kellogg in the FBI office that contradicted Kellogg’s account. However, the court went too far in allowing a lengthy narrative of the bank robbery to be presented at trial. The bank teller testified in great detail about the course of the robbery–including that the robber pointed a gun at her, threatened to kill her, and jumped onto the counter to force her to hand over the money. Moreover, the jury was presented with strong evidence that Kellogg was the bank robber: the teller, who had closely interacted with the bank robber, identified Kellogg as the robber; the FBI agent who had investigated the robbery testified that the robber’s Yankees hat and wristwatch were found at the duplex, as were shoes matching a shoe print the robber had left on the bank counter; the FBI agent also testified that ammunition matching the shot fired during the robbery was found in Kellogg’s car in Guntersville; and Melia testified that Kellogg confessed to the bank robbery at the FBI office. The unmistakable conclusion to draw from all of this testimony was that Kellogg, on trial for gun and drug possession, had menacingly robbed a bank at gunpoint just a few days earlier. While this evidence may have been somewhat probative as to whether the gun found at the duplex was Kellogg’s and whether it had traveled in interstate commerce, it was unfairly prejudicial because of its “improper basis:” to convince the jury that Kellogg was a bank robber, on the loose and dangerous. See Caver, 470 F.3d at 240. In our view, the evidence of the bank robbery likely “drown[ed] [the] weaker sound” of Kellogg’s gun possession, and could have led the jury to 18 No. 07-5466 convict him based on a crime for which he was not charged. See Merriweather, 78 F.3d at 1077; Old Chief, 519 U.S. at 180. Further, the government presented plenty of other evidence proving Kellogg’s possession of the gun–including its discovery at the duplex where he was staying and his statement to Melia at the FBI office that the gun was the same one fired during the other crime–and also presented unrebutted testimony that the gun had been manufactured in Arkansas. Thus, to the extent that the bank robbery evidence was admitted simply to rebut Kellogg’s assertion that he did not possess the gun, or to prove that the gun had traveled in interstate commerce, it was largely unnecessary. See Merriweather, 78 F.3d at 1077. “A limiting instruction will minimize to some degree the prejudicial nature of other criminal acts; it is not, however, a sure-fire panacea for the prejudice resulting from needless admission of such evidence.” United States v. Haywood, 280 F.3d 715, 724 (6th Cir. 2002). Although the district court instructed the jury not to consider the bank robbery as evidence of Kellogg’s guilt for the crimes charged, the sheer weight of the evidence that was introduced regarding the robbery would have likely undermined that instruction in the mind of a reasonable juror. Accordingly, this Court finds that the district court abused its discretion in admitting so much evidence of the bank robbery. The district court must conduct a new trial to remedy its error. III. Identification of Kellogg as Guntersville Bank Robber A. Standard of Review This Court reviews the admission of in-court identification testimony for abuse of discretion. United States v. Hill, 967 F.2d 226, 230 (6th Cir. 1992). 19 No. 07-5466 B. Analysis The introduction of an unreliable identification of a defendant obtained through impermissibly suggestive procedures violates the defendant’s right to due process. Moore v. Illinois, 434 U.S. 220, 227 (1977). To determine whether identification evidence is admissible, this Court must first ask whether the “identification procedure was impermissibly suggestive.” United States v. Hill, 967 F.2d 226, 230 (6th Cir. 1992). Should the identification procedure be found impermissibly suggestive, this Court must determine “whether, under the totality of the circumstances, the testimony was nevertheless reliable.” Id. An analysis of five factors guides the reliability determination: (1) the witness’ opportunity to view the suspect at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the suspect; (4) the level of certainty displayed by the witness during the confrontation; and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199 (1972); see Hill, 967 F.2d 226, 232 (applying Bigger factors to witness’ in-court identification). “Against these factors is to be weighed the corrupting effect of the suggestive identification itself.” Manson v. Brathwaite, 432 U.S. 98, 114 (1977). However, “[a]s long as there is not a substantial likelihood of misidentification, it is the function of the jury to determine the ultimate weight to be given to the identification.” United States v. Causey, 834 F.2d 1277, 1285 (6th Cir. 1987) (quotation marks and citations omitted). The bank teller’s in-court identification of Kellogg was not in response to any question from the prosecutor, who never asked her to identify the robber and had only asked her whether or not the bank robber was visible in one of the photos he was showing her. Accordingly, while the bank teller’s sudden ability to identify the bank robber in the courtroom might raise a credibility issue, the 20 No. 07-5466 identification does not appear to have derived from any suggestive procedure, and therefore did not violate Kellogg’s due process rights. See Hill, 967 F.2d at 230; Causey, 834 F.2d at 1286 (“The prior failure of the witness to identify the defendant goes only to the weight to be accorded testimony, not its admissibility.”). Moreover, even if the prosecutor’s questioning of the bank teller could be considered suggestive, the identification seemed to be reliable enough that the district court did not abuse its discretion by allowing it. The bank teller, as the employee who had to listen and respond to the robber’s demands, had ample opportunity to view the robber and pay close attention to him at the time of robbery. She testified that she “looked up at his face” when he handed her a robbery note, and exchanged several words with him before handing him the cash drawer. At trial, she demonstrated a detailed memory of the robbery before seeing the photos of the robbery scene, describing the robber’s gun, his clothing and his movements in detail. While her prior description of the robber–that he was a tall black man with “medium complexion”–was somewhat vague, its accuracy had not been questioned. She did not express any doubt that Kellogg was the robber, repeating twice that she recognized him sitting in the courtroom. Therefore, although significant time had elapsed since the robbery, the other Bigger factors tend to support the reliability of the identification. The district court did not abuse its discretion in admitting the identification.

Evidence of Guntersville Bank Robbery

abdominal bloating and bowel gas) without documentation. Dr. Long noted that x-rays revealed normal (spinal) alignment, normal disc spaces, and . . . joints . . . within normal limits. Processes are intact. There are . . . small anterior marginal osteophytes at L3 and L4 but the lumbar spine is otherwise within normal limits. Before Martinez testified, the medical expert, Dr. Daily, expressed his opinion that, although there was some conflict in the medical evidence, Martinez' medical records indicated that he could perform medium work. After Martinez testified, Dr. Daily qualified his opinion by stating that, considering Martinez' testimony as credible, additional medical tests would be required to determine whether Martinez was capable of medium work. Dr. Daily stated that Martinez' medical records were sufficient for him to express a confident opinion as to all of Martinez' claimed impairments except his complaints of fatigue. Dr. Daily opined that Martinez' diabetes could not cause the extreme symptoms of chronic fatigue that Martinez described. Dr. Daily suggested that Martinez be referred for a consultative 7 examination to determine whether he suffered from chronic fatigue syndrome. Dr. Daily found no musculoskeletal disability or indication of a coronary problem. In response to questions by Martinez' attorney, Dr. Daily qualified his prior testimony by agreeing that Martinez' diabetes could be partially responsible for his complaints of fatigue and poor bladder control; however, Dr. Daily indicated that further testing would be required to resolve the issue. Dr. Moore performed a consultative medical exam which included the tests recommended by Dr. Daily. Dr. Moore reported that Martinez suffered from arthritis of the spine but that he had no significant physical abnormalities nor evidence of functional limitations . . . . He further reported that, although Martinez had a history of non-insulin dependent diabetes with a history of poor control, Dr. Moore found no evidence of end organ damage due to the diabetes. Based on his examination, Dr. Moore determined that Martinez had no impediments to his ability to lift, carry, stand, walk, or sit; that he could climb, crouch, kneel, and crawl occasionally; and that he had no other limitations on his work-related activities. This determination supports the ALJ's finding that Martinez could perform his past relevant work as a sander or fruit picker. Without discussing the results of the follow-up consultative medical examination, Martinez cites Dr. Daily's statement at the hearing that he would not send [Martinez] out today to do medium 8 work, arguing that there is no evidence to show that Martinez can perform medium work. Martinez misses the point and misconstrues Dr. Daily's statement. Dr. Daily did not state that Martinez was incapable of medium work; he stated that without further testing he could not determine whether Martinez was capable of medium work. Thus, Martinez' argument that there is no evidence to support the finding of no disability is incorrect. Martinez also insists that the district court erred by disregarding the evidence of his treating physician, Dr. Yeung Chan. Although not conclusive, an evaluation by the claimant's treating physician should be accorded great weight. Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994), cert. denied, No. 948717, 1995 WL 156211 (U.S. May 15, 1995). A treating physician's opinion on the nature and severity of a patient's impairment will be given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with . . . other substantial evidence. 20 C.F.R. § 404.1527(d)(2). Even though the opinion and diagnosis of a treating physician should be afforded considerable weight in determining disability, the ALJ has sole responsibility for determining a claimant's disability status. Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). `[T]he ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion.' Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (citation omitted). Dr. Chan's opinion that Martinez is totally disabled is not 9 entitled to controlling weight because Dr. Chan failed to provide a medical explanation for his opinion, and because Dr. Chan's opinion is inconsistent with the opinions of Drs. Long and Moore, which were based on clinical test results. As substantial evidence supports the determination that Martinez is not disabled, the Commissioner's decision must stand. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 390; Villa, 895 F.2d at 1021-22. AFFIRMED. 10

Alleged stomach problems (mainly

Plaintiffs have brought claims of free speech, free exercise of religion, and free assembly. Although not identical, the constitutional standards for speech, religion, and assembly are similar. Turning first to freedom of speech, we note that the Supreme Court has set forth two separate tests to determine whether a governmental restriction on speech violates the First Amendment--strict scrutiny and intermediate scrutiny. The key to deciding which test to apply to the government’s conduct is whether the restriction was content-based, in which case the strict scrutiny test applies, or content-neutral, in which case we apply intermediate scrutiny. Strict scrutiny, as applied to content-based restrictions of speech, requires the government to show that the restriction at issue is narrowly tailored to promote a compelling governmental interest. United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000). If a less restrictive alternative is available, the governmental restriction cannot survive strict scrutiny. See id. Intermediate scrutiny, on the other hand, requires the government to demonstrate that: (1) the restriction is within the constitutional power of the government; (2) the restriction furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of 13 that interest. United States v. O’Brien, 391 U.S. 367, 377 (1968); Horton v. City of Houston, 179 F.3d 188, 194 (5th Cir. 1999). Courts often shorten this inquiry into whether the restriction is narrowly tailored to serve a significant government interest and leaves open alternative channels of communication. See Horton, 179 F.3d at 194. In the context of intermediate scrutiny, “narrowly tailored” does not require that the least restrictive means be used. Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989). Rather, so long as the restriction promotes a substantial governmental interest that would be achieved less effectively without the restriction, it is sufficiently narrowly tailored. Id. at 799. The principal inquiry in determining whether a restriction is content-based or content-neutral, and thus whether strict or intermediate scrutiny should be applied, is whether the government has adopted the restriction of speech because of the government’s disagreement with the message conveyed. Id. at 791. “A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.” Id. (holding a regulation is content-neutral as long as it is justified without reference to the content of the regulated speech). Consequently, in order to determine which test should be applied to Columbia’s restriction of Plaintiffs’ speech--strict scrutiny or 14 intermediate scrutiny--we must decide whether Columbia’s restriction was based on the content of Plaintiffs’ speech or rather was content-neutral. The constitutional tests for whether governmental action unconstitutionally infringes on the free exercise of religion and freedom of assembly are similarly dependent on whether the restriction was motivated by the nature of the conduct that is restricted. With respect to the free exercise of religion, if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993). In other words, a restriction of religious practices because of their religious nature must survive strict scrutiny. See id. at 546. However, a law that is neutral and of general applicability need not be justified by a compelling governmental interest, even if that law has the incidental effect of burdening a particular religious practice. Id. at 531. Thus, the motivation for the restriction on the exercise of religion must be established before the restriction can be legally analyzed.6 Likewise, the Supreme Court has held that an infringement on 6 Although the free exercise test is typically framed in terms of analyzing a “law,” its analysis can be applied to Columbia’s actions as a governmental authority. 15 the right to associate for expressive purposes can be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984); see also La. Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1498 (5th Cir. 1995) (applying strict scrutiny to restriction on associational freedoms). Therefore, the restriction on freedom of assembly must also be unrelated to the purpose of the assembly. Given the above tests for violations of the First Amendment rights of free speech, free exercise of religion, and free assembly, it is clear that the motivation for the restriction at issue is key to determining which constitutional standard should be applied. For purposes of this opinion, we will use the terms “content-based” and “content-neutral” to describe the possible motivations of Columbia’s officers, although the tests for free exercise of religion and free assembly do not generally use those terms. Once we determine whether the restriction was contentbased or content-neutral, we will know which constitutional standards to apply to Columbia’s conduct. We now consider the reasons set out by Columbia to explain its officers’ actions and whether Plaintiffs have created a genuine issue of material fact that those were Columbia’s true reasons for restricting 16 Plaintiffs’ rights.7 B. Whether Columbia’s Actions Were Content-Based or ContentNeutral Numerous content-neutral reasons have been put forward by Columbia to justify its police officers’ actions on February 12, 2005. Russell was arrested for violating the Resisting, Standing, and Permit statutes, so those statutes could provide a reason to threaten Plaintiffs with arrest. During litigation, Columbia argued that sections 14:97 and 48:21 of the Louisiana Revised Statutes provided a justification for its actions. Trespassing and general safety concerns have also been alleged. If the evidence shows that these content-neutral reasons were Columbia’s actual reasons, then we may apply intermediate scrutiny. If, however, Plaintiffs have created a genuine issue of material fact as to whether these asserted reasons were Columbia’s actual reasons or whether Columbia acted because of the content of Plaintiffs’ demonstration, we must reverse and remand for a determination of Columbia’s true motivations. Only then will it be clear whether strict scrutiny or a lesser form of 7 We note that municipal liability under 42 U.S.C. § 1983 must be premised on the policy or custom of the municipality or the act of a policymaker. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). The parties have not raised or briefed this issue; therefore, our focus in this case is on the actions of the officers, which is what the parties have argued. But see Collins v. City of Harker Heights, 503 U.S. 115, 123 (1992) (stating that a municipality is not subject to liability under § 1983 by way of respondeat superior). 17 scrutiny applies. We turn first to the three statutes--Resisting, Standing, and Permit--that the district court determined were inapplicable to Plaintiffs’ conduct. Columbia has not contested on appeal the district court’s conclusion that the statutes were inapplicable; however, we emphasize the fact that, as shown below, even taking the officers’ allegations as true, Plaintiffs’ conduct could not have violated the statutes. Section 14:108, the Resisting statute, provides that it is an offense to intentionally interfere with an officer making a lawful arrest, seizing property, or serving process. Louisiana courts have limited the reach of this statute to interference with those actions alone. State v. Huguet, 369 So. 2d 1331, 1333 (La. 1979); State v. Joseph, 759 So. 2d 136, 140 (La. Ct. App. 2000); State v. Green, 706 So. 2d 536, 539 (La. Ct. App. 1997). Because Plaintiffs were not interfering with an arrest, seizure of property, or service of process, the Resisting statute could not have been applied to their actions.8 The Standing statute, section 32:143, states that “[n]o person shall stand, or park a vehicle” within fifteen feet of a fire hydrant, within twenty feet of a crosswalk, or within twenty 8 Although the police officers did arrest Russell, the DVD does not reflect, and Columbia does not contend, that Plaintiffs interfered with that arrest in any way. 18 feet upon the approach to any stop light. Although Plaintiffs were “standing” within these areas, “stand” is defined in section 32:1(71) as temporarily halting a vehicle. Therefore, the statute is inapplicable to human beings, such as SPF members, who are standing in these areas. Finally, the Permit statute, section 14:326, requires groups to obtain a permit before staging a parade, march, or demonstration. However, the statute only applies to parishes with populations of at least 450,000. LA. REV. STAT. ANN. § 14:326(C). Caldwell Parish, in which Columbia is located, clearly did not meet this population threshold; therefore, Plaintiffs were not required to obtain a permit before demonstrating in Columbia. As a result, Plaintiffs’ conduct, as alleged by Columbia’s police officers, would not have resulted in the violation of any of these statutes. Consequently, there is a genuine issue of material fact as to whether the officers were motivated to restrict Plaintiffs’ First Amendment rights on the basis of these statutes. By this we are not saying that there is a fact issue regarding the First Amendment anytime an individual’s rights are restricted by application of a content-neutral statute and the individual is subsequently determined to be not guilty of violating that statute. Nor are we holding that it is appropriate to assume the officers were motivated by the content 19 of Plaintiffs’ demonstration just because Plaintiffs were not in violation of the statutes. Rather, we are simply stating that the absence of any allegations by the officers that would have supported a finding that Plaintiffs were violating the Resisting, Standing, and Permit statutes creates a genuine issue of material fact as to whether the officers were actually motivated to restrict Plaintiffs’ demonstration on the basis of those statutes. Columbia was able to successfully defend its actions on February 12, 2005, to the district court on the basis of sections 14:97 and 48:21 of the Louisiana Revised Statutes. Section 14:97 makes simple obstruction of a highway punishable by a fine, imprisonment, or both. Simple obstruction is defined as “the intentional or criminally negligent placing of anything or performance of any act on any railway, railroad, navigable waterway, highway, thoroughfare, or runway of an airport, which will render movement thereon more difficult.” Section 48:21 states that the functions of the Louisiana Department of Transportation and Development are “to study, administer, construct, improve, maintain, repair, and regulate” the roads in Louisiana. We make no determination whether Plaintiffs violated either of these two statutes or whether the district court correctly 20 interpreted them. We do, however, hold that there is no evidence that these statutes provided the basis for Columbia’s actions on February 12, 2005. In its order on the cross-motions for summary judgment, the district court recognized that these statutes were “not relied upon to remove” Plaintiffs. (01/25/06 Dist. Ct. Ruling at 8). Instead, these statutes were first advanced by Columbia after litigation commenced. The district court erred in using these statutes to create a content-neutral justification for Columbia’s actions on February 12, 2005, without any evidence that Columbia’s police officers actually relied on those statutes on that day. Therefore, Columbia’s motivation for restricting Plaintiffs’ First Amendment rights remains a genuine issue of material fact. Columbia also asserts that Plaintiffs were trespassing on February 12, 2005. Miles did state on the DVD that Plaintiffs were not welcome on either United Methodist’s property or the state’s property, indicating that he believed Plaintiffs were trespassing. To the extent Plaintiffs were standing on United Methodist’s property, Plaintiffs do not contest that they could be removed for trespassing. See LA. REV. STAT. ANN. § 14:63. The same does not hold true for the paved shoulder, however. Columbia points to no law that makes it a trespass to stand on state property next to a highway. In its opinion on Plaintiffs’ 21 preliminary injunction motion, the district court determined that the paved portion of Highway 165 was “‘the archetype of a traditional public forum.’” (05/05/05 Dist. Ct. Op. at 9) (citing Frisby v. Schultz, 487 U.S. 474, 480 (1988)). Restrictions on demonstrations on the paved shoulder are thus subject to analysis under the strict or intermediate scrutiny standards, depending on whether the restriction was content-based or content-neutral. See Frisby, 487 U.S. at 481.9 Therefore, whether Columbia’s restrictions on Plaintiffs’ demonstration were content-based or content-neutral is still a fact question. The district court stated in its order below that, after reviewing the DVD of the May 21, 2005, incident, “the Court concludes that the officers were not prohibiting the [SPF members’] demonstration, but again, merely trying to move the [SPF members] away from the intersection for the safety of drivers as well as the [SPF members].” (01/25/06 Dist. Ct. Ruling at 9). This conclusion was erroneous for several reasons. First, the motivations for the officers’ actions on May 21, 2005, say little, if anything, about the officers’ motivations on 9 Although not necessary to our decision, we note that the DVD of the February 12, 2005, incident shows police cars parked on the paved shoulder of Highway 165. As the cars were more than two feet wide, this evidence appears to conflict with the district court’s finding that the paved shoulder is only two feet wide. The DVD suggests that the width of the paved shoulder might vary, but it is, at the very least, a fact issue. 22 February 12, 2005. Indeed, it is not clear that the same officers were involved in each incident. Second, the DVD is far from conclusive evidence that the officers were only concerned about the safety of drivers and Plaintiffs on May 21. The DVD shows that the officers claimed to be relying on state law when they required Plaintiffs to stand over twenty-five feet from the intersection of Highway 165 and Pearl Street. However, the district court had already ruled that the Standing statute, section 32:143, did not apply to Plaintiffs’ conduct and had preliminarily enjoined Columbia from enforcing the statute against Plaintiffs. Columbia has offered no other justification for the twenty-five foot rule. Further, Coleman was arrested for violating section 14:108, the Resisting statute, but, again, there is no evidence on the DVD that he interfered with an officer making an arrest, seizing property, or serving process. See Huguet, 369 So. 2d at 1333. The district court had also enjoined the use of that statute against Plaintiffs. Finally, it is a fact question whether the traffic conditions were hazardous enough to require Plaintiffs to refrain from standing near the intersection. Indeed, other pedestrians were permitted to walk through the areas in which Plaintiffs wished to stand. Therefore, the police officers’ motivations on May 21, 2005, are far from clear. Columbia tries to analogize its case to one considered by the Eighth Circuit in Frye v. Kansas City Missouri Police 23 Department, 375 F.3d 785 (8th Cir. 2004). In Frye, the plaintiffs demonstrated against abortion by standing on the side of a road holding signs, some of which contained pictures of mutilated fetuses. Id. at 788. Following complaints from drivers, the police gave the plaintiffs the choice of either relocating to a different portion of the road or taking down the graphic signs. Id. Several demonstrators were arrested under the loitering ordinance when they refused to obey. Id. The Eighth Circuit found no First Amendment violation. The court stated that the officers’ actions were not motivated by the content of the signs, but rather out of a concern for public safety. Id. at 790 (holding that the plaintiffs’ message was not suppressed, but only regulated as to time, place, and manner). The facts in the instant lawsuit are distinguishable from those in Frye. First, it is unclear how the Eighth Circuit arrived at the conclusion that the officers’ actions were not motivated by the content of the signs; therefore, the evidence may be markedly different. Second, the officers in Frye did not completely stop the demonstration, but permitted it to continue in a different place or with different signs.10 Here, there is no evidence that on February 12, 2005, Columbia gave Plaintiffs any option other than to stop the demonstration entirely. If 10 We do not necessarily hold that the approach taken by the officers in Frye would be acceptable in this case. Each case must be decided on its own facts. 24 this is the case, it is questionable whether the cessation of the demonstration altogether was narrowly tailored. The Seventh Circuit encountered a similar situation in Ovadal v. City of Madison, 416 F.3d 531 (7th Cir. 2005). In Ovadal, the plaintiff, Ralph Ovadal, demonstrated against homosexuality by holding up signs on pedestrian overpasses. Id. at 533-34. Responding to complaints by drivers that the signs were causing traffic problems, police officers eventually told Ovadal that he was no longer allowed to display his signs on pedestrian overpasses, citing the disorderly conduct statute. Id. at 534. The Seventh Circuit determined there was a genuine issue of material fact as to whether Ovadal’s First Amendment rights had been violated. Id. at 537-38. The court found fact issues as to whether the ban on Ovadal’s actions was contentneutral, whether it was narrowly tailored, whether the city would have banned all demonstrations on pedestrian overpasses regardless of content, whether a rule that banned demonstrators if their signs caused traffic problems could even be applied in a content-neutral manner, and whether the ban was really just aimed at Ovadal. Id.11 11 On remand, the district court in Ovadal held a bench trial and found that the restriction was content-neutral and satisfied strict scrutiny. Ovadal v. City of Madison, No. 04-C- 322-S, 2005 WL 3434402, at (W.D. Wis. Dec. 13, 2005). The Seventh Circuit affirmed the decision, Ovadal v. City of Madison, 469 F.3d 625, 631 (7th Cir. 2006), and Ovadal has filed a petition for certiorari with the Supreme Court. 25 Ovadal is similar to the instant case in that there is simply too much uncertainty about the motivations of the governmental action to determine whether a First Amendment violation took place. Here, as discussed above, the reason for the police officers’ actions on February 12, 2005, is a fact question. Further, Miles, the officer who threatened Plaintiffs with arrest, had previously made comments indicating he did not approve of Plaintiffs’ graphic signs. When combined with the lack of undisputed evidence as to why Plaintiffs’ First Amendment rights were restricted, there is a fact issue regarding whether the officers were actually motivated by the content of Plaintiffs’ demonstration, which prevents summary judgment on the issue of whether the restriction was content-based or contentneutral. Without knowing the motivation for the restriction, we cannot determine which test to apply--strict scrutiny or a lesser level of scrutiny. Summary judgment on this issue was, thus, inappropriate, and we must reverse the district court’s decision to grant Columbia’s motion for summary judgment; however, we will affirm the district court’s decision to deny Plaintiffs’ motion for summary judgment, as there are fact issues in this case. 26 C. Other Relief Finally, Plaintiffs requested, and were denied, declaratory relief, injunctive relief, and attorneys’ fees. To the extent Plaintiffs seek a declaration that their First Amendment rights were violated by Columbia’s restriction of their demonstration on February 12, 2005, we must reverse for the above-stated reasons. If Plaintiffs are seeking a declaration that they may demonstrate in Columbia in the future and injunctive relief to that effect, we also reverse so that the district court may make this ruling after determining whether Plaintiffs’ First Amendment rights are actually being infringed. As for attorneys’ fees, 42 U.S.C. § 1988 provides that courts, in their discretion, may award attorneys’ fees to prevailing parties in § 1983 cases. Because the prevailing party is yet unknown in this case, we also reverse the district court’s ruling on attorneys’ fees.

First Amendment Standards

The federal government provides rental assistance for low and moderate income families, the elderly, and the disabled through what is known as “the section 8 program.” Congress added the section 8 program to the United States Housing Act of 1937 in 1974 by enacting the Housing and Community Development Act of 1974, Pub. L. No. 93-383, § 201(a), 88 Stat. 633, 662-66 (1974) (codified as amended at 42 U.S.C. § 1437f). The express congressional “purpose” of the section 8 program is “aiding low-income families in obtaining a decent place to live and . . . promoting economically mixed housing.” 42 U.S.C. § 1437f(a). The program is managed federally by HUD, and administered locally by public housing authorities (“PHA”). Section 8 tenants must sign a lease and pay a portion of their income toward rent. The remainder of the rent charge is paid by PHA pursuant to a housing assistance payment (“HAP”) contract between PHA and the owner, which mandates that a lease “shall be for a term of not less than [one] year,” id. § 1437f(o)(7)(A), shall “contain terms and conditions that . . . are consistent with State and local law,” id. § 1437f(o)(7)(B)(ii)(I), and “shall provide that during the term of the lease, the owner shall not terminate the tenancy except for serious or repeated violation of the terms and conditions of the lease, for violation of applicable Federal, State, or local law, or for other good cause,” id. § 1437f(o)(7)(C). There are two relevant variations of assisted housing tenant-based voucher subsidies. Under the standard housing choice voucher program, the voucher is portable. The tenant may choose to live in any property if the landlord agrees to accept the voucher and comply with the applicable regulations. The government subsidy is limited to the difference between the amount the family is required to contribute and BARRIENTOS v. 1801-1825 MORTON LLC 14429 the payment standard established by PHA based on fair market rents for the area. Id. § 1437f(o)(1)(B), (o)(2)(A)-(B). The second program is called the enhanced voucher program, a recent legislative creation aimed at keeping tenants in their homes despite changing market conditions. Beginning in the 1960s, the federal government subsidized and insured mortgage loans for the construction of housing for assisted tenants (“section 236 program”). See Housing and Urban Development Act of 1968, Pub. L. No. 90-448, §§ 201(a), 236(a)-(g), 82 Stat. 476, 498-503 (codified as amended at 12 U.S.C. § 1715z-1 (2000)). Owners of the housing were allowed to prepay their loans after twenty years, at which time they could exit the assisted housing program. 24 C.F.R. § 221.524(a)(ii) (1970). In the 1980s, Congress became concerned that a large proportion of assisted housing would disappear from the market when owners prepaid their section 236 loans. To prevent massive relocation and an inadequate supply of assisted housing, Congress passed a number of laws aimed at restricting the prepayment option. See Low Income Housing Preservation and Resident Homeownership Act of 1990, Pub. L. No. 101-625, § 601(a), 104 Stat. 4079, 4249 (1990); Emergency Low Income Housing Preservation Act of 1987, Pub. L. No. 100-242, Title II, 101 Stat. 1815, 1877-91 (1988). In 1999, however, Congress decided to take a different approach. It allowed landlords to prepay their mortgages but increased the available subsidy to fair market value so as to allow the subsidized tenants to remain in the same apartment after prepayment. See Pub. L. No. 106-74, § 538, 113 Stat. 1047, 1122-24 (1999) (currently codified as amended at § 1437f(t)).1 Thus, the enhanced voucher authority provides that “the assisted family may elect to remain in the same project in which the family was residing on the date” the loan was 1 Relevant amendments were enacted by the Military Construction Appropriations Act of 2001, Pub. L. No. 106-246, § 2801, 114 Stat. 511, 569 (2000), to clarify specifically that “the assisted family may elect to remain in the same project” to receive increased government assistance. 14430 BARRIENTOS v. 1801-1825 MORTON LLC prepaid, and that the government will pay the difference between “rent for the dwelling unit” and the tenant’s required contribution “during any period the family makes such an election and continues to so reside” even as “rent may be increased from time-to-time.” 42 U.S.C. § 1437f(t)(1)(B). As evidenced by the congressional statement of purpose, Congress and HUD have been perennially concerned about making assisted housing available and affordable, and a key means to that end is the creation of incentives for private owners to participate in the section 8 program. In legislation enacted in 1974, Congress protected tenants from arbitrary eviction by giving the local PHA the “sole right to give notice to vacate” and to evict the tenant. Housing and Community Development Act of 1974, Pub. L. No. 93-383, § 201(a), 88 Stat. 633, 664 (1974); see also Swann v. Gastonia Hous. Auth., 675 F.2d 1342, 1345 n.2 (4th Cir. 1982). In response to owner complaints about this additional burden, HUD proposed in 1978 that Congress harmonize the private and assisted markets by eliminating PHA approval where “State or local law governing evictions affords adequate tenant protection.” Hearings Before the Subcomm. on Hous. & Cmty. Dev. of the Comm. on Banking, Fin. & Urban Affairs, 95th Cong. 66-67 (1978) (statement of Patricia Harris, HUD Sec’y). Congress refused, noting that “adoption of the proposal would leave section 8 tenants to rely on state and municipal laws for protection, and the committee does not feel that HUD has provided ample information on the extent to which this protection would be sufficient.” S. Rep. No. 95871, at 15 (1978), reprinted in 1978 U.S.C.C.A.N. 4773, 4788. To ameliorate the burden on owners within the bounds of existing law, HUD issued a proposed regulation that required PHA to proceed with issuance of the eviction notice in accordance with State and local law as long as grounds to do so existed. 45 Fed. Reg. 72,697, 72,697-99 (Nov. 30, 1980). In 1981, HUD again proposed that Congress remove the PHA approval requirement and legislate that state and local BARRIENTOS v. 1801-1825 MORTON LLC 14431 law govern assisted tenants’ procedural and substantive rights. Hearings Before the Subcomm. on Hous. & Cmty. Dev. of the Comm. on Banking, Fin. & Urban Affairs, 97th Cong. 459 (1981). While the Senate agreed to eliminate the PHA requirement and make “procedural and substantive rights of the assisted tenant[s] . . . the same as those applicable to nonsubsidized tenants” in order to “encourage more owners to participate,” S. Rep. No. 97-139 (1981), reprinted in 1981 U.S.C.C.A.N. 396, 552, the House—apparently unsure that state and local law would provide sufficient protection—did not. Congress reached a compromise later that year by eliminating the PHA approval requirement but explicitly amending the Senate’s version to add that “the owner shall not terminate the tenancy except for serious or repeated violation of the terms and conditions of the lease, applicable State, local or Federal law, or for other good cause.” H.R. Rep. No. 97-208, at 694-95 (1981) (Conf. Rep.), reprinted in 1981 U.S.C.C.A.N. 1010, 1053 (codified as amended at 42 U.S.C. § 1437f(d)(1)(B)(ii)). This new condition barring owners from evicting a tenant mid-lease or from refusing to renew a lease without cause became known as the “endless lease” requirement. HUD issued an interim implementing rule in 1982, withdrawing its earlier regulation permitting termination on thirty days’ notice, and specifying that good cause was needed to terminate a tenancy mid-lease or to refuse to renew. 47 Fed. Reg. 33,497, 33,498 (Aug. 3, 1982). It excused the owner from the “good cause” requirement if it wished to withdraw a unit from the section 8 program at the end of the lease term. Id. at 33,499. Finally, it expressly refused to define “good cause,” providing that “[a]pplication of the statutory standards to particular cases should be determined by the courts” on a case-by-case basis. Id. HUD’s final rule, issued in 1984, continued to require “good cause” for all mid-lease terminations and nonrenewals. 49 Fed. Reg. 12,215, 12,231 (March 29, 1984). In addressing 14432 BARRIENTOS v. 1801-1825 MORTON LLC owners’ comments about the creation of a “ ‘perpetual tenancy’ terminable only for cause,” HUD noted that it “shares the concern that [the new requirement] could reduce the desire of private landlords to offer units for rental under the program,” but that “the program options open to [HUD] must accord with the 1981 statutory prohibition of a termination of tenancy in section 8 existing housing other than for statutory good cause grounds.” Id. It further indicated its desire to keep “[t]enancy requirements . . . as simple as possible, with minimal demands on the owner beyond the normal requirements of an unsubsidized tenancy.” Id. at 12,233. Finally, it indicated “that a comp[re]hensive regulatory definition of good cause . . . is neither possible nor desirable,” and, therefore, “[t]he good cause category should remain open to case by case determination by the courts.” Id. However, for the first time, HUD chose to provide “examples of ‘other good cause,’ ” including among them “a business or economic reason for termination of the tenancy (such as . . . desire to rent the unit at a higher rental).” Id. at 12,233-34. This definition is currently codified at 24 C.F.R. § 982.310(d)(1)(iv), the federal regulation before us. In 1994, the National Apartment Association commissioned a report by Abt Associates on assisted housing (“Abt Report”). It recommended “making the Section 8 process as similar to regular market operations as possible” by eliminating the “good cause” requirement for nonrenewal and retaining protections provided to all renters in the local jurisdiction. Thereafter, landlord groups pushed for the adoption of the Abt Report’s recommendations, including the elimination of the “endless lease” provision, claiming that “[s]ection 8 families should get all the protections that their nonsubsidized friends and neighbors receive but no greater protections.” Hearing on H.R. 2406 Before Subcomm. on Hous. & Cmty. Opportunity of Comm. on Banking, Fin. & Urban Affairs, 1995 WL 602577 (Oct. 13, 1995) (testimony of Christina L. Garcia, Vice President of Wildwood Mgmt. Group, Inc.). BARRIENTOS v. 1801-1825 MORTON LLC 14433 HUD’s 1995 final rule provides that the “good cause” requirement applies “during the term of the assisted lease,” but not “after a termination of the assisted lease,” 60 Fed. Reg. 34,660, 34,673 (July 30, 1995), and emphasizes that its regulation strikes a “reasonable balance between the interest of the assisted tenant and the owner” because “the lease protects the tenant against arbitrary and ungrounded termination by the owner,” while “the owner is not locked in, but may terminate the tenant for lease violation or other good cause,” including a “business or economic reason,” id. at 34,674. In 1996, Congress repealed the “endless lease” provision by eliminating the “good cause” requirement for nonrenewal, though it retained the requirement for termination of a tenancy during the term of the lease. Pub. L. No. 104-134, § 203(c)(2), 110 Stat. 1321, 1321-281 (1996). In 1998, Congress made the 1996 changes permanent. Pub. L. No. 105276, §§ 545, 549(a), 112 Stat. 2461, 2596-604, 2607-09 (1998). The current governing statute provides that “during the term of the lease, the owner shall not terminate the tenancy except for serious or repeated violation of the terms and conditions of the lease, for violation of applicable Federal, State, or local law, or for other good cause.” 42 U.S.C. § 1437f(o)(7)(C). In 1999, HUD issued final implementing regulations, leaving its definition of “good cause” unchanged. 64 Fed. Reg. 56,894 (Oct. 21, 1999). Thus, the relevant HUD regulation currently provides that “ ‘[o]ther good cause’ . . . may include, but is not limited to . . . [a] business or economic reason for termination of the tenancy (such as sale of the property, renovation of the unit, or desire to lease the unit at a higher rental).” 24 C.F.R. § 982.310(d)(1)(iv). The regulations also provide that “[d]uring the initial lease term, the owner may not terminate the tenancy for ‘other good cause,’ . . . based on . . . a business or economic reason,” id. § 982.310(d)(2), and that the initial lease term must be at least one year, id. § 982.309(a)(1). 14434 BARRIENTOS v. 1801-1825 MORTON LLC

The Federal Assisted Housing Program

affirmation, and particularly describing the place to be searched, and the person or things to be seized. 42 U.S.C. 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . . Appellant also alleged in Count I that Sadeck, Meninno, and Sullivan were liable under 42 U.S.C. 1985. However, the 1985 claims were never discussed below, either by the parties or the court, and the record does not support a 1985 claim. See United Bhd. of Carpenters v. Scott, 463 U.S. 825, 834-37 (1983) (reaffirming that 1985 requires a showing of some racial, or perhaps otherwise class-based, animus behind the conspirators' actions); Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971) (explaining elements of a claim under 1985(3)). Hence, we consider Count I to include claims only under 1983. -14- Appellant's claim against Sadeck is based entirely on the allegation that he parked his vehicle on Mason Road before the collision, helping Officer Sullivan to create a staggered roadblock which led to appellant's injuries. The undisputed facts on the record show that Officer Sadeck did not arrive on Mason Road until after the accident and, therefore, was not causally connected to the injuries sustained by appellant. Consequently, Sadeck was entitled to judgment as a matter of law on the 1983 claim against him. See Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir. 1983) ([T]he principles of tort causation apply to constitutional as to other tort suits.).

Officer Sadeck A. Officer Sadeck

28 Fruth maintains that the district court's interruptions during his attorney's closing argument was improper. On the first occasion, the court interrupted defense counsel as he was characterizing the government's burden in the case, and particularly the meaning of the reasonable doubt standard. We initially observe that, prior to trial, the court twice indicated to defense counsel that this court has clearly stated that the jury should be given no instruction as to the meaning of reasonable doubt. See United States v. Blackburn, 992 F.2d 666, 668 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 393, 126 L.Ed.2d 341 (1993). Thus, despite the two pretrial rulings, Fruth's attorney pressed on and attempted to define reasonable doubt. Fruth also asserts that the district court's interruption was unfairly prejudicial, because the district court stated that defense counsel's assertion regarding reasonable doubt and the government's burden was not exactly true. Whatever incidental effect this might have had on the jury's perception of Fruth or his attorney was eliminated immediately thereafter, when the court added, It's true as it relates to any element of the case the government has to prove. Given this set of facts, we simply cannot conclude that the district court abused its discretion. See, e.g., United States v. Mitan, 966 F.2d 1165, 1174-75 (7th Cir.1992) (finding no error where district court attempted to curb defense counsel's improper statements and behavior). With respect to the second interruption, the court merely corrected the attorney's misstatement, reason to doubt, with the proper reasonable doubt. Fruth's claim of prejudice as a result of this correction is meritless. In sum, there is no basis for a new trial as a result of the court's comments during Fruth's closing arguments.

District Court's Sua Sponte Comments

19 Buss America also asserts that Wolf failed to complete his required service reports in a timely fashion. Wolf wholly denies this allegation, claiming that he completed his service reports on a daily basis. The district court, however, found that Wolf had failed to show pretext on the issue of the propriety of his service reports in light of Wolf's admitted practice of completing his reports in German instead of in English. In making this finding, however, the district court went beyond the face of Buss America's motion for summary judgment and Local Rule 12(m) statement of material facts, and looked to the deposition testimony of Frank Rauch, Buss America's service manager. In his deposition, Rauch testified that Wolf's German-language reports were largely useless to Buss America and that he had asked Wolf many times to write his reports in English. Wolf argues that the district court erred by looking beyond the parties' pleadings to the record of the case in this fashion. 20 As Buss America correctly argues, however, Rule 56(c) of the Federal Rules of Civil Procedure does not limit a district court's consideration of a summary judgment motion to the content of the parties' pleadings. Rather, Rule 56(c) directs the court to examine the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. See also Board of Nat'l Missions of Presbyterian Church in the United States v. Smith, 182 F.2d 362, 364-65 (7th Cir.1950) (The fact that the [summary] judgment was granted on a reason different from that assigned by the defendant is immaterial, where, as here, the motion was properly granted on the undisputed facts shown and on an issue presented by plaintiff's complaint.); Wilder v. Prokop, 846 F.2d 613, 626 (10th Cir.1988). 2 21 Rauch's deposition, which the district court was privileged to consider, indicates that Wolf's practice of writing his reports in German was viewed as problematical by Buss America, and that this concern was communicated to Wolf. Wolf has admitted to writing his reports in German, at least initially. It seems clear to us that the completion of Wolf's reports in an unacceptable language would adversely impact the timeliness of those reports as they would not be immediately comprehensible to most of Buss America's other employees. Consequently, we conclude that Wolf has failed to show pretext on this issue. 22

Wolf's Failure to Write Timely Service Reports

Two defendants, Needum and Anthony Gibbs, claim that there was insufficient evidence to show that they were members of the conspiracy. The other defendants adopt in their briefs by reference, under Federal Rule of Appellate Procedure 28(i), the arguments of these two. In order to adopt by reference the arguments of a co-defendant, “the arguments adopted must be readily transferable from the proponent’s case to the adopter’s case.” United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.1996). Although, typically, an argument that a particular defendant did not join an alleged conspiracy is fact-specific and not readily transferable to a co-defendant, and Needum and Gibbs reférred in their briefs to the lack of evidence with respect to their own involvement in the conspiracy, the crux of their argument is that the government has failed to introduce any evidence to show that they joined in the agreement to exclude non-resident drug dealers from selling in the Short North. We conclude that such an argument is readily transferable to all defendants. Since the government was thoroughly aware that each of the defendants strongly disputed the existence of the conspiracy, we conclude that the government should have responded at oral argument or in its brief with respect to all of the defendants. “To be found guilty of conspiracy, the government must prove that [the defendant] was aware of the object of the conspiracy and that he voluntarily associated himself with it to further its objectives.” United States v. Hodges, 935 F.2d 766, 772 (6th Cir.1991). Once a conspiracy is shown, evidence connecting a particular defendant to the conspiracy “need only be slight.” Avery, 128 F.3d at 971; United States v. Nesbitt, 90 F.3d 164, 167 (6th Cir.1996); Hodges, 935 F.2d at 773. The defendant “need not be an active participant in every phase of the conspiracy, so long as he is a party to the general conspiratorial agreement.” Hodges, 935 F.2d at 773 (quoting United States v. Christian, 786 F.2d 203, 211 (6th Cir.1986)). A buyer/seller relationship alone is not enough to establish participation in the conspiracy, but further evidence indicating knowledge of and participation in the conspiracy can be enough to link the defendant to the conspiracy. See United States v. Anderson, 89 F.3d 1306, 1310 (6th Cir.1996), cert. denied, 519 U.S. 1100, 117 S.Ct. 786, 136 L.Ed.2d 728 (1997). The government argues that there is plenty of testimony that Needurn and Anthony Gibbs frequently sold crack in the Short North area, thereby enabling the jury to find that both of them participated in the conspiracy. The fact that they engaged in drug activity in the Short North area, and according 'to the government that the SNP controlled crack sales in the Short North, does not show that these particular defendants were members of the conspiracy. See Richardson, 130 F.3d at 775. (concluding that the government would have a weak theory if its argument was “[the conspiracy] had a monopoly on drug sales in the [gang] territory; defendants sold drugs in the territory; therefore defendants ... were members of the conspiracy”). The witness testimony at trial also does not support the conclusion that evidence of membership in the SNP is sufficient to show that a particular defendant joined the conspiracy. Cooperating government witnesses testified that the SNP was primarily a neighborhood affiliation, and one witness testified that selling drugs was not a prerequisite to association with this loose group. See J.A. at 1018-19 (Test, of Berger). Although only “slight” evidence is needed to connect a defendant to a conspiracy, “mere association with conspirators is not enough to estabhsh participation in a conspiracy.” United States v. Pearce, 912 F.2d 159, 162 (6th Cir.1990) (quoting United States v. Stanley, 765 F.2d 1224, 1243 (5th Cir.1985)), cert. denied, 498 U.S. 1093, 111 S.Ct. 978, 112 L.Ed.2d 1063 (1991). “The distinction is especiahy important today when so many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders.” Bostic, 480 F.2d at 968. The government must present sufficient evidence to permit the jury to find that the specific defendants were connected to the agreement, i.e., participated in the conspiracy, to exclude non-resident drug dealers from the Short North. The government need not prove that a particular defendant acted by force, intimidation, or otherwise to prevent a non-resident from dealing drugs in the Short North. Nor must the government prove that a particular defendant explicitly or outspokenly joined in the agreement to exclude non-residents from selling drugs in the Short North. The government must, however, point to evidence showing that a particular defendant had knowledge of the agreement to exclude non-resident drug dealers from the Short North and acquiesced in that agreement. The evidence must at least be sufficient that a reasonable juror could infer knowledge of and acquiescence in the agreement. Such an inference could be drawn from evidence showing at a minimum that a particular defendant was aware of a threat of unwanted competition from non-resident drug dealers and indicated that he had a stake in preventing such competition. Without this or' similar evidence of knowledge and acquiescence in the type of agreement the government has alleged as the basis of this conspiracy, no reasonable juror could find that a particular defendant joined the conspiracy that existed here. Evaluating the record independently for evidence of knowledge and acquiescence by any or all of the defendants in the agreement to exclude non-resident drug dealers from selling in the Short North, we conclude that the government’s evidence proves only that Antwan Woods was a member of the conspiracy. In addition to Antwan Woods being an active supplier of crack to a number of individuals in the Short North, having a tattoo indicating his affiliation with the Short North Posse, having a notebook of accounts with SNP written on it, and possessing T-shirts with SNP-related information, there was also direct information indicating Woods’s understanding of and involvement in the agreement to exclude non-resident drug dealers from the Short North. Government witness Gladden testified that he heard from Woods on occasion that certain people could not sell in the Short North. See Trial Tr. at 1491 (Test, of Gladden). Although this evidence is spare, and there is no evidence that Woods ever acted to force any unwelcome dealers out of the Short North, taking the evidence in a light most favorable to the government, we hold that a reasonable juror could infer that Woods had knowledge of the agreement and acquiesced in it. As we explained above, under 21 U.S.C. § 846 the government need not prove that Woods acted in furtherance of the agreement. With respect to the other six defendants, the government’s evidence proved simply that these defendants independently sold a lot of drugs. Some bought from each other. Others, though acting independently, associated with each other. Nowhere do we see evidence that any specific defendant agreed to participate in the conspiracy to exclude outsiders so as to further the drug sales of insiders. Due to the fact that the record in this case is so large, the government may file a petition for rehearing identifying any record citations to existing trial testimony that our review has not unearthed that would link a particular defendant to the conspiracy to exclude outsiders in furtherance of insiders’ drug sales. We stress, however, that evidence that a particular defendant was a member of the Short North Posse is not sufficient to show that the defendant joined this conspiracy to exclude outside drug dealers. As explained above, it is clear from the record only that the SNP was a loose neighborhood affiliation of youths, a number of whom sold drugs. One of the common interests of the SNP members was, no doubt, protection of their territory. But the evidence does not support the conclusion that the SNP and the conspiracy proven in this case were synonymous with one another. Evidence that a particular defendant sold crack in the Short North is insufficient to prove membership in the conspiracy. There is copious evidence to support the conclusion that each one of these defendants sold crack at one time or another in the Short North. If this were enough to show that a particular defendant joined the conspiracy, however, a jury could convict on conspiracy grounds any Short North resident who had been caught or seen selling crack in the Short North without any evidence of knowledge of the agreement to exclude outsiders. Finally, evidence that the defendants knew each other, grew up together, sold crack in the same area, or on occasion sold crack together fails to prove membership in the conspiracy. Any other conclusion would permit the jury to infer membership in the conspiracy by association of the defendants with one another. We must be careful, especially in multi-defendant drug conspiracy trials, to guard against such findings of guilt by association. “The need for safeguarding defendants from misunderstanding by the jury is peculiarly acute in conspiracy trials.” United States v. Liss, 137 F.2d 995, 1003 (2d Cir.) (Frank, J., dissenting), ce rt. denied, 64 S.Ct. 78, 79, 320 U.S. 773, 88 L.Ed. 462, 463 (1943). Of course, should the government file such a petition with record citations, then the defendants would have an opportunity to respond. We therefore affirm Woods’s conspiracy conviction and vacate the conspiracy conviction of each of the other six defendants. We further vacate the sentences of Anthony Gibbs, Hough, Berry, Chad Gibbs, Curtis, and Needum, and remand for resen-tencing.

Individual Membership in Conspiracy

Under the Sixth Amendment of the United States Constitution, all criminal defendants are entitled to the assistance of counsel. U.S. Const. amend. VI; Foster v. Illinois, 332 U.S. 134, 136-37, 67 S.Ct. 1716, 1718, 91 L.Ed. 1955 (1947); Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 1022-23, 82 L.Ed. 1461 (1938). This fundamental Constitutional right attaches at the time adversarial criminal proceedings are initiated, see Rothgery v. Gillespie County, ___ U.S. ___, 128 S.Ct. 2578, 2593, 177 L.Ed.2d 366 (2008), and continues through completion of a first, non-frivolous direct appeal, see Smith v. Robbins, 528 U.S. 259, 278, 120 S.Ct. 746, 760, 145 L.Ed.2d 756 (2000). The right to counsel is a fundamental part of the adversary system of criminal justice and recognizes the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty.... Johnson, 304 U.S. at 462-63, 58 S.Ct. at 1022. Nevertheless, the right to counsel is intended as a tool, not a tether. [I]t is one thing to hold that every defendant... has the right to the assistance of counsel, and quite another to say that a State may compel a defendant to accept a lawyer he does not want. Faretta, 422 U.S. at 833, 95 S.Ct. at 2540. For that reason, it has long been established that a criminal defendant may waive the right to counsel when he does so intentionally and knowingly. See, e.g., Johnson, 304 U.S. at 464, 58 S.Ct. at 1023. Less clear are the means by which a defendant may waive his right to counsel. In Faretta, the Supreme Court recognized the right to self-representation in the context of deciding whether a defendant who had asked to represent himself and had demonstrated a rudimentary knowledge of legal procedure was entitled to proceed pro se. In determining he was, the Court noted, The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the [Sixth] Amendment, [wi]ll be an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. Faretta, 422 U.S. at 820, 95 S.Ct. at 2533. Faretta 's recognition of the right to self-representation was grounded in respect for a defendant's free choice. The right to defend is personal, for it is [t]he defendant, and not his lawyer or the State, [who] will bear the personal consequences of a conviction. Id. at 834, 95 S.Ct. at 2540-41. It is important to remember that Faretta 's discussion of the right to self-representation presupposed a cooperative defendant willing to engage in reciprocal dialogue with the court. The Supreme Court has never confronted a case in which an uncooperative defendant has refused to accept appointed counsel or engage in a colloquy with the court. Consequently, the Court has never been asked to determine whether a defendant may waive counsel without making an explicit, unqualified request to represent himself.

The Sixth Amendment and Supreme Court Precedent

49 From the first time that it construed the indictment clause the Supreme Court has recognized that the provision is not static. Wilson explicitly acknowledged that (w)hat punishments shall be considered as infamous may be affected by the changes of public opinion from one age to another, and suggested that two punishments (whipping and stocks) previously considered moderate, at the present day . . . might be thought (to be) infamous. . . . 114 U.S. at 427-28, 5 S.Ct. at 940. The Court in Mackin approved of this temporal limitation on the definition of infamous punishments 117 U.S. at 351, 6 S.Ct. 777, and included it in its holding that at the present day imprisonment in a . . . penitentiary . . . is an infamous punishment. (Id. at 352, 6 S.Ct. at 779, see United States v. Moreland (1922) 258 U.S. 433, 451, 42 S.Ct. 368, 66 L.Ed. 700 (Brandeis, J., dissenting).) 50 Ramirez contends that at the present day confinement for more than one year constitutes infamous punishment. We agree. Our discussion in Part II, supra, illustrates a system of punishment different from that considered by the Wilson, Mackin and Moreland Courts. The most severe non-capital punishment imposed today is the deprivation of liberty and the subjection of the convict to supervision and control by the Attorney General and prison authorities. 51 The paramount importance of the length of confinement in the federal system of criminal punishment is evident throughout the criminal code. In contrast to its failure to specify what treatment, rehabilitative, or disciplinary measures are to be used in federal prisons, Congress has enacted detailed guidelines for determining the actual term of a prisoner's confinement. Those provisions include a prescribed method of sentence computation and credit for time served prior to commencement of sentence (18 U.S.C. § 3568); a deduction for good time served (18 U.S.C. §§ 4161-66); and guidelines for release on parole prior to the expiration of the prisoner's term (18 U.S.C. §§ 4201-08). 52 More importantly, Congress' division of authority between the trial judge and the Attorney General reflects a system in which criminals are punished by depriving them of their liberty, not by the type of institution in which they are confined. With the abandonment of hard labor and penitentiary confinement as punishments for specific crimes, the control of the sentencing judge over the severity of the punishment is exercised through his determination of the period of time for which a convict may lose his freedom. Within statutory limits, the trial court can increase the penalty by stipulating the maximum possible term of confinement and by designating a minimum term which must be served prior to a prisoner's eligibility for parole. (18 U.S.C. §§ 3651-56.) The trial judge may not, however, designate the institution of confinement or require that any other punitive sanctions be imposed while the prisoner is confined. (United States v. Janiec (3rd Cir. 1974) 505 F.2d 983, 987, cert. denied, (1975) 420 U.S. 948, 95 S.Ct. 1332, 43 L.Ed.2d 427; United States v. Myers (9th Cir. 1972) 451 F.2d 402, 404; Thogmartin v. Moseley (D.Kan.1969) 313 F.Supp. 158, aff'd, (10th Cir.) 430 F.2d 1178, cert. denied, (1970) 400 U.S. 910, 91 S.Ct. 155, 27 L.Ed.2d 150. On the other hand, the Attorney General's control over the institution and conditions of confinement does not include the power to impose further punishment for the crime committed. His charge is to provide for (the convict's) proper government, discipline, treatment, care, rehabilitation, and reformation. (18 U.S.C. § 4001.) To be sure, discipline encompasses punitive action as well as the maintenance of good order in the institution, but the punitive sanctions imposed by the Attorney General are not a result of the crime which brought the prisoner into the penal system. The Attorney General is not authorized to put a prisoner in solitary confinement, employ him, or transfer him to a penitentiary because the prisoner robbed a bank, stole a car, or violated the law in some other manner; his powers are directed to providing an individualized system of discipline, care, and treatment in an integrated system. (18 U.S.C. § 4081.) That is, the Attorney General may establish a disciplinary regimen or take punitive action because of the needs of the institution and system of institutions, or because of a particular prisoner's poor response to the prison environment. He may not, however, punish individual prisoners for their crimes. Thus, before disciplinary sanctions may be imposed, prison authorities must provide procedures in accord with the minimum requirements of due process in order to reach a mutual accommodation between institutional needs and objectives and the . . . Constitution. (Wolff v. McDonnell (1974) 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935, see Bureau of Prisons Policy Statement 7400-5D (July 7, 1975) (implementing McDonnell).) 53 The development of a system wherein the loss of liberty is the most severe non-capital punishment available to a sentencing judge reflects, we believe, changes in public opinion from one age to another. Persons convicted are no longer deprived of their liberty so that they may be punished in prison; rather, they are punished by being deprived of their liberty. The punitive element connected with the crime, and the only element still controlled by the sentencing judge, is the loss of freedom for some period of time. Within this system punishments can be distinguished, for the purpose of applying the indictment clause, only in terms of the length of time during which a prisoner is deprived of his freedom. We therefore conclude that a criminal defendant who is subject to confinement for more than one year must be prosecuted by an indictment. Although not an inexorable result, the more-than-one-year formula has, since 1865, been the effective limit of the indictment clause as applied to imprisonment without hard labor. It also is the method used by Congress to distinguish between felonies and misdemeanors (18 U.S.C. § 1(1)), and is the formula used in the Federal Rules of Criminal Procedure (Fed.R.Crim.P. 7(a)). 19 (See also 18 U.S.C. § 4208(a).) 54

Loss of Liberty as an Infamous Punishment.

24 The plaintiff also claims that the trial judge erred in admitting evidence that Patricia McInnis had released Florence Poirier from liability for the accident prior to instituting suit against the defendants. She argues that the release was offered to show that Mrs. Poirier, not the defendants, had in fact caused the amputating injury to her leg. Such evidence, she urges, is barred by Federal Rule of Evidence 408, which precludes admission of settlement agreements to prove the validity or invalidity of a claim or its amount. The defendants counter that the admission of the release does not prove the invalidity of the plaintiff's claim against them, but rather narrows the issues to allow the jury to determine what injuries were actually caused by the defendants. Appellees' Brief, p. 38. We concur with the plaintiff/appellant and hold that the trial court erred in admitting the release. We further find that this error was prejudicial, and therefore necessitates a new trial. 25 26 Rule 408 of the Federal Rules of Evidence governs the admissibility of evidence of compromise offers or agreements in federal trials. The rule provides in its entirety: 27 Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as either to validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. 28 The exclusion of evidence of settlement offers is justifiable on two grounds. First, the rule illustrates Congress' desire to promote a public policy favoring the compromise and settlement of claims by insulating potential litigants from later being penalized in court for their attempts to first resolve their dispute out of court. Second, such evidence is of questionable relevance on the issue of liability or the value of a claim, since settlement may well reflect a desire for peaceful dispute resolution, rather than the litigants' perceptions of the strength or weakness of their relative positions. See Fed.Rule of Evid. 408, advisory committee note. 29 In analyzing the impact of Rule 408 on the admissibility of the Poirier release, we shall initially allay any doubts that the Rule applies to cases which are posturally like the one now before us. The settlement agreement at issue here was entered into between a litigant and a third party, rather than between the two litigants themselves. The Advisory Committee Note clearly acknowledges that the policies underlying the exclusionary rule are equally applicable to such a situation. The note states that: 30 While the rule is ordinarily phrased in terms of offers of compromise, it is apparent that a similar attitude must be taken with respect to completed compromises when offered against a party thereto. The latter situation will not, of course, ordinarily occur except when a party to the present litigation has compromised with a third person. 31 Fed.Rule of Evid. 408, advisory committee note (emphasis added). 32 In the context of settlements between a litigant and a third party, it is true that Rule 408 is more commonly invoked to bar the admission of agreements between a defendant and a third party to compromise a claim arising out of the same transaction as the one being litigated. See e.g., Sun Oil v. Govostes 474 F.2d 1048, 1049 (2d Cir.1973); Kendrick v. Jim Walter Homes, Inc., 545 F.Supp. 541, 543 n. 4 (S.D.Ind.1981). If the policies underlying Rule 408 mandate that settlements may not be admitted against a defendant who has recognized and settled a third party's claim against him, it is axiomatic that those policies likewise prohibit the admission of settlement evidence against a plaintiff who has accepted payment from a third party against whom he has a claim. The admission of such evidence would discourage settlements in either case. In addition, the relevance of the settlement to the validity of the claim cannot logically be considered stronger in the former instance than in the latter. Accord Fidelity & Deposit Co. of Md. v. Hudson United Bank, 493 F.Supp. 434, 445 (D.N.J.1980). A number of recent federal cases have adopted this position, holding that Rule 408 bars evidence of settlements between plaintiffs and third party joint tortfeasors or former co-defendants. See Quad/Graphics, Inc., v. Fass, 724 F.2d 1230, 1235 (7th Cir.1983) (evidence of plaintiff's settlement with two defendants in contract action not admissible at trial of remaining defendants); McHann v. Firestone Tire & Rubber Co., 713 F.2d 161, 165-66 (5th Cir.1983) (Plaintiff's covenant not to sue service station was not admissible in products liability action against defendant tire manufacturer); United States v. Contra Costa County Water District, 678 F.2d 90, 92 (9th Cir.1982) (in suit by United States against water district for cost of erecting wall necessitated by actions of landowner, evidence of settlement between United States and landowner not admissible). 33 Although Rule 408 bars the admission of evidence of settlement to prove liability or the validity of a claim, it expressly allows such evidence offered for other purposes. See Breuer Electric Manufacturing Company v. Tornado Systems of America, 687 F.2d 182 (7th Cir.1982). A critical inquiry in the instant case, therefore, is for what purpose the Poirier release was admitted at trial. We think it evident from a reading of the trial transcript that the district judge admitted the evidence as tending to prove that it was Mrs. Poirier's collision with the plaintiff, not the shattering of the motorcycle clutch housing, that in fact severed the plaintiff's leg. 34 The defendants began their case in chief at trial by calling Patricia McInnis to the stand. Their attorney, over strenuous objection by the plaintiff, entered the release into evidence and questioned McInnis at length about its significance. The objective of his line of questioning was manifest--he was attempting to elicit an admission from McInnis that she received $60,000 from Florence Poirier because it was Mrs. Poirier alone who caused her injury. While McInnis persistently maintained that she had received the money because Mrs. Poirier had been responsible for setting the accident in motion, defense counsel repeatedly suggested that the $60,000 represented compensation for the full extent of her injuries. Trial Transcript, p. 1346-56. 35 The trial judge's comments in overruling the plaintiff's objection to the admission of the release further illuminate the purpose of that evidence. The judge stated: 36 It seems to me that there's an issue in this case which relates to the question of who caused what, what injuries were sustained as a result of the contact with the Poirier vehicle, and what injuries the plaintiff had were the responsibilities of the defendants in this case; and it may well be that the reliance [sic] represents an admission on the part of the plaintiff. I don't see that it comes within 408 because it's not offered to prove liability or invalidity of the claims or its amount. I'm going to allow it. You may have an exception. 37 Trial transcript p. 1345c-1345d. 38 From this record it is apparent that the release was admitted as relevant to the issue of causation in fact. 39 As we shall discuss in more detail later, the defendants have argued that they introduced the release to attack McInnis' credibility rather than to disprove causation. Although this contention may have some superficial appeal, we see it as an attempt to obfuscate the critical issue. The release could logically impeach McInnis' credibility only by tending to show that she brought suit against the defendants knowing all the while and it was Mrs. Poirier, and not the defendants, who caused the injury to her leg. Such impeachment evidence is simply camouflaged causation evidence. 40 Having concluded that the Poirier release was offered as relevant to the issue of causation, we have no difficulty in ruling that the evidence of causation or non-causation is fully subsumed under Rule 408's meaning of validity or invalidity of a claim. Causation in fact is an integral component of a tort claim; without causation there can be no liability. In the instant case, it is obvious that the defendants wanted the jury to infer that Mrs. Poirier would not have paid the significant sum of $60,000 to the plaintiff unless it was she, and not the defendants, who had caused the plaintiff's injury. Whether cast in terms of causation, responsibility, or the validity of the claim, the defendants wanted the jury to conclude from the fact of settlement that the defendants could not be held liable for the amputation of the plaintiff's leg. This clearly flouts the most basic policies underlying Rule 408. 41 Other federal courts have held in closely analogous situations that this type of jury inference is unquestionably improper under the Federal Rule. In McHann v. Firestone Tire and Rubber Co., 713 F.2d 161 (5th Cir.1983), for example, the Fifth Circuit reversed the trial court's admission of a covenant not to sue given by a plaintiff in a products liability action to a third party service station owner. The plaintiff had sued the defendant Firestone Tire for injuries he sustained when a tire on his vehicle exploded, alleging that the defendant had negligently designed and manufactured the tire. Id. at 162-3. Firestone introduced evidence at trial that the plaintiff had previously given a covenant not to sue to a service station owner whose employee had mounted the tire. The Fifth Circuit held the covenant inadmissible under Rule 408, since the evidence might lead the jury to deny [plaintiff's] claim against Firestone on the perception that Green Oaks Exxon would not have paid the substantial sum of $27,000 if it ... were not the party at fault. Id. at 166. 42 The McHann case illustrates the applicability of the policies underlying rule 408 to a situation such as the one now before us. Certainly, the admission of settlement evidence to prove or disprove causation would discourage a plaintiff from settling with one of several potential defendants. In addition, the fact of settlement, as the Advisory Committee has observed, is of questionable relevance to the issue. An innocent third party may settle, even for a large amount, merely to avoid the burdens of litigation. In the instant case, in fact, the Poirier release is even more doubtfully relevant to the causation issue than was the covenant not to sue in McHann. Since neither of the parties contests the fact that the Poirier vehicle negligently struck the plaintiff's motorcycle, Mrs. Poirier is liable for the ultimate injury to the plaintiff, whether or not the collision itself was the immediate cause. Under elementary principles of proximate cause, Mrs. Poirier is legally responsible for any harm that could foreseeably result from her tortious act. Roberts v. Kettelle, 116 R.I. 283, 356 A.2d 207, 215 (1976); Aldcroft v. Fidelity & Gas Co., 106 R.I. 311, 259 A.2d 408, 411 (1969). We think it obvious that it is reasonably foreseeable that once struck by a car, a motorcycle may crash, causing serious bodily injury to its driver. Cf. Day v. Wynne, 702 F.2d 10 (1st Cir.1983) (holding that harm resulting from negligent treatment of doctor was a foreseeable result of the original negligent injury); Roberts, 356 A.2d at 215 (holding that the negligence of another driver was foreseeable). The fact that Poirier settled or the amount she paid, therefore, cannot reasonably be indicative of the harm that was in fact caused by the collision between her car and the motorcycle as opposed to that which was in fact caused by the shattering of the clutch housing. 43 Defendants offer several creative, but rather illusory arguments for exempting the Poirier release from the exclusionary provisions of Rule 408. They first assert that the plaintiff's claim for relief against the defendants is grounded in a legal theory that Mrs. Poirier and the defendants are successive rather than joint tortfeasors. They claim that because there were two separate accidents involved in the case--the collision with the Poirier car and the crashing of the motorcycle--each party is liable only for the allegedly divisible portion of the plaintiff's injury that their respective acts immediately caused. Accordingly, the defendants maintain that the evidence of the plaintiff's $60,000 settlement with Florence Poirier should be admissible as tending to clarify the portion of the harm she caused. In other words, this evidence would supposedly aid the jury in conceptually segregating the physical damage that was caused by each of the two accidents. 44 While, for a number of reasons, we view the defendants' two accident argument as a convoluted attempt to circumvent the prohibitions of Rule 408, we dispose of it merely by ruling that Mrs. Poirier and the defendants are indeed joint tortfeasors with regard to any injury that was in fact caused by the shattering of the clutch housing. First, contrary to the defendants' representations, the plaintiff has never advanced the successive tortfeasor or two accident theory. 9 Second, as a matter of Rhode Island law, Mrs. Poirier and the defendants are joint tortfeasors. Under R.I.Gen.Laws Sec. 10-6-2, a joint tortfeasor means two persons jointly or severally liable in tort for the same injury to person or property. The parties are jointly and severally liable if they are both the legal cause of harm that cannot be apportioned, whether conduct is concurring or consecutive. Restatement (Second) of Torts, Sec. 879. See also Day v. Wynne, supra, 702 F.2d at 12. Contrary to the implication of the defendants' argument, it is obvious that Patricia McInnis' injury, the almost total severance of her leg, cannot be apportioned or divided. Assuming, as we already have, that Mrs. Poirier proximately or legally caused the ultimate injury, the defendants are joint tortfeasors unless they are simply not liable to the plaintiff. 10 45 The defendants have asserted on appeal that our recent opinion in Day v. Wynne, 702 F.2d 10 (1st Cir.1983), lends support to their argument. In Day, the plaintiff fractured her leg in a two car automobile accident and was later treated by the defendant physician. The leg did not heal properly, and the plaintiff, after releasing the driver of the other vehicle, sued the physician. The plaintiff received a jury verdict in her favor and the defendant appealed. Our opinion indicates that during the trial, the district judge admitted evidence of the settlement with the driver, and instructed the jury that they could find damages in excess of the settlement amount only to the extent that they were solely attributable to the defendant's negligence. Id. at 12. This case cannot assist the defendants for two reasons. First, we did not decisively indicate in Day the purpose for which the settlement was admitted at trial. Second, the admission of the settlement was not appealed and was therefore neither reviewed nor reviewable by us. The fact that it was admitted by the trial judge, therefore, does not bind this court to ratification of its admissibility. 46 The defendants also suggest that they introduced the Poirier release for a purpose other than proving causation--to impeach McInnis' testimony. Specifically, they sought to undermine her assertion that the injury to her leg occurred only after the clutch housing shattered. They wanted the jury to infer that if Patricia McInnis accepted $60,000 from Mrs. Poirier, it was because she believed her to be responsible for the injury. The introduction of the release, then, would allegedly discredit her present claim against the defendants. 47 Even if the record were not clear, as it is, that the release was admitted to prove causation, the defendants' deft paralogism would still fail. The use of the settlement for this purpose implicitly requires the jury to infer some indicia of causation in fact from the existence of the release; otherwise it would be of no logical relevance to the issue of McInnis' credibility. We cannot permit the defendants to avoid the policies of rule 408 by merely recasting the issue of who caused the injury as an issue of who the plaintiff believed caused it. 11 48 The defendants finally assert that the release must be admitted to ensure that the plaintiff does not recover twice for the same injury. Def.Br., p. 39. Considering the circumstances of this case, the argument is frivolous. The plaintiff explicitly offered during the trial to reduce any verdict entered against the defendants by $60,000--the amount she has received from Mrs. Poirier under the release. This is the proper procedure for guarding against over compensation when Rule 408 precludes the admission of a settlement agreement. See McHann, supra, 713 F.2d at 166. 2. The Trial Judge's Error Was Not Harmless 49 Because we have found that the district court erred in admitting evidence of the Poirier release, we must grant the plaintiff a new trial unless the defendant can show the error was harmless. Prior to the Federal Rules of Evidence, a trial court's failure to exclude evidence of a settlement agreement was generally considered sufficiently prejudicial to warrant a new trial. See Paster v. Pennsylvania R.R., 43 F.2d 908, 911 (2d Cir.1930). Because Rule 408 had broadened the scope of the common law exclusionary rule to include statements made in the course of settlement negotiations, however, it is advisable for an appellate court to examine the evidence and the context in which it was admitted to determine whether in each individual case it is more probable than not that it conveyed an impression of liability or non-liability to the jury. 2, Weinstein's Evidence, Sec. 408. We think that the great emphasis placed on the release by the defendants, both during their examination of Patricia McInnis and during their closing arguments, compels us to conclude that the jury most likely drew the desired but improper inference. 50 The defendants have argued that, even if the trial court erred, a new trial is not warranted because the jury would have returned a verdict for the defendants even without being aware of the Poirier release. We note that the jury could have legitimately rejected the plaintiff's claim based on either or both of the following findings: that the defendants did not in fact cause the injury, or that the motorcycle was crashworthy. Only the former finding would have been influenced by the admission of the release. Since the jury did not respond to interrogatories, however, we have no insight into the actual basis of their verdict, and accordingly, we may not assume that the jury found for the defendants solely on the strength of their argument that the motorcycle was not defectively designed. We must grant a new trial, therefore, if the plaintiff presented ample evidence to permit the jury to find in their favor on both the causation and the crashworthiness issues. After a searching review of the trial transcript, we conclude that the plaintiff presented such evidence. Both sides offered the testimony of medical and engineering experts, anatomists, and eye witnesses, and it would be impossible to characterize the weight of the evidence as clearly favoring the defendants on either crucial issue. 51 The defendants alternatively contend that any error the trial judge made was cured by his instructions to the jury. In his instructions he directed: 52 In your consideration of the release by Plaintiff, you will not consider the language of the release as a defense to this claim but you may consider the release as evidence of her claim against persons other than the defendants, to be considered together with all the evidence in the case. 53 First, we note that it is doubtful that any instructions, no matter how clear and comprehensive, could eradicate the prejudice engendered by the admission of the release in this case. In addition, however, we do not believe the judge's instruction was even arguably curative. The judge's admonition was most likely intended to ensure that the jury did not assume that the release of Mrs. Poirier would also release the defendants from liability, thereby barring recovery against them. This is the question of law which is the subject of the cross appeal in this case and indeed was not a proper issue for jury consideration. We do not believe that the instruction, either explicitly or implicitly guards against an inference of causation from the existence of the release. 54 C. Propriety of the Judge's Denial of Defendants' Directed Verdict Motion 55 Notwithstanding the fact that the jury returned a verdict in the defendants' favor, the defendants subsequently moved the Court to direct a verdict on the legal issue of the applicability of the Poirier release to the defendants as joint tortfeasors. The trial judge refused to grant the motion on the ground that in light of the jury's disposition of the case, the question was moot. Defendants, on cross appeal, seek reversal of this ruling. 56 The judge never reached the difficult legal issues raised by the defendants' motion, which have as yet, not been decisively resolved by the Rhode Island Supreme Court. Accordingly, although recent decisions of this court and the Rhode Island court may provide some guidance on this question, we may not resolve it here. See Day v. Wynne, supra, 702 F.2d 10; Lennon v. MacGregor, 423 A.2d 820, 821 n. 1 (R.I.1980). We note, however, that in light of the present reversal, the district court may wish to reconsider the defendants' motion for summary judgment based on the effect of the release. 12 57 For the foregoing reasons, the judgment of the district court is hereby reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Admission of the Release

The BIA has held that acts that thwart the goals of the family planning policy and which are viewed with disfavor by Chinese officials implementing the policy, including acts involving the use of force, constitute “other resistance” to the policy. Matter of M-F-W- & L-G-, 24 I & N Dec. 633, 638 (BIA 2008); see also Shi Liang Lin v. U.S. Dep’t of Justice, 416 F.3d 184, 188 (2d Cir. 2005). The BIA failed to explain, however, why Yang-Lin’s conduct did not constitute resistance to the policy under the BIA’s own standards. Accordingly, we remand to allow the BIA an opportunity to explain why YangLin’s altercation did not demonstrate “other resistance” to the family planning policy, and to state specifically whether physical resistance must be accompanied by verbal resistance. See Mufied v. Mukasey, 508 F.3d 88, 91-92 (2d Cir. 2007) (“A court of appeals is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such an inquiry. . . . [T]he proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”).

Other Resistances

Obviousness-type double patenting is a judicially created doctrine that “prevents the extension of the term of the original patent via the patenting of an obvious variation.” Georgia-Pac. Corp. v. U.S. Gypsum Co., 195 F.3d 1322, 1326 (Fed. Cir. 1999) opinion amended on reh’g, 204 F.3d 1359 (Fed. Cir. 2000). “Under obviousness-type double patenting, a patent is invalid when it is merely an obvious variation of an invention disclosed and claimed in an earlier patent by the same inventor.” Id. The determination of whether there is obviousness-type double patenting is a two-step process: [1.] [The] court construes the claim in the ear- lier patent and the claim in the later patent and determines the differences. [2.] [T]he court determines whether the differ- ences in subject matter between the two claims render the claims patentably distinct. A later patent claim is not patentably distinct from an earlier patent claim if the later claim is obvious over, or anticipated by, the earlier claim. Eli Lilly & Co. v. Barr Labs. Inc., 251 F.3d 955, 968 (Fed. Cir. 2001) (citations omitted). A determination that there is obviousness-type double patenting must be based on the matter actually claimed; 6 IN RE: HITACHI METALS, LTD. reliance on the specification and not the claims is legal error. In re Longi, 759 F.2d 887, 893 (Fed. Cir. 1985); see also Application of Vogel, 422 F.2d 438, 441 (CCPA 1970) (“[T]he patent disclosure may not be used as prior art.”). However, this does not mean that the court must close its eyes to the specification entirely. For example, the court may look to the specification to define terms found in the claims. Application of Vogel, 422 F.2d at 441. Additionally, in answering the question, “Does any claim in the application define merely an obvious variation of an invention disclosed and claimed in the [prior] patent?” the court may look to the various embodiments described in the specification as they provide a tangible and more meaningful method to discern whether what is claimed was merely modified in an obvious manner. Id. As this court’s predecessor has held, the use of the specification in this manner “is not in contravention of the cases forbidding its use as prior art, nor is it applying the patent as a reference under 35 U.S.C. § 103 . . . .” Id. at 442. Thus in limited circumstances, we may turn to the specification in the analysis of whether there is obviousness-type double patenting. In accordance with the two-prong obviousness-type double patenting test, we first construe the claims at issue and determine the differences in subject matter between the claims. The relevant claims of the ’368 patent claim a crystalline compound with a tetragonal structure with the general formula R(Fe,Co)B. Additionally, the claims require at least one element from each of its claimed R and M groups. Groups R and M are composed of the following elements: Group R is composed of elements Nd, Pr, La, Ce, Tb, Dy, Ho, Er, Eu, Sm, Gd, Pm, Tm, Yb, Lu, and Y; and Group M is composed of elements Ti, Ni, Bi, V, Nb, Ta, Cr, Mo, W, Mn, Al, Sb, Ge, Sn, Zr, and Hf. Therefore, to satisfy the relevant claims of the ’368 patent, the IN RE: HITACHI METALS, LTD. 7 compound must at least contain Fe, Co, B, and at least one element from each group R and M. The relevant claims of the ’651 patent are also di- rected toward a crystalline structure, except with the formula of R(Fe,Co)BXAM. Like the relevant claims in the ’368 patent, here the claims also require the presence of at least one element from the R and M groups. However, the relevant claims of the ’651 patent also require at least one element from each X and A groups. Groups X and A consist of the following elements: Group X is composed of elements S, C, P, and Cu; and Group A is composed of elements H, Li, Na, K, Be, Sr, Ba, Ag, Zn, N, F, Se, Te, and Pb. The relevant ’651 patent claims also include one additional element in group M that is not present in the relevant ’368 patent claims’ definition of group M, Si. Thus, to satisfy the relevant claims of the ’651 patent the compound must at least contain Fe, Co, B, and at least one element from each group R, X, A, M; two more elements than is required in the rele- vant ’368 patent claims. In other words, except for the slight variance in group M, the only difference between the relevant claims in the ’368 patent and the ’651 patent is the addition of two elements, one from each of group X and A. Additionally, in construing the relevant ’368 patent claims, we concur with the Board that, because the claims were drafted in the “consisting essentially of” format, the scope of the claims can include those additional elements which do not materially affect the basic and novel characteristics of the claimed invention as specified in the ’368 patent specification. See Application of Herz, 537 F.2d 549, 551 (CCPA 1976) (“[I]n construing the phrase ‘consisting essentially of’ in appellants’ claims, it is necessary and proper to determine whether their specification reasonably supports a construction that would include additives . . . .”). 8 IN RE: HITACHI METALS, LTD. The Board correctly turned its attention to the specification, which explicitly states that various starting materials may include impurities that will be present in the finished product, in determining what elements are included in the claims. For example, the specification states that iron may include carbon, phosphorous, manganese, sulfur, copper, chromium, nickel, copper, and aluminum as impurities, boron may include carbon as an impurity, and neodymium may include fluorine as an impurity. ’368 patent col. 9 ll. 15-27. Furthermore, the specification gives no indication that the starting elements must undergo any treatment to remove said impurities. Additionally, the specification makes clear that the composition claimed in the ’368 patent need not use pure starting elements. For example, the ’368 patent’s specification states that tetragonal systems “are stable when they contain up to 1% of H, Li, Na, K, Be, Sr, Ba, Ag, Zn, N, F, Se, Te, Pb, or the like.” Id. at col. 23 ll. 28-31. It is notable that these elements are not claimed in the ’368 patent, but are instead members of group A as defined by the relevant ’651 patent claims. Thus, we conclude that the Board had a sufficient basis for finding that the relevant ’368 patent claims included carbon, phosphorous, manganese, sulfur, copper, chromium, nickel, copper, and aluminum. We now turn to the second prong of the test for obvi- ousness-type double patenting, determining “whether the differences in subject matter between the two claims render the claims patentably distinct.” Eli Lilly, 251 F.3d at 968. We conclude that the Board properly held that the ’651 claims were obvious variations of the ’368 claims. As discussed above, while the relevant ’368 patent claims do not explicitly include elements from groups X and A, this court construes the claims to include the impurities carbon, phosphorous, copper, and fluorine. Carbon, phosphorous, and copper are all members of the ’651 patent’s X group and fluorine is a member of the ’651 IN RE: HITACHI METALS, LTD. 9 patent’s A group. Thus, the relevant claims of the ’368 patent include at least one claimed compound that would satisfy claim 1 of the ’651 patent, as at least a single element of groups R, X, A, and M are present in the relevant ’368 patent claims’ compounds. In other words, by making, for example, the compound claimed in claim 13 of the ’368 patent, the compound would include not only Fe, Co, B and an element of each group M and R—as required by claim 13—but would also include impurities that are defined as belonging to the ’651 patent claims’ X and A groups. Therefore, as the relevant ’651 patent claims at issue are not patentably distinct from the relevant ’368 patent claims, the claims are invalid. We have reviewed Appellants’ remaining arguments and find them unpersuasive.

Obvious-Type Double Patenting

33 The State also appeals the district court's ruling that the SEVGL's labeling, brochure and signage provisions constitute compelled speech in violation of the First Amendment. As the Supreme Court recently observed, some of its leading First Amendment precedents have established the principle that freedom of speech prohibits the government from telling people what they must say. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., ___ U.S. ___, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (citing W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) and Wooley v. Maynard, 430 U.S. 705, 717, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977)). The Court has stated that where a statute [m]andat[es] speech that a speaker would not otherwise make, that statute necessarily alters the content of the speech. See Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 795, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). Moreover, speech does not lose its protection because of the corporate identity of the speaker. See Pacific Gas and Elec. Co. v. Pub. Util. Comm'n, 475 U.S. 1, 16, 106 S.Ct. 903, 89 L.Ed.2d 1 (1986) (plurality opinion). 34 However, the First Amendment's guarantee of freedom from compelled speech is not absolute. Particularly in the commercial arena, the Constitution permits the State to require speakers to express certain messages without their consent, the most prominent examples being warning and nutritional information labels. See, e.g., Nat'l Elec. Mfrs. Ass'n v. Sorrell, 272 F.3d 104, 114-16 (2d Cir.2001) (rejecting First Amendment challenge to state requirement that manufacturers include labeling warning consumers of mercury content). The Court has allowed states to require the inclusion of purely factual and uncontroversial information .... as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers. See Zauderer v. Office of Disciplinary Counsel for Sup.Ct. of Ohio, 471 U.S. 626, 651, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985) (upholding State's requirement that attorney include in advertisements a disclosure that clients may be responsible for costs of litigation). 35 The question that we must answer is whether the SEVGL's labeling and signage requirements are compelled speech in violation of the Constitution or simply requirements of purely factual disclosures. The State argues that all of these provisions are like the mercury disclosure requirements in Sorrell. See Sorrell, 272 F.3d at 114. With regard to the 18 sticker requirement, this argument seems to be plainly unsound. The SEVGL requires that the 18 sticker be placed on games that meet the statute's definition of sexually explicit. The State's definition of this term is far more opinion-based than the question of whether a particular chemical is within any given product. Even if one assumes that the State's definition of sexually explicit is precise, it is the State's definition—the video game manufacturer or retailer may have an entirely different definition of this term. Yet the requirement that the 18 sticker be attached to all games meeting the State's definition forces the game-seller to include this non-factual information in its message that is the game's packaging. The sticker ultimately communicates a subjective and highly controversial message—that the game's content is sexually explicit. This is unlike a surgeon general's warning of the carcinogenic properties of cigarettes, the analogy the State attempts to draw. For these reasons, we must apply strict scrutiny to the SEVGL's requirement that the 18 sticker be placed on all covered video games. 36 Applying strict scrutiny, we cannot say that the 18 sticker is narrowly tailored to the State's goal of ensuring that parents are informed of the sexually explicit content in games. As we described above, the State has not demonstrated that it could not accomplish this goal with a broader educational campaign about the ESRB system. Cf. Riley, 487 U.S. at 800, 108 S.Ct. 2667 (requirement that professional fundraisers disclose information about percentage of funds actually turned over to charity in the prior year was not narrowly tailored where the State [could] itself publish the detailed financial disclosure forms it requires professional fundraisers to file). Indeed, at four square inches, the 18 sticker literally fails to be narrowly tailored—the sticker covers a substantial portion of the box. 13 The State has failed to even explain why a smaller sticker would not suffice. Certainly we would not condone a health department's requirement that half of the space on a restaurant menu be consumed by the raw shellfish warning. Nor will we condone the State's unjustified requirement of the four square-inch 18 sticker. 37 Similarly, we must conclude that the SEVGL's signage and brochure requirements are unconstitutional. Careful consideration of what the signs and brochures are in fact communicating reveals that the message is neither purely factual nor uncontroversial. See Zauderer, 471 U.S. at 651, 105 S.Ct. 2265. The signs and the brochures are intended to communicate that any video games in the store can be properly judged pursuant to the standards described in the ESRB ratings. Moreover, the signs communicate endorsement of ESRB, a non-governmental third party whose message may be in conflict with that of any particular retailer. Requiring a private party to give significant space to a third party whose message potentially conflicts with the plaintiff's was the very Government action the Supreme Court found to be unconstitutional in Pacific Gas and Electric. See Pacific Gas and Elec., 475 U.S. at 13-17, 106 S.Ct. 903 (invalidating a requirement that utility company allow third party to include its newsletter in the plaintiff utility company's envelopes sent to customers containing utility bill and company newsletter); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 566, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (State could not compel St. Patrick's Day parade organizers to include gay and lesbian group in parade because of the potential conflict with the intended message of the protected expressive activity). This is quite a different situation than the Supreme Court's most recent compelled speech case, Rumsfeld v. FAIR, where the Court concluded that there was no expressive activity threatened by simply allowing the military equal recruiting access as other employers. See FAIR, 126 S.Ct. at 1309-10. Here, the retailers affected by the SEVGL have salespeople and their own information that communicate messages about the relative value of various games for buyers of different age groups. The State cannot force them to potentially compromise this message by inclusion of the ESRB ratings. The State is certainly entitled to communicate the good news about the ESRB to the public. Indeed, the plaintiffs' proposed alternative to the SEVGL, endorsed above, would involve a broad educational campaign directed at the public about the ESRB system. But the State goes too far in imposing criminal sanctions for any retailer's reticence at joining in communicating this message. 38 We also note that the signage requirement is victim to the same overreaching as the labeling requirement with regard to the size of the prescribed sign. The SEVGL requires all retailers to maintain three signs in the store—one within five feet of the games, one at any existing information desk, and one at the point of purchase. See ILCS 720 § 5B-30. The signs must each have dimensions of no less than 18 by 24 inches. Id. Many video game stores are as small as one room in an indoor mall. Little imagination is required to envision the spacing debacle that could accompany a small retailer's attempt to fit three signs, each roughly the size of a large street sign, into such a space. We think that this deficiency reflects the narrow tailoring failure of the entire signage and brochure scheme, and we agree with the district court that it is unconstitutional.

Constitutionality of the SEVGL's Labeling, Brochure and Signage Provisions

19 We also conclude that the district court erred in granting summary judgment to the Postal Service because it incorrectly construed in a number of ways that Jensen's claims did not present issues of material fact. First, the district court misinterpreted Jensen's claims against the Postal Service. The district court failed to consider that Jensen's claims were against the Postal Service for not ending the harassment by the co-workers and not just claims against the co-workers for harassment. The district court noted that Jensen's main contention was that the Postal Service maintained a pervasive system of discrimination at the Prairiewood Station and that this system persists to the present[.] (Add. at 8.) However, the district court viewed Jensen's claims as an attempt to exempt[] her from the time requirements of Title VII. Id. We disagree with the district court's view of Jensen's argument. Instead, we view Jensen's claims similar to those in Swenson v. Potter, 271 F.3d 1184 (9th Cir.2001). 20 In Swenson, the Postal Service argued that Swenson, a mail sorter, failed to contact an EEO counselor within forty-five days, rather Swenson waited fifty-three days to allege harassment based on a grabbing incident by her co-worker. 271 F.3d at 1190-91. The Ninth Circuit determined that the grabbing incident is not `the matter alleged to be discriminatory.' Id. at 1191. Instead, the author of the opinion, Judge Alex Kozinski, emphasized that Swenson's claims were against the Postal Service in failing to act on her allegations of harassment. Id. (The matter alleged to be discriminatory is the adequacy of the employer's response, not the co-worker's underlying behavior.). The court held that the forty-five day period thus did not start to run until the employer took final action on her complaint. Id. The court determined that Swenson's claim was timely because she contacted an EEO counselor before the Postal Service had concluded its investigation. Id. 21 In several respects this case also is similar to McFarland v. Henderson, 307 F.3d 402 (6th Cir.2002). In McFarland, a female temporary postal employee claimed she was constructively discharged as a result of sexual harassment, when her immediate supervisor attempted to kiss her. Id. at 404. For several months after the incident, the supervisor was rude to her. Id. In addition, McFarland learned that unfounded rumors were being spread that she was sleeping with other male postal employees, and other rumors about her alleged attitude problem. Id. McFarland reported the rumors to a supervisor above the harasser. Approximately three months after the attempted kiss, McFarland contacted an EEO counselor. Id. at 405. The Postal Service alleged that McFarland's claim was untimely because she contacted the EEO more than forty-five days after the attempted kiss. Id. 22 The Sixth Circuit, applying the Morgan hostile work environment analysis, determined that McFarland's claims were timely. Based on Morgan, [a] hostile-work-environment claim thus has an effect similar to that of a continuing violation composed of successive discrete acts, in that the existence of the hostile work environment within the 45-day time limit causes the actionable violation to encompass conduct that occurred outside of the limit. Id. at 408. The court concluded that McFarland's hostile work environment existed less than forty-five days before her EEO contact because her treatment amounted to an environment permeated with unfounded lies about her alleged sexual promiscuity, her competence as an employee, her being assigned to less desirable work assignments, and having her hours reduced. Id. 23 Similarly, Jensen's claims of discrimination may extend beyond her last day of work to the time when Jensen was on leave and the Postal Service failed to address her concerns. The allegations in Jensen's complaint charge that the Postal Service violated Title VII by failing to take appropriate corrective action in response to her allegations of co-worker harassment. The matter alleged to be discriminatory is the adequacy of the Postal Service's response, not Jensen's co-worker's underlying behavior. In essence, Jensen asserts that although she was physically absent from her worksite more than forty-five days before formalizing her EEOC complaint, she remained an employee and that she could not actually return to her workplace because of the failure to remedy the sexually harassing environment.

Nature of Claims Against Postal Service

36 Of the $48,869.42 in total expenses that Shea requested in reimbursements, the court granted $38,011.36 or 78 percent. Most of the disallowed expenses were attributable to secretarial or messenger overtime, and for taxi fare and meals during overtime work, because the court determined that these expenses were normally subsumed in overhead. In addition, in the case of the DPU proceedings, the court denied reimbursement for travel expenses between Washington, D.C., and Boston on days of prehearing conferences that the court determined Shea should not have attended. 37 In determining what expenses should be awarded, a court must apply a test of reasonableness and necessity. Palmigiano v. Garrahy, 707 F.2d 636, 637 (1st Cir.1983). It is well-established in awarding fees in a civil rights case that certain out-of-pocket costs incurred by the plaintiffs' attorneys, including transportation, lodging, parking, food and telephone expenses can be reimbursed as reasonable and necessary costs and expenses. Id. at 637. We see no reason not to grant reimbursement of overtime expenses here, particularly when the general practice of firms both in Washington and in Boston is to bill the cost of overtime to the client whose matters necessitated it. As for the expenses incurred during travel to Boston, since we have approved Shea's attendance at the pretrial hearings as within the bounds of reason, we also approve the reimbursement of expenses associated with those visits.

Reimbursement of Expenses

42 We agree with the Fifth Circuit, for similar reasons, that the duties of care described in Scindia should be applied in dual capacity cases insofar as the facts allow. To do so, a court may have to divide the employer-shipowner into a hypothetical independent employer and independent vessel owner, each separately holding the duties allocated under principles suggested in Scindia. A court may sometimes be assisted in this process by the defendant's internal employment arrangements assigning certain personnel to the vessel side of its operation. On occasion, however, the duties and work arrangements pertaining to a suing harbor worker may be so foreign to those in Scindia 's stevedoring context that Scindia 's analysis will become no more than a point of departure. Nonetheless, Scindia 's general approach, at least, can be followed and, in many cases, some or all of its express analysis may be useable. 43 The statutory language and the legislative history of the 1972 and 1984 Amendments plainly evidence Congress' intent that the worker's compensation scheme be the primary remedy for all covered workers, regardless of an employer's commercial practice in regard to vessel ownership. See 33 U.S.C. § 905(a) (exclusiveness of employer's liability); 1984 U.S.C.C.A.N. at 2740 (In the Committee's view, the Longshore Act should be the primary source of compensation for covered workers who are disabled or who may die as a result of a job-related injury or disease.) (emphasis supplied); H.R.Rep. No. 92-1441, 92d Cong., 2d Sess., reprinted in 1972 U.S.C.C.A.N. 4698, 4705 ([T]he bill provides in the case of a longshoreman who is employed directly by the vessel there will be no action for damages if the injury was caused by the negligence of persons engaged in performing longshoring services.... The Committee's intent is that the same principles should apply in determining liability of the vessel which employs its own longshoremen ... as apply when an independent contractor employs such persons.) (emphasis supplied). The 1972 Amendments carefully balanced the concerns of employers, vessels, and covered workers. We are not disposed to upset that balance by expanding the liability of employers that act simultaneously as vessel owners, when the statute does not call for such a reading and the Supreme Court has cautioned against it. 44 As already observed, Scindia will sometimes afford less direct guidance on those duties owed to harbor workers than it does on those owed to longshore workers. Courts will need to decide, on a case-specific basis, whether the harbor worker's employment arrangement sufficiently resembles that in Scindia to make particular specifics germane. 45 Here, the employment arrangement is sufficiently analogous to make Scindia a useful guide. The Scindia Court reasoned that once longshore workers came aboard and began carrying out their cargo duties under a stevedore's supervision, the vessel itself had no general duty to exercise reasonable care to inspect for unsafe workplace conditions; rather, it could rely on the longshore worker's employer to do so. See Scindia, 451 U.S. at 172, 101 S.Ct. at 1624-25. Here, A-K hired harbor workers through the local carpenters' union and, as their employer, supervised them as they tended the barges, handling the lines and carrying out construction activities thereon. Both types of activities--construction and scowmen's work--were assigned to them and were performed for A-K qua employer. Workers like Morehead received their daily instructions from A-K's carpenter-foremen, while A-K's project safety manager met periodically with them to discuss site-specific safety issues. Therefore, Scindia 's principle of limited liability of the vessel sensibly and logically applies, because the employees effectively assumed control of the barges working under A-K in its capacity as their employer. A-K qua shipowner had no separate captain and crew assigned to the barge. The allegedly negligent conditions (the open hatch and the absence of warnings) were not attributable to the errors of separate maritime agents acting specifically for the vessel. Rather the alleged acts of negligence were those of fellow harbor workers acting within the scope of their daily employment for the employer. Cf. 33 U.S.C. § 905(b) (prohibiting liability of an employer-vessel owner for acts caused by the negligence of persons engaged in providing stevedoring services to the vessel). 46 Morehead does not assert any breach of the Scindia turnover duty (e.g., that A-K, as vessel owner, turned over the barge to the harbor workers knowing or with the duty to have known, of some defect in the barge that later caused injury). Morehead argues only that we should deem that A-K as vessel violated duties it owed him because, at the time he was injured, A-K as vessel (rather than A-K as employer) is asserted to have had active control over or actual knowledge of the open hatch. Cf. Howlett, 512 U.S. at ----, 114 S.Ct. at 2063 (noting appellant confined arguments to breach of turnover duty to warn); Elberg, 967 F.2d at 1150 (noting appellant confined arguments to breach of duty to intervene). Equating employment for worker's compensation purposes solely with construction activity, he asserts that no construction purpose, hence no employment purpose, was being pursued at the time of his injury. He draws support from the district court's findings that the barges were set alongside the pier and were not carrying construction equipment. Morehead emphasizes that A-K had instructed Breault to open the hatch to air the barge out so that A-K could exercise what Morehead argues was a vessel function--having a marine surveyor examine the barge before returning it to the owner. He further claims that A-K's safety manager or other carpenter foremen knew or should have known that the open hatch was a potentially hazardous condition. Resting on purported agency principles, Morehead asks us to assign these employees' acts to A-K in its vessel capacity, on the theory that A-K in its vessel rather than employer capacity had control over or knowledge of the open hatch and the failure to warn about it. 47 A-K responds that Breault was performing employment duties when he opened the hatch and when he threw the line to Morehead before the accident. Like Morehead, Breault had been hired both for carpenter and scowman duties. As typical in the case of harbor workers, as distinct from land-based carpenters, the men were expected as part of their employment duties to lend a hand with supporting maritime chores as well as to pursue their particular construction trade. A-K maintains that its active control over or knowledge about the open hatch into which Morehead fell is therefore attributable to it as employer, not as vessel since the hatch was opened (presumably by Breault) and the line thrown in the course of harbor worker duties which both men were regularly hired to perform. 48 We agree with A-K that, for present purposes, the barges tended by its carpenters/scowmen were operated within A-K's control and knowledge qua employer. The barges, which were Breault and Morehead's workplace, can be analogized to the areas of a vessel taken over by longshore workers in the Scindia setting. Under the principles of that case, the stevedore--or, in a dual capacity case, the employer in a stevedore capacity--is ordinarily liable for the safety of the workplace and for any injuries that occur. The vessel, or the employer in its vessel capacity, is not implicated except in the unusual circumstance that the vessel itself continues to exercise active control over the work area. 49 We recognize that a competing analysis is possible, which, however, we reject. A court could make an attempt to ascribe Breault's and Morehead's specific activities relative to Morehead's injury either to their employer or to the vessel, depending on how the court chose to classify the objectives that those activities were thought to serve. One could inquire whether the hatch was opened to help the vessel (i.e., to air it in preparation for returning it to the owner) rather than in furtherance of some construction activity. If so, the defendant qua vessel might be held liable for any negligence. Such an analysis, however, would involve courts in slippery semantical debate. Is an accident while tying up a barge at a construction site in furtherance of a construction objective or a vessel objective? If both objectives are being served, which predominates? And how does one square the fact that the employees here were hired by the employer for scowmen not just carpenter duties? Harbor workers are, after all, by definition, employees whose paid duties include maritime components. 50 As noted, the statute makes the employer's worker's compensation liability exclusive and in place of all other liability.... 33 U.S.C. § 905(a). The legislative history and the Court's precedents since 1972 make worker's compensation the primary remedy for an injured employee. The exception in section 905(b) for third-party negligence, narrowed in 1984, 16 explicitly requires a finding of vessel fault. We would be disregarding Congressional intent and might even be returning in the direction of the Sieracki doctrine which did not require such a showing, see supra n. 6, if we were to attribute some of the regular duties that a harbor worker is employed to perform to the vessel, because of their speculative seaman-like character, and only the residue to the employer. This approach would greatly expand a defendant's liability qua vessel in a work arrangement not too different from that in Scindia, i.e., one where the employees have effectively taken over the vessel to carry out their employment duties under their employer's supervision. A similar expansion of liability would follow from too easily assigning any knowledge acquired by A-K employees in the regular course of employment (such as the carpenter foremen or worksite safety manager) to A-K in a vessel capacity. Neither the statute nor case law supports such an approach, which, on the present facts, would leave this worker's compensation statute as a strange hybrid combining mandated compensation coverage with a widespread license for covered employees to sue because of the negligence of their supervisors and fellow employees within the workplace. 51 One of the essential purposes of the 1972 and 1984 Amendments was to provide employees and employers with a greater degree of certainty as to the coverage in effect. The legislative history of the 1984 Amendments documents this concern: 52 [T]he situation in which a worker may be covered at one time, and not covered at another, depending on the nature of the work which the worker is performing at the time of the injury must be avoided since such a result would be enormously destabilizing, and would thus defeat one of the essential purposes of these amendments. 53 1984 U.S.C.C.A.N. at 2736-2737. A functional interpretation, hinging the type of liability on the nature and purpose of the duties being performed by covered employees at any given time, would increase uncertainty and the frequency of disputes over the scope of coverage. As Morehead's and Breault's employment contemplated that they would alternate frequently between construction and linehandling, a single, overall classification of their duties is most appropriate for determining the types of remedies available. Cf. Gay, 915 F.2d at 1011 ([T]o deny Gay [the employee] a cause of action in the morning but to grant him one in the afternoon is to make his rights under the Act as random and indiscriminate as the sea herself. This sort of incertitude is precisely what Congress attempted to eliminate from the LHWCA in both its 1972 and 1984 amendments.) (footnote omitted); cf. Chandris, --- U.S. at ----, 115 S.Ct. at 2187 (In evaluating the employment-related connection of a maritime worker to a vessel in navigation, courts should not employ 'a snapshot test for seaman status, inspecting only the situation as it exists at the instant of injury'.... [A] worker may not oscillate back and forth between Jones Act coverage and other remedies depending on the activity in which the worker was engaged while injured.) (citations omitted). 54 Cases will, of course, arise from time to time involving an injury that was negligently caused by someone acting as the agent of the vessel owner rather than of the employer. 17 Here, however, we see nothing requiring the district court to find that Breault, in leaving open the hatch, acted in any capacity other than as Morehead's fellow employee pursuing assigned harbor worker duties rather than as A-K's agent in its distinct shipowner's capacity. Morehead and Breault were hired to perform both construction and scowmen duties. A carpenter-supervisor instructed Breault to open the hatch. A-K's project safety manager generally oversaw the safety of work operations. Morehead has not shown why, in these circumstances, A-K in its distinct capacity as owner of the vessel rather than as his employer, may have breached a duty of care to protect him against the open hatch. 55 We conclude that the district court correctly viewed the open hatch as a condition temporarily created by A-K as employer, and affirm the district court's judgment in favor of A-K. 56 So ordered. 57

Resolving This Case

25 We turn next to the constitutionality of the PLRA's cap on attorneys' fees. Two of our sister circuits recently have addressed the same general question. The Ninth Circuit has upheld the cap against a constitutional challenge. See Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999). The Third Circuit, sitting en banc, split evenly on the issue. See Collins v. Montgomery County Bd. of Prison Inspectors, 176 F.3d 679, 686 (3d Cir. 1999) (en banc), cert. denied, 120 S. Ct. 932 (2000). This court has not yet spoken to the question. 26 Like the challengers in Madrid and Collins, Boivin grounds his claim of unconstitutionality in concepts of equal protection. See supra note 2. The centerpiece of his argument is that section 1997e(d)(2) treats prisoner civil rights litigants differently from all other civil rights litigants: whereas a non-prisoner civil rights litigant who wins only a nominal damage award can receive substantial attorneys' fees under 42 U.S.C. § 1988, see, e.g., Wilcox v. City of Reno, 42 F.3d 550, 557 (9th Cir. 1994) (affirming award of $66,535 in attorneys' fees to section 1983 plaintiff who had secured a $1.00 damage award), the fee cap deprives a prevailing prisoner civil rights litigant of the possibility of any comparable emolument. 27 In light of the Supreme Court's recent pronouncement in Farrar, the contrast that Boivin seeks to depict may be more apparent than real. See 506 U.S. at 115 (When a plaintiff recovers only nominal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all. (citation omitted)). Leaving that point to one side, the first step in evaluating his claim is to determine the appropriate level of scrutiny. We take that step and then proceed to the constitutional question. 28 1. The Level of Scrutiny. Typically, a law will withstand an equal protection challenge if it bears a rational relationship to a legitimate governmental end. See Vacco v. Quill, 521 U.S. 793, 799 (1997). This level of scrutiny intensifies, however, if the law infringes a fundamental right or involves a suspect classification. See id. Boivin puts forth two reasons why the PLRA fee cap, which draws a line between prisoners and non-prisoners, should receive such heightened scrutiny. First, he declares that prisoners are a suspect class. Second, he maintains that the fee cap impermissibly burdens the fundamental right of access to the courts. 29 We need not linger long over Boivin's first suggestion. From a constitutional standpoint, prisoners simply are not a suspect class. See Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 1998) (per curiam) (holding that prisoners are not a suspect class); Zehner v. Trigg, 133 F.3d 459, 463 (7th Cir. 1997) (calling the idea that prisoners constitute a suspect class completely unsupported). Thus, heightened scrutiny cannot be justified on this basis. 30 Boivin's second suggestion requires a somewhat longer answer. It is axiomatic that prisoners have a constitutionally-protected right of meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817, 821 (1977). This means that prisoners must have a reasonably adequate opportunity to bring before the courts claims that their constitutional rights have been violated. See id. at 825. To ensure this opportunity, correctional authorities must assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law. Id. at 828, distinguished by Lewis v. Casey, 518 U.S. 343, 351 (1996). Boivin asserts that, without counsel, prisoners have little chance of meaningfully presenting their claims to the courts, and that the PLRA fee cap therefore interferes with the right of access by destroying the only real incentive for lawyers to take prisoners' civil rights cases. 31 Boivin's arguments are wrong on the law. The constitutionally-protected right of access to the courts is narrow in scope. See Lewis, 518 U.S. at 360 (explaining that constitutional concerns are satisfied as long as prisoners receive the minimal help necessary to present legal claims). To illustrate, the right of access to the courts does not extend to enabling prisoners to litigate with maximum effectiveness once in court. See id. at 354. Similarly, the right of access to the courts does not require the provision of counsel in civil cases. See Lassiter v. Department of Soc. Servs., 452 U.S. 18, 26-27 (1981); DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). A statute which, like section 1997e(d)(2), does nothing more than limit the availability of an attorney paid for by the target of a prisoner's suit does not implicate the right of access to the courts in any cognizable way. Cf. Rouse, 129 F.3d at 660 (explaining that while there is a constitutional right to court access, there is no complementary constitutional right to receive or be eligible for a particular form of relief). 32 Boivin's arguments also are wrong on the facts. First and foremost, the suggestion that prisoners who proceed pro se do not have a meaningful opportunity to prosecute their claims is highly debatable. While pro se litigants are not exempt from procedural rules, courts are solicitous of the obstacles that they face. Consequently, courts hold pro se pleadings to less demanding standards than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Instituto de Educacion Universal Corp. v. United States Dep't of Educ., 209 F.3d 18, 23 (1st Cir. 2000). By the same token, courts endeavor, within reasonable limits, to guard against the loss of pro se claims due to technical defects. See, e.g., Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). The net result is that pro se litigants sometimes enjoy stunning success. See Jon O. Newman, Pro Se Prisoner Litigation: Looking for Needles in Haystacks, 62 Brook. L. Rev. 519, 519 n.2 (1996) (collecting representative cases in which prisoners acting pro se have won significant victories). 33 In all events, the PLRA fee cap does not make it impossible for a prisoner to secure the services of a lawyer. Cynics and naysayers notwithstanding, we are reluctant to conclude that all attorneys accept or reject prisoners' cases solely on the basis of financial considerations. Moreover, prisoners may hire attorneys with their own funds. See 42 U.S.C. § 1997e(d)(4) (Nothing in this subsection shall prohibit a prisoner from entering into an agreement to pay an attorney's fee . . . .). Then, too, the PLRA contains other provisions that allow for differential compensation (including shifted fees not subject to the section 1997e(d)(2) cap, see supra note 4) where injunctive or declaratory relief is obtained. See 42 U.S.C. § 1997e(d)(1). Finally, the PLRA does not eliminate all prospect of shifted attorneys' fees even in cases that involve only money damages. After all, the statutory cap allows for an award of attorneys' fees in an amount up to 150% of a monetary judgment - which is 150% more than the norm in civil litigation. We doubt that a lawyer who believes that a prisoner has a meritorious claim for damages will be deterred by that limitation. 34 To say more on this topic would be supererogatory. We agree with Judge O'Scannlain that, in the last analysis, [t]he PLRA does not restrict access to the courts; at most, it restricts prisoners' access to the most sought-after counsel who insist on their going rate for representation. Madrid, 190 F.3d at 995. Heightened scrutiny is, therefore, inappropriate in this case. 5 35 2. Rationality Review. Since the PLRA fee cap neither involves a suspect classification nor infringes on the fundamental right of access to the courts, we analyze its constitutionality under the rational basis test. 36 Rationality review in equal protection cases is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). Rather, an inquiring court must ask whether there is a rational relationship between the disparity of treatment and some legitimate governmental purpose. Heller v. Doe, 509 U.S. 312, 320(1993). If any reasonably conceivable state of facts that could provide a rational basis for the classification exists, the classification must be upheld. Beach, 508 U.S. at 313. As long as this modest burden is satisfied, Congress's handiwork will endure even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. Romer v. Evans, 517 U.S. 620, 632 (1996). 37 Consistent with these tenets, the Supreme Court has made it pellucid that a person who challenges the rationality of a statute must negate every plausible basis that conceivably might support it. See Heller, 509 U.S. at 320; Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973). Boivin fails to discredit the legitimacy of no fewer than three purposes that are served by the cap on attorneys' fees: discouraging frivolous suits, protecting the public fisc, and bringing prisoner incentives to litigate more in line with non-prisoner incentives. 6 38 We need not pause to analyze these legislative purposes separately. It suffices to say that the prison setting is sui generis, and Congress's choice to treat prisoners differently than non-prisoners is plainly justified by the idiosyncratic characteristics of that setting. Prisoners' living costs are paid by the public and prisoners have nowhere to go - a combination that gives them more free time than non-prisoners to pursue claims (whether or not valid). The problem of prisoner litigiousness is exacerbated by the nature of prison life, as inmates tend to egg each other on. This problem is further complicated by the constitutionally-protected right to a certain level of legal assistance, see Bounds, 430 U.S. at 828. Experience has shown that these and other factors, acting in concert, encourage inmates to bring large numbers of insubstantial claims - or so Congress rationally could have thought. See Madrid, 190 F.3d at 996 ([I]t is certainly conceivable that, because of significant potential gains and low opportunity costs, prisoners generally file a disproportionate number of frivolous suits as compared to the population as a whole.). Thus, we reject Boivin's plaint that the statute distinguishes impermissibly between prisoners and other civil rights plaintiffs. 39 Boivin attempts to elude the inevitability of this result in a variety of ways. Citing the uncontroversial principle that a court ought not to uphold a law motivated by a bare . . . desire to harm a politically unpopular group, United States Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973), he insists that the fee cap discriminates against prisoners with meritorious claims, leaving them bereft of counsel so their claims can more easily be thwarted. But given the legitimate governmental purposes that underlie the fee cap, see supra, the claim of a bare desire to harm will not fly. Consequently, the Moreno principle has no application on these facts. 40 As a fallback, Boivin deplores what he envisions as the complete lack of fit between the means that Congress chose (capping attorneys' fees) and the end that it sought to achieve (reducing frivolous prisoner litigation). Although this argument is presented only in skeletal form, it is phrased in terms reminiscent of the Supreme Court's decision in Lindsey v. Normet, 405 U.S. 56, 77-78 (1972) (holding unconstitutional a double-bond requirement imposed on tenants who seek to appeal landlords' verdicts in rent disputes on the ground that the requirement not only bars non-frivolous appeals by those who are unable to post the bond but also allows meritless appeals by others who can afford the bond). Thus, we assume that Boivin means that since attorneys' fees are awarded only to prevailing parties, the fee cap could have no possible deterrent effect on the filing of meritless actions. 41 Common sense suggests that this ex post view is untenable. Congress presumably feared the motivating effect of the prospect of attorneys' fees, ex ante, and the fee cap quells that effect by capping the potential payoff. This changes the odds and forces both lawyer and client, out of self-interest, to assess likely outcomes with greater care before filing a suit that, even if nominally successful, might leave them holding a nearly empty bag. 42 To be sure, it can be argued that discouraging lawyers from filing frivolous prisoner suits will fail to reduce the overall number of meritless claims because the suits eschewed by lawyers simply will be prosecuted by prisoners acting pro se. In that event, all that the fee cap will achieve is a reduction in the number of frivolous cases in which prisoners are represented by counsel. While the argument that we have posited is not illogical, there are still two conceivable ways in which the fee cap might serve to reduce the aggregate number of frivolous prisoner suits. First, Congress may have believed that at least some prisoners would abandon their claims if they could not secure the services of an attorney. Second, to the extent that Congress thought lawyers were exhorting prisoners to pursue frivolous claims in the hope that lightning would strike - that, say, a runaway jury would hand down a favorable verdict or a sympathetic judge would couple a smidgen of relief with a large fee award - the fee cap would tend to curtail that behavior, thereby reducing the overall number of frivolous suits in the system. Recognizing that rationality review is highly deferential to legislative choices, see Beach, 508 U.S. at 313, these possibilities are sufficient to sustain the statutory fee cap. Under the rational basis test, duly enacted socioeconomic legislation should be upheld so long as any set of facts could suffice to establish a rational relationship between the law and the government's legitimate objectives. Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 978 (1st Cir. 1989). 43 Nor does Boivin's analogy to Lindsey compel a different result. The case before us differs from Lindsey in two important respects. First, unlike the double-bond requirement, the cap on attorneys' fees is not a barrier to court access, but a limitation on relief: the double-bond requirement operated directly to bar appeals by individuals who could not afford the extra cost, whereas the fee cap only affects how claims are presented and does not preclude any prisoner from actually bringing a claim. Second, the Lindsey Court found a very poor correlation between the double-bond requirement and the goal of reducing frivolous appeals. See 405 U.S. at 78. The fee cap fits much more snugly with the goal of reducing the volume of frivolous suits because it has the principal effect of encouraging both prisoners and lawyers who are mulling whether to bring covered cases to ask if the game is worth the candle, given the relief available. 44 Let us be crystal clear. We do not suggest that there is a seamless fit between section 1997e(d)(2) and the goals that Congress aspired to achieve. However, rational basis review does not require a perfect accommodation between means and ends. See Heller, 509 U.S. at 321. Because a cap on attorneys' fees, particularly when linked with the requirement that the prisoner contribute part of the award to the payment of the fee, see 42 U.S.C. § 1997e(d)(2), conceivably may discourage prisoners and their counsel from filing frivolous or low-value suits, we think that the fit is close enough to pass constitutional muster. See Metropolis Theater Co. v. City of Chicago, 228 U.S. 61, 69 (1913) (The problems of government are practical ones and may justify, if they do not require, rough accommodations . . . .).

The Constitutionality of the Fee Cap.

21 The State points out that since 1958 the DVR has offered some sort of hearing and that this procedure existed at the time the vendors filed suit. However, if the State means that the vendors should have used the existing procedure, such an argument is seriously misguided. 22 The determination that the vendors are required to exhaust their remedies under the Randolph-Sheppard Act results from a reading of that Act and an interpretation of congressional intent. Because Congress prescribed an elaborate remedial mechanism for the resolution of disputes arising under the Act, it is entirely appropriate to conclude that Congress must have intended that such a remedy be exhausted. However, it would be entirely inappropriate to conclude that, in the absence of the statutorily prescribed mechanism, Congress alternatively intended that a substitute mechanism offered by the State not mentioned in the statute also be exhausted.

Existing Procedures

4 Mendes claims the district court should have suppressed a photocopy of her date book made by government agents while she was detained at the Mexico-United States border. This contention lacks merit. Custom officials are entitled to seize ... documents where, as here, the officials have been notified that [the documents are] the instrumentalities of a crime involving the illegal importation of [narcotics]. United States v. Schoor, 597 F.2d 1303, 1306 (9th Cir.1979). Customs officials detained Mendes at the Mexico-United States border after they found two marijuana cigarettes in her possession and after a computer query revealed that she was the subject of a lookout. Special Agent Robert Mattivi, who had been investigating Mendes since April 1991, notified customs inspectors that Mendes was suspected of being involved in a narcotics trafficking conspiracy. He asked customs inspectors to search Mendes' vehicle and to copy any documents evidencing her illegal activities. The evidence could have been seized outright. Mendes points to nothing in the circumstances of this case that would make the photocopying unreasonable. Cf. United States v. Cardona, 769 F.2d 625, 629 (9th Cir.1985) (photocopies suppressed because copied items could not be seized).

Denial of motion to suppress date book

Moore pleaded guilty to conspiracy to manufacture, distribute, and possess with intent to distribute at least 100 kilograms of a mixture and substance containing 1 The Honorable Rebecca Goodgame Ebinger, United States District Judge for the Southern District of Iowa. -2- marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and possession with intent to distribute less than 50 kilograms of a mixture and substance containing marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). Before sentencing, Moore objected to the presentence report’s recommendation that his base offense level be increased by three for his aggravating role in the offense, see U.S.S.G. § 3B1.1(b), and by two for maintaining a premises for the purpose of manufacturing or distributing controlled substances, see U.S.S.G. § 2D1.1(b)(12). The district court overruled Moore’s objections and applied the enhancements. Moore’s total offense level was 30, his criminal history category was III, and his Guidelines sentencing range was 121 to 151 months’ imprisonment. The district court varied downward, imposing a 108-month sentence on the conspiracy count and a concurrent 60-month sentence on the possession count. Moore argues that the district court clearly erred in finding that he had acted as a manager or supervisor in the drug conspiracy. See United States v. Alcalde, 818 F.3d 791, 794 (8th Cir. 2016) (standard of review). Guidelines § 3B1.1(b) instructs the district court to apply a three-level increase “[i]f the defendant was a manager or supervisor . . . and the criminal activity involved five or more participants or was otherwise extensive.” We have said that a defendant may be subject to the enhancement even if he managed or supervised only one participant in a single transaction. United States v. Irlmeier, 750 F.3d 759, 764 (8th Cir. 2014). A witness testified at Moore’s sentencing hearing that he once overheard Moore direct his girlfriend to obtain marijuana from a certain location and sell it at a certain price to Moore’s customer. Moore acknowledges that his girlfriend sometimes sold marijuana for him when he was traveling, but he contends that he did not control her actions because they were participants in a joint enterprise. The district court’s finding to the contrary is not clearly erroneous, however, because the evidence permits a finding that Moore managed or supervised his girlfriend with respect to at least one transaction. -3- Moore next argues that the district court clearly erred in finding that he maintained his residence for the purpose of distributing a controlled substance. See United States v. Miller, 698 F.3d 699, 705 (8th Cir. 2012) (standard of review). Moore shared the residence with his girlfriend. He claims that it was primarily their family home and that there is “little evidence that the couple used the residence for the business itself.” Moore’s Br. 11. Guidelines § 2D1.1(b)(12) instructs the district court to apply a two-level increase for “maintain[ing] a premises for the purpose of manufacturing or distributing a controlled substance.” For the enhancement to apply, drug distribution “need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises, rather than one of the defendant’s incidental or collateral uses for the premises.” U.S.S.G. § 2D1.1 cmt. n.17. We have held that the enhancement applies “when a defendant uses the premises for the purpose of substantial drug-trafficking activities, even if the premises was also [the] family home at the times in question.” Miller, 698 F.3d at 707.2 Moore conceded that drug transactions occurred at his residence. When the apartment was searched, officers seized nine empty one-pound vacuum seal bags with marijuana residue, approximately two pounds of high-grade marijuana, digital scales, and clear plastic baggies, which the district court found to be “substantial indicia of high levels of trafficking at the home.” We conclude that the district court did not clearly err in finding that Moore maintained his residence for the purpose of distributing marijuana.

Lamaar Moore

7 The alien legalization program established by IRCA in 1986, and the subsequent litigation challenging the INS regulations implementing that program, form the necessary context for the jurisdiction-limiting provision of IIRIRA. IRCA offered amnesty to illegal aliens who had been continuously residing unlawfully in the United States since January 1, 1982. These aliens could apply for temporary resident status, and then, after a one-year wait, apply for permanent resident status. To be eligible for temporary resident status, it was necessary to show that the alien (i) had resided continuously in the United States in an unlawful status since January 1, 1982; (ii) had been continuously physically present in the United States since November 6, 1986 (the date of the enactment of IRCA); and (iii) would have been otherwise admissible as an immigrant. 8 U.S.C. § 1255a(a)(2)-(4) (1994). An alien seeking legalization under IRCA was also required to file an application with the INS between May 5, 1987 and May 4, 1988. See 8 U.S.C § 1255a(a)(1); 8 C.F.R. § 245a.2(a)(1) (1997). 8 Two large class actions arose out of the IRCA legalization program and the INS regulations issued to implement it. The first, Catholic Social Services, Inc. v. Meese, 685 F.Supp. 1149 (E.D.Cal.1988), aff'd sub. nom. Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir.1992), vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (hereinafter CSS ), challenged the INS's interpretation of IRCA's requirement that applicants prove their continuous physical presence in the United States since November 6, 1986. In order to mitigate this requirement, CSS, 509 U.S. at 47, 113 S.Ct. at 2490, Congress created an exception for brief, casual, and innocent absences, which would be deemed not to interrupt an alien's otherwise continuous physical presence. See 8 U.S.C. § 1255a(a)(3)(B) (1994). The INS construed this exception to mean that an absence would be deemed brief, casual, and innocent only if an alien had obtained permission from the INS before leaving the country. An alien who failed to obtain this advance parole from the INS would become ineligible for legalization. CSS, 509 U.S. at 47, 113 S.Ct. at 2490. 9 The plaintiffs in the CSS class action challenged the advance parole requirement, arguing that it was an impermissible interpretation of IRCA. The United States District Court for the Eastern District of California agreed, invalidated the advance parole requirement, see id., 685 F.Supp. at 1159-60, and required the INS to extend the deadline for legalization applications for class members who knew of the advance parole regulation, but who concluded that they would be ineligible for legalization, and who therefore did not file a timely application. CSS, 509 U.S. at 48-49, 113 S.Ct. at 2491. 10 The second class action (of which Fernandes claims to be a member), concerns an INS regulation interpreting IRCA's continuous unlawful residence requirement. League of United Latin American Citizens v. INS, No. 87-4757, 1989 WL 252578 (C.D.Cal.1989), aff'd sub. nom. Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (9th Cir.1992), vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (hereinafter LULAC ). This requirement, like the continuous physical presence requirement challenged in the CSS class action, contained an exception for brief trips abroad. The INS regulation challenged by the LULAC plaintiffs provided that the continuous unlawful residence requirement would be defeated if an alien travelled abroad and then re-entered the United States by presenting documents that were facially valid. The INS reasoned that the use of such documents rendered an alien's subsequent presence in the United States lawful for the purposes of § 245A of IRCA. CSS, 509 U.S. at 49-50, 113 S.Ct. at 2491-92. The United States District Court for the Central District of California held that the regulation was invalid, and subsequently extended the deadline for legalization applications for class members who had failed to apply because they had been ineligible for legalization under the invalidated regulation. Id. at 52, 113 S.Ct. at 2491. 11 The INS appealed the district court decisions in CSS and LULAC, arguing (1) that the judicial review provisions of IRCA barred the district courts from exercising jurisdiction over the plaintiffs' claims; and (2) that the district courts erred in extending the application period beyond the 12-month period specified by Congress. The appeals were consolidated, and a panel of the Ninth Circuit affirmed. Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914, 923 (9th Cir.1992). 12 The Supreme Court granted certiorari for the purpose, inter alia, of resolving a conflict between circuits on the jurisdictional issue. As an initial matter, the Court rejected the INS's argument that IRCA § 245A(f)(1), which created an exclusive scheme for administrative and judicial review of any determination respecting an application under IRCA, precluded the district courts from exercising jurisdiction over an action challenging the legality of INS regulations. CSS, 509 U.S. at 56, 113 S.Ct. at 2495. However, the Court found another jurisdictional hurdle in the way of the CSS and LULAC plaintiffs: ripeness. Id. 13 The mere promulgation of the INS regulations did not give the CSS and LULAC class members ripe claims because the effects of the regulations were not felt in a concrete way by the class members. Id. at 57-58, 113 S.Ct. at 2495-96 (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967)). The Court therefore concluded that a class member's claim would ripen only once he took the affirmative steps that he could take before the INS blocked his path by applying the regulation to him. CSS, 509 U.S. at 59, 113 S.Ct. at 2496. A class member who succeeded in filing, but whose application was then formally denied by the INS by reason of the alien's failure to comply with the challenged regulation, would thus fulfill the ripeness requirement. Id. at 60, 113 S.Ct. at 2497. 14 The Court surmised, however, that some potential applicants for legalization under IRCA who took every necessary affirmative step may have had their applications rejected for filing under the INS's front-desking policy. Id. at 61-62, 113 S.Ct. at 2497-98. Under this policy, INS employees reviewed applications before accepting them for filing; if an alien was ineligible for legalization because, for example, the alien failed to obtain advance parole before leaving the country, the INS would refuse to accept the application for filing. The Court concluded that 15 [A] class member whose application was front-desked would have felt the effects of the advance parole or facially valid document regulation in a particularly concrete manner, for his application for legalization would have been blocked then and there; his challenge to the regulation should not fail for lack of ripeness. 16 Id. at 63, 113 S.Ct. at 2498. In a footnote, the Court noted the possibility that other class members who were not literally front-desked might also have ripe claims: 17 Although we think it unlikely, we cannot rule out the possibility that further facts would allow class members who were not front-desked to demonstrate that the front-desking policy was nevertheless a substantial cause of their failure to apply, so that they can be said to have had the advanced parole or facially valid document regulation applied to them in a sufficiently concrete manner to satisfy ripeness concerns. 18 Id. at 66 n. 28, 113 S.Ct. at 2500 n. 28. Ultimately, the Court found that there was insufficient evidence to support a decision as to whether any CSS or LULAC class members had actually been front-desked. Accordingly, it vacated the judgment of the Ninth Circuit and remanded the cases for a determination of whether any class members were in fact front-desked. Id. at 66-67, 113 S.Ct. at 2500. On remand, the district court in the CSS case modified the definition of the class to include persons who had been front-desked, as well as any persons within the ambit of footnote 28. Catholic Social Services, Inc. v. Reno, 134 F.3d 921, 923-24 (9th Cir.1998) (amended opinion). 19

IRCA's Legalization Program and Subsequent Litigation.

43 Air France contracted with Ogden (later acquired by SkyChefs) to provide catering services for its return flight to France. Air France had a master chef who would prepare a menu for Air France flights. Air France communicated this menu to Ogden, along with information about the number of passengers, special meal requests, etc. Ogden owned all its own kitchen equipment. It purchased and prepared all the food in its kitchen, although Air France supplied some specialty items, such as cheese and caviar. Ogden loaded the food onto Air France trays and carts, which were transported to and loaded onto the plane. 44 Ogden employees might have spent 45 minutes a day on the Air France aircraft; the rest of the time they were at the Ogden facility or in transit. Ogden serviced other carriers at the same time it provided service to Air France. Air France paid Ogden based on the number of meals and other services provided, regardless of the number of employees servicing Air France or the number of hours those employees worked. 45 An Air France employee who was responsible for the airline's catering occupied a small office in the Ogden kitchen, received information from Air France and transmitted it to the caterer. This Air France employee also performed quality checks on the food, such as random taste tests, and sent meals to Air France headquarters once a week to check for bacteria. Any problems with food quality were communicated to the Ogden supervisor, usually at a monthly meeting. Air France had no control over hiring, firing, disciplining or scheduling of Ogden employees, other than indicating at what time the meals needed to be ready to load onto the plane. 46 Air France terminated its relationship with Ogden (then SkyChefs) in 2000. A SkyChef supervisor testified there was no change in the number of employees he supervised after Air France stopped using its catering services.

Ogden/SkyChefs

40 Prior to trial, Hall filed a motion in limine seeking to admit numerous hearsay statements offered to show that someone other than Hall committed the kidnapping and murder of Jessica Roach. Hall argued to the district court that the various hearsay statements were admissible under Federal Rules of Evidence 803(2), 803(24), and/or 804(b)(3). In the alternative, Hall argued that he had a constitutional right to introduce the statements as a matter of due process under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) and Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). After a hearing during which the district court examined each of the proffered hearsay statements, the court orally ruled all the statements inadmissible. Hall now appeals those rulings. 6 We review a district court's decision that a particular hearsay statement is not admissible under an abuse of discretion standard. See United States v. Sinclair, 74 F.3d 753, 758 (7th Cir.1996); United States v. Moore, 791 F.2d 566, 570 (7th Cir.1986). 41 First, Hall argues that he should have been allowed to introduce various hearsay statements and suspicious acts of behavior attributed to Lester O'Toole to establish that he, rather than Hall, committed the crime. Specifically, Hall sought to offer the testimony of Jerry Brannin, who is married to O'Toole's ex-wife. Brannin would have testified that O'Toole and his wife told him that they had to get out of town because of the Jessica Roach abduction. Hall also sought to admit the statement of Jamie Wheeler, an acquaintance, who claimed that approximately two days after Jessica Roach's disappearance, O'Toole, while in the process of loading his van in the alley behind Wheeler's mother's home, said to Wheeler's mother: Dee, I have to get out of town before the shit hits the fan. In addition, Hall sought to admit the statement of Eduardo Vela, another acquaintance, who claimed that O'Toole told him that she'd be found in harvest time in a cornfield in Indiana. Hall also sought to introduce evidence that O'Toole, like Hall, owned a van, which, according to O'Toole's brother-in-law, disappeared for three days sometime in September of 1993. His brother-in-law would further testify that when O'Toole returned, he washed the van, something that he normally never did. 42 Hall also argues that he should have been allowed to introduce the confession of Keith Goble. Police investigated Goble after he went to the funeral home preparing for Jessica Roach's funeral and asked to see the body. In a subsequent interview with investigators, Goble stated that he picked up Jessica Roach, attempted to have sex with her, and then dropped her off by a cornfield in Indiana. 43 44 Hall first contends that the district court erroneously concluded that two of O'Toole's statements did not qualify as excited utterances under Rule 803(2). Specifically, Hall argues that O'Toole's statement to Jamie Wheeler's mother that I have to get out of town before the shit hits the fan and the statement to Jerry Brannin that O'Toole and his wife had to get out of town because of the Jessica Roach abduction should have been admitted as excited utterances. Rule 803(2) allows hearsay testimony of [a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Fed.R.Evid. 803(2). Under 803(2), a hearsay statement may be introduced into evidence as an excited utterance only if each of the following three conditions is met: (1) a startling event occurred; (2) the declarant makes the statement while under the stress of excitement cause by the startling event; and (3) the declarant's statement relates to the startling event. United States v. Sowa, 34 F.3d 447, 453 (7th Cir.1994); Moore, 791 F.2d. at 570. 45 We turn first to O'Toole's statement to Wheeler's mother that he had to leave town, which O'Toole allegedly uttered approximately two days after the disappearance of Jessica Roach. We conclude that the district court did not abuse its discretion in excluding this testimony. Even if we assume that the requisite startling event was the Roach abduction itself, the record contains ample support for the district court to conclude that neither the second nor third conditions were satisfied. 46 In order to conclude that a declarant made the statement while under the stress of excitement caused by the event, the court must be able to determine that the declarant's state at the time the declaration was made excluded the possibility of conscious reflection. Moore, 791 F.2d at 571-72. While the length of time between the startling event and when the statement is made is not dispositive, it certainly is relevant to a district court's inquiry into whether the declarant uttered the statement while still under the stress of excitement caused by the startling event. Id. at 572. According to Wheeler, O'Toole made the statement at least two days after Jessica Roach was abducted. Thus, even though Wheeler stated that O'Toole appeared pale and upset at the time, we find that a lapse of time of several days between the event and the alleged statement militates against a finding of spontaneity so as to exclude the possibility of conscious reflection. More importantly, however, Hall failed to offer sufficient evidence to show that the statement related to the startling event. In fact, the district court noted that O'Toole could have made the statement for any number of reasons not involving the Jessica Roach abduction. Based on these factors, we find that the district court did not abuse its discretion in concluding that Hall failed to qualify this statement for admission under Rule 803(2). 47 Nor can we conclude that the district court erred in excluding O'Toole's alleged statement to Brannin that O'Toole and his wife had to get out of town because of the Jessica Roach abduction. First, Hall offers no evidence as to who uttered the statement--O'Toole or his wife. Second, Hall does not offer any evidence as to when the alleged statement was uttered. See Sowa, 34 F.3d at 453 (reasoning that a proponent must show that the statement [was] made under such circumstances and so recently after the occurrence of the transaction as to preclude the idea of reflection or deliberation (quoting Gross v. Greer, 773 F.2d 116, 120 (7th Cir.1985))). In light of these shortcomings, we cannot say that the district court abused its discretion in concluding that Hall failed to satisfy the three conditions necessary to qualify this statement as an excited utterance under 803(2). 48 49 At the hearing, Hall requested that Goble's confession and all of O'Toole's alleged statements be admitted under Rule 803(24), 7 the residual exception. The district court refused to admit the confession or any of O'Toole's alleged statements, ruling that there had been an insufficient showing as to the trustworthiness of the statements to justify admission. Because we agree that neither Goble's confession nor O'Toole's alleged statements bore sufficient indicia of reliability to justify admission under 803(24), we hold that the district court did not abuse its discretion in excluding these statements. 50 Under Rule 803(24), a hearsay statement must meet five requirements to be admissible: (1) circumstantial guarantees of trustworthiness; (2) materiality; (3) probative value; (4) the interests of justice; and (5) notice. Moffett v. McCauley, 724 F.2d 581, 583 (7th Cir.1984). Critical to the admission of a hearsay statement under 803(24) is a finding by the district court that the statement is trustworthy. See id.; see also United States v. Romo, 914 F.2d 889, 896 (7th Cir.1990) (concluding that statements which the district court finds not to have such guarantees of trustworthiness cannot be admitted under 803(24)). The district court excluded the proffered statements on the ground that they were untrustworthy. Because none of the other necessary requirements under the Rule were challenged as not being satisfied, on appeal, we need only address whether the statements contained circumstantial guarantees of trustworthiness as required under Rule 803(24). 51 As stated, we review a district court's decision that a particular hearsay statement is not admissible under an abuse of discretion standard. Sinclair, 74 F.3d at 758. Moreover, we have emphasized that trial courts have a considerable measure of discretion in deciding when a hearsay statement fits the residual exception of Rule 803(24). Id. (citations and internal quotations omitted). Therefore, a trial judge has considerable discretion in determining whether hearsay statements contain the necessary circumstantial guarantees of trustworthiness, United States v. Guinan, 836 F.2d 350, 354 (7th Cir.1988), and we will find an abuse in circumstances only where the trial court committed a clear and prejudicial error of judgment in determining whether a statement met the conditions for the application of the residual exception. Sinclair, 74 F.3d at 758-59. With respect to the statements proffered by Hall, we find no error in the district court's exercise of that discretion. 52 We begin by noting that [o]ut-of-court statements are generally inadmissible because they are presumed to be unreliable. United States v. Hooks, 848 F.2d 785, 796 (7th Cir.1988). Thus, the party wishing to introduce hearsay evidence must rebut the presumption of unreliability by appropriate proof of 'trustworthiness.' Id. In determining whether a statement is sufficiently reliable for purposes of Rule 803(24), a court should examine, among other factors: (1) the probable motivation of the declarant in making the statement; (2) the circumstances under which it was made; and (3) the knowledge and qualifications of the declarant. Cook v. Hoppin, 783 F.2d 684, 690-91 (7th Cir.1986) (citation omitted). Similarly, in construing Rule 804(b)(5), we have identified several additional factors that may be considered in determining whether hearsay testimony has sufficient guarantees of trustworthiness. 8 Some of these other factors which are relevant to the statements in this case include: (1) the character of the declarant for truthfulness and honesty and the availability of evidence on the issue; (2) whether the testimony was given voluntarily, under oath, subject to crossexamination and a penalty for perjury; (3) the extent to which the witness' testimony reflects his personal knowledge; (4) whether the witness ever recanted his testimony; and (5) whether the declarant's statement was insufficiently corroborated. United States v. Seavoy, 995 F.2d 1414, 1418 (7th Cir.1993) (citation omitted). Although these factors are neither exhaustive nor necessary prerequisites for admissibility of hearsay under 803(24), they shed light on the sort of considerations a district court should take into account when evaluating the trustworthiness of a hearsay statement. In this case, the district court carefully examined Goble's confession and each of O'Toole's alleged statements and concluded that the evidence offered by Hall failed to establish the trustworthiness of the proffered statements. 53 In contending that Goble's confession was trustworthy, Hall simply argues that Goble's confession had 'circumstantial guarantees of trustworthiness' equivalent to the circumstantial guarantees surrounding Larry Hall's confession. The district court, however, concluded that Goble's confession lacked even the barest indicia of reliability. We agree. First, we have previously reasoned that the physical and mental condition of the declarant at the time a statement is made can be grounds for excluding the hearsay statement as inherently untrustworthy. United States v. Wilkus, 875 F.2d 649, 655 (7th Cir.1989). In this case, the district court had serious doubts about Goble's mental condition as it appeared that Goble was psychotic and he confessed to any crime he was questioned about by the police. In addition, Goble lacked knowledge regarding the pertinent facts of the case. Unlike the instant case, it became clear to investigators during the course of the police interview that Goble knew nothing about the specifics of the crime. Further, Goble's confession was insufficiently corroborated. Police thoroughly searched Goble's vehicle and failed to produce any evidence linking him to the crime. While there was also a corresponding lack of physical evidence tying Hall to the crime, there were no witnesses who could place Goble at or near the scene of the abduction. In contrast, four eyewitnesses testified against Hall. In light of these considerations, we conclude that the district court did not abuse its discretion in concluding that Goble's confession was not sufficiently trustworthy to justify admission under Rule 803(24). 54 Hall also argues that statements O'Toole purportedly made regarding his involvement in the Jessica Roach abduction should have been admitted by the district court under Rule 803(24). Hall baldly asserts that these hearsay statements had even greater 'circumstantial guarantees of trustworthiness' than [Goble's] confession, having been made to relatives and friends and, therefore, should be admissible. We disagree. 55 Because it is the most probative hearsay testimony offered by Hall, we first turn to O'Toole's alleged statement to Eduardo Vela that he had disposed of Jessica Roach's body and that she would be found at harvest time in a cornfield in Indiana. Based on several factors, the district court found Vela's testimony regarding this statement unreliable. First, Vela's recollection was inconsistent as to when O'Toole supposedly made the statement--whether it was before or after the discovery of Jessica Roach's body. Only if it was before the discovery would the statement show that O'Toole possessed independent knowledge about the crime. Otherwise, because of the publicity following the Roach case, O'Toole may well have been aware that Jessica's body had been discovered when he allegedly made this statement. Second, the statement was insufficiently corroborated. Hall offered no physical evidence linking O'Toole to the crime, and the statement itself did not contain any specific details of the crime of which only the perpetrator would have knowledge. In addition, O'Toole denied making the statements and passed a polygraph examination regarding his involvement in the crime. Based on these considerations, we agree with the district court that this statement lacked trustworthiness, and we conclude that the court did not abuse its discretion in excluding this statement. 56 With respect to the remaining statements attributed to O'Toole, we can dispense with them largely based on the same analysis expressed immediately above. None of the statements indicate that O'Toole had unique knowledge of the crime because the statements did not contain specific details of the crime unknown to the public at large. Aside from the hearsay statements themselves, O'Toole's additional statements are not corroborated by any physical evidence or eyewitness testimony. In addition, O'Toole recanted his statements and passed a polygraph examination in which he proclaimed his innocence. Finally, except for O'Toole's statement to Jamie Wheeler's mother about having to get out of town before the shit hits the fan, the dates O'Toole allegedly made these statements cannot be established with any degree of reliability in relation to the discovery of Roach's body. Thus, we conclude that these factors clearly support the district court's conclusion that the proffered hearsay testimony lacked trustworthiness. In sum, we cannot say that district court, relying on the factors expressed above, abused its discretion in concluding that Hall failed to show the trustworthiness of these statements such as to justify admission under Rule 803(24). 57 58 Hall also alleges that Goble's confession and all of O'Toole's alleged statements should have been admitted under Rule 804(b)(3) of the Federal Rules of Evidence, 9 the statement against interest exception. Under Rule 804(b)(3), a hearsay statement may be admitted at trial only if the proponent can satisfy the following three-part test: (1) the declarant's statements must have been against the declarant's interest; (2) corroborating circumstances exist which clearly indicate the trustworthiness of the declarant's statement; and (3) the declarant must have been unavailable as a witness. See United States v. Garcia, 897 F.2d 1413, 1420 (7th Cir.1990). The district court excluded Goble's confession and all of O'Toole's statements because the corroborating evidence does not clearly indicate the trustworthiness of the statements. We agree. A district court's determination of the trustworthiness of an out-of-court statement should be upheld unless the finding is clearly erroneous. Id. at 1421. 59 Unlike Rule 803(24), which contemplates the presence of corroborating circumstances as just one factor a court may consider in determining whether a statement has circumstantial guarantees of trustworthiness, Rule 804(b)(3) expressly requires the exclusion of out-of-court statements offered to exculpate the accused unless there are corroborating circumstances that clearly indicate the trustworthiness of the statement. Garcia, 897 F.2d at 1420; see also United States v. Silverstein, 732 F.2d 1338, 1346 (7th Cir.1984) (emphasizing that corroborating circumstances under 804(b)(3) must clearly indicate a proffered hearsay statement's trustworthiness). Thus, for the same reasons we determined that Goble's confession and O'Toole's statements were insufficiently corroborated under Rule 803(24), see Part II.C, supra, (the lack of physical evidence and eyewitness testimony tying the declarants to the crime, O'Toole's later recantation of his statements, the dates of most of the statements are largely unknown in relation to the discovery of the victim's body, and the fact that the statements themselves did not contain specific facts that only the perpetrator would have known), we also hold that Hall failed to show that sufficient corroborating circumstances existed that clearly indicated the trustworthiness of these statements under Rule 804(b)(3). See Moore, 936 F.2d at 1516-17 (applying the same reasoning in determining that a statement lacked trustworthiness under Rule 804(b)(3) and circumstantial guarantees of trustworthiness under 804(b)(5)); see also, United States v. Groce, 999 F.2d 1189, 1190-91 (7th Cir.1993) (concluding that a hearsay statement lacked trustworthiness under Rule 804(b)(3) where the declarant made conflicting statements and later recanted the version most favorable to the defendant); Silverstein, 732 F.2d at 1346-47 (concluding that mere opportunity and ability to commit crime to which hearsay declarant confessed is insufficient corroboration where the statement does not contain facts that only the perpetrator would have known and there was a lack of other evidence linking declarant to the crime). Therefore, we conclude that the district court did not commit clear error in refusing to admit Goble's and O'Toole's hearsay statements under Rule 804(b)(3). 60 61 Hall also alleges that he had a constitutional right to introduce the statements of O'Toole and Goble as a matter of due process under Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), because these statements would be considered sufficiently reliable for the government to use against the declarants in a criminal prosecution. Concluding that the statements were unreliable and that the government would not use such unreliable evidence to prosecute the declarants, the district court rejected Hall's argument that he had a constitutional right to introduce the statements. We agree with the district court. 62 In Chambers, the hearsay declarant gave a sworn statement to the defendant's attorneys confessing to the crime to which the defendant was charged and also admitted responsibility for that crime three other times in private conversations with friends. 410 U.S. at 287-88, 93 S.Ct. 1038. Reasoning that the hearsay rule may not be applied mechanistically to defeat the ends of justice, id. at 302, 93 S.Ct. 1038, the Supreme Court held that the trial court's exclusion of this third party's confessions on hearsay grounds violated the defendant's due process rights where circumstances revealed the confessions to be reliable. Id. In reaching this conclusion, the Supreme Court reasoned that the statements were made under circumstances which provided considerable assurance of their reliability. Id. at 300, 93 S.Ct. 1038. These circumstances included: (1) each statement was made spontaneously to a close acquaintance shortly after the murder had occurred; (2) each statement was corroborated by some other evidence in the case whether it was the declarant's sworn confession, eyewitness testimony or evidence linking the declarant to the murder weapon; (3) each statement was against the declarant's interest; and (4) the declarant was available to be cross-examined under oath about his out-of-court statements. Id. at 300-01, 93 S.Ct. 1038. 63 Similarly, in Green, the defendant sought to admit the testimony of a third party who had testified for the government at the co-defendant's trial. 442 U.S. at 96, 99 S.Ct. 2150. The third party testified that the co-defendant admitted that he had committed the murder for which the defendant was being charged and that the defendant was not present. Id. The Supreme Court found several reasons existed to assume the hearsay testimony's reliability, including: (1) the declarant made the statement spontaneously to a close friend; (2) there was ample evidence corroborating the confession; (3) the statement was against interest; (4) and the government considered the testimony sufficiently reliable to use it against the co-defendant. Id. at 97, 99 S.Ct. 2150. Based on these circumstances, the Supreme Court found the hearsay statement reliable and held that the exclusion of reliable hearsay testimony of a co-defendant offered to exculpate the defendant violated the defendant's due process rights. Id. 64 We have since recognized Chambers and Green to stand for the proposition that states must allow defendants to put reliable third-party confessions before the jury, despite the hearsay rule, when necessary to assist in separating the guilty from the innocent. Carson v. Peters, 42 F.3d 384, 385 (7th Cir.1994) (emphasis added); see also Lee v. McCaughtry, 933 F.2d 536, 538 (7th Cir.1991) (Chambers did not do away with the hearsay rule. The Supreme Court contemplated that the judge would be a gatekeeper, that unreliable statements could be excluded.). As we have previously indicated, [w]e have understood Chambers and Green as establishing the rule that 'if the defendant tenders vital evidence the judge cannot refuse to admit it without giving a better reason that it is hearsay.' Carson, 42 F.3d at 387 (quoting Rivera v. Director, 915 F.2d 280, 281-82 (7th Cir.1990)). However, if the district court does give a 'better reason,' then Chambers and Green have served their purpose. Id. A better reason was given in this case--the statements were unreliable. 65 Unlike the statements in Chambers and Green, the hearsay statements involved in this case were not made under circumstances that provided considerable assurance of their reliability. As we examined in detail in Parts II.B and II.C above, there was insufficient evidence corroborating these statements. In addition, Goble's and O'Toole's statements were neither sworn nor used against either declarant in a criminal proceeding. 66 Relying on our decision in Rivera v. Director, 915 F.2d 280 (7th Cir.1990), Hall nevertheless argues that Goble's confession and O'Toole's statements should have been admitted under Chambers because they are the sort of statements that prosecutors regularly use against defendants. We disagree. In Rivera, the defendant sought to introduce the confession of his co-defendant, a confession which was placed into evidence against the co-defendant at his separate trial and which contributed to the co-defendant's ultimate conviction. Rivera, 915 F.2d at 281. In that confession, the co-defendant stated that he alone committed the crime. Id. The trial court excluded the confession from the defendant's trial on the basis that under applicable state law the availability of the out-of-court declarant for cross-examination is necessary for the admission of hearsay evidence. Id. Perhaps recognizing the vulnerability of the state's ruling on constitutional grounds, during oral argument in Rivera, the government provided a different reason for excluding the confession--that it was unreliable. Id. at 282. As a factor in determining the reliability of the co-defendant's confession in a trial against the defendant, we reasoned that, if the confession was reliable enough to be used to put [the co-defendant] away for the rest of his life, it should be reliable evidence of [the defendant's] innocence as well. Id. Because the government offered no plausible reason for believing that the exculpatory portion of the confession was unreliable, and because Chambers dictates that a statement may not be excluded merely by classifying it as hearsay, we reversed and granted the defendant a new trial. Id. at 281-83. 67 Contrary to Hall's assertions, Rivera does not stand for the proposition that any statement that could be used by a prosecutor against the declarant is sufficiently reliable to justify admission under Chambers. Rather, Rivera merely recognizes that where the government does in fact introduce a statement at trial and uses it to secure a conviction against the declarant, a court should not later preclude a co-defendant from offering that statement in his trial merely on the basis that the statement is hearsay. Since neither O'Toole nor Goble were even charged in this case, Rivera does not undermine the district court's conclusion that the hearsay statements were unreliable and, therefore, inadmissable. 68 In sum, we conclude that Hall's constitutional due process rights were not violated by the district court's decision not to admit the hearsay statements. 69

exclusion of hearsay evidence concerning other suspects

38 During the course of making several preliminary motions, counsel for Laws challenged the array of the Grand Jury on the ground that Negroes had been systematically excluded from serving. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), rehearing denied, 381 U.S. 921, 85 S.Ct. 1528, 14 L.Ed.2d 442 (1965). The relevant portion of the transcript reveals the following: 39 Mr. Bertini: I will challenge the array. I make a motion challenging the array of the Grand Jury.The Court: The Grand Jury? 40 Mr. Bertini: Yes. 41 The Court: Your motion is denied without argument. 42 Mr. Bertini: On the ground- 43 The Court: Let me hear the grounds. 44 Mr. Bertini: That members of the defendants' color have not been on the Grand Jury in the numbers that ought to be. 45 The Court: What are those numbers? 46 Mr. Bertini: I don't know. I think we will have to investigate. 47 The Court: Wait a minute. You have had seven months to investigate this and you are coming over here a minute before the trial begins and saying that the Grand Jury of Bergen County was illegally selected by virtue of the fact that colored persons have been are you saying deliberately? 48 Mr. Bertini: Systematically. 49 The Court: Systematically and deliberately? 50 Mr. Bertini: I didn't say deliberately. 51 The Court: Excluded? 52 Mr. Galda: I submit I know some of the people of that race who have sat on many of our Grand Juries. 53 The Court: So does our Court know of that. 54 Mr. Bertini: I am talking about the one man one vote principle. 55 The Court: One man one vote principle? 56 Mr. Bertini: I think the Supreme Court has got to place where there is justice, equality, et cetera. I say the ratio is not the proper proportion. 57 The Court: You tell me what the ratio is in Bergen County since you are making such a charge. Tell me what the ratio in Bergen County should be. 58 Mr. Bertini: I think if the defendant questions it we should investigate it. 59 The Court: Why didn't you investigate it? Your motion is denied. 60 Do you wish to add anything? 61 Mr. Monaghan: I join in Mr. Bertini's motion on that. 62 The Court: How about you, Mr. Gross? 63 Mr. Gross [counsel for Baker]: I have no statement to make. 64 The Court: Thank you, Mr. Gross. 65 Transcript at 1.59-1.61. 66 The New Jersey Supreme Court affirmed the trial court and stated: Under the circumstances, any other course would have grossly disserved the orderly administration of justice. 50 N.J. at 183, 233 A.2d at 645. See R.R. 3:3-2 (1968). In his petition to the District Court, Laws supports his argument by citing State of New Jersey v. Rochester, 105 N.J.Super. 529, 253 A.2d 558 (1967), aff'd, 54 N.J. 85, 253 A.2d 474 (1969). The District Court decided that Laws was not entitled to any relief since he presented no supporting facts for his assertion of systematic exclusion of Negroes from the Bergen County Grand Jury. Wade v. Yeager, 377 F.2d 841, 845 (3 Cir. 1967). We agree with the conclusion that Laws is entitled to no relief on this theory but base our holding on the fact that Laws did not present his motion at trial in a legally sufficient manner under New Jersey law. His motion, which was not made until the first day of the trial, was unsupported by any facts which, if true, would entitle Laws to the relief requested. Thus, under our view, it is unnecessary to consider the constitutional question of systematic exclusion, for Laws failed to make a proper and timely challenge under New Jersey law. Compare Wade v. Yeager, supra, at 846. 67 VI. Conduct of the Trial Judge and Prosecutor 68 Laws had raised a number of issues concerning the judge's charge and the conduct of the prosecutor. We have reviewed the entire record and have concluded that there is no constitutional error in either the judge's charge or in his conduct or in the conduct of the prosecutor. 69 The order of the District Court will be affirmed. 11 70 The court wishes to thank court-appointed counsel for his able representation of the appellant.

Challenge to the Array of the Grand Jury

23 Finally, Billups urges us to limit the application of judicial estoppel in this case to his claims for monetary relief, and allow him to proceed with his claim for injunctive relief against Pemco. The issue, therefore, is whether judicial estoppel applies to the pursuit of an unreported claim for injunctive relief. In this instance, we conclude that it does not. 24 Billups seeks injunctive relief prohibiting Pemco and its officers, supervisors, agents, employees or successors from engaging in illegal employment practices. He also asks that the Defendants be required to adopt employment practices that are in accordance with federal employment laws. With respect to the applicability of judicial estoppel to this case, we are concerned with Billups' failure to disclose his claim for millions of dollars in damages to the bankruptcy court, because that information would have been important to the court in determining whether his case should have been converted to Chapter 7, or whether he qualified for a no asset discharge. The bankruptcy court must be confident that it has the full and honest disclosure of the debtor concerning any potential assets that could increase the value of the estate for the creditors. See New Hampshire, 532 U.S. at 750-51, 121 S.Ct. at 1815 (explaining that there is not an exhaustive formula for determining the applicability of judicial estoppel, and courts should consider the facts of a particular case in its analysis). The Supreme Court explains that: 25 The federal system of bankruptcy is designed not only to distribute the property of the debtor, not by law exempted, fairly and equally among his creditors, but as a main purpose of the act, intends to aid the unfortunate debtor by giving him a fresh start in life, free from debts, except of a certain character, after the property which he owned at the time of bankruptcy has been administered for the benefit of creditors. Our decisions lay great stress upon this feature of the law — as one not only of private but of great public interest in that it secures to the unfortunate debtor, who surrenders his property for distribution, a new opportunity in life. 26 Stellwagen v. Clum, 245 U.S. 605, 617, 38 S.Ct. 215, 218-19, 62 L.Ed. 507 (1918). 27 In this situation, knowledge that the debtor was pursuing a discrimination claim seeking injunctive relief that offered no monetary value to the estate, would not, in all likelihood, have changed the bankruptcy court's determination about how to proceed with the debtor's bankruptcy. What is clear is that in order to gain the benefits of the bankruptcy laws, the debtor must first surrender his non-exempt property for the benefit of his creditors. The trustee and the creditors are interested in the debtor's property that can add anything of value to the estate. We conclude that Billups' undisclosed claim for injunctive relief offered nothing of value to the estate and was of no consequence to the trustee or the creditors. 3 We decide, then, that the important and necessary reasons that bar Billups' monetary claims do not affect his efforts to change, through injunctive relief, Pemco's employment practices. He may pursue his claims for injunctive relief.

Application to Injunctive Claims

As mentioned above while discussing the disqualification of Cummings's counsel, two conversations involving Cummings were recorded while he was detained at the Metropolitan Detention Center (MDC), Guaynabo. In both calls -- one on June 5, 2012, and one on July 14, 2012 -- Cummings spoke with Christopher, who had not yet been arrested. Besides discussing the payments to Cummings's -32- counsel, the two also discussed whether Juan was looking for Gordo -- recall, this is Rivas's alias. Cummings informed Christopher that Juan was working in the kitchen at MDC, Guaynabo and had been looking for Rivas but was unable to find him. In addition, Cummings and Christopher spoke about the attack on Christopher and his family outside the bakery, specifically focusing on the fact that other members of their organization had advance knowledge of the attack and that there would be retaliation against those who shifted loyalties.

The Contested Portions of the Calls

14 Lastly, Ali argues that he remains eligible for additional relief before the Immigration Court. The BIA ordered that Ali had until April 24, 2005 to depart voluntarily. That date has passed. The voluntary departure statute provides that an alien who fails to depart within the specified period shall be ineligible for a period of 10 years for any further relief. 8 U.S.C. § 1229c(d). Ali argues that the voluntary departure period has been tolled by his filing of a petition for review in this Court. He asks us to declare that section 1229c(d) is inapplicable and that he remains eligible for all relief available to him including adjustment of status in further proceedings before the Immigration Court. We have no jurisdiction to do so. 15 To our knowledge, Ali has neither moved to reopen nor applied to adjust his status. The BIA has not had an opportunity to rule on this relief. We have no power to preemptively proclaim incorrect a decision that the BIA has not yet made. Ali's claim is not ripe. See United States v. Garcia, 416 F.3d 440, 441 (5th Cir.2005); Abdallah v. Gonzales, 132 Fed.Appx. 12, 13 (5th Cir.2005) (unpublished).

eligibility for further relief

The origins of the Reserve trace back to 1838. Through a treaty with Miami Tribe, the United States set aside land west of the Mississippi River with the implied understanding that the tribe, then located in Indiana, would emigrate there. See Treaty with the Miamies, 7 Stat. 569, 571 (Nov. 6, 1838). In 1840, the tribe ceded all its land in Indiana and agreed to move to land in Kansas, which the United States Senate had designated. See Treaty with the Miamies, 7 Stat. 582, 582-85 (Nov. 28, 1840). The tribe moved to the land in Kansas in 1846, but a large number of tribal members remained in Indiana and severed their relationship with the tribe. See Miami Tribe of Okla. v. United States, 281 F.2d 202, 213 (Ct.Cl.1960); 17 Op. Att'y Gen. 410, 411-12 (1882). The Miami Tribe was split into two groups: (1) the Western Miamis, who emigrated to Kansas and were considered part of Miami Tribe, and (2) the Indiana Miamis, who remained in Indiana and were no longer members of the tribe. See 12 Op. Att'y Gen. 236, 239 (1867). In 1854, the Western Miamis ceded all but 70,640 acres of their land in Kansas to the United States in return for payments to the tribe and other investments. See Treaty with the Miami Indians, 10 Stat. 1093, 1093 (June 5, 1854). The 1854 treaty acknowledged the division of Miami Tribe into two groups — Western Miamis and Indiana Miamis — after its move to Kansas and excluded the Indiana Miamis from receiving payment for the ceded Kansas lands. Id. at 1094-95. The 1854 treaty, however, did divide up payments still owed to the Western and Indiana Miamis from the 1840 treaty. Id. at 1095. Only Indiana Miamis who were on an agreed-upon list, which could be modified only with the consent of the Indiana Miamis, would receive payment. Id. at 1099. In 1858, several families, including that of Maria Christiana DeRome, petitioned Congress to be included on the list of Indiana Miamis who would receive payments under the 1840 treaty. The DeRome family were excluded from the 1854 list because they were not considered of Miami blood. Miami Tribe of Okla. v. United States, 927 F.Supp. 1419, 1424 (D.Kan.1996) (citing H.R. Exec. Doc. No. 23, 49th Cong., 1st Sess. 1, 6 (1886)). In a unilateral decision, Congress added the petitioners to the list. [3] See Act of June 12, 1858, 11 Stat. 329, 332. Congress also directed that each individual receive a portion of the unpaid annuity payments and be allotted 200 acres of land from the 70,640 retained by the tribe in Kansas. Id. That is, these individuals were given land retained by the Western Miamis even though the individuals were not Western Miamis, or even considered of Miami blood. In 1859, the Reserve was patented as a restricted Indian allotment of 200 acres. [4] It was from this allotment that the Maria Christiana Reserve No. 35 was created. Several years later the Miami Tribe, now consisting only of the Western Miamis, entered into a treaty encouraging it to move from Kansas to Oklahoma. See Treaty with the Peorias, Kaskaskias, et. al., 15 Stat. 513, 520 (Feb. 23, 1867). Congress agreed to purchase the Western Miami's unallotted lands in Kansas if the tribe signified its interest in selling, which it did. See Act of Mar. 3, 1873, 17 Stat. 631, 631. Those who remained in Kansas could, meeting certain requirements, become United States citizens, but would end their membership in the tribe. Id. at 632. Those members who moved to Oklahoma retained their tribal membership. Id. Through that same 1873 legislation, Congress directed the Secretary of the Interior to take a census of the Western Miamis and determine who was entitled to the lands and monies set aside for the Western Miamis from the sale of their land in Kansas through the 1854 treaty. Id. In compiling this census, the individuals added by Congress in 1858 to the list of Miami Indians were not included. Id. at 632-33. These Miami Indians were not considered members of the Western Miamis and only Western Miamis were entitled to payment under the 1854 treaty. See 17 Op. Att'y Gen. 410, 414-15 (July 7, 1882). Those not on the census were not entitled to share in the proceeds from the lands sold under the 1873 legislation or from the annuities in the 1854 treaty. Id. Again, the legislation reinforced that individuals, such as Maria Christiana DeRome, were not part of the Western Miamis, who had settled in Kansas and eventually moved to Oklahoma. In 1891, after a petition to Congress and an action before the Court of Claims, the United States reimbursed the Western Miamis for the money erroneously paid as back annuities to the individuals erroneously added in 1858 as well as for the value of the land allotted to them. See Miami Tribe of Okla., 281 F.2d at 212. Fast forwarding to 1960, the Western Miamis again brought suit in the Court of Claims, seeking interest on the payments made in 1891. The court awarded interest from the time of the erroneous payments (1858) and allotments (1859) until 1891. Id. For this appeal, the most important fact is that Maria Christiana DeRome was not a member of the Western Miamis and should not have received the allotment of land that became the Reserve. In fact, Miami Tribe was reimbursed by the United States for the land improperly allotted to non-members-including the Reserve allotted to Maria Christiana DeRome.

History of the Reserve

27 At Bergen's trial, the Government introduced autopsy photos showing the extent of Pizzuto's bruising, and invited fourteen witnesses to comment on them. Bergen contends that this use of the photos was more prejudicial than probative, in violation of Fed. R. Evid. 403, especially because he offered to stipulate that the assault occurred. 28 In limited circumstances, the Government can be required to accept a stipulation by the defendant to a particular fact, rather than present evidence proving the stipulated fact. In Old Chief v. United States, 519 U.S. 172 (1997), the Court ruled that, because the defendant was willing to stipulate to the fact of his prior conviction, it was error to admit evidence detailing the prior offense, even though the prior conviction was an element of the pending gun possession charge. The Court noted that the Government generally has a right to present evidence of a fact that a defendant would prefer to admit, so as to establish the human significance of the fact and to implicate the law's moral underpinnings. Id. at 187-88. The Court recognized an exception, however, when the point at issue is a defendant's legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him. Id. at 190. The Court emphasized that the evidence of Old Chief's prior offense was highly prejudicial (potentially luring a jury to convict based on character rather than conduct), and did not fill a gap in the story of a defendant's subsequent criminality. Id. at 191. 29 Bergen claims that his case is like Old Chief because he was willing to stipulate that the beating occurred and the photos invited the jury to convict him based on revulsion at what was done to Pizzuto. We disagree. First, although the details of the prior offense were irrelevant to the defendant's culpability in Old Chief, in the pending case the extent of Pizzuto's injuries established that cruel and unusual punishment had occurred, and underscored the moral blame attaching to Bergen's decision to cover up the crime. The photos also helped to resolve a disputed point at the trial--that Pizzuto's signature on Bergen's cover-up report was coerced by the beating he had just received. Thus, unlike the details of the prior conviction in Old Chief, details of Pizzuto's injuries were legally and morally relevant to the conduct constituting the offenses committed by Bergen's principals. Judge Mishler did not exceed his discretion in admitting the photos. See United States v. Salameh, 152 F.3d 88, 122-23 (2d Cir. 1998) (no abuse of discretion to admit a significant number of graphic and disturbing photos of World Trade Center bombing victims, including corpse of a pregnant woman, despite defendants' stipulation offer). 30 31 Bergen contends that the evidence was insufficient to support his conviction. His specific point is that the Government did not prove that he knew his injury report (which claimed that Pizzuto fell in the shower) was false. This claim lacks merit. Inmates and other corrections officers testified that Bergen falsified his report. The inmates heard Pizzuto tell Bergen, your guys did this on the day of the assault. The corrections officers also testified that Bergen knew from the start that Pizzuto had been assaulted, and that Bergen volunteered to cover it up.

Bergen's Claims of Error at Trial

99 Harper contends, as does Grier, that the evidence does not establish a single wheel conspiracy and argues that there is no evidence linking Harper to any of the other defendants. According to Harper the evidence, at best, showed Pipito had his own little conspiracy with Harper and with each co-defendant. However, as we made clear in our discussion of the Grier evidence, there is sufficient evidence to convict one of a single conspiracy if the evidence establishes that the individual is aware of the essential features and broad scope of the conspiracy and that the co-conspirators are united in a common single goal. Blumenthal, 332 U.S. at 558, 68 S.Ct. at 257. The individual co-conspirator need not know the other parties involved in the conspiracy, he must only know that other people are involved. Boucher, 796 F.2d at 975. 100 The evidence at trial established that Harper was more than an occasional purchaser of drugs for personal use. The government introduced eight recordings of intercepted phone conversations between Harper and/or his wife and Pipito. In one of these conversations (on November 6, 1984) the following dialogue occurred: 101 HARPER: So I really don't want to keep you on hold, you know. Things are slow, but fuck it, it don't make no difference, you know. 102 PIPITO: Uh, hm. 103 HARPER: O.K.? 104 PIPITO: All right, you want me to bring anything, or. 105 HARPER: Just one, you know. 106 PIPITO: All right. 107 (Emphasis added). Later that same day Pipito phoned the Harper residence and talked to Mrs. (Louise) Harper. Pipito said he had something comin' in Friday and that he wanted to speak with Harper about it. 108 On November 26, 1984, Pipito, after his return from Florida, again called Harper and told him that he had been trying to get hold of him all day Saturday (November 24). Harper said that he was starvin' to death and it was agreed that Pipito would bring a couple of things to show Harper so he could decide. During the conversation Harper expressed his concern that Pipito had not contacted him sooner because Pipito was supposed to contact [him] the time you got it back. (Emphasis added). Later that same morning defendant Harper called Pipito and it was agreed that Harper would call Pipito later so that they could work out some kind of a plan. That afternoon Harper called Pipito to tell him that he was home, and Pipito replied that he was on his way. 109 Harper's status as more than an occasional purchaser of drugs was confirmed by the search of Harper's residence on the evening of November 30, 1984. The Country Time lemonade can was seized, and a DEA chemist testified that the white powdery substance found within double plastic bags in the lemonade can amounted to 35.46 grams (approximately one and one-quarter ounces) of 49 percent pure cocaine. A DEA agent qualified as an expert in the drug trafficking field testified that he would not expect to see as much as an ounce of cocaine in the hands of one individual consumer. Also found during the search was a scale and a plate, both of which had traces of cocaine upon them. In another area of the residence, a dial-o-gram scale was also found. The DEA expert testified that drug traffickers use dial-o-gram scales to package drugs because that type of scale lends itself more readily to somewhat larger quantities than smaller quantities. Also discovered during the search were three revolvers, two of which were loaded and a piece of paper containing drug-related phrases. 110 Finally, a page of a notebook was found during the search of the co-defendant Jackson's residence on which the name Harper was written followed by the phone number of the Isaac Harper residence. Both at trial and on appeal Harper argued that the note was inadmissible since it lacked relevance and was without probative value. The district court judge ruled, after legal argument outside the presence of the jury, that the note was admissible. His decision is reviewed under an abuse of discretion standard. See, e.g., United States v. Davis, 838 F.2d 909, 914 (7th Cir.1988). Federal Rule of Evidence 402 states that [a]ll relevant evidence is admissible. 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence. Rule 401, Fed.R.Evid. It is undeniable that a note with Harper's name and phone number on it, found in the apartment of an alleged co-conspirator, is relevant evidence as it tends to make Harper's involvement in the conspiracy more probable than it would be in the absence of the evidence. See id. This case is not one like United States v. Bentvena, 319 F.2d 916, 949 (2d Cir.1963), in which the involved notebook page was the sole independent evidence connecting the defendant with the conspiracy. The page from the notebook, while not alone sufficient to convict Harper of membership in the conspiracy, is also relevant evidence, albeit circumstantial, establishing that Harper was participating in the conspiracy and aware of its magnitude. As we noted, supra, at 923: Not only is the use of circumstantial evidence permissible, but 'circumstantial evidence may be the sole support for a conviction. ' Nesbitt, 852 F.2d at 1510 (quoting United States v. Williams, 798 F.2d 1024, 1042 (7th Cir.1986) (dissenting opinion) which quoted, in turn, United States v. McCrady, 774 F.2d 868, 874 (8th Cir.1985)). 111 For the reasons detailed, based on the totality of the evidence introduced against Harper, a jury could and did find that Harper knowingly and willingly participated in a single conspiracy with others which had Pipito as its kingpin. The contents of the telephone calls between Harper and Pipito demonstrate a close personal relationship with Pipito and a knowledge that Pipito was receiving drugs from others in what the jury could very logically infer was a large-scale drug distribution enterprise. The calls further reflected a knowing and expectant waiting for the delivery of drugs by others in the conspiracy. Moreover, the large amount of cocaine found in the search of Harper's residence, combined with the dial-o-gram scale, the scale and plate with cocaine traces, and loaded guns all point toward Harper's obvious personal involvement in the conspiracy. The addition of the piece of paper with Harper's name and phone number on it, which was found in the residence of another co-conspirator, further bolsters the finding of Harper's involvement in the conspiracy which flowed from the other pieces of evidence. Based on all this evidence the jury reasonably found that the common goal of the conspiracy in this case was to distribute cocaine for profit. A rational jury could and did infer, based on the evidence and its exercise of its collective common sense, that each co-conspirator, including Harper, was a knowledgeable and important member participating in a large-scale drug distribution enterprise, and we confirm that portion of the jury verdict convicting Harper of membership in a single conspiracy. 112

Harper's Participation in a Single Conspiracy

38 Undisputed evidence shows that both DePietro and Borona had responsibility for investigating the Amoco robbery, with Borona accompanying DePietro to the service station on the date of the crime. Similarly, that evidence establishes that DePietro took control of the surveillance tape on the date of the robbery, viewed the tape, prepared photographic stills from the tape, served as the affiant in the warrant for Russo's arrest, obtained that warrant, and retained the original videotape in his desk drawer through a date that was after November 25, 2002. 39 Beyond that, the testimony in the case diverges. But read in the light most favorable to Russo, as it must be, the record evidence shows the following. DePietro and Borona questioned Russo and pursued follow-up discussions in which they learned—not necessarily for the first time, as such attributes were on record in police files—of Russo's distinctive physical characteristics, and specifically of his tattoos. They watched the unenhanced surveillance tape, and they represented to Russo that they could see the perpetrator's arms. Then, while concealing the tape, they falsely insisted that it showed a man with tattoos like his. Rather than following police rules on the storage of evidence and the processing of exculpatory evidence, DePietro put the tape in his drawer, thus impeding the state attorney's access to the footage. As a result, and despite Russo's repeated attempts to focus attention on the tape, it took more than six months for that tape to reach Russo's counsel, and more than seven months before Russo was released from prison. 40 The question of whether such conduct amounted to a deprivation of Russo's constitutional rights is similar to one posed to the Supreme Court in Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979), in which a plaintiff was arrested pursuant to a valid warrant actually intended for his brother. 10 Id. at 143, 99 S.Ct. 2689. The plaintiff remained incarcerated for eight days—despite his protests of innocence and the availability of exculpatory evidence—until the police compared his photograph to that of the wanted man and released the innocent arrestee. Id. at 141, 99 S.Ct. 2689. The plaintiff brought an action pursuant to § 1983 alleging that the sheriff had failed to institute proper identification procedures in violation of the plaintiff's due process rights. As in Russo's case, the plaintiff's claims were based on law enforcement's conduct after the plaintiff was incarcerated pursuant to a valid warrant. 41 In Baker, the Supreme Court held that the plaintiff's situation—which it found was a depriv[ation] of his liberty for a period of days pursuant to a warrant satisfying Fourth Amendment standards— did not, in the circumstances of that case, give rise to a constitutional claim. Id. at 144, 99 S.Ct. 2689. The Court stated, however: Obviously, one in [plaintiff's] position could not be detained indefinitely in the face of repeated protests of innocence even though the warrant under which he was arrested and detained met the standards of the Fourth Amendment. Id. at 144, 99 S.Ct. 2689. Such protection derived from his constitutional right to a speedy trial. Id. (citing United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971)). But, going beyond this Sixth Amendment right, the Court suggested that such a prolonged detention could also be understood in terms of the Fourteenth Amendment right to due process of law: 42 We may even assume, arguendo, that, depending on what procedures the State affords defendants following arrest and prior to actual trial, mere detention pursuant to a valid warrant but in the face of repeated protests of innocence will after the lapse of a certain amount of time deprive the accused of liberty . . . without due process of law. 43 Id. at 145, 99 S.Ct. 2689 (quoting U.S. CONST. amend. XIV, § 1); see also Wright v. Smith, 21 F.3d 496, 499 n. 1 (2d Cir. 1994) (quoting same). The Court made clear, however, that the plaintiff's detention —three days over a New Year's weekend 11 —amounted to no such deprivation. Baker, 443 U.S. at 145, 99 S.Ct. 2689. 44 In a concurring opinion, Justice Blackmun reinforced the Court's due process discussion. He explained that, as he saw it, the majority opinion did not foreclose the possibility that a prisoner in [plaintiff's] predicament might prove a due process violation by a sheriff who deliberately and repeatedly refused to check the identity of a complaining prisoner against readily available mug shots and fingerprints. Id. at 148, 99 S.Ct. 2689 (Blackmun, J., concurring). In other words, the due process clause might well reach conduct more shocking than that of the defendant in Baker. And, Justice Blackmun read the Court's opinion to conclude[] only that `every' claim of innocence need not be investigated independently, and that defendant's intent was relevant to the existence of a constitutional violation. Id. 45 Following Baker, the Eleventh Circuit recognized a Fourteenth Amendment due process right to be free from continued detention after it was or should have been known that the detainee was entitled to release. See Cannon v. Macon County, 1 F.3d 1558, 1563 (11th Cir.1993). In Cannon, a sheriff's deputy arrested an innocent woman whose name was similar to that of a fugitive and ignored the arrestee's protestations of innocence. Id. at 1560-61. The deputy's failure to take any steps to identify the plaintiff as the fugitive, the court held, provided sufficient evidence from which a jury could find that the deputy acted with deliberate indifference towards the plaintiff's due process rights. Id. at 1564. Similarly, the Ninth Circuit applied Baker 's recognition of a due process interest to a twelve-day detention of a plaintiff arrested on valid warrants intended for his twin brother. See Fairley v. Luman, 281 F.3d 913, 918 (9th Cir.2002). The court held that the plaintiff had a liberty interest in being free from a twelve-day incarceration without any procedural safeguard in place to verify the warrant he was detained on was his and in the face of his repeated protests of innocence. Id.; see also Sanders v. English, 950 F.2d 1152, 1162 (5th Cir.1992) (holding that the failure to release a pretrial detainee after police officer knew or should have known that plaintiff had been misidentified gives rise to cause of action under § 1983). 12 46 And our own court has recognized the due process protection suggested in Baker. Thus, in Satchell v. Dilworth, we considered the claims of a plaintiff who, following completion of a criminal sentence, had been illegally rearrested and incarcerated for thirty-one days based on misleading and incomplete, if not deliberately false, information provided by state correctional services. 745 F.2d 781, 782 (2d Cir.1984). The plaintiff, we stated in Satchell, might be able to prevail on his due process claims if he could demonstrate that any of the defendants intentionally 13 concealed or conspired to conceal evidence of the plaintiff's completion of his sentence. Id. at 785. 47 Today, we hold that the right mentioned in Baker and enunciated in the above cited cases protected Russo from a sustained detention stemming directly from the law enforcement officials' refusal to investigate available exculpatory evidence. The Bridgeport police officers retained sole custody of the videotape evidence—and stored it in an improper manner—for a full 68 days after Russo alerted them that examining the pictures of the perpetrator for tattoos could exonerate Russo. They did this after intentionally misstating that the robber had tattoos. Moreover, their failure to perform the simple task of checking the tape resulted in all of Russo's 217-day incarceration. 48 We must clarify the source of this right, however. Although Justice Blackmun in Baker —and several circuits including our own in Satchell —have suggested that the right was rooted in substantive due process, we now conclude, in light of more recent guidance from the Supreme Court, that the right should instead be analyzed under the Fourth Amendment. In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), decided almost ten years after Baker, the Supreme Court stated that [w]here a particular Amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.' Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality opinion) (quoting Graham, 490 U.S. at 395, 109 S.Ct. 1865). And more recently, in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the High Court noted that Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952)—a case on which Justice Blackmun had relied in Baker —was decided long before Graham v. Connor . . . and today would be treated under the Fourth Amendment, albeit with the same result. Sacramento, 523 U.S. at 849 n. 9, 118 S.Ct. 1708. 49 Russo's claim—which he presents as being based on substantive due process—fits comfortably under the coverage of the Fourth Amendment. We have observed that [w]hen the accused is physically detained following arraignment, there can be no question that he has been seized within the meaning of the Fourth Amendment. Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir.1997); see also County of Sacramento, 523 U.S. at 844, 118 S.Ct. 1708 ([A] Fourth Amendment seizure [occurs] . . . when there is a governmental termination of freedom of movement through means intentionally applied. (internal quotation marks and emphasis omitted)); Oliver, 510 U.S. at 274, 114 S.Ct. 807 (plurality opinion) (The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.). And while we have generally looked to the law of the state in which the arrest occurred in analyzing § 1983 claims based on the Fourth Amendment, Davis, 364 F.3d at 433 (emphasis added), the scope of the Fourth Amendment's protection against unreasonable seizures is, of course, not limited to state law. 50 Thus, since the Fourth Amendment provides a more explicit textual source of constitutional protection, in light of Graham, the Fourth Amendment, rather than substantive due process, should serve as the guide for analyzing these claims. Graham, 490 U.S. at 395, 109 S.Ct. 1865; cf. Fontana v. Haskin, 262 F.3d 871, 881 (9th Cir.2001) (`[C]laims arising before or during arrest are to be analyzed exclusively under the fourth amendment's reasonableness standard rather than the substantive due process standard . . . .') (quoting Reed v. Hoy, 909 F.2d 324, 329 (9th Cir. 1990)). 51 We therefore treat Russo's claim as being based on the Fourth Amendment's protection against unreasonable seizures. And, doing so, we conclude, in light of (1) the length of time of Russo's wrongful incarceration, (2) the ease with which the evidence exculpating Russo—which was in the officers' possession—could have been checked, and (3) the alleged intentionality of DePietro's and Borona's behavior, that Russo has sufficiently alleged that he was unreasonably seized. In other words, the evidence Russo has proffered suffices to prevent summary judgment on Russo's claim of a Fourth Amendment violation by DePietro and Borona. 52 53 In Baker, the Supreme Court expressly recognized that the lapse of a certain amount of time is an element in assessing the existence of a constitutional encroachment. Baker, 443 U.S. at 145, 99 S.Ct. 2689. Indeed, in one of the precedents relied on in Baker, the Court had stated that [t]he consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships. Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); see Baker, 443 U.S. at 143, 99 S.Ct. 2689 (citing Gerstein ). And the Baker Court noted that the short duration of the plaintiff's detention was central to the Court's denial of the plaintiff's claims. See id. at 145, 99 S.Ct. 2689; accord Davis v. Hall, 375 F.3d 703, 718 (8th Cir.2004); Cannon v. Macon County, 1 F.3d 1558, 1562 (11th Cir.1993); Coleman v. Frantz, 754 F.2d 719, 724 (7th Cir.1985). The total 217-day detention here, or even the 68-day detention between Russo's arrest and DePietro's yielding of the tape to the prosecutor, plainly was prolonged rather than short and carried constitutional implications. 54 55 Whether DePietro and Borona watched the tape before (falsely) telling Russo that the robber was tattooed, or failed to follow up on Russo's claims of innocence by refusing to watch the tape at all, their conduct easily fits the hypothetical presented in Justice Blackmun's Baker concurrence: that the standard for liability announced by the Court would reach an officer who refused to check the identity of a complaining prisoner against readily available mug shots and fingerprints. See Baker, 443 U.S. at 148, 99 S.Ct. 2689 (Blackmun, J., concurring) (emphasis added). An officer's duty to investigate specific, readily-verifiable claims of innocence in a reasonable time period clearly covers reviewing a surveillance camera video record of a crime, when, as here, it was an easily available piece of physical evidence. 56 57 We have said that a substantive due process claim requires more: To trigger liability, a police officer's action must shock[] the conscience. 14 County of Sacramento, 523 U.S. at 846, 118 S.Ct. 1708. That is, it must be `arbitrary in the constitutional sense,' O'Connor v. Pierson, 426 F.3d 187, 203 (2d Cir.2005) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 128, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)). And, given our decision—following the Supreme Court's admonition in Graham —to treat Russo's claim under the Fourth Amendment, the shock the conscience requirement must now be understood as a crucial feature going to the unreasonableness of the seizure. 58 The state of mind of a government defendant is an integral aspect of any shock the conscience standard. Thus, we have read County of Sacramento to mean that while a purpose to cause harm might be required in a situation such as a high-speed chase, deliberate indifference—but not negligence—can support a finding of liability in situations where the government owes a special duty of care to those in its charge. O'Connor, 426 F.3d at 203. 59 Here, Russo was in state custody—and hence in the charge of the government— throughout the relevant proceedings. Moreover, a reasonable jury could find that DePietro actively hid the exculpatory evidence. As such, his conduct is of a different order from that of the defendant in Baker, where inadvertent omission, rather than an affirmative wrongdoing, led to the detention. See 443 U.S. at 143, 99 S.Ct. 2689; see also Whitley v. Seibel, 613 F.2d 682, 685-86 (7th Cir. 1980) (distinguishing Baker and finding liability because of defendant police officers' improper behavior). In addition, by falsely describing the content of the videotape, DePietro and Borona attempted to evoke a confession from him by misrepresenting the very evidence of Russo's innocence that was available to them. This act, combined with their failure to investigate the tape to see if the tape was in fact exculpatory, would readily support a jury finding of either intentional violation of, or deliberate indifference to, Russo's constitutional rights. See Cannon, 1 F.3d at 1564 (holding that a defendant's failure to verify that an arrestee was the fugitive sought on the arrest warrant raised a question of fact as to defendant's deliberate indifference toward the plaintiff's due process rights). And, DePietro's failure to follow police procedures with respect to the storage of the exculpatory evidence adds further evidence on the basis of which a jury could find deliberate indifference to Russo's incarceration and to his asserted innocence. 60 The evidence of shocking conduct on the part of DePietro and Borona was sufficient to preclude a grant of summary judgment in their favor on the merits of Russo's unreasonable seizure claim. 61

Officer DePietro and Detective Borona

12 It is well established that a court may not admit extrinsic evidence in order to determine the meaning of an unambiguous contract. See, e.g., Seiden Associates, Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.1992); 67 Wall Street Co. v. Franklin National Bank, 37 N.Y.2d 245, 248-49, 371 N.Y.S.2d 915, 918, 333 N.E.2d 184 (1975); Restatement (Second) of Contracts § 213 (1979). As to such a contract, a party is precluded from introducing extrinsic evidence of the contract's purpose in order to vary the plain meaning of the writing, Investors Insurance Co. of America v. Dorinco Reinsurance Co., 917 F.2d 100, 104 (2d Cir.1990), or in order to increase [a party's] obligations where those obligations were explicitly outline[d] in the contract itself, Gerard v. Almouli, 746 F.2d 936, 939 (2d Cir.1984). 13 The proper interpretation of an unambiguous contract is a question of law for the court, and a dispute on such an issue may properly be resolved by summary judgment. See, e.g., Seiden Associates, Inc. v. ANC Holdings, Inc., 959 F.2d at 428. We review de novo questions as to the ambiguity and meaning of the language of a contract, see, e.g., Gil Enterprises, Inc. v. Delvy, 79 F.3d 241, 245 (2d Cir.1996); Werbungs Und Commerz Union Austalt v. Collectors' Guild, Ltd., 930 F.2d 1021, 1026 (2d Cir.1991), and as to the propriety of summary judgment, see, e.g., Bowman v. Allstate Insurance Co., 238 F.3d 468, 470 (2d Cir.2001). 14 We see no ambiguity in the duration term of the Agreement at issue here. Although Omni indicates that it expected its contractual relationship with Revco to last beyond March 1998, the Agreement itself provided for a duration of a period of not less than one (1) year, commencing March 3, 1997 (Agreement at 2), and imposed no lengthier obligation. Whatever Omni's greater hopes or expectations may have been, they were not part of the parties' ultimate agreement. Indeed, Omni concedes as much when it acknowledges that Omni Quartz requested from Revco that it make a written three-year agreement to run the Omni Quartz program (Omni brief on appeal at 13), and that in March 1997 Revco ultimately agreed to commit to a one-year program (Omni brief on appeal at 14 (emphasis added)). Omni's contention that CVS/Revco's notification in December 1997 that CVS/Revco would not continue the relationship with Omni beyond March 1998 constituted a breach is thus contrary to the unambiguous terms of the Agreement, and the district court properly refused to allow Omni to offer extrinsic evidence that the parties intended to impose a longer obligation on Revco in order to maximize the benefit to Omni. 15 Nor does the record permit an inference that CVS/Revco's December 1997 notification ended the relationship prior to March 1998. Any suggestion by Omni that CVS/Revco discontinued its sales of Omni watches prior to March 1998 is belied by Omni's admission that Omni continued to supply watches to Revco stores through July 1998. 16 In sum, we see no error in the district court's conclusions that the Agreement as written did not require CVS/Revco to continue the relationship beyond March 1998 and that CVS/Revco's decision not to continue beyond that point was not a breach of contract. Nor has Omni called our attention to any evidence in the record to suggest that the district court erred in concluding that there was no genuine issue to be tried as to CVS/Revco's good faith in the performance of its obligations to sell Omni watches during the one-year term specified in the Agreement. 17

The Claimed Obligation of CVS/Revco To Maximize Omni's Profits

“This court will not entertain a defendant’s challenge to the sufficiency of the evidence on appeal unless the defendant moved for a judgment of acquittal under Rule 29 at the close of the government’s case-in-chief and at the close of all the evidence.” United States v. Dandy, 998 F.2d 1344, 1356 (6th Cir. 1993), as amended (Aug. 11, 1993). “Although specificity of grounds is not required in a Rule 29 motion, where a Rule 29 motion is made on specific grounds, all grounds not specified are waived . . . .” Id. at 1356–57 (internal citation omitted). Hamm and Shields make several sufficiency arguments for the first time on appeal. They jointly contend that they are not liable for Myers’s distribution of carfentanil to her cellmates because it was unforeseeable (or, alternatively, outside the scope of their agreement) that she would smuggle drugs into jail. Shields argues that Myers’s distribution of carfentanil (rather than heroin or fentanyl) was also outside the scope of the conspiracy. Finally, Hamm argues that he had withdrawn from the conspiracy by the time Myers gave carfentanil to her cellmates. Because Hamm and Shields made Rule 29 motions on specific grounds at trial, and did not include the arguments that they now make on appeal, they forfeited these other arguments, and we will not consider them. 5In making his Rule 29 motion for a judgment of acquittal, Hamm’s attorney conceded that Hamm “believed he was purchasing” fentanyl. Nos. 17-6383/18-5121 United States v. Hamm, et al. Page 12

Unpreserved Sufficiency Arguments

19 In its decision finding that Vann and Jacquard committed misconduct warranting sanctions, the district court stated that no sanction should be imposed which would have the effect of holding Jacquard or Vann in contempt for violation [of] the February 21, 1989 temporary restraining order, Opinion of Oct. 23, 1992, at 26, 153 F.R.D. at 52-53 (emphasis added), because the parties had stipulated earlier that Milltex waived any right to institute civil or criminal contempt proceedings against Jacquard with respect to any alleged violations of the TRO. 12 The district court nevertheless went on to consider Vann's conduct in connection with the TRO because such conduct was part of the pattern of subterfuge and defiance of obligation to the court. Id. at 27, 153 F.R.D. at 53. 20 The district court's findings with respect to Vann's response to the TRO do not support an award of sanctions against Vann. The district court found that Vann ignored the TRO in one of two ways: he might have deliberately refrained from telling Diamantis about it, but the probabilities are strong that Vann immediately informed Diamantis and they both decided to ignore the order. Id. at 21, 153 F.R.D. at 51. We cannot uphold the sanctions award on the ground that Vann did not tell his client about the TRO, because the district court found this scenario to be unlikely. 13 On the other hand, if Vann did indeed tell Jacquard about the TRO, as the district court suggested, then we cannot blame Vann for its violation because it was Jacquard's Alabama counsel who made the decision in the Alabama court to proceed with that action in violation of the TRO. 14 Like the findings with respect to the adjournment of the federal trial, the district court's findings regarding the violation of the TRO by Vann and Jacquard do not justify the conclusion that Vann acted in bad faith. 21

Violation of the TRO

In determining whether the evidence supports the existence of a single conspiracy, we ultimately look at the totality of the evidence. Mangual-Santiago, 562 F.3d at 421. There are three factors this court has found particularly helpful in evaluating the evidence: `(1) the existence of a common goal, (2) interdependence among participants, and (3) overlap among the participants.' Id. (quoting United States v. Sánchez-Badillo, 540 F.3d 24, 29 (1st Cir. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 953, 173 L.Ed.2d 148 (2009)). The first factor, common goal, is given `wide breadth.' Id. (quoting Sánchez-Badillo, 540 F.3d at 29). For example, [a] goal of selling cocaine for profit or furthering the distribution of cocaine may be sufficient evidence of a common goal. Id. (quoting United States v. Portela, 167 F.3d 687, 695 (1st Cir.1999)) (internal quotation marks omitted). The second factor, interdependence, concerns whether `the activities of one aspect of the scheme are necessary or advantageous to the success of another aspect of the scheme.' Id. at 422 (quoting Portela, 167 F.3d at 695). More specifically, `Each individual must think the aspects of the venture interdependent, and each defendant's state of mind, and not his mere participation in some branch of the venture, is key.' Id. (quoting Portela, 167 F.3d at 695). We have explained the significance of this factor: [K]nown interdependence . . . makes it reasonable to speak of a tacit understanding between the distributor and others upon whose unlawful acts the distributor knows his own success likely depends. When such interdependence is missing, when the distributor is indifferent to the purposes of others in the enterprise—say, other distributors—the tacit understanding does not exist. Glenn, 828 F.2d at 857-58 (internal citation omitted); see also Sánchez-Badillo, 540 F.3d at 29. Finally, the third factor, overlap among the participants, is satisfied by the pervasive involvement of a single core conspirator, or hub character. Mangual-Santiago, 562 F.3d at 422 (internal quotation marks omitted). In considering these three factors, we must remember that the existence of a single conspiracy does not require the participants to know of all the other participants, understand all the details of the conspiracy, or participate in each aspect of the conspiracy. Id.; Sánchez-Badillo, 540 F.3d at 29. In Sánchez-Badillo, we applied these three factors in rejecting the contention of two co-defendants that they were not part of a single conspiracy. 540 F.3d 24. In that case, the co-defendants were convicted of conspiracy to distribute heroin, cocaine, cocaine base, and marijuana. Id. at 27. One defendant managed heroin and marijuana sales from the lower point in a public housing project, and the other defendant managed cocaine and marijuana sales from the upper point in the same housing project. Id. at 28. Both locations, however, were owned by a boss, to whom both defendants paid rent. Id. at 27-28. This court affirmed the convictions. First, the evidence showed a common goal of serving [the boss'] illicit interests. Id. at 29. Second, a reasonable jury could have found interdependence from the following: the boss' iron-fisted control over the housing project suggested that the defendants tacitly agreed to join the boss' organization, the boss' representative worked at the lower point, two dealers worked at both locations, one of the defendants served as an enforcer for the boss, and on one occasion participants in the two points were arrested together and aided by participants in the lower point. Id. at 29-30. Third, the evidence demonstrated an overlap among the participants, as the boss was a hub. Id. at 30-31. In Glenn, on the other hand, we reversed a defendant's conviction based on our conclusion that the evidence was insufficient to prove that he had joined the single conspiracy charged in the indictment. 828 F.2d 855. Glenn involved a defendant convicted of conspiring to import and possess marijuana and hashish. Id. at 857. The evidence showed that a group of core conspirators met repeatedly to develop plans to smuggle marijuana from Thailand and hashish from Pakistan, fraudulently borrowed $10 million to finance the operation, bought a boat for hashish smuggling but used it for the marijuana smuggling, and purchased a landing area where eight tons of marijuana were unloaded. Id. at 858. The evidence also showed that both the core conspirators and the defendant thought of the defendant as a subsidiary figure, the defendant's duties only involved hashish, and the defendant was generally only present at meetings about hashish. Id. Although the defendant was aware of the marijuana smuggling and present at a few meetings in which marijuana was discussed, we concluded that the record did not support a conclusion that the defendant thought the two ventures interdependent, in the sense that the success of the one might have facilitated completion of the other. Id. at 859. Consequently, the evidence was insufficient to show that [the defendant] expressly or tacitly agreed to do more than to import and possess Pakistani hashish. [11] Id. In the instant case, looking at the totality of the evidence, we conclude there was insufficient evidence to support the finding of a single conspiracy. Rather, the evidence pointed to at least two distinct conspiracies: (1) the Massachusetts-based Vizcaíno-Dellosantos-Szpyt conspiracy to distribute cocaine, and (2) the Maine-based Sanborn-centered conspiracy to distribute both cocaine and marijuana (whose participants included, inter alia, Robert L. Sanborn, Lara Sanborn and Walter D. Towle, Jr.). [12] First, the two conspiracies had materially different goals, at least in part. Although they both sought to sell the cocaine that traveled through the Vizcaíno-Dellosantos-Szpyt-Sanborn supply chain, the Sanborn-centered conspiracy included a second, equally important objective that the other conspiracy lacked: the distribution of marijuana. Nor did the ventures share the objective of serving a particular organization or boss. Cf. Sánchez-Badillo, 540 F.3d at 29. Second, even assuming without deciding that Dellosantos and Szpyt knew of Sanborn's marijuana distribution operation (a fact contested by the Defendants), [13] we find that the two conspiracies lacked sufficient interdependence, particularly considering that the participants' states of mind are the key to this inquiry. See Mangual-Santiago, 562 F.3d at 422. In this regard, although the evidence showed that Szpyt and Dellosantos participated in some branch (supplying cocaine) of the Sanborn-centered operation, cf. id., nothing was presented to the jury to suggest that either of them believed that the success of their cocaine distribution operation likely depended on Sanborn's marijuana distribution venture. See Glenn, 828 F.2d at 857-58. For example, the evidence did not establish a situation where an individual or group had an iron-fisted control over the two distribution schemes. Cf. Sánchez-Badillo, 540 F.3d at 30. In addition, Sanborn used different suppliers for his marijuana distribution (namely, Demarco and Chase), and there was no evidence that either Szpyt or Dellosantos relied upon the success of Sanborn's marijuana distribution in order to sell their cocaine. Cf. Mangual-Santiago, 562 F.3d at 422. Rather, as discussed below, the record indicates that the Defendants were indifferent to Sanborn's marijuana distribution scheme. See Glenn, 828 F.2d at 858 (noting that a tacit understanding does not exist when the distributor is indifferent to the purposes of others in the enterprise). In fact, there was little evidence to suggest that Dellosantos even knew about the marijuana operation until Szpyt told him of Sanborn's arrest. The government presented at trial a plethora of evidence providing detailed descriptions of Szpyt's relationship with Sanborn and the latter's marijuana distribution emporium. This evidence established, inter alia, that Szpyt and Sanborn communicated constantly, as the two were fellow Iron Horsemen who spent much time together (both in Massachusetts and Maine) at Iron Horsemen parties and handling cocaine distribution. Yet, there was no evidence suggesting that the two ever discussed Sanborn's marijuana distribution operation. Thus, the evidence strongly suggested that Szpyt was only interested in his own unlawful ends (i.e., distributing cocaine) and was indifferent with regards to Sanborn's other unlawful activities. See Blumenthal v. United States, 332 U.S. 539, 558, 68 S.Ct. 248, 92 L.Ed. 154 (1947) (noting that separate conspiracies may be found when defendants have distinct ends, when they have no interest in others' unlawful activities and when they do not aid others in conducting those activities). The success of Szpyt's and Dellosantos' cocaine distribution operation was no more dependent on the success of Sanborn's marijuana distribution operation than it was on the success of Sanborn's garage or any other (legal or illegal) income-producing venture devised by Sanborn that might have enabled him to pay off his cocaine debt to Szpyt. No evidence was presented suggesting that either Szpyt or Dellosantos understood the relationship differently. This weakness in the government's case is highlighted by its heavy reliance on Call 2026—the conversation between Dellosantos and Szpyt about Sanborn's arrest—as [p]erhaps the most damning evidence that Defendants understood their cocaine distribution operation to have been interdependent with Sanborn's marijuana distribution. Even viewing this conversation in the light most favorable to the verdict, Szpyt was merely informing Dellosantos about a fellow Iron Horsemen (and cocaine customer) who was caught committing a serious crime. It was expected for both Szpyt and Dellosantos to have been very interested in this story, since, although Sanborn was caught doing a weed deal, a search of his home and an investigation of his other activities (e.g., cocaine distribution) might lead law enforcement officials to the Defendants. However, this concern over Sanborn's ability to avoid detection, by itself, does not suggest that the Defendants believed that they had an interest in every income-producing unlawful venture that Sanborn might have gotten himself into (in this case, marijuana distribution). We cannot see how this conversation suggests that either Szpyt or Dellosantos believed that their cocaine distribution was interdependent with Sanborn's marijuana operation. In fact, a recording of the transcript of Call 2026 ( see ante at pp. 114-15) shows the opposite of what the government claims, for Szpyt is complaining that he did not know about Sanborn's marijuana trafficking: I didn't know. I can only police my fucking guys so much. . . . I got no control. Third and finally, any evidence of overlap between the two conspiracies was insufficient to outweigh the lack of interdependence. To be sure, controlled substances that were distributed in both conspiracies traveled through Sanborn. However, there was no evidence Sanborn had any interactions with Dellosantos or Vizcaíno or was even aware of their existence, aside from his general knowledge that Szpyt obtained cocaine from a few suppliers, one of whom Sanborn believed to be Hispanic. Nor was there any evidence that Dellosantos specifically knew he supplied Sanborn with cocaine. In short, Sanborn was not the type of hub character that frequently exists in cases where this court has found significant overlap and an overarching conspiracy. Perhaps this case is best understood if we think of Sanborn as a drug supermarket owner, who sold different products, cocaine and marijuana, rather than bananas and tomatoes, from different distributors: cocaine from the Vizcaíno-Dellosantos-Szpyt chain and marijuana from the Demarco and Boivin-Chase suppliers. Were we actually considering such fruit distribution chains in the context of an actual supermarket, we would be hard put to argue that the intersection of those two separate fruit product distribution chains would be of any legal significance as far as somehow making the members of the two separate chains overall business partners. Neither would it be reasonable to argue that merely distributing tomatoes to the supermarket, by itself, would make the tomato distributor a partner in the supermarket's overall business of selling bananas and other foods. When we transfer this bucolic scenario to the present case, we can perceive no legally significant difference in the outcome. The Vizcaíno-Dellosantos-Szpyt criminal conspiracy to distribute cocaine was a different criminal enterprise than the Boivin-Chase-Sanborn-Jordan marijuana enterprise, with different products, a different source of supply, different goals, and a different history. Similarly, distributing cocaine (rather than tomatoes) to Sanborn's drug supermarket does not, by itself, make Vizcaíno, Dellosantos and Szpyt partners in Sanborn's drug supermarket business of distributing cocaine and marijuana. In sum, we conclude that the evidence did not support a finding of a single over-arching conspiracy covering all the relevant drug dealing. With this conclusion in mind, we turn to whether the evidence sufficed to prove that the Defendants joined either of the two conspiracies that were actually proven by the government and, if so, we then determine whether the variance (between the conspiracy charged and the conspiracy for which there was sufficient evidence that the Defendants actually joined) unfairly prejudiced the Defendants.

The Evidence Showed Multiple Conspiracies

44 The injunction entered by the district court provides: 45 IT IS HEREBY FURTHER ORDERED that the defendants may move for dissolution of this injunction at any time following eighteen (18) months from the date of entry of this order provided that in support of such a motion defendants demonstrate compliance with the terms of the injunction and, provided further, that, notwithstanding such a showing by the defendants, the injunction shall continue in full force and effect if the plaintiff Securities and Exchange Commission demonstrates that the public interest so requires. 46 The Commission argues that this provision in the injunction was beyond the power of the court to include and that it was an abuse of discretion to include it. We do not agree. 47 The district court has wide discretion in framing an injunction. Mr. Justice Douglas described that discretion in Hecht Co. v. Bowles, 1944, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754, an action by the World War II Price Administrator to enforce compliance with the Emergency Price Control Act of 1942 (56 Stat. 23), in which the district court found violations, but declined to issue an injunction. 48 We are dealing here with the requirements of equity practice with a background of several hundred years of history. Only the other day we stated that An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity. Meredith v. (City of) Winter Haven, 320 U.S. 228, 235, (64 S.Ct. 7, 11, 88 L.Ed. 9). . . . The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. 321 U.S. at 329, 64 S.Ct. at 591-592. (emphasis added) 49 The Court held that the district court's discretion extended to denial of an injunction, even though violations were found. 50 We have repeatedly applied the principle of the Hecht Co. case in actions by the Commission for injunctions under the Securities and Securities Exchange Acts. See, e. g., SEC v. Arthur Young & Co., 9 Cir., 1979, 590 F.2d 785; SEC v. Koracorp Industries, Inc., 9 Cir., 1978, 575 F.2d 692, 701; SEC v. United Financial Group, Inc., 9 Cir., 1973, 474 F.2d 354, 358-359. See also, Rondeau v. Mosinee Paper Corp., 1975, 422 U.S. 49, 95 S.Ct. 2069, 45 L.Ed.2d 12. 51 Closely in point is our decision in Porter v. Lux, 9 Cir., 1946, 157 F.2d 756. That, too, was an action for an injunction under the Emergency Price Control Act of 1942. The district court in that case found violations and issued an injunction. Two paragraphs of the injunction read: 52 This judgment and decree shall be effective from the date hereof until the 30th day of June, 1946. This judgment and decree is without prejudice to the right of the plaintiff to move for the extension of this judgment and decree beyond the date above mentioned upon appropriate showing of facts justifying such extension. The defendant likewise may move under appropriate circumstances for modification of this judgment and decree prior to the expiration thereof. 53 Jurisdiction of the court is retained over the parties and subject matter of this action for these purposes. Id. at 757. 54 The Price Administrator appealed, and we affirmed. We said: 55 It is well settled that this court will not interfere with the action of a District Court in the exercise of its discretion unless there has been a plain abuse of that discretion. Id. at 757. (footnote omitted) 56 Viewing the record we get the impression that the District Court concluded from the facts then before it that during the time fixed in the injunction opportunity would be afforded to observe the action of appellees and determine whether or not it could reasonably be assumed that they would obey the law in the future. If it was thought that they would not, then the simple procedure of a motion to extend the time was left open. The District Court from the picture it received from the facts and circumstances before it determined the action taken to be the fairest course to follow in this situation. Id. at 757. 57 (W)e are unable to say that the District Court's action constitutes a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found. 58 No abuse of discretion appearing the judgment is affirmed. Id. at 758. 59 What we said there is equally applicable here. 60 We do not agree with the Commission's characterization of the injunction as a limited injunction. The provision criticized by the Commission does not automatically terminate the injunction after 18 months; it merely provides to the defendants a right to seek a review after 18 months. The court did not abuse its discretion. 61 The Commission correctly argues that the standards for modification of a permanent, unconditional injunction are strict. United States v. Swift & Co., 1932, 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999. We do not now decide whether the review provision in the injunction was intended to change the otherwise strict standards for modification of an injunction or, if so, whether such action was within the discretion of the trial judge. Neither of these questions will be before us until the time, if ever, when the injunction is actually modified or dissolved. 62

Propriety of the Review Provision in the Injunction.

On April 12, 1996, Simmons filed a petition for post-conviction relief pursuant to Pennsylvania's Post-Conviction Relief Act (PCRA), 42 Pa. Cons.Stat. Ann. §§ 9541 et seq., in the Court of Common Pleas of Cambria County, Pennsylvania, Criminal Division (the PCRA court). Among his other claims, Simmons raised the Commonwealth's alleged Brady violations as grounds for granting his petition. After holding a series of evidentiary hearings, the PCRA court rejected this line of argument, concluding that Pletcher had voluntarily agreed to cooperate in the electronic surveillance; that the gun charge evidence, even if disclosed, would not have altered the outcome of the trial because of the other evidence implicating Simmons in Knaze's murder; that the lab report regarding forensic evidence of Cobaugh's assault was inconclusive rather than exculpatory; and that even if Cobaugh's testimony were impeached by evidence of her initial failure to identify Simmons from a mug book, it would not have been enough to overcome the other successful identifications by Cobaugh and other witnesses. The PCRA court therefore denied Simmons's petition. Simmons appealed that decision to the Pennsylvania Supreme Court.

The Court of Common Pleas Decision

We first consider the defendants’ argument that the district court should have suppressed evidence obtained during the stop and search of the vehicle. In reviewing a district court’s denial of a motion to suppress, we review its findings of fact for clear error and its conclusions of law de novo. United States v. Diaz, 519 F.3d 56, 61 (1st Cir. 2008). “Absent an error of law, we will uphold a refusal to suppress evidence as long as the refusal is supported by some reasonable view of the record.” United States v. Lee, 317 F.3d 26, 29-30 (1st Cir. 2003). The defendants submit two separate arguments. First, they argue that the stop of the vehicle constituted an unlawful seizure under the Fourth Amendment. Second, they contend that a law enforcement officer’s ensuing search of the vehicle violated the Fourth Amendment’s prohibition against unreasonable searches. We shall address each argument in turn. -12- The defendants submit that the district court erred in holding that Officer Gerrish’s stop of the vehicle was constitutional because it was based on reasonable articulable suspicion. We begin by setting forth the Fourth Amendment principles governing investigative stops. In Terry v. Ohio, 392 U.S. 1, 22 (1968), the Supreme Court articulated the watershed principle that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Temporary traffic stops are analogous to these so-called Terry stops. Berkemer v. McCarty, 468 U.S. 420, 439 (1984). Stopping a vehicle and temporarily detaining its occupants constitutes a seizure for Fourth Amendment purposes. United States v. Cortez, 449 U.S. 411, 417 (1981) (collecting cases); Delaware v. Prouse, 440 U.S. 648, 653 (1979). Because the defendants, as passengers in the stopped automobile, were seized within the meaning of the Fourth Amendment, they may contest whether the stop of the vehicle meets Fourth Amendment standards. Brendlin v. California, 551 U.S. 249, 251 (2007); see United States v. Symonevich, 688 F.3d 12, 19 (1st Cir. 2012).17 17 See also, e.g., United States v. Figueredo-Diaz, 718 F.3d 568, 576 & n.5 (6th Cir. 2013); United States v. Crippen, 627 F.3d 1056, 1063 (8th Cir. 2010); United States v. Cortez-Galaviz, 495 -13- A warrantless traffic stop satisfies the Fourth Amendment’s reasonableness requirement, U.S. Const. amend. IV, if “police officers have a reasonable suspicion of wrongdoing—a suspicion that finds expression in specific, articulable reasons for believing that a person may be connected to the commission of a particular crime.” Lee, 317 F.3d at 31; see also United States v. Sokolow, 490 U.S. 1, 7 (1989); United States v. Jones, 700 F.3d 615, 621 (1st Cir. 2012). To constitute reasonable suspicion, “the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534 U.S. 266, 274 (2002). The Supreme Court has eschewed, emphatically, any reliance on a rigid test or formula to give the concept substance. Rather, it has emphasized that the determination must be grounded in the “totality of the circumstances.” Cortez, 449 U.S. at 417; see also Jones, 700 F.3d at 621; United States v. Coplin, 463 F.3d F.3d 1203, 1205 n.3 (10th Cir. 2007); United States v. Diaz-Castaneda, 494 F.3d 1146, 1150 (9th Cir. 2007); United States v. Soriano-Jarquin, 492 F.3d 495, 499-500 (4th Cir. 2007); 3 Wayne R. LaFave et al., Criminal Procedure § 9.1(d), at 404-05 (3d ed. 2007) (noting that “[a]ny remaining doubt” as to whether passengers had standing to object to the stop of a vehicle or to the length of the passenger’s subsequent detention “was removed in Brendlin v. California”); 1 David S. Rudstein et al., Criminal Constitutional Law § 11.02(2)(b)(iii)(B) (2013) (“[A] passenger in a vehicle that is stopped by law enforcement has been ‘seized’ and therefore can challenge the validity of the police action in stopping the vehicle in which he was riding.”). -14- 96, 100 (1st Cir. 2006). Nevertheless, the Court has disciplined the reasonable suspicion standard by requiring “some objective manifestation” that the person stopped either is wanted for past criminal conduct, or is engaging or about to engage in such conduct. Cortez, 449 U.S. at 417 & n.2. A mere “hunch,” therefore, will not justify a stop. Terry, 392 U.S. at 22, 27. Information that is received from others in the course of an investigation, as the Court emphasized in Adams v. Williams, 407 U.S. 143, 147 (1972), varies in its “value and reliability”: Informants’ tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations—for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime—the subtleties of the hearsay rule should not thwart an appropriate police response. In short, in our search for “some objective manifestation,” we must recognize that, at bottom, the inquiry deals not with “hard certainties, but with probabilities.” Cortez, 449 U.S. at 417-18. In the Supreme Court’s words: The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the -15- circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person. The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain commonsense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Id. at 418. With these principles in mind, we turn to the case before us. Here, the stop occurred after the police had received a report from store employees that suggested that the defendants may have engaged in, or attempted to engage in, credit card fraud. These clerks worked for an established business within the officers’ jurisdiction and, as part of the store’s sales force, their work undoubtedly included being alert for fraudulent activity at the store. Moreover, in a face-to-face situation, the officers -16- had an opportunity to judge the credibility of the clerks and the accuracy of their report. The Bull Moose clerks gave the officers specific information. They described their serial encounters with the defendants and specifically told the officers that two different defendants had attempted to use credit cards bearing the same name. The clerks further gave the police a description of the defendants’ vehicle, including the license plate number. They also provided, on the basis of their conversation with the defendants, the probable location of the defendants’ next stop. Although this encounter already gave the police officers a great deal of information upon which to formulate a suspicion of illegal activity, the officers went a step further before executing the stop and checked the clerks’ estimation of the defendants’ whereabouts. An officer went to the Toys “R” Us where, according to the clerks, the defendants might next appear. The officer found a vehicle matching the description of the defendants’ vehicle. The vehicle’s out-of-state license plate number matched that reported by the clerks, with the exception of one instance of inverted numerals. Shortly afterward, the officer observed the defendants approach the vehicle. They were carrying bags, suggesting that they had purchased items in the Toys “R” Us, as the clerks at the earlier establishment predicted they might do. The “men not only were in the right place at the right time but also fit the suspects’ descriptions.” Lee, 317 F.3d at 31. In short, only -17- after law enforcement officers had learned all of the facts surrounding the suspected criminal activity and had corroborated the details did Officer Gerrish stop the defendants’ vehicle. We think that this case is sufficiently similar to the situation that confronted us in Lee as to be controlled by the principles articulated in that case. There, a store employee contacted the police to report suspected attempted credit card fraud. Id. at 30. The employee told police that “a young Asian male had tried (but failed) to purchase a $2,300 wristwatch using not one but two platinum American Express cards ostensibly issued in the name of Zhi Lin.” Id. When a police officer arrived at the store’s parking lot, he observed a van containing two individuals matching the employee’s description. Id. The officer approached the vehicle, and the driver attempted to pull away before the officer forced him to stop. Id. We held that the “collocation of circumstances plainly satisfied the reasonable suspicion standard for an initial Terry stop.” Id. at 31. As in Lee, the circumstances surrounding the present defendants’ actions at Bull Moose and in the Toys “R” Us parking lot justified Officer Gerrish’s stop. The district court correctly concluded that the stop was supported by reasonable articulable suspicion.18 18 Mr. Campbell makes one additional argument about the initial stop of the vehicle. He submits that “there was no probable cause to believe a crime was committed when the vehicle -18- The defendants next challenge the district court’s determination that the warrantless search of the vehicle, from the drug-detection dog’s entrance into the vehicle through the search of the locked glove box, did not violate the Fourth Amendment. The district court took the view that the defendants’ consent, as well as the automobile exception to the Fourth Amendment’s warrant requirement, brought that search within constitutional bounds. In examining this question, we are confronted at the beginning of our analysis by an important threshold question. The defendants base their challenge to the search of the automobile on their status as passengers in that automobile. Following the decision of the Supreme Court in Rakas v. Illinois, 439 U.S. 128 (1978), we have held squarely that passengers in an automobile who assert no property or possessory interest in a vehicle cannot be said to have the requisite expectation of privacy in the vehicle to was stopped.” Campbell Br. 19. Consequently, he continues, the warrant later issued for the search of the vehicle was invalid because it was based on the information discovered in an illegal stop. There are two problems with Mr. Campbell’s argument. First, he has conflated the standards for a Terry stop of a vehicle and for the issuance of a warrant. The officers needed only reasonable suspicion to stop the vehicle, and we already have determined that such suspicion was present. Second, Mr. Campbell’s argument neglects the importance of timing in a probable cause inquiry. Probable cause can “accrete[] gradually as an investigation progresses.” United States v. Lee, 317 F.3d 26, 32 (1st Cir. 2003). Law enforcement can stop a car only on reasonable suspicion, and then “the circumstances giving rise to reasonable suspicion . . . and the developments that unfold[] during the Terry stop [can furnish] probable cause.” Id. -19- permit them to maintain that the search did not meet Fourth Amendment standards. United States v. Symonevich, 688 F.3d 12, 19, 21 (1st Cir. 2012).19 Mr. Campbell never has claimed a possessory interest in the vehicle.20 In his motion to suppress and at the hearing on that motion, Mr. Porteous asserted, forcefully, that he did not lease the car.21 To put it mildly, in taking those positions, neither 19 See also, e.g., Crippen, 627 F.3d at 1063 (holding that a passenger may challenge his seizure at a traffic stop but may not challenge the search of a vehicle); United States v. Paulino, 850 F.2d 93, 96-97 (2d Cir. 1988) (holding that although a passenger had manifested a subjective expectation of privacy in the area under a car mat where he hid contraband, he failed to demonstrate that such an expectation was objectively reasonable and therefore lacked standing to challenge the search). 20 In its opposition to the motion to suppress, the Government asserted that, in light of their lack of any possessory interest, the defendants could not litigate the search of the automobile. The district court did not address the issue. In this court, the defendants did not address the matter in their opening briefs, but the Government preserved adequately the issue by noting it in its brief and providing the controlling authority. Gov’t Br. 35 n.4 (citing United States v. Symonevich, 688 F.3d 12, 18-21 (1st Cir. 2012)); cf. Rubin v. Islamic Republic of Iran, 709 F.3d 49, 54 & n.4 (1st Cir. 2013) (noting that to preserve an issue for appeal, it generally must be raised before the district court and in a party’s opening brief). 21 We acknowledge that the district court determined, on the basis of Sergeant Chard’s testimony at the suppression hearing, that Mr. Porteous told the Sergeant that he had rented the car. Notably, the district court did not find that Mr. Porteous in fact had leased the car; the court merely determined that Mr. Porteous told the Sergeant that he had done so. Although Mr. Porteous’s statement to the Sergeant well may have given the officer a basis for believing that Mr. Porteous had apparent authority to consent to the search of the car (a question we need not decide today), for purposes of evaluating the district court’s ruling on the motion to suppress, we accept Mr. Porteous’s position that he did not have a -20- defendant has carried his burden to establish a reasonable expectation of privacy in the vehicle. See United States v. Lipscomb, 539 F.3d 32, 35-36 (1st Cir. 2008) (“Before reaching the merits of a suppression challenge, the defendant carries the burden of establishing that he had a reasonable expectation of privacy with respect to the area searched . . . .”); id. at 36 (holding that the defendant lacked the expectation of privacy required to challenge a seizure where the defendant “actively disowned any interest in any of the seized items” and “repeatedly asserted” at the hearing on his motion to suppress that the contraband seized was not his).22 Accordingly, because neither Mr. Campbell nor possessory interest in the vehicle. Our analysis of this question is not contrary to the holding of the Supreme Court in Simmons v. United States, 390 U.S. 377 (1968). There, the defendant testified at the suppression hearing that he owned a particular suitcase because he justifiably believed that such testimony was necessary to establish the requisite standing to object to the search. Id. at 381. The Supreme Court held that such testimony could not be used against the defendant during trial to establish his guilt. Id. at 394. The situation here is materially different. No one is using Mr. Porteous’s statement against him. Rather, Mr. Porteous denies he made the statement and, in any event, abjures any reliance on a property interest in his motion to suppress. See United States v. Samboy, 433 F.3d 154, 162 (1st Cir. 2005) (holding that the defendant had not demonstrated a reasonable expectation of privacy in an apartment that was searched where his “strategy throughout the proceedings was to distance himself from any possible interest” and noting that the defendant could have argued, but did not, “that he lacked an interest at trial while arguing that he did in fact have a recognized interest . . . in his motion to suppress”). 22 See also Symonevich, 688 F.3d at 21 n.6 (“The burden to establish a reasonable expectation of privacy lies squarely on the movant.”); United States v. Rodríguez-Lozada, 558 F.3d 29, 37 (1st Cir. 2009); Samboy, 433 F.3d at 161 (quoting Minnesota v. Carter, -21- Mr. Porteous established a privacy interest in the car, they cannot object to its search by the officers. Because the defendants do not assert the requisite privacy interest in the vehicle that was searched, they cannot make any claim about the legality of the search of the vehicle. We therefore have no reason to address their contentions with respect to that search. B. Uncounseled Questioning at the Scene of the Vehicle Stop The defendants next submit that the law enforcement officers should have supplied Miranda warnings before questioning them at the scene of the vehicle stop and that any statements made in the absence of such warnings should be suppressed. In evaluating the district court’s ruling on whether the defendants were “in custody” for Miranda purposes, we review the court’s factual assessment of the circumstances surrounding the interrogation for clear error. United States v. Hughes, 640 F.3d 428, 435 (1st Cir. 2011). Then, we review de novo whether, “viewed objectively, the discerned circumstances constitute the requisite ‘restraint on freedom of movement of the degree associated with a 525 U.S. 83, 88 (1998)); cf. United States v. Salvucci, 448 U.S. 83, 95 (1980) (remanding a case that came to the Supreme Court “as a challenge to a pretrial decision suppressing evidence” so that the defendants could “attempt to establish that they had a legitimate expectation of privacy in the areas” searched). -22- formal arrest.’” Id. (quoting California v. Beheler, 463 U.S.

Stop and Search of the Vehicle

12 Holston contends that the materials-in-commerce prong of § 2251(a) exceeds Congress's authority under the Commerce Clause in light of Lopez and Morrison. In these two decisions, the Supreme Court reaffirmed the proposition that the grant of authority to Congress under the Commerce Clause, though broad, is not unlimited. Solid Waste Agency of N. Cook County v. United States Army Corps of Eng'rs, 531 U.S. 159, 173, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001). Both Lopez and Morrison involved statutes that regulated local noneconomic activity under the theory that the activity, when viewed in the aggregate, substantially affected interstate commerce. 13 In Lopez, the Supreme Court struck down the Gun-Free School Zones Act of 1990 (GFSZA), 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V), which criminalized the knowing possession of a firearm within a school zone. 514 U.S. at 551, 115 S.Ct. 1624. The Lopez court identified three broad categories of activity that Congress may regulate under its commerce power: (1) channels of interstate commerce; (2) instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. Id. at 558-59, 115 S.Ct. 1624. The Court noted that the GFSZA would have to be sustained, if at all, as a category-three regulation, as it involved neither the channels nor the instrumentalities of interstate commerce. See id. at 559, 115 S.Ct. 1624. 14 The Court observed, first, that § 922(q) was a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enterprise, id. at 561, 115 S.Ct. 1624, and thus could not be sustained under the Court's cases upholding regulations of activities that ... are connected with a commercial transaction that, when viewed in the aggregate, substantially affects interstate commerce. Id. Next, the Court noted that the statute contained no jurisdictional element that would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce. Id. Finally, the Court noted the absence of congressional findings, which, although not required to sustain legislation, would enable [the Court] to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye. Id. at 563, 115 S.Ct. 1624. On this reasoning, the Court held the statute unconstitutional. See id. at 567-68, 115 S.Ct. 1624. 15 Five years later, the Court decided Morrison and struck down the civil remedy provision of the Violence Against Women Act of 1994 (VAWA), 42 U.S.C. § 13981. 529 U.S. at 616-17, 120 S.Ct. 1740. Elaborating on Lopez, the Court identified four factors to be considered in determining the existence of a substantial effect on commerce. They were whether: (1) the activity at which the statute is directed is commercial or economic in nature; (2) the statute contains an express jurisdictional element involving interstate activity that might limit its reach; (3) Congress has made specific findings regarding the effects of the prohibited activity on interstate commerce; and (4) the link between the prohibited conduct and a substantial effect on interstate commerce is attenuated. See Morrison, 529 U.S. at 610-12, 120 S.Ct. 1740. 16 Applying these principles to § 13981, the Court noted, first, that [g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity. Id. at 613, 120 S.Ct. 1740. Further, § 13981 contained no jurisdictional element establishing that the federal cause of action is in pursuance of Congress's power to regulate interstate commerce. Id. The Court acknowledged that the provision was supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families, id. at 614, 120 S.Ct. 1740, but held that these findings were insufficient, especially when the methodology relied upon by Congress had been undermined by Lopez. See id. at 615, 115 S.Ct. 1624. Finally, the Court found that the link between gender-related violence and a substantial effect on interstate commerce was attenuated. See id. The Court accordingly held the provision insufficiently grounded in the Commerce Clause. See id. at 616-17, 115 S.Ct. 1624. 17

The Commerce Clause under Lopez and Morrison

While LawMode’s selection of forms is sufficiently creative to warrant copyright protection, LawMode’s and Lexis’s selections are not similar enough to constitute copying. The two elements for copyright infringement are: (1) ownership of a valid copyright, and (2) copying of that expression. See Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th Cir. 2004). The first element is met,1 but the second is not. Lexis did not copy any “protectable” elements of LawMode’s compilation. Id. at 294 (holding that the substantial similarity inquiry requires the court to look at protectable elements of the plaintiff’s work and determine whether the allegedly infringing work is “substantially similar” to the protectable elements). This conclusion is compelled by the differences between LawMode’s and Lexis’s compilations. The differences show that Lexis used sufficient judgment and creativity to compel a reasonable fact finder to conclude that one compilation is not a copy of the other. Our conclusion in this regard is supported by two related considerations. First, Lexis did not include a sufficiently large percentage of the same forms to permit a finding of copying. Second, nonquantitative aspects of the two compilations support the conclusion that Lexis created a new work rather than a copy of LawMode’s. The percentage of forms in LawMode’s compilation that may be found in Lexis’s compilation is not particularly high. LawMode asserts that its compilation contains 576 forms and Lexis’s 2002 compilation contains 406 forms. According to LawMode, 350 of the forms in the Lexis compilation also appeared in LawMode’s compilation. Thus, Lexis’s compilation included 61%, or 350 out of 576, of LawMode’s form selection.2 In Feist the Supreme Court indicated that “notwithstanding a valid copyright, a subsequent compiler remains free to use the facts contained in an author’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement.” Feist, 499 U.S. at 349 (emphasis added). Subsequent cases have interpreted Feist to mean that compilation copyright protection is very limited and usually requires substantial verbatim copying. Key Pub’ns v. Chinatown Today, 945 F.2d 509, 514 (2d Cir. 1991). Sixty-one percent can hardly be considered the “same” selection. See, e.g., Schoolhouse Inc. v. Anderson, 275 1 LawMode’s expression in selecting which forms to include is protected by copyright. LawMode’s collection of 576 forms from a universe of over 700 forms is protected by copyright even though the forms themselves are not copyrightable individually. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991). This is because LawMode’s decision of which forms to include shows that modicum of creativity necessary to turn mere selection into copyrightable expression. See id. at 345. 2 It is true that 350 divided by 406 yields a higher percentage, as the district court noted. Ross, Brovins & Oehmke, P.C. v. Lexis Nexis, 348 F. Supp. 2d. 845, 858 (E.D. Mich. 2004). But as the Second Circuit reasoned in Key Publications, the percentage of the plaintiff’s compilation used by the defendant is typically the more relevant number. In Key Publications v. Chinatown Today, 945 F.2d 509, 515 (2d Cir. 1991), the Second Circuit considered whether the defendant’s Chinese American-Life Guide, a yellow pages of interest to the Chinese community, copied the selection of businesses included within the plaintiff’s competing phone book. First, the Key Publications court considered that 75% of the listings in defendant’s telephone directory were taken from plaintiff’s directory. Id. The 75% figure was not the relevant figure. Id. The better figure was that only 17% of plaintiff’s listings, or 1500 of 9000 listings, were copied. Id. As the Key Publications court noted, the significance of the copied material to the plaintiff’s work, rather than its significance to the defendant’s work, is important in evaluating substantial similarity. No. 05-1513 Ross Brovins & Oehmke v. Lexis Nexis Group Page 5 F.3d 726, 729-30 (8th Cir. 2002) (holding that a ratio of seventy-four percent of the same items was not substantial similarity in light of Feist). To be sure, in Eckes v. Card Prices Update, 736 F.2d 859, 863-64 (2d Cir. 1984), the Second Circuit found that a directory that copied 5,000 out of 18,000 (28%) of plaintiff’s baseball card listings constituted copyright infringement. But in that case the defendant copied all of plaintiff’s listings of “premium” cards. Thus, the relevant percentage was more like 100%. This is not a case where Lexis replicated a discrete portion of LawMode’s work in its entirety. The Eckes case shows that careful attention must be paid to the nature of the creative expression that has allegedly been copied, and that sheer numbers out of context can be misleading. In this case, the nature of the material used by Lexis shows that there was no copying as a matter of law. The two works are so dissimilar in expression that reasonable minds could not differ as to the absence of substantial similarity. See Stromback, 384 F.3d at 294-95; see also Schoolhouse, 275 F.3d at 729 (basing its decision on the response that a reasonable person would have toward the two works). It is undisputed that Lexis made the decision to add at least 35 forms to its database. It is also undisputed that Lexis chose not to include various forms used by LawMode in its compilation. The professional judgment used in selecting forms that gave LawMode copyright protection also gives Lexis protection from LawMode’s allegation of infringement.

LawMode’s selection of forms

Notwithstanding his initial rejection of Santoro's offer of assistance from Eppolito and Caracappa, Kaplan soon had a change of heart. In early 1986, having learned that his participation in a scheme involving stolen Treasury bills was in danger of being exposed, Kaplan hired Santoro, Eppolito, and Caracappa to murder one of the other participants in the scheme, Israel Greenwald. Santoro, Eppolito, and Caracappa carried out their mission by following Greenwald's car on a highway and turning on flashing lights on their car, thereby causing Greenwald to stop on the side of the road. They told Greenwald that he was a suspect in a hit-and-run and that they needed to take him to the police station for a lineup. They then drove Greenwald instead to the premises of an auto repair shop in Brooklyn, where Santoro shot and killed him. Kaplan paid Santoro $30,000 for the murder; Santoro kept $5,000, unbeknownst to Eppolito and Caracappa, and divided the remaining $25,000 among himself, Eppolito, and Caracappa.

The Murder of Israel Greenwald

54 Milstein's contention that counts other than Count Four should be dismissed because of the alleged impropriety in the midtrial amendment to Count Four is moot in light of our above discussion. In any event, even had that midtrial amendment been impermissible, it would have provided no basis on which to disturb Milstein's conviction on the remaining counts. [A]bsent a showing of prejudice, the erroneous amendment of one count does not destroy other counts of the indictment nor invalidate the judgment of conviction thereon. United States v. Dhinsa, 243 F.3d at 667 (internal quotation marks omitted). The Government's failure to allege the jurisdictional element in Count Four had no impact on any of the remaining counts, and Milstein has not shown any prejudice.

Validity of Remaining Counts

In March 2001, Jeffrey and Amy Bertelsen signed a retainer agreement (“the March 2001 agreement”) with Harris and his firm, Harris Berne Christensen LLP. The agreement 1 Although Harris was licensed in Oregon, the parties do not dispute the Washington Rules of Professional Conduct apply to him and Appellants’ action is governed by Washington law. 10256 BERTELSEN v. HARRIS stated the Bertelsens, for and on behalf of BFG, retained Harris and his firm “as attorneys for the purpose of representing and handling any and all legal matters on behalf of [BFG] which may, from time to time, be requested. You have specifically requested that we work to negotiate a resolution of the ARCO franchise terminations and related issues.” The agreement also stated BFG would pay the firm on an hourly basis, at its rates of $150-$195/hour for attorneys. The agreement also required BFG to pay a $10,000 retainer, which the Bertelsens paid on or about April 23, 2001. Jeffrey and Amy Bertelsen received detailed bills describing services rendered between March 2001 and May 2001, with a breakdown of time spent and hourly rates, from Harris’s firm. They paid these bills without objection (nor do they claim any breach of fiduciary duty with respect to those bills). During Spring 2001, it became clear ARCO had no interest in continuing a business relationship with BFG and did not intend to rescind the notice of termination. Indeed, ARCO filed an action against BFG in August 2001 for money due under loan agreements with BFG. The Bertelsens decided they would try to sell the six gas stations as a business solution, to avoid bankruptcy. In May 2001, Jeffrey and Amy Bertelsen asked Harris and McPherson (the non-attorney industry consultant) to seek a buyer for the stations.

The March 21, 2001 Retainer Agreement

Swan, Washington, and Kittelberger were indicted by a grand jury on the following offenses: (1) one count of violating 18 U.S.C. § 1349, conspiracy to defraud a financial institution; (2) eight counts of violating 18 U.S.C. § 514(a)(2), fictitious obligations; (3) one count of violating 18 U.S.C. § 1708, possession of stolen mail; and (4) one count of violating 18 U.S.C. § 1028A (a)(1), aggravated identity theft. Swan filed a motion to suppress evidence recovered from Suite 206, asserting that the officers involved in the investigation lacked permission and legal authority to enter the room. Washington filed a similar motion to suppress, contending that the officers’ warrantless entry violated his Fourth Amendment rights and that the evidence seized from Suite 206 was inadmissible. Kittelberger orally joined in the motions to suppress. After conducting an evidentiary hearing, the district court denied the motions in a memorandum order for the following reasons: (1) The warrantless entry was justified by exigent circumstances, namely, that the Malibu’s occupants could have warned the individuals in Suite 206 once the officers initiated a stop of the Malibu, and (2) even if the officers’ warrantless entry into Suite 206 violated the Fourth Amendment, excluding the evidence would be improper 4 Case: 14-30172 Document: 00512875517 Page: 5 Date Filed: 12/18/2014 No. 14-30172 because the government had established by a preponderance of the evidence that it would have obtained the evidence even if no misconduct had taken place. 1 The case proceeded to a five-day jury trial. The jury found Swan and Washington guilty on all counts of the indictment, save the one for aggravated identity theft. The jury found Kittelberger guilty on all counts except three counts of fictitious obligations. Washington, Kittelberger, and Swan timely appealed their convictions and sentences, asserting that the district court erred in denying their motions to suppress. On appeal, Kittelberger and Swan challenge their convictions under 18 U.S.C. § 514(a)(2), claiming that their conduct does not support convictions under our precedent. 2 Kittelberger also appeals the district court’s application of a two-level enhancement to his sentence under U.S.S.G. § 3B1.1(c), claiming that no evidence in the record supports such enhancement.

Indictment and district court proceedings

Amerex next contends that the district court should not have upheld the appraisal award because the Panel improperly decided questions of law. Amerex correctly identifies the limit to an appraisal panel's authority under New York law. A basic proposition of insurance law provides that the scope of coverage provided by an insurance policy is a purely legal issue that cannot be determined by an appraisal, which is limited to factual disputes over the amount of loss for which an insurer is liable. Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 389 (2d Cir.2005); see also Indian Chef, 2003 WL 329054, at ; 15 Couch on Ins. § 210:42 (3d ed. 2011). Amerex errs, however, in its application of that principle to the facts at hand. In many cases, distinguishing between coverage and amount of loss will be straightforward. For example, in Kawa v. Nationwide Mutual Fire Insurance Co., 174 Misc.2d 407, 664 N.Y.S.2d 430 (N.Y.Sup.Ct.1997), a wind storm damaged the insured's house. After an inspection, the insurance company tendered its settlement offer. The insured rejected the offer and sued, demanding appraisal. [3] The dispute concerned whether the policy required the insurer to repair the house only to its predamaged condition, or, as the insured contended, to replace the house's damaged aluminum siding with vinyl siding. Id. at 431. The court denied the insured's motion to compel appraisal, deeming the dispute one of coverage, rather than damages. Id. Kawa illustrates the legal principle. It was for a court to interpret the policy to resolve the dispute, as an appraiser's assessment of the value of the claim would depend upon the resolution of that legal question. Id. at 431-32. The distinction between coverage and damages becomes more difficult when, as here, the insured seeks coverage for lost business income. In some cases, the policy itself specifies the method of calculating lost business income. See, e.g., HTI Holdings, Inc. v. Hartford Cas. Ins. Co., No. 10-cv-06021, 2011 WL 4595799, at (D.Or. Aug. 24, 2011). In others, the calculation is necessarily speculative and involves complex apportionments of competing causal factors. Moreover, the calculation of the restoration period, or period during which business income losses can be attributed to the covered event, can broach both legal and factual elements, creating a boundary that will require careful analysis to delimit. The Southern District of New York's treatment of this boundary in the context of business income losses is instructive. Duane Reade, Inc. v. St. Paul Fire & Marine Insurance Co., 261 F.Supp.2d 293 (S.D.N.Y.2003) ( Duane Reade I ) and Duane Reade, Inc. v. St. Paul Fire & Marine Insurance Co., 279 F.Supp.2d 235 (S.D.N.Y.2003) ( Duane Reade II ) concerned a dispute between Duane Reade, Inc., and its insurer St. Paul Fire & Marine Insurance Company, after the destruction, on September 11, 2001, of one of Duane Reade's pharmacies located near the World Trade Center. St. Paul Fire demanded an appraisal to determine the precise scope of the restoration period. The parties disputed the policy's coverage on this point: Duane Reade asserted a right under the policy to recover business interruption losses for the entire period until the World Trade Center is rebuilt (if it is), while St. Paul Fire insisted that the plaintiff's recoverable losses are limited to those suffered within 21 months following the terrorists [sic] attacks. Duane Reade I, 261 F.Supp.2d at 294. Thus, the argument in Duane Reade I did not concern the factual determination of the restoration period's end date, but whether the policy calculated that period with reference to an exogenous event—the reconstruction of the World Trade Center. The district court in Duane Reade I appropriately reserved the determination of that legal dispute for itself, rather than delegating it to an appraisal panel. See also Indian Chef, 2003 WL 329054, at (concluding that, because the parties disagree[d] about which provisions of the policy apply to the calculation of lost business income, the question was one of coverage rather than damages). Once the legal question was resolved, the factual question of determining the actual date of the restoration period was well within the appraisal panel's scope. In Duane Reade II, the district court resolved the legal question by dismissing both sides' interpretations of the policy as extreme, concluding that, on the facts of that case, the appropriate scope of the restoration period was the time it would take to rebuild, repair, or replace the damaged property. 279 F.Supp.2d at 239. Once the district court had clarified the scope of the period of restoration within the meaning of the policy, defining that specific period was a sufficiently factual question to allow resolution by the appraisal panel. Id. at 242. The Duane Reade cases illustrate three principles of New York law. First, an appraiser may not resolve coverage disputes or legal questions regarding the interpretation of the policy. Second, the calculation of the restoration period, unless subject to legal challenges, is a factual question about damages—albeit sometimes a complex and contentious one—appropriately addressed by an appraiser. And third, the presence of a coverage dispute does not preclude an appraisal demand. Only a coverage dispute that precedes the valuation of damages will prevent such a demand. Coverage disputes that are independent of the valuation of damages can stand in abeyance pending the appraisal. The Panel's valuation of damages did not violate these principles. While the present dispute certainly included legal arguments concerning the policy's coverage, those disputes were not implicated in the appraisal's resolution. The Panel instead focused solely on determining the extent of the damages, including calculating the relevant restoration period, and did not address whether the Excess Insurers' policies covered those damages. Thus, the Panel did not address conflicting views of the applicable policies, but rather resolved factual questions regarding claims about the conflicting causes of the lost business income. Those were factual questions that can be resolved by a duly appointed appraisal panel, aided by the opinions of experts, including forensic accountants such as those who testified before the Panel below. One of the principal issues before the Panel, for example, was when the effect of the rack collapse stopped influencing the decline of Amerex's business, such that the weak state of its revenues in contrast to prior years could be attributed to other, independent business conditions unrelated to the casualty. That is essentially a factual question about business conditions; it is to be resolved by making factual judgments about events in the world, not legal analyses of the meaning of the insurance contract. The parties contracted to submit such factual issues bearing on the value of the claim to a panel of appraisers rather than to the courts. The Panel's decision was obviously controversial. Such controversy is not unexpected. Apportioning damage causation from among the many factors that influenced the state of Amerex's business in the summer and fall of 2001—including the rack collapse, the 2001 recession, the September 11 terrorist attacks, and the bankruptcies of several of Amerex's leading customers—was a factually laborious task that might have led to widely differing outcomes. The appraisal necessarily involved the exercise of judgment and discretion in weighing competing arguments regarding causation and loss. That an appraisal panel exercises judgement or produces a controversial result, however, does not turn factual disputes regarding damages into legal disputes regarding coverage. The complexity of the calculations of Amerex's business losses required appraisers to do more than mechanistically consult objective market values. But while the Panel made a complex decision among several competing factual theories, it did not adjudicate the law. For Amerex to succeed in challenging the Panel's decision as ultra vires, it must identify the questions regarding the meaning of the policy that the Panel decided. Amerex does not and cannot make that identification. Beyond conclusory assertions that the valuation must necessarily have addressed coverage questions, Amerex has failed to identify any specific legal issue of contract interpretation that either the Panel decided or that was necessary to untangle the factual question of whether and to what extent Amerex's business fortunes were attributable to the insured event.

Scope of Appraisal

27 Alexander claims that the Board should be required to recognize his mandatory unpaid leave of absence as an exception to coverage under the Hatch Act. Acknowledging that the court in Minnesota Department of Jobs and Training v. Merit Systems Protection Board, 875 F.2d 179, 183 (8th Cir.1989), specifically held that the Hatch Act applies without regard for an employee's leave status, Alexander argues that the case was wrongly decided. We disagree. The Eighth Circuit explained that 28 the legislative history of the provisions of the Act makes it unmistakably clear that covered state employees are subject to the prohibitions of the Act regardless of leave status. During hearings on a proposal to extend the Hatch Act to state and local government employees, Congress specifically considered and rejected a provision which would have exempted from the Hatch Act's prohibitions those candidates who had taken a leave of absence without pay. 86 Cong.Rec. 2872-75 (1940). The legislative history of the Act further discloses that the intent of the statute was to prohibit partisan candidacy by any covered employee who had not resigned from his or her employment. See 86 Cong.Rec. 9447 (1940). 29 Id. 30 Further, Alexander's reliance upon the dissent in Minnesota is misplaced. Thomas Kehoe, the plaintiff in that case, was aware of and relied upon the federal district court decision in Johnson v. Cushing, 483 F.Supp. 608 (D.Minn.1980), an action brought under 42 U.S.C. § 1983 in which the court held the Hatch Act did not apply to a state employee on leave of absence. Alexander fails to recognize that the dissenters in Minnesota agreed with the majority that Johnson was wrongly decided, and only took issue with the conclusion that Kehoe could not have reasonably relied upon the Johnson decision. Of course, Alexander has a much weaker argument than Kehoe, because Alexander did not claim to have relied upon Johnson, or any federal district court decision for his claim that he was not covered by the Hatch Act. In fact, no one ever told Alexander that he could run for office without violating the Hatch Act. 7

Civil Service Leave of Absence

Under their substantive theory of standing, Petitioners argue that Interior's approval of the Program brings about climate change, which in turn adversely affects the species and ecosystems of those OCS areas, thereby threatening Petitioners' enjoyment of the OCS areas and their inhabitants. In other words, Petitioners contend that, absent Interior's approval of the Program, the OCS areas at issue would not be subject to environmental impacts allegedly brought about by climate change associated with the burning of fossil fuels produced under the Program. To begin with, the Supreme Court's recent decision in Massachusetts v. EPA, 549 U.S. 497, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007), does not govern this issue. Its holding turned on the unique circumstances of that case, which are not present here. In Massachusetts, a group of private organizations petitioned the Environmental Protection Agency (EPA) to begin regulating emissions of four greenhouse gases, arguing that a rise in global temperatures and climatological changes resulted from an increase in the atmospheric concentration of greenhouse gases. After the EPA denied the petition, the petitioners— joined by the Commonwealth of Massachusetts—sought this Court's review of the EPA's denial of their petition. The EPA maintained that the petitioners lacked standing to bring such a petition because the harm that they alleged—the effect of greenhouse gas emissions on global warming—was widespread, and did not individually affect any of the petitioners. Accordingly, the EPA contended, petitioners failed to demonstrate a concrete and particularized injury required to show standing under Article III. After we upheld the EPA's denial of the petition without reaching a consensus on the standing issue, the Supreme Court decided on review that the petitioners had standing to bring their petition. In its opinion, however, the Supreme Court made an effort to note that its finding was based on the uniqueness of the case before it. As the Court explained, it was of considerable relevance that the party seeking review ... is a sovereign State and not, as it was in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), a private individual. Massachusetts, 549 U.S. at 518, 127 S.Ct. 1438. The Court noted further that it was critical that Massachusetts sought to assert its own rights as a state under the Clean Air Act, and was not seeking to protect the rights of its citizens under the Clean Air Act. Id. at 520 n. 17, 127 S.Ct. 1438. In light of these unique circumstances, the Court afforded Massachusetts special solicitude in the Court's standing analysis due to Massachusetts's interests in ensuring the protection of the land and air within its domain, and its well-founded desire to preserve its sovereign territory. Id. at 519, 520, 127 S.Ct. 1438. With respect to Massachusetts's injury, the Court found that Massachusetts owns a substantial portion of the state's coastal property that had already been harmed by the EPA's inaction, and that the EPA's failure to regulate these gases would cause additional harm to its shoreline. Id. at 523, 127 S.Ct. 1438. Though the Court found that the risks of climate change were widely shared because global sea levels had already begun to rise, it nevertheless concluded that Massachusetts had shown a sufficiently particularized injury because Massachusetts had alleged that its particular shoreline had actually been diminished by the effects of climate change. Id. In other words, by showing that climate change had diminished part of its own shoreline, Massachusetts itself had shown that it had been affected in a personal and individual way by the EPA's failure to regulate greenhouse gases. Defenders of Wildlife, 504 U.S. at 560 n. 1, 112 S.Ct. 2130. Thus, Massachusetts stands only for the limited proposition that, where a harm is widely shared, a sovereign, suing in its individual interest, has standing to sue where that sovereign's individual interests are harmed, wholly apart from the alleged general harm. Assuming arguendo that Point Hope is a sovereign that might be entitled to special solicitude under Massachusetts, it is clear that Massachusetts does not govern this case. Point Hope does not allege anywhere that it has suffered its own individual harm apart from the general harm caused by climate change, and its derivative effects on Point Hope's members. Point Hope does not allege that Interior's acts will cause damage to, or otherwise adversely affect, any of its own territory. To the contrary, each of Petitioners' climate change claims are founded on Interior's Leasing Program actions and the effects of those actions on the climate in general. Moreover, to the extent that Petitioners allege that the Leasing Program caused any actual harm to any territory, this harm is limited to areas of the OCS— areas that are owned by the federal government, not by a state or Native American tribe. Aside from these allegations of generalized harm brought about by climate change, Petitioners have not demonstrated that climate change would directly cause any diminution of Point Hope's territory any more than anywhere else. Accordingly, without this necessary element being present, we find that Massachusetts 's limited holding does not extend to the standing analysis in this case. Moreover, it is doubtful that Point Hope would be able to assert a quasi-sovereign claim on behalf of its members against the federal government, as Massachusetts had against the EPA. Both the majority and dissenting opinions in Massachusetts recognized the general rule that a sovereign is prohibited from bringing an action to protect its citizens from the operation of federal statutes. See Massachusetts, 549 U.S. at 520 n. 17, 127 S.Ct. 1438 (majority opinion); id. at 539, 127 S.Ct. 1438 (Roberts, C.J., dissenting); see also Massachusetts v. Mellon, 262 U.S. 447, 484-86, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). Here, Point Hope does not allege any specific harm that it has suffered individually as a result of Interior's actions in approving the Leasing Program. Instead, Point Hope is suing on behalf of its members and their individual interests. As the Court has long recognized, only the United States, and not the states, may represent its citizens and ensure their protection under federal law in federal matters. See Mellon, 262 U.S. at 485-86, 43 S.Ct. 597. Outside of the very limited factual setting of Massachusetts, the Supreme Court's decision in Defenders of Wildlife sets forth the test for standing. See Fla. Audubon Soc'y v. Bentsen, 94 F.3d 658 (D.C.Cir.1996). In order for a petitioner to establish standing, a petitioner must demonstrate that it has suffered a concrete and particularized injury that is caused by, or fairly traceable to, the act challenged in the litigation and redressable by the court. Defenders of Wildlife, 504 U.S. at 560-61, 112 S.Ct. 2130; Fla. Audubon Soc'y, 94 F.3d at 663. In cases such as this, where the petitioner is not the object of an alleged government action or inaction, standing is not precluded, but it is ordinarily `substantially more difficult' to establish. Defenders of Wildlife, 504 U.S. at 562, 112 S.Ct. 2130 (quoting Allen, 468 U.S. at 758, 104 S.Ct. 3315). In cases such as this, causation and redressability ordinarily hinge on the actions of independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot presume either to control or to predict. Defenders of Wildlife, 504 U.S. at 562, 112 S.Ct. 2130 (quoting ASARCO, Inc. v. Kadish, 490 U.S. 605, 615, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (opinion of Kennedy, J.)). Accordingly, the petitioner bears the burden of adduc[ing] facts showing that those [third-party] choices have been or will be made in such manner as to produce causation and permit redressability of injury. Defenders of Wildlife, 504 U.S. at 562, 112 S.Ct. 2130 (citing Warth v. Seldin, 422 U.S. 490, 505, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). Petitioners' substantive theory of standing fails because Petitioners have not established either the injury or causation element of standing. First, it is well-established that a party must demonstrate that it has suffered an injury that affects it in a personal and individual way. Defenders of Wildlife, 504 U.S. at 560 n. 1, 112 S.Ct. 2130. Standing analysis does not examine whether the environment in general has suffered an injury. See Fla. Audubon Soc'y, 94 F.3d at 665. And yet Petitioners' substantive argument focuses on just this type of injury: that climate change might occur in the Arctic environment if the Leasing Program is allowed to proceed. This type of injury is insufficient to establish standing for two reasons. First, Petitioners' alleged injury runs afoul of the requirement that a justiciable injury must be actual or imminent, not conjectural or hypothetical. Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotation marks omitted). A threatened injury must be certainly impending to constitute injury in fact. Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (internal quotation marks omitted). Petitioners can only aver that any significant adverse effects of climate change may occur at some point in the future. This does not amount to the actual, imminent, or certainly impending injury required to establish standing. Second, climate change is a harm that is shared by humanity at large, and the redress that Petitioners seek—to prevent an increase in global temperature—is not focused any more on these petitioners than it is on the remainder of the world's population. Therefore Petitioners' alleged injury is too generalized to establish standing. Even if Petitioners were able to demonstrate an injury sufficient for standing, their substantive theory would still fail because Petitioners have failed to demonstrate a causal link between the government action by Interior and Petitioners' particularized injury. To properly establish causation, the injury must be `fairly' traceable to the challenged action. Allen, 468 U.S. at 751, 104 S.Ct. 3315. That is, the plaintiff must show that it is substantially probable ... that the challenged acts of the defendant, not of some absent third party, will cause the particularized injury of the plaintiff. Fla. Audubon Soc'y, 94 F.3d at 663 (citing Allen, 468 U.S. at 753 n. 19, 104 S.Ct. 3315). The more attenuated or indirect the chain of causation between the government's conduct and the plaintiff's injury, the less likely the plaintiff will be able to establish a causal link sufficient for standing. See Allen, 468 U.S. at 757-58, 104 S.Ct. 3315. In this case, Petitioners rely on too tenuous a causal link between their allegations of climate change and Interior's action in the first stage of this Leasing Program. In order to reach the conclusion that Petitioners are injured because of Interior's alleged failure to consider the effects of climate change with respect to the Leasing Program, Petitioners must argue that: adoption of the Leasing Program will bring about drilling; drilling, in turn, will bring about more oil; this oil will be consumed; the consumption of this oil will result in additional carbon dioxide being dispersed into the air; this carbon dioxide will consequently cause climate change; this climate change will adversely affect the animals and their habitat; therefore Petitioners are injured by the adverse effects on the animals they enjoy. Such a causal chain cannot adequately establish causation because Petitioners rely on the speculation that various different groups of actors not present in this case—namely, oil companies, individuals using oil in their cars, cars actually dispersing carbon dioxide—might act in a certain way in the future. Moreover, Petitioners' causal chain fails to take into account that, at each successive stage of the Leasing Program, the law requires that Interior conduct additional and more detailed assessments of the Program's potential effect on the proposed leasing areas. See 43 U.S.C. §§ 1340(g)(3), 1351(h)(1)(D)(i). As mentioned previously, these additional analyses could scuttle a leasing program if the environmental effects of that program are found to be excessive. See supra Section I.B. Petitioners therefore also do not have standing because they cannot adequately establish causation. Accordingly, Petitioners' substantive theory of standing fails.

Petitioners' Substantive Theory of Standing

After the clinic fired Dr. Azmat, Dr. Ken Gossett took his place. Dr. Gossett testified that he understood that the patients paid in cash for his services and were seeking oxycodone. The only time that he did not prescribe a patient oxycodone was when he could not find a justification for doing so based on the patient’s medical records or complaints. When this happened, the patient would get a refund. Dr. Gossett also testified that he recognized that it would be odd for patients experiencing intense pain to travel hours from home to see a doctor. When asked whether it was apparent that many of his patients were drug abusers, Dr. Gossett responded: “It seemed that they acquired a lot of pain medicine, yes.” Finally, Dr. Gossett clarified that, as a doctor, he had a license to prescribe medicine, not a license to dispense medicine.

Dr. Gossett’s Tenure

Cabello claims that the document certifying Bolivia's consent to the Coast Guard's boarding of the Sea Atlantic was marked as an exhibit but never formally introduced into evidence. Bolivia's consent was necessary to establish United States jurisdiction over the vessel, and Cabello argues that, without the certification, there was insufficient evidence to support his conviction. Because Cabello did not raise this issue in the district court, it is subject to review only for plain error. See United States v. Pratt, 496 F.3d 124, 127 (1st Cir.2007). We find no such error. Even if the document was technically not admitted, [35] its content was introduced into evidence through the testimony of USCG Officer Cieblik, who identified the document as the agreement between the government of Bolivia and the United States government to allow us to board the vessel Sea Atlantic. The defendants had the opportunity to cross-examine Cieblik concerning the document's authenticity, but did not. The issue of jurisdiction was for the district court to decide, 46 U.S.C. app. § 1903(f); Bravo, 489 F.3d at 8. We have no doubt that, given Cieblik's testimony and the availability — if not admission — of the certification, no plain error occurred.

Failure to Admit Proof of Certification

Whether a crime involves moral turpitude is determined by the statutory definition or by the nature of the crime and not by the specific conduct that resulted in the conviction. Id. at 1070 (citation and quotation marks omitted). The categorical approach requires that we compare the elements of the statute of conviction to the generic definition [of moral turpitude], and decide whether the conduct proscribed ... is broader than, and so does not categorically fall within, this generic definition. Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir.2006) (citation and quotation marks omitted). We have observed that there are no statutorily established elements for a crime involving moral turpitude. Navarro-Lopez, 503 F.3d at 1068. Its meaning left to the BIA and courts to develop through case-by-case adjudication. See Nicanor-Romero v. Mukasey, 523 F.3d 992, 997 (9th Cir.2008), overruled on other grounds by Marmolejo-Campos, 558 F.3d 903. We have defined `moral turpitude' as involving conduct that is inherently base, vile, or depraved, and contrary to the private and social duties man owes to his fellow men or to society in general. Navarro-Lopez, 503 F.3d at 1068; [2] see also In re Sejas, 24 I. & N. Dec. 236, 237 (BIA 2007) (applying a similar definition). The BIA has added that [t]he essence of moral turpitude is an evil or malicious intent[,] and, therefore, [t]he test to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind. In re Tran, 21 I. & N. Dec. 291, 293 (BIA 1996). Under the categorical approach, the question is not whether some of the conduct prohibited by [the statute] is morally turpitudinous, but rather whether all of the conduct prohibited by [the statute] is morally turpitudinous. Nicanor-Romero, 523 F.3d at 999. With this definition in mind, we now turn to an examination of the statute in question.

Definition of crimes involving moral turpitude

10 The Board of Immigration Appeals rejected Castaneda-Gonzalez's interpretation of the statute. According to the Board, section 103(a) of the Act, which defines the powers and duties of the Attorney General under the immigration laws, grants him the authority to invalidate a labor certificate issued by the Secretary of Labor. Section 103(a) provides: 11 The Attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens, . . . (and decisions) by the Attorney General with respect to all questions of law shall be controlling. 12 8 U.S.C. § 1103(a) (1970). The findings required by subsection 212(a)(14) as to the available supply of American workers and the impact on wages and working conditions within the United States may not be strictly questions of adjudicative fact, but they are hardly questions of law. If section 103(a) is a source of authority for the Board to invalidate the Secretary of Labor's determination of those issues, it must arise from that section's general grant of power to administer and enforce all immigration laws. The Service urges us to adopt just such a construction. It first notes that the Secretary of Labor is not included within the explicit exception clause of section 103(a) 11 and then argues that if Congress had intended to except the Secretary's labor certificate determination from review by the Attorney General it would have included him within that clause. Although it would facilitate our decision, we cannot accept the proposition that any determination of fact not explicitly exempted by section 103(a) is necessarily subject to review by the Attorney General. To do so would be to fall prey to circular reasoning, for that proposition assumes that section 103(a)'s affirmative grant of authority to the Attorney General includes the power to decide whether the substantive requirements of subsection 212(a)(14) are satisfied in any given factual situation which is the precise issue we must decide in this case. If the affirmative grant of section 103(a) is not so inclusive, then, regardless of whether the Secretary of Labor's labor certification authority is mentioned in the exception clause of that section, the Board's deportation order exceeded its statutory authority. 12 13 Section 103(a) is a broad grant of general administrative and enforcement authority to the Attorney General. Subsection 212(a)(14) is a narrowly drawn provision which focuses particularly and precisely on the admission of aliens seeking to take up employment in the United States. It specifically provides that such aliens are excludable unless the Secretary of Labor has determined and certified . . . to the Attorney General that there are not sufficient American workers available and that employment of the alien seeking entry will not adversely affect wages and working conditions in the United States. This language clearly delegates the determination of whether the factual circumstances underlying any particular application for certification satisfy the substantive requirements of subsection 212(a)(14) to the Secretary of Labor and not to the Attorney General. Under the frequently-applied maxim of statutory construction that a specific provision prevails over a more general one, 13 we do not think that the general language of section 103(a) should be construed as delegating an authority to the Attorney General which is delegated only to the Secretary of Labor by subsection 212(a)(14). 14 The opinion of the Board of Immigration Appeals states that the legislative history of subsection 212(a)(14) is consistent with its decision that the Attorney General is statutorily empowered to declare a labor certificate issued by the Secretary of Labor invalid. The only authority cited for this sweeping assertion is a statement by Congressman Moore during floor debate of an amendment to another section of the Act, section 214(c), in which he obliquely refers to subsection 212(a)(14) in commenting that sections other than 214(c) contain adequate safeguards for American workers. 14 15 Section 214(c) deals with nonimmigrant aliens while 212(a)(14) deals with immigrants. Moreover, section 214(c) expressly provides that (t)he question of importing any alien as a nonimmigrant (temporary laborer) shall be determined by the Attorney General . . . . 8 U.S.C. § 1184(c) (1970). Congressman Moore was objecting to an amendment to this language to make section 214(c) read: shall be determined by the Attorney General, subject to the approval of the Secretary of Labor . . . . See 111 Cong.Rec. 21,805 (1965). He accurately characterized the effect of this change as granting the Secretary of Labor a veto over the Attorney General's power to decide whether a nonimmigrant laborer met the substantive statutory requirements for admission as a temporary laborer. The division of administrative authority between the Secretary of Labor and the Attorney General effected by that language is totally distinct from the allocation effected by subsection 212(a)(14)'s directive that immigrant alien laborers are excludable unless the Secretary of Labor has determined and certified to the . . . Attorney General that the substantive requirements of the statute are satisfied. 8 U.S.C. § 212(a)(14) (1970). 16 Statements by individual legislators should generally be given little weight when searching for the intent of the entire legislative body. See National Welfare Rights Organization v. Mathews, 174 U.S.App.D.C. 410, 415-416, 533 F.2d 637, 642-43 (1976). See generally 2A Sutherland, Statutes and Statutory Construction § 48.13 (C. Sands ed. 1973). This caveat applies with added force where, as here, the statement relied on was made during debate of a different statutory provision that addresses a different legislative concern in language which on its face obviously contemplates a different division of administrative authority. We cannot accept the legislative history cited by the Board and the Service as any support whatsoever for their claim of implied authority from subsection 212(a)(14) to declare labor certificates of the Secretary of Labor invalid. 17 The Attorney General has broad power to inquire into the admissibility 15 and deportability 16 of aliens. This includes the authority to decide whether they are within one of the 31 excludable classes of section 212(a), but insofar as 212(a)(14) is concerned the Attorney General's inquiry is limited to whether the Secretary of Labor has determined that the substantive requirements of that subsection are satisfied. Once an alien shows that the Secretary of Labor has made such a determination 17 in his favor, the statutorily delegated enforcement power of the Attorney General is exhausted. There is nothing in subsection 212(a)(14) itself that permits the Attorney General to ignore the Secretary's determination because he finds it factually defective and to decide for himself that under the correct facts a labor certificate should not have been granted. Subsection 212(a)(14) delegates that substantive determination only to the Secretary of Labor and simply directs the Attorney General to ensure that the Secretary has certified the alien. An alien so certified is not excludable under 212(a)(14). 18 Our holding that the substantive certification decision under subsection 212(a)(14) lies exclusively with the Secretary of Labor does not bar the Service from seeking to deport an alien on the basis of inaccuracies in the factual basis of a labor certificate. Subsection 212(a)(19) provides that an alien is excludable, and therefore deportable under 241(a)(1), if he has procured a visa or other documentation . . . by fraud, or by willfully misrepresenting a material fact. 8 U.S.C. § 1182(a)(19) (1970). The Service complains that if aliens admitted with labor certificates based on incorrect facts may only be deported under subsection 212(a)(19), then, where a misrepresentation is not willful, the Attorney General will be prevented from deporting (an alien) even though if the true facts had been known the labor certificate would never have been issued. Brief for Respondent at 14. We agree that this correctly states the consequences of requiring willfulness as well as materiality under subsection 212(a)(19), but we do not see that it is a reason to read subsection 212(a)(14) as authorizing the Attorney General to deport an alien with a labor certificate based on material but not willful misrepresentations. Congress explicitly chose to require the government to prove willfulness when seeking to deport an alien for misrepresenting facts in applying for entry documents, and we will not construe subsection 212(a)(14) so as to allow the Service to circumvent this congressionally-imposed burden of proof with respect to labor certificates. 19 As another source of statutory authority to reject the labor certification of the Secretary of Labor, the Service relies on section 221(h) of the Immigration and Nationality Act which provides that (n)othing in this chapter shall be construed to entitle any alien, to whom a visa or other documentation has been issued, to enter the United States, if, upon arrival . . . he is found to be inadmissible . . . . 8 U.S.C. § 1201(h) (1970). Under this provision the administrative authorities charged with determining the admissibility of aliens at ports of entry have long asserted the power to reexamine the factual basis of the admissibility determinations on which an alien's visa was issued and to refuse to admit any alien whom they find excludable, despite a contrary conclusion of the visaing official. See Vitale v. Immigration and Naturalization Service, 463 F.2d 579, 580 (7th Cir. 1972); Hermina Sague v. United States, 416 F.Supp. 217, 218-19 (D.P.R. 1976); United States ex rel. Katnic v. Reimer, 25 F.Supp. 925, 926 (S.D.N.Y. 1938), aff'd, 104 F.2d 1022 (2d Cir. 1939); cf. Ng Yip Yee v. Barber, 210 F.2d 613, 613-14 (9th Cir.), cert. denied, 347 U.S. 988, 74 S.Ct. 850, 98 L.Ed. 1122 (1954); United States ex rel. Strachey v. Reimer, 101 F.2d 267, 269 (2d Cir. 1939). The Service argues that the phrase other documentation makes section 221(h) applicable to labor certificates and, characterizing the Secretary of Labor's determination under subsection 212(a)(14) as merely an initial ruling, urges us to accept the Board of Immigration Appeals' conclusion that there is no distinction between a visa and a labor certificate. 20 Certainly section 221(h) applies to labor certificates, but contrary to the Service's position, the statutory relationship between the Secretary of Labor's authority to issue labor certificates and the Attorney General's authority to determine admissibility at the point of entry is much different than the relationship between the authority of consular officers to issue visas and the Attorney General's final decision on admissibility. 21 Section 211(a) of the Immigration and Nationality Act provides that as a general rule no immigrant shall be admitted into the United States unless . . . he has a valid unexpired immigrant visa . . . . 8 U.S.C. § 1181(a) (1970). Section 221 of the Act delegates the authority to issue visas to consular offices 18 and directs them not to issue visas to any alien who falls within one of the excludable classes described in section 212(a). 8 U.S.C. §§ 1201(a), (g) (1970); see, id. § 1182(a). Thus, as an absolute precondition to admission, an alien must submit his proof that he is not excludable to a preliminary screening by a consular officer. 19 Immigration & Nationality Act § 222, 8 U.S.C. § 1202 (1970); 22 C.F.R. §§ 42.90-.91, and 42.111 (1976). Acceptance of his claim by a consular officer does not guarantee admission to an alien, however, since sections 235-236 of the Act, 8 U.S.C. §§ 1225-1226 (1970), direct the Service to inspect each alien applying for admission at a port of entry to determine whether he or she is excludable. In making that determination the Service must decide the same questions of excludability the consular officer decided when issuing a visa to the alien applicant. For example, both the consular officer and the Service must decide whether an alien is excludable as a drug addict or chronic alcoholic, 212(a) (5), as one who has been convicted of a crime involving moral turpitude, 212(a) (9), as a prostitute, 212(a)(12), or as one likely to become a public charge, 212(a)(15). 8 U.S.C. §§ 1182(a)(5), (9), (12), (15) (1970). The decision of the consular officer that an alien is not within one of the excludable classes of section 212(a) is not binding on the Service because of section 221(h). It serves simply as a preliminary investigation, and a favorable decision does no more than entitle an alien to present himself at a port of entry to prove his admissibility before the Service. See Reimer, supra at 269; Hermina Sague, supra at 218-19. If the port-of-entry inspection of an alien's qualifications raises any doubts as to his admissibility, section 236(a) of the Act directs the Service to conduct an evidentiary proceeding before one of its special inquiry officers who renders a final decision on the matter. 20 8 U.S.C. § 1226(a) (1970); 8 C.F.R. § 236 (1976). 22 This double check system, which requires an alien to demonstrate his admissibility before two different administrative officials with independent and coequal authority, has not gone uncriticized. 21 Nevertheless, despite its duplication and potential for confusion, Congress apparently has decided that its benefits outweigh its costs, and has continued the statutory framework which requires consular officers and the Attorney General independently to address the same issues in different contexts. 22 23 The statutory relationship between the Secretary of Labor and the Attorney General with respect to labor certificates is wholly dissimilar to the system of bifurcated authority between consular officers and the Attorney General under which visas are issued and between the Secretary of State and the Attorney General with respect to determination of nationality. 23 Subsection 212(a)(14) clearly delegates to the Secretary of Labor the power to determine the availability of American workers and the impact on wages or working conditions when an alien applies for a labor certificate. The statutory language defines its excludable class as all those aliens without the Secretary of Labor's certification that there are no domestic workers available and that there will be no adverse impact on wages and conditions. It does not first define the class as all aliens seeking entry to accept employment for which American workers are available or whose admission would have an adverse impact on wages or working conditions and then provide the certification process as a prescreening device or enforcement aid. 24 In the context of nonimmigrant alien labor, Congress has expressly given the Attorney General power to decide the substantive question of the availability of American workers. 24 This indicates that Congress was not unaware of the issue of the proper allocation of administrative authority, and we think that the failure to expressly grant the Attorney General authority to make the same substantive decision in the context of immigrant alien laborers under subsection 212(a)(14) strongly implies that Congress intended to reserve that authority to the Secretary of Labor alone. Moreover, no other provision of the Immigration and Nationality Act directs the Attorney General to make the determinations which the Secretary of Labor must make under subsection 212(a) (14). Thus, unlike the admissibility decisions embodied in a visa decision of a consular officer or a nationality determination of the Secretary of State, the Attorney General is not called upon to make the same decisions in another context. The Secretary of Labor alone decides whether there are sufficient American workers to fill a particular job and whether an alien's entry to accept that job would adversely affect wages or working conditions. The function of the Attorney General and the consular officers 25 is simply to ensure that that determination has been made by the Secretary of Labor in favor of an alien immigrant. If so, that alien is not excludable under subsection 212(a)(14), although he might be inadmissible or deportable for other reasons. 25 The Service also argues that this case is similar to the situation when an alien applies for a preference classification under section 203(a) on the basis that he or she is a member of a profession, has exceptional ability in the sciences or arts, or is capable of labor for which a shortage exists in the United States. See Immigration and Nationality Act §§ 203(a)(3), (6), 8 U.S.C. §§ 1153(a)(3), (6) (1970) (amended 1976). We acknowledge the factual similarity of such a situation to the one at bar 26 and the authority of the numerous cases cited by the Service for the proposition that the Attorney General may deny such preference requests without reference to the Secretary of Labor because he determines that the applicant alien does not qualify for the preference category relied on. 27 Those cases are not relevant to this case, however, for they address an entirely different legal issue. Section 203(a) simply states the substantive standards for determining the preference priority category to which an immigrant alien should be assigned. There is no question that the statute authorizes the Attorney General to pass on a request for preference status, see Immigration and Nationality Act §§ 204(a), (b), 8 U.S.C. §§ 1154(a), (b) (1970), and the only issues addressed by the section 203(a) cases cited by the Service were the proper standard of judicial review of an exercise of that authority and whether the decision of the Attorney General satisfied that standard. In this case, however, we must decide the distinct and more fundamental question of whether the Attorney General is statutorily authorized to ignore the labor certification of the Secretary of Labor based on his own substantive evaluation of the standards articulated in subsection 212(a)(14). 26 A comparison of the statutory provisions governing preference status decisions and subsection 212(a)(14) supports our holding that the Attorney General does not have legislatively delegated authority to review the basis for the Secretary of Labor's certification decision. With respect to petitions for preference status which require assessment of either an alien's qualifications for an occupation or the state of the labor supply in the United States, section 204(b) directs the Attorney General to (consult) with the Secretary of Labor but nonetheless clearly provides that the Attorney General, himself, shall determine whether an alien is eligible for a preference under section 203(a). Id., 8 U.S.C. § 1154(b) (1970). This is further evidence of congressional sensitivity to the interplay of administrative authority which permeates the immigration laws, and demonstrates that, where Congress sought to involve the Department of Labor simply as an enforcement aid to the Attorney General in areas of its expertise, the legislators did not rely on any implied power of the Attorney General but provided an unambiguous expression of their intent. Subsection 212(a)(14) does not refer to consultation with or initial screening by the Secretary of Labor with respect to substantive issues which it or any other section of the Act directs the Attorney General to decide. It simply states that immigrant aliens seeking entry to perform labor are to be excluded unless the Secretary of Labor has determined and certified . . . . 8 U.S.C. § 1182(a)(14) (1970). Congress did not provide, as it could have, that the Attorney General shall determine, after an initial decision by the Secretary of Labor, whether an immigrant alien laborer satisfies the substantive requirements of subsection 212(a)(14), and we will not impute such a gloss to its words in light of its express provision for such a result where it was intended in other areas of the immigration laws. 27 We now turn to the Service's claim that the authority of a special inquiry officer under section 236 to determine whether an arriving alien . . . shall be allowed to enter or shall be excluded and deported includes the power to review the merits of the Secretary of Labor's certification decision and declare a labor certificate invalid. We agree with the Service that this section authorizes it to exclude aliens who are not qualified under the immigration laws for entry into the United States. We do not agree, however, that it necessarily empowers the Service to declare that an alien who has received a labor certificate from the Secretary of Labor is nonetheless excludable under subsection 212(a)(14) because the Service concludes that he is not qualified for the employment covered by his certificate. The job qualifications of an alien laborer are matters to be considered by his prospective employer and the Secretary of Labor, insofar as they bear on his determination whether there are capable American workers available to fill the job. To avoid a finding of disqualification by the Service under subsection 212(a)(14) of the immigration laws, however, an alien need only show that the Secretary of Labor has determined that no American workers are available for the job he will accept and that his employment will not adversely affect wages or working conditions in the United States. An alien with a labor certificate indicating that such a determination has been made is not disqualified for entry because the Service is dissatisfied with its factual basis or with the merits of the Secretary of Labor's decision.

statutory authority of the attorney general

On December 6, 2006, a federal grand jury returned a four-count indictment (the original indictment) charging Vidal with misrepresentation of a social security account number, in violation of 42 U.S.C. § 408(a)(7)(B) (Count One); false representation of U.S. citizenship in violation of 18 U.S.C. § 911 (Count Two); aggravated identity theft in violation of 18 U.S.C. § 1028A (Count Three); and false statements on a passport application, in violation of 18 U.S.C. § 1542 (Count Four). All the counts charged derived from the events that took place on or about July 2002 when Vidal first submitted a U.S. passport application under his assumed name and social security number. On April 13, 2007, Vidal moved to dismiss the aggravated identity theft count charged in the original indictment, on the ground that the aggravated identity theft statute, 18 U.S.C. § 1028A, was not enacted until 2004, and thus, its application to Vidal's 2002 conduct violated the Ex Post Facto Clause of the U.S. Constitution. Recognizing its error, the government then superseded the original indictment. In the superseding indictment, the government changed the factual basis for the aggravated identity theft charge, renumbered as Count Four, to offense conduct that took place in 2006. Specifically, the § 1028A count was amended so as to be based on Vidal's use of false information to obtain a copy of a United States birth certificate in the name Pedro Luis Rodríguez, which Vidal had requested from Puerto Rican authorities in 2006, while he was incarcerated. Notably, the alteration of the offense conduct time frame for the aggravated identity theft count, from events that occurred in 2002 to events that occurred in 2006, was the only change made to the original indictment by the superseding indictment. The factual basis for the additional counts remained Vidal's conduct in July 2002 and no new charges based on conduct occurring in 2006 were brought. [1] Vidal ultimately pled guilty to all four counts charged.

The Original and Superseding Indictments

63 The claimants assert that the district court erred because it considered payments made to the claimants by Texaco and reduced their award for past lost wages accordingly. For the first six months after the collision, each of the claimants received a semi-monthly check from Texaco covering (1) workers' compensation benefits, and (2) an additional amount under Texaco's short-term disability policy which was intended to make-up the difference between the compensation benefits and their ordinary wages. The district court found that these benefits actually constituted lost wages, a finding the claimants now contest. As the claimants offered no details about the benefits, the district court determined that it could not use the factors set out in Phillips v. Western Company of North America, 953 F.2d 923, 932 (5th Cir.1992), and Davis v. Odeco, Inc., 18 F.3d 1237, 1243 (5th Cir.1994), to make a finding that the benefits were in fact collateral. The district court reduced the past lost wages award, despite the collateral source rule, on two grounds: (1) by introducing evidence of the past wages themselves, the claimants waived any objection; and, (2) if the claimants were permitted to receive wages from both Texaco and as damages, they would be receiving double recovery. 64 The collateral source rule is a substantive rule of law that bars a tortfeasor from reducing the quantum of damages owed to a plaintiff by the amount of recovery the plaintiff receives from other sources of compensation that are independent of (or collateral to) the tortfeasor. Davis, 18 F.3d at 1243. Sources of compensation that have no connection to the tortfeasor are inevitably collateral. Id. at 1244. This court reviews decisions concerning whether such benefits are collateral under a de novo standard. Id. at 1245. 65 The district court assumed that once a plaintiff introduces evidence of past benefits received, they have waived any objections about the benefits being used to reduce their past lost wages award. The finding of waiver, however, is not completely accurate because the claimants did object to such benefits being considered under the collateral source rule and, in fact, the district court stated that it would not so consider the benefits. It is true that the claimants stipulated to these amounts at trial, but because Texaco was seeking reimbursement for these amounts as an intervenor, the claimants were required to so stipulate by the Eastern District's Code of Professionalism, which states, in relevant part that [attorneys] will cooperate with counsel and the court to reduce the cost of litigation and will readily stipulate to all matters not in dispute. U.S. Dist. Ct. Rules E.D. La., Orders, Code of Professionalism (adopted Aug. 4, 1999). We conclude, therefore, that it is factually inaccurate to find that the claimants waived any objection to these benefits being considered in calculating their lost wages simply because the stipulated amounts were introduced by the claimants. 66 Obviously, by introducing such evidence, the claimants had waived any evidentiary objections, but this is a different type of waiver altogether from waiving an objection to their benefits being reduced by the amount of their damages. In fact, in Parker v. Wideman, a panel of this Court, applying Florida law, stated that the plaintiffs do not waive this substantive right just because they introduce such evidence themselves. 380 F.2d 433, 436 (5th Cir.1967) (Thus, while the tender of such evidence by the defendant may be excluded on objection by the plaintiff, the introduction of such evidence by the plaintiff does not bar him from recovering expenses necessitated by the tort-feasor's negligence, even though the expenses were met by monies received from a collateral source.). 7 We therefore conclude that the claimants did not waive the collateral source rule objection. 67 As for the second basis for its decision, that to give the claimants credit for these benefits would give them a double recovery, we also find that the district court erred. The district court's concerns about double recovery are misplaced as is its seeming reliance on Phillips and Davis. 8 In those cases, this Court evaluated employee benefit programs to determine whether they were bargained for fringe benefits rather than benefits intended to anticipate potential legal liability on the part of the tortfeasor. Davis, 18 F.3d at 1244. Thus, we have recognized that it would be unfair to allow the plaintiff a double recovery when both the liability judgment and the collateral benefits are paid for by the defendant. Phillips, 953 F.2d at 931 (emphasis added). These concerns about double recovery were in the context of a tortfeasor/defendant having to pay twice, however, and not a third party paying the benefits as we have here. Therefore, there was no need to rely on these cases in the first place. Furthermore, there was no second recovery in the present case, because the claimants had to reimburse Texaco for the stipulated amounts of past benefits. 9 Also, even if the claimants had not reimbursed Texaco, the fact that the claimants may have gotten a second recovery would still be irrelevant because to hold otherwise would punish the claimants for having the foresight to establish and maintain collateral sources of income. Davis, 18 F.3d at 1244, n. 21. 68 Considering the factors above, we find that, to the extent that the claimants past lost wages were reduced, the district court's decision was in error. We therefore reverse and remand so that the district court may enter a damages amount reflecting the stipulated amounts paid by Texaco, which were previously excluded. 69 Did the district court err in denying the claimants request for attorney's fees? 70 The claimants also argue that they were inequitably denied reimbursement from Texaco for attorney's fees. Under Louisiana law, employees are generally allowed to recover a portion of their attorney's fees if their employer intervenes in a suit against a third party tortfeasor. La.Rev.Stat. Ann. § 23:1103. As the district court pointed out, however, a claimant seeking to recover fees must introduce evidence sufficient to enable the court to make a proper apportionment. Rivet v. LeBlanc, 600 So.2d 1358, 1363 (La.App. 1 Cir.1992). As no such evidence was presented at trial or in connection with the hearing on the motion for attorney's fees, the district court denied the claimants' request. Though the claimants believe that the district court should have taken judicial notice of the claimants' enrichment of Texaco, they cite to no case law that supports this proposition. Additionally, § 23:1103(c) provides in part that the intervenor shall only be responsible for a share of the reasonable legal fees and costs incurred by the attorney retained by the plaintiff, and [t]he amount of the portion of attorney's fees shall be determined by the district court based on the proportionate services of the attorneys which benefitted or augmented the recovery from the third party. Despite the claimants' assertions that it was obvious that the Texaco attorneys rode on the coattails of their attorneys, they provided no evidence on which the district court could make any sort of reasonable determination. We therefore conclude that the district court's decision was correct. 71 Did the district court err in finding that different injuries were caused by the different impacts? 72 The claimants assert that the district court erred by finding that different injuries were caused by different impacts because there was no testimony to support such findings. The claimants argue that, if this Court should find that the CANE RIVER is liable, then the injury determination has bearing on apportionment of liability. However, as the district court placed no liability on the CANE RIVER and we affirm that decision today, this issue is moot.

The claimants' past lost wages

Pursuant to the plea agreement, if the district court decided that the Federal Sentencing Guidelines were unconstitutional, the district court was to apply the standard of proof beyond a reasonable doubt to determine whether the sentencing enhancements sought by the state were present; the amount of loss to the victims was greater than $200,000 but less than $400,000 and number of victims was greater than fifty but less than two hundred and fifty. The district court in fashioning its identical, alternative sentence found that both sentence enhancements were proven beyond a reasonable doubt. Katzopoulos’ argues that the district court in imposing the alternative sentence could not have found the enhancements beyond a reasonable doubt. Katzopoulos argues that the district court improperly enhanced his sentence by relying on sentencing factors not contained in the indictment, not admitted in open court, and not proven by the government beyond a reasonable doubt. The standard of review for a district court’s factual findings at sentencing is clear error. Orlando, 363 F.3d at 600. These facts are plainly alleged in the indictment, and admitted to in open court by Katzopoulos when he pled guilty. The indictment in relevant part states: 2. The scheme to defraud and to obtain money by false pretenses, representations and promises, so devised and intended to devised by ANASTASIOUS S. KATZOPOULOS was in substance, as follows: ... e. ANASTASIOUS S. KATZOPOULOS collected payments totaling approximately $273,030.60 from approximately 138 customers and deposited those payments into bank accounts that he controlled. The wire fraud counts, Counts Six through Ten, realleged and incorporated inter alia these sections. When entering his guilty plea, Katzopoulos admitted to the facts contained in the indictment. The admissible hearsay testimony of Postal Inspector Gregg further supported the district court’s factual finding that both enhancements were proven beyond a reasonable doubt. Postal Inspector Gregg testified that the total amount of deposits of two Surplus of Nashville bank accounts exceeded $273,030. As to the number of victims enhancement, Inspector Gregg testified that one hundred and fifty six (156) never mailed, refund checks were seized from Katzopoulos’ abandoned apartment. Also, bank records introduced at the sentencing hearing established that checks and Paypal payments were deposited into Surplus of Nashville’s bank accounts from more than fifty (50) individuals. Finally, there was no evidence presented that Katzopoulos was involved in any form of legitimate business activities. The district court did not commit clear error when it found that the sentencing enhancements were proven beyond a reasonable doubt. The indictment, the admission in open court, and the admissible hearsay testimony at sentencing all support the district court’s factual findings. For these reasons, the sentence imposed by the district court is AFFIRMED.

Enhancements Beyond a Reasonable Doubt

In order to appeal the district court’s denial of his § 2254 petition, Mr. Bolton must obtain a COA by making “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Mr. Bolton may make this showing by demonstrating that “‘reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.’” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full -4- consideration, that [the] petitioner will not prevail.” Id. Moreover, because he seeks to proceed IFP in this appeal, Mr. Bolton must also demonstrate a financial inability to pay the required fees and “a reasoned, nonfrivolous argument on the law and facts in support of the issues raised.” McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotation marks omitted). For substantially the same reasons set forth by the magistrate judge, we conclude that Mr. Bolton is not entitled to a COA and is not entitled to proceed IFP. The magistrate judge’s recommendation reflects a careful analysis of the record and is supported by the applicable law. Mr. Bolton’s appellate brief argues the merits of his claims but does not present a colorable argument undermining the magistrate judge’s conclusion that the majority of his claims were unexhausted and procedurally barred and that his claim for ineffective assistance of post-conviction counsel is not cognizable in a § 2254 proceeding. Although Mr. Bolton again alleges that many of his claims were not exhausted because of his post-conviction counsel’s deficiencies, the ineffective assistance of counsel in post-conviction proceedings does not constitute cause by which a § 2254 petitioner may avoid procedural bar. See Demarest v. Price, 130 F.3d 922, 941 (10th Cir. 1997). -5- B. Arguments in Mr. Bolton’s Petition for Rehearing In his petition for rehearing, Mr. Bolton argues that pursuant to the United States Supreme Court’s recent ruling in Blakely v. Washington, 124 S.Ct. 2531, (2004), the sentencing judge violated his Sixth Amendment rights by increasing his sentence based upon aggravating circumstances not found by the jury. However, this circuit has held that “Blakely does not apply retroactively to convictions that were already final at the time the Court decided Blakely, June 24, 2004.” United States v. Price, No 04-7058, 2005 WL 535361 (10th Cir. Mar 8, 2005). Mr. Bolton’s convictions were final by that date, and thus he cannot succeed on his Blakely claim. Mr. Bolton also observes that the same Colorado Assistant Attorney General represented the government in the state and federal proceedings, and he argues that this continued representation was “not only highly improper, but prejudicial.” Petition for Rehearing, at 12. We disagree. It is not improper for the same attorney to represent the state on direct appeal and in post-conviction proceedings. Finally, as noted above, the other argument raised by Mr. Bolton in support of his petition for rehearing were properly rejected by the district court for the reasons stated in the magistrate’s well-reasoned recommendation. -6- C. Motion to Appoint Counsel Mr. Bolton has also renewed his motion to appoint counsel. Mr. Bolton’s claims are clearly lacking in merit, and there is thus no reason to appoint counsel.

Application for a COA and Motion to Proceed IFP

For the July 12, 2004 arrest, the district court determined that there were no genuine issues of material fact relevant to the question whether Darr had probable cause to arrest Reynolds. In brief, whether a law enforcement officer had probable cause depends on whether, at the time of the arrest, it was reasonable for the officer to believe that the defendant had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91 (1964). This standard will be discussed in more detail in connection with the district court’s grant of summary judgment. The court based its decision, in part, on the police report, which discussed the evidence presented to Officer Darr prior to his arrest of Reynolds. In sum, the report provided that: Jamison showed Darr a computerized phone log displaying numerous phone calls from Reynolds. She told Darr she’d received five phone calls that day, and she considered several of those to be threatening. Darr then went to Reynolds, questioned him, and arrested him for harassment by telephone. Reynolds I, slip op. at 4. In the court’s view, these undisputed facts demonstrated that Darr had probable cause 8 No. 06-2170 to arrest Reynolds. Additional discovery would not uncover any disputed facts material to this central question. In addition, the court discussed Reynolds’ subsequent guilty plea to the telephone harassment charge. The court regarded the guilty plea as conclusive evidence that Officer Darr had probable cause to arrest Reynolds. Because of the preclusive effect of the guilty plea, the court determined that additional discovery was not necessary in relation to the July 12, 2004 arrest. Reynolds now argues that the district court’s order precluding discovery with respect to the July 12, 2004 arrest was an abuse of discretion because: (1) the decision was based on clearly erroneous factual findings, and (2) the decision was based on an erroneous conclusion of law. We reject both contentions. As for the factual findings, Reynolds argues that the district court abused its discretion by relying on facts in dispute. First, Reynolds asserts that, in light of his denial to Officer Darr of Jamison’s allegations, the court abused its discretion by relying on the fact that Jamison had received threatening phone calls. There is no dispute that Reynolds denied making the threatening phone calls. Officer Darr presumably found Jamison’s account of the threatening phone calls to be more credible than Reynolds’ denial. When acting on the complaint of a reasonably believable putative victim, an officer “[is] under no constitutional obligation to exclude all suggestions that the witness or victim is not telling the truth.” Beauchamp v. City of Noblesville, Indiana, 320 F.3d 733, 743 (7th Cir. 2003). Reynolds’ denial does not negate probable cause for his arrest; therefore, the district court did not abuse its discretion by relying on the fact that Jamison received threatening phone calls from Reynolds in deciding to preclude discovery. Second, Reynolds states that both he and Jamison placed telephone calls to each other throughout the course of their No. 06-2170 9 relationship. Reynolds argues that, because over the course of their tumultuous relationship calls were made by both parties, the number of allegedly threatening phone calls relied upon by Officer Darr to make the July 12, 2004 arrest did not amount to harassment. Again, this allegation is not material nor are the relevant facts in dispute. Whether Jamison also placed calls to Reynolds does not bear on whether, at the time he arrested the plaintiff, Officer Darr had probable cause. If Officer Darr reasonably believed that Reynolds had committed the crime of telephone harassment, then he had probable cause to arrest the plaintiff. Therefore, the court did not abuse its discretion in precluding discovery as to the July 12th arrest. Third, Reynolds asserts that Jamison only mentioned the threatening calls after Darr questioned her about Reynolds’ complaint about the dog dispute. The fact that Reynolds originally called the police concerning the dispute over a dog and Jamison only discussed the calls after being questioned by Officer Darr is immaterial and is not in dispute. None of the material facts relied upon by the district court were in dispute and, thus, the court did not abuse its discretion in denying discovery as to the July 12, 2004 arrest.3 3

The July 12, 2004 Arrest

10 At the outset, we must recognize that the present case is distinguishable from Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), in which the Supreme Court held that the Eleventh Amendment did not necessarily bar a claim that named as defendants the Governor of Ohio, the Adjutant General of the Ohio National Guard, various other Guard officers and enlisted members, and the President of Kent State University. The Scheuer Court stated that damages against individual defendants are a permissible remedy in some circumstances notwithstanding the fact that they hold public office. Id. at 238, 94 S.Ct. at 1687 (citations omitted). The critical distinction between Scheuer and the case before this court is that Scheuer involved allegations of unconstitutional activity whereas the present case does not. As the Scheuer Court noted, the Supreme Court established in 1908 that:(W)hen a state officer acts under a state law in a manner violative of the Federal Constitution, he comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States. 11 416 U.S. at 237, 94 S.Ct. at 1686 (quoting Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 453-54, 52 L.Ed. 714 (1908)) (emphasis supplied by Scheuer Court). Because there are no claims of unconstitutional conduct on the part of the named defendants, they are not necessarily 'stripped of (their) official or representative character,' 416 U.S. at 237, 94 S.Ct. at 1686 (quoting 209 U.S. at 159-60, 28 S.Ct. at 453-54). 12 Two cases on which Adden relies, Geiger v. State, 242 So.2d 606 (La.App.1970), and Webb v. State, 91 So.2d 156 (La.App.1956), do not address, let alone resolve, the legal question before this court. In both Webb and Geiger, the plaintiffs sued the State of Louisiana through (the) Department of Institutions claiming damages for injuries sustained at the hand of escaped convicts. No prison officer was individually named as a defendant in either suit. These two cases support only the proposition that Adden might have brought his suit in a state court in Louisiana, naming the state as defendant. 13 Similarly, Payton v. United States, 679 F.2d 475 (Former 5th Cir. July 1, 1982) (en banc), is inapposite. Although that suit involved allegations of negligence by the United States Board of Parole and the United States Board of Prisons, the United States was the named defendant. The principal issue in the case was whether the challenged conduct was within the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, 2680(a) (1982). 14 Frank v. Pitre, 353 So.2d 1293 (La.1977), is also not dispositive. In that case, a policeman sought damages from a parish sheriff for injuries sustained at the hand of a prisoner who had been permitted to leave prison on a pass. The majority held that the appellate court order awarding damages must be reversed because the plaintiff had failed to establish that the prisoner's release was the proximate cause of the injury. Id. at 1295-96. The Frank court did not discuss directly whether it viewed the action as one against the defendant sheriff individually. The court did cite, however, Cappel v. Pierson, 15 La.App. 524, 132 So. 391 (1931), in which the Louisiana appellate court had affirmed a judgment in favor of the defendant in part on the ground that his good faith execution of his quasi-judicial discretionary authority could not be questioned in a civil damage suit. 353 So.2d at 1295. Because Cappel involved the superintendent of a state insane asylum rather than a prison official, it is not directly analogous to the case at bar. Although we do not think that Frank-or Cappel-resolves the issue before this court, we do find that Frank is entirely consistent with the result we reach. 15 Adden also relies on Semler v. Psychiatric Institute, 538 F.2d 121 (4th Cir. 1976), cert. denied, 429 U.S. 827, 97 S.Ct. 83, 50 L.Ed.2d 90. Semler was an action to recover damages from the Psychiatric Institute of Washington, D.C. and a physician who practiced there for negligently releasing from day-care status a probationer named Gilreath. While an outpatient at the Institute, Gilreath killed Semler's daughter. The named defendants filed a third-party complaint against Paul Folliard, Gilreath's probation officer. 16 The state court had suspended Gilreath's twenty-year prison sentence on an abduction charge, conditioned on his confinement and treatment at the Institute, which was located in Virginia. In the course of the next year, the trial judge approved various passes for Gilreath, as well as a request that he be transferred to day-care status. Gilreath decided that he wanted to work in Ohio. Folliard granted him passes, without the approval of the state judge, so that he might seek employment there. Thinkingerroneously-that Ohio probation authorities would accept Gilreath's transfer application, the Institute physician treating Gilreath discharged the probationer and so informed Folliard. 17 When Folliard found that Ohio would not accept the transfer application, he ordered Gilreath to return to Virginia. Gilreath did so. He visited his physician who accorded him outpatient status. Folliard was advised of these events but the state judge was never consulted. Gilreath killed the plaintiff's daughter approximately a month after his return to Virginia. 18 The Semler case is relevant to Adden's claim insofar as Folliard was required to contribute personally one-half of the twenty-five thousand dollar judgment awarded the plaintiff. The Fourth Circuit upheld the district judge's finding that the appellants had breached the duty imposed on them by Gilreath's probation order. The court also held that Folliard had been performing a ministerial, rather than a discretionary, act when he failed to obtain the state court's approval for the various changes in Gilreath's status, stating: The district court properly ruled that this act was ministerial. It simply involved the officer's obedience to the mandate of the court order. 538 F.2d at 127. Because Folliard was performing a ministerial act, he was not entitled to immunity. 19 The distinction recognized by the Semler court between ministerial and discretionary acts has long been deemed relevant to whether a public officer is subject to liability as an individual. See, e.g., Lawhorne v. Harlan, 214 Va. 405, 200 S.E.2d 569 (1973); Huckabay v. Netterville, 263 So.2d 113 (La.App.1972); DiVincenti Brothers v. Livingston Parish School Board, 355 So.2d 1 (La.App.1977), cert. denied, 357 So.2d 558 (1978); 43 Am.Jur. Public Officers §§ 278, 279, at 90-93 (1942). The well settled rule is that a public officer is not individually liable for performance of a discretionary act but may be liable for non-feasance of a ministerial act. Id. §§ 278, 279, at 90-95. A ministerial act has been defined as one in which a person performs in a given statement of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to, or the exercise of his own judgment upon the propriety of acts being done. Frame v. Yenni, 347 So.2d 309, 311 (La.App.1977) (quoting Lemoine v. Ducote, 45 La.Ann. 857, 12 So. 939 (1893)). 20 The Semler court's conclusion that Folliard's failure to obtain court approval of changes in Gilreath's status was non-feasance of a ministerial duty is entirely consistent with the above-quoted definition. The action required of Folliard by the court's order demanded no exercise of judgment or discretion. 21 Although the analysis in Semler is relevant to the case at bar, we do not think that Semler supports the result urged by Adden. Louisiana statutory law makes the Department of Corrections through its officers and offices, La.Rev.Stat.Ann. § 36:151(B), responsible for the custody of criminal offenders. Although imposition of the duty is clear, the manner in which the Department of Corrections-through its officers-is to meet the statutory obligation is not defined in such a way that it can be met without the exercise of judgment by the Department and its employees. We do not think that those officials charged with maintaining the confinement of convicted criminals are engaged in ministerial acts; therefore, the defendants are not subject to individual liability in the instant case. 1 B. Department of Corrections as Alter-Ego of the State 22 There remains the question whether LCIS and the Department are alter-egos of the State of Louisiana. If they are, the State is the real party in interest and subject matter jurisdiction is lacking. State Highway Commission v. Utah Construction Co., 278 U.S. 194, 200, 49 S.Ct. 104, 106, 73 L.Ed. 262 (1929). It is appropriate for a federal court to consider state law as a factor in determining whether the State is the real party in interest, see Johnson v. Texas Department of Corrections, 373 F.Supp. 1108, 1109-10 (S.D.Tex.1974). In the instant case, however, research has disclosed no case in which the courts of Louisiana have discussed whether an action against the Louisiana Department of Corrections is in reality an action against the State. 23 The district court stated that two tests have traditionally been used to determine whether an agency is the alter-ego of the State. The first turns on whether the agency is performing a normal governmental function. Johnson, 373 F.Supp. at 1109. Although we think the maintenance of custody over inmates is a normal governmental function, we recognize that the Johnson court relied almost exclusively on decisions of the Texas courts as to the status of the Texas Department of Corrections. See id. We therefore cannot rest our conclusion solely on the Johnson rule. 24 The second test relied upon by the district court is whether any judgment against the agency would have to be paid out of the State treasury. Miller-Davis Co. v. Illinois State Toll Highway Authority, 567 F.2d 323 (7th Cir. 1977). In Miller-Davis, the state's financial liability was certain because of a statutory provision. Id. (citing Ill.Rev.Stat. ch. 121, § 100-24 (1975)). In the instant case, no similar statutory provision appears to exist and the record below is not clear as to whether the State of Louisiana would be required to meet any judgment awarded. Although we think that the Miller-Davis test is an excellent basis for determining the identity of the real party in interest, it is not dispositive in the instant case. 25 Our inquiry must be guided, therefore, by a number of factors considered by other courts to be relevant in determining whether the State itself is the real party in interest. These include whether the agency may sue and be sued in its own name, whether any legislative provision stating that the agency performs an essential governmental function exists, whether the agency has power to buy and/or sell property in its own name, and whether the agency is accorded independent status under state law. See generally DeLong Corp. v. Oregon State Highway Commission, 233 F.Supp. 7 (D.Or.1964), aff'd, 343 F.2d 911 (9th Cir. 1965), cert. denied, 382 U.S. 877, 86 S.Ct. 161, 15 L.Ed.2d 119; 6 A.L.R. Fed. 655 (1971 and Cum.Supp.1981). 26 Section 15:821 of the Louisiana Revised Statutes provides, in pertinent part: The functions of the department shall comprise administrative functions of the state now or hereafter authorized by law to be exercised in relation to the administration, management and operation of all State institutions for the care, custody and correction of persons sentenced for felonies or misdemeanors. La.Rev.Stat.Ann. § 15:821 (West) (emphasis added). We read this provision as stating the legislators' view that the Department performs an essential governmental function. Cf. Florida State Turnpike Authority v. Van Kirk, 146 F.Supp. 364 (S.D.Fla.1956) (holding analogous statement to be indication Turnpike Authority was alter-ego of the State). 27 Section 834 of Title 15 of the Louisiana statutes governs land under the control of the Department. That section provides: 28 The director of corrections shall have power and authority, with the approval of the Board of Corrections, to lease (but not for oil, gas or other minerals) any of the lands owned by the state and under the control of the department which is not being used .... The director shall have the right to grant rights of way across state owned lands under its jurisdiction for the purpose of laying pipe lines, gas lines, water lines and transmission of electricity .... The director shall also have the authority, with the approval of the Board of Corrections and the governor, to buy lands needed for the proper use of any institution under the jurisdiction of the department; and also to sell and transfer to any other state agency real property belonging to the state and under the jurisdiction of the department. 29 La.Rev.Stat.Ann. § 15:834 (West) (emphasis added). This section indicates that the Department's control over land under its jurisdiction can be exercised only with the approval of the Board of Corrections and, if land is to be bought or sold, of the Governor. Further, it clarifies that the land under the jurisdiction of the Department is owned by the State. 30 On the whole, we believe that sections 15:821 and 15:834 support the appellees' contention that the Department of Corrections performs a normal governmental function and, therefore, the State of Louisiana is the real defendant in this suit. 2 31 The appellant has relied almost exclusively on a line of cases holding that the Louisiana Highway Commission is not the alter-ego of the State. See, e.g., Farnsworth v. Louisiana Highway Commission, 8 F.Supp. 11 (D.La.1934), aff'd, 74 F.2d 910 (5th Cir. 1935), cert. denied, 294 U.S. 729, 55 S.Ct. 638, 79 L.Ed. 1259. We note that in a recent case, Dagnall v. Gegenheimer, 645 F.2d 2, 3 (5th Cir. 1981), the Fifth Circuit stated that the plaintiff does not dispute the Department (of Highways)'s claim that it is a state agency entitled to invoke eleventh amendment limitation on the judicial power of the United States. Whatever the status of the Department of Highways, we do not find it relevant to whether the Department of Corrections is the alter-ego of the State of Louisiana. To conclude otherwise would be inconsistent with the Supreme Court's prescription in Ex parte New York, 256 U.S. 490, 500, 41 S.Ct. 588, 590, 65 L.Ed. 1057 (1921), that the determination as to who is the real party in interest must turn on the essential nature of the particular proceeding in which the issue arises. 32 Finally, Adden has cited no federal case involving a tort suit against officials of a state Department of Corrections that was found permissible under the Eleventh Amendment. This reinforces our conclusion that the function of such a department is to perform what is essentially a governmental function. We conclude, therefore, that the Department of Corrections is the alter-ego of the State of Louisiana. 33 Because we believe the State of Louisiana is the real defendant in the instant suit, we find that the district court could not exercise diversity jurisdiction over the action; further, the suit was barred from federal court by the Eleventh Amendment.

Individual Liability of Middlebrooks and Phelps

14 The first issue we address is Copple's claim that we should reverse his conviction because the requirements of Sec. 6103(h)(5) were not met. 6 Section 6103(h)(5) provides in relevant part: 15 in connection with any judicial proceeding [related to tax administration] to which the United States is a party, the Secretary shall respond to a written inquiry from ... any person (or his legal representative) who is a party to such proceeding as to whether an individual who is a prospective juror in such proceeding has or has not been the subject of any audit or other tax investigation by the Internal Revenue Service. The Secretary shall limit such response to an affirmative or negative reply to such an inquiry. 16 26 U.S.C. Sec. 6103(h)(5). 17 On July 27, 1992, about a month before jury selection, Copple moved pursuant to Sec. 6103(h)(5) for disclosure of tax background information of prospective jurors. In its response to Copple's motion, the government agreed to provide the information, but stated that it would be virtually impossible to obtain tax audit information from prior to 1986. The district court granted Copple's motion for the Sec. 6103(h)(5) investigation, but did not mention whether the IRS was to investigate the tax records of the prospective jurors for the years preceding 1986. 18 The government provided Copple with the IRS review indicating that none of the prospective jurors had been audited or investigated from 1986 to 1991, the years for which the IRS' records were computerized. At a hearing the day before commencement of trial, Copple claimed that he was entitled to the tax information without any limitation as to time period. The government responded that checking records of possible audits occurring before 1986 would require a manual search, which would take weeks, even a month, to complete. 19 Copple then claimed that he was entitled to ask on voir dire whether any of the prospective jurors had ever been audited by the IRS or whether any of the prospective jurors had ever been the subject of a civil or criminal tax investigation; he also argued that he was entitled to have the IRS verify the answers the jurors gave. The district court granted Copple's request for voir dire but declined to order the IRS to verify the jurors' answers. 20 On voir dire, the district court asked the prospective jurors: Have you or any member of your immediate family ever been audited by the Internal Revenue Service? In response to this question, Juror Number 7, Art Borczon stated that he had been audited during 1988 and 1989 (the audit for 1989 had not yet been resolved), that he had paid a deficiency, and that he had never [been] satisfied with that. He also represented, however, that he could be a fair and impartial juror. Juror Number 45, James Henderson, also stated that he had been audited about 35 years earlier, but he too testified that he could be fair and impartial. A few other jurors responded that they had not been audited personally, but that members of their families had been. 7 21 Copple did not ask that Borczon, Henderson or the other jurors be dismissed; instead he moved to have the entire panel rejected because the government had failed to comply with Sec. 6103(h)(5). He provided two bases for his motion. First, Copple argued that the investigation was inadequate because it only went back five years. Second, Copple argued that the investigation of all of the jurors was demonstrably unreliable because it had failed to disclose Borczon's audits occurring within the five year period. 22 The district court, however, denied the motion. Copple submits that this was error and that his conviction therefore should be reversed and the case remanded for a new trial. The government responds that such a ruling was not error because the district court properly found that ordering the IRS to supply such information would have unduly delayed the trial and that, even if it was error, such error was harmless and any prejudice was cured by asking the prospective jurors about their tax histories. 23 The question whether Copple is entitled to a new trial because the tax investigation was limited to the jurors' records since 1986 requires us to determine the requirements of Sec. 6103(h)(5), something we have not had occasion to do until now. Although the statute explicitly provides a defendant with a right to require that the Treasury provide an affirmative or negative response as to whether a prospective juror has been audited, 8 it is silent on the appropriate time period covered by the investigation. In addition, the statute does not specify the procedures that a district court must follow to carry out the purposes of the provision, and it is silent on the consequences, if any, for noncompliance.1. The requirements of Sec. 6103(h)(5). 24 Copple argues that the statute's lack of any limitation on the appropriate time period covered by the investigation implies that the investigation can have no time limitation and that the government violated the statute when it limited the investigation to the preceding five years. In addition to relying on the statutory language, Copple relies on a Ninth Circuit opinion. United States v. Sinigaglio, 925 F.2d 339, amended, 942 F.2d 581 (9th Cir.1991), which held that where the defendant makes a timely motion for a Sec. 6103(h)(5) investigation, the investigation must cover all of the years the prospective jurors paid taxes. Id. at 341. Copple urges this Court to adopt the Sinigaglio view of Sec. 6103(h)(5). 25 The government counters with United States v. Spine, 945 F.2d 143 (6th Cir.1991), in which the Sixth Circuit stated that Sec. 6103(h)(5) does not require an investigation extending to all of the years the prospective jurors paid taxes. Spine held that the requirements of Sec. 6103(h)(5) are met as long as the court orders an investigation and, if the IRS cannot locate all of jurors' histories from the time they began paying taxes by the time of trial, the district court obtains such information on voir dire. Id. at 148. Spine reached this result by reading a reasonableness limitation into Sec. 6103(h)(5). According to Spine, Sec. 6103(h)(5) merely requires the district court to order an investigation which would be appropriate under the circumstances, one which would take into account both the cost and inconvenience of the investigation and the ability to get the same information on voir dire. 26 The Sixth Circuit's interpretation of the statutory language is informed by practical considerations. Allowing a defendant to request an investigation of all of the potential jurors' tax information from the time they began paying taxes could take months, indeed, even as much as a year. See United States v. Johnson, 762 F.Supp. 275, 277 & n. 1 (C.D.Cal.1991), rev'd on other grounds, 991 F.2d 569 (9th Cir.1993). Scheduling criminal cases, which is already difficult enough, would be made even more difficult since a trial with a current jury pool would have to be postponed for months while the IRS completed an investigation. See Spine, 945 F.2d at 148. 9 This might also cause serious inconvenience to prospective jurors. 10 In addition, strict compliance with Sec. 6103(h)(5) would also impose substantial costs on the IRS since defendants would routinely request information requiring the IRS to conduct manual searches of noncomputerized records. 27 Interpreting Sec. 6103(h)(5) to require tax investigations stretching back twenty or thirty years would transform Sec. 6103(h)(5) into a significant practical bar to tax prosecutions. It potentially would permit a defendant in a tax case to postpone a trial indefinitely by continually requesting potential jurors' tax information. Spine, 945 F.2d at 148. Indeed, interpreting Sec. 6103(h)(5) to require such an extensive search might make tax prosecutions so expensive that the government would be reluctant to bring them. See United States v. Nielsen, 1 F.3d 855, 858 (9th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1410, 128 L.Ed.2d 82 (1994). 28 We should not interpret the language of Sec. 6103(h)(5) to create such an absurd result absent a clear direction from Congress, see Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575, 102 S.Ct. 3245, 3252, 73 L.Ed.2d 973 (1982), United States v. Schneider, 14 F.3d 876, 880 (3d Cir.1994), and there is no such clear direction in either the language or the legislative history of the provision. As has been mentioned, the language of Sec. 6103(h)(5) is silent on whether the IRS must search the tax records for all of the time the jurors began paying taxes. And the legislative history of Sec. 6103(h)(5) demonstrates that Congress' principal concern in enacting the provision was merely to ensure that the government and the defendant would have access to the same information--not that the information had such intrinsic worth that Congress meant to bring prosecutions to a standstill while the IRS conducted an investigation. 11 Spine, 945 F.2d at 147. There is simply no suggestion that Sec. 6103(h)(5) was meant to create the significant practical barrier to tax prosecutions that would result if we were to accept Copple's interpretation. See, United States v. Lussier, 929 F.2d 25, 30 (1st Cir.1991) (per curiam) (The statute itself makes no provision for such an extreme alteration of normal trial arrangements.). 29 We therefore adopt the Sixth Circuit's approach and conclude that Sec. 6103(h)(5) requires only that the investigation into the tax records of potential jurors meet the standard of reasonableness. 12 Specifically, upon timely request by the defendant, the district court must grant a reasonable period of time for the IRS to complete a search of the potential jurors' tax records for the time period requested by the defendant. If the district court only allows the defendant enough time for the IRS to conduct a search of the computerized records and not a search of the noncomputerized records, 13 the grant of time will be reasonable as long as the computer search is made, and the court elicits on voir dire information about the jurors' tax histories for the period of time not covered by the investigation. 14 We add only that Congress might be well advised to revisit the provision and specify more clearly the intent behind it and its requirements. 30 2. Did the district court comply with Sec. 6103(h)(5)? 31 Under our reading of Sec. 6103(h)(5), the district court's failure to order a complete search of the jurors' past history was not error. First, after Copple requested the Sec. 6103(h)(5) inquiry, the district court ordered the clerk to provide a list of jurors in the case along with other relevant information to the United States Attorney so that the IRS could conduct the investigation. This occurred about twelve days before the trial and it gave the IRS enough time to search the computerized records and get information about the potential jurors' tax histories for the period from 1986 to 1991. 32 Second, the district court conducted an extensive voir dire about the potential jurors' tax histories and experience with the IRS including whether they or any member of their family had been audited. The questioning covered all of the period for which the jurors had paid taxes. Moreover, the voir dire worked. It identified a juror who was outside the scope of the IRS audit (Henderson) and a juror who the IRS for some reason simply missed (Borczon). 15 Borczon, for example, indicated that he had been unhappy with the audit results but also stated that he could still be fair and impartial. Apparently, his answers were satisfactory since Copple did not even move to strike him. In a sense, then, Copple had access to more accurate information than he would otherwise have received had the inquiry been limited to a full IRS investigation. 33 For all the foregoing reasons, we hold that the district court complied with Sec. 6103(h)(5).

The 26 U.S.C. Sec. 6103(h)(5) Claim

12 Kyle also challenges the statement in the affidavit that Billy Senior was arrested and then released after posting a $100,000 cash bond. Kyle contends this statement is false because Billy Senior was released on a $150,000 appearance bond secured by property, not a $100,000 cash bond. 13 Even if this information in the affidavit is false, there is no showing Mason knew it was false. The affidavit makes clear that the information about the bond was told to Mason by a DEA agent. Kyle's challenge fails because it does not attack the veracity of the affiant (Mason) as required by Franks; it attacks the veracity of the DEA informant. See Franks, 438 U.S. at 171; United States v. Perdomo, 800 F.2d 916, 921 (9th Cir.1986).

Cash Bond Statement

INS v. St. Cyr addressed the way that two statutory amendments to the INA — namely, AEDPA and IIRIRA — impacted § 212(c), 8 U.S.C. § 1182(c). [11] Before AEDPA and IIRIRA, § 212(c) authorized the Attorney General, in her discretion, to waive an alien's deportation if the alien was a lawful permanent resident who had lived in the United States continuously for seven years. INA § 212(c), 8 U.S.C. § 1182(c). [12] Congress first began tinkering with § 212(c) relief with the Immigration Act of 1990. See Pub.L. No. 101-649, § 511(a), 104 Stat. 4978, 5052 (IMMACT-90). That Act amended § 212(c) to preclude from discretionary relief anyone convicted of an aggravated felony who had served a term of imprisonment of at least five years. St. Cyr, 533 U.S. at 297, 121 S.Ct. 2271. In 1996, Congress amended § 212(c) two more times. See Chuang v. U.S. Att'y Gen., 382 F.3d 1299, 1302-03 (11th Cir. 2004) (summarizing impact of AEDPA and IIRIRA on § 212(c)). First, it passed AEDPA. Section 440(d) of that statute bars § 212(c) relief for aliens who committed a broad set of offenses, including a controlled substances offense. See 110 Stat. 1277 (amending 8 U.S.C. § 1182(c)). And in September of 1996, IIRIRA repealed § 212(c) relief altogether. See § 304(b), 110 Stat. 3009-597. In its place, Congress created a cancellation of removal procedure. St. Cyr, 533 U.S. at 297, 121 S.Ct. 2271 (citing IIRIRA § 304(b), 110 Stat. 3009-594) (codified at 8 U.S.C. § 1229b). [13] IIRIRA § 304(b) stripped the Attorney General's authority to waive deportation, now called removal, for any alien convicted of an aggravated felony. Id. St. Cyr addressed whether an alien who was convicted of a deportable offense was still eligible for § 212(c) relief where (1) he was convicted of an aggravated felony in March of 1996, (2) deportation proceedings did not begin until April 10, 1997 (after both IIRIRA and AEDPA went into effect), and (3) he was otherwise eligible to apply for § 212(c) relief but for the retroactive application of IIRIRA and AEDPA. 533 U.S. at 315, 121 S.Ct. 2271. Put differently, the question was whether IIRIRA's repeal of § 212(c) relief had an impermissible retroactive effect on aliens whose convictions were obtained through guilty pleas, notwithstanding the fact that they were eligible for § 212(c) relief at the time they pled guilty. The Supreme Court said yes. Drawing on Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court held that IIRIRA had an impermissible retroactive effect on aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect. St. Cyr, 533 U.S. at 326, 121 S.Ct. 2271. The Supreme Court first explained that [r]etroactive statutes raise special concerns. Id. at 315, 121 S.Ct. 2271. It reasoned that the presumption against retroactive legislation is deeply rooted in our jurisprudence and embodies a legal doctrine centuries older than our Republic. Id. at 316, 121 S.Ct. 2271 (quotation marks omitted). And it warned that retroactive legislation has the power to sweep away settled expectations suddenly and without individual consideration and raises the specter that Congress may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals. Id. at 315, 121 S.Ct. 2271. Although Congress has the power to enact laws with retroactive effect, Congress must clearly indicate that it intended such a result. Id. at 316, 121 S.Ct. 2271. Accordingly, `congressional enactments... will not be construed to have retroactive effect unless their language requires this result.' Id. at 315-16, 121 S.Ct. 2271 (omission in original) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988)). Therefore, the first step in the impermissible-retroactive-effect determination is to ascertain whether Congress has directed with the requisite clarity that the law be applied retrospectively. Id. at 316, 121 S.Ct. 2271. The Supreme Court held that IIRIRA failed that test. Id. at 319-20, 121 S.Ct. 2271. But the absence of clear intent did not end the Supreme Court's Landgraf analysis. Rather, the Supreme Court instructed that even if Congress has not spoken clearly, courts must proceed to a second step to determine whether depriving removable aliens of consideration for § 212(c) relief produced an impermissible retroactive effect for aliens convicted pursuant to a guilty plea. Id. at 320, 121 S.Ct. 2271. This second inquiry into whether a statute operates retroactively requires courts to make a commonsense, functional judgment about whether the new provision attaches new legal consequences to events completed before its enactment. Id. at 321, 121 S.Ct. 2271 (quotation marks and citation omitted). A statute has retroactive effect when it takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. Id. (quotation marks and citations omitted) (emphasis added). The Supreme Court did not stop there. It added that the judgment whether a particular statute acts retroactively `should be informed and guided by familiar considerations of fair notice, reasonable reliance, and settled expectations.' Id. (quoting Martin v. Hadix, 527 U.S. 343, 358, 119 S.Ct. 1998, 144 L.Ed.2d 347 (1999) (quoting Landgraf, 511 U.S. at 270, 114 S.Ct. 1483)) (emphasis added). Applying this framework to those who entered into plea agreements with the expectation that they would be eligible for [§ 212(c)] relief, the Supreme Court in St. Cyr first determined that IIRIRA's repeal of any possibility of § 212(c) relief ... clearly attaches a new disability, in respect to transactions or considerations already past. Id. (quotations marks and citations omitted). To demonstrate a new disability to a past transaction or consideration, the Supreme Court explained that aliens reasonably rely on the possibility of obtaining § 212(c) relief in considering whether to waive their right to trial and plead guilty: Plea agreements involve a quid pro quo between a criminal defendant and the government. In exchange for some perceived benefit, defendants waive several of their constitutional rights (including the right to a trial) and grant the government numerous tangible benefits, such as promptly imposed punishment without the expenditure of prosecutorial resources. There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions. Given the frequency with which § 212(c) relief was granted in the years leading up to AEDPA and IIRIRA, preserving the possibility of such relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial. Id. at 321-22, 121 S.Ct. 2271 (quotation marks and citations omitted). The key transaction or consideration already past was the alien's decision to abandon his constitutional right to trial and plead guilty in reliance on the old § 212(c). Id. at 325, 121 S.Ct. 2271. Because respondent, and other aliens like him, almost certainly relied upon that likelihood in deciding whether to forgo their right to a trial, the elimination of any possibility of § 212(c) relief by IIRIRA has an obvious and severe retroactive effect. Id. Accordingly, the Supreme Court held that § 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect. Id. at 326, 121 S.Ct. 2271. The Supreme Court did not directly address whether an alien who pled guilty had to show individualized reliance on § 212(c) in entering a guilty plea or whether the class of aliens who pled guilty reasonably relied on § 212(c). But the tenor of St. Cyr as a whole appears to treat aliens who pled guilty before IIRIRA as a group of similarly-situated applicants eligible for such relief. Id. at 322, 121 S.Ct. 2271 (There can be little doubt that, as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions.); id. at 325-26, 121 S.Ct. 2271 (concluding that St. Cyr and other aliens like him remain eligible for § 212(c) relief); id. at 325, 121 S.Ct. 2271 (Because respondent, and other aliens like him, almost certainly relied upon that likelihood in deciding whether to forego their right to a trial ....); id. at 323, 121 S.Ct. 2271 (Given the frequency with which § 212(c) relief was granted in the years leading up to AEDPA and IIRIRA, preserving the possibility of such relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.). [14] As noted earlier, Ferguson did not plead guilty, and she asks us to extend St. Cyr outside of the guilty plea context.

INS v. St. Cyr

23 Defendants argue that the government proved multiple conspiracies rather than one conspiracy. When an indictment alleges a single conspiracy, but the government proves multiple conspiracies, reversal is required if the variance affects a defendant's substantial rights. See Kotteakos v. United States, 328 U.S. 750, 756-57 (1946). 24 From our review of the record, it is clear that co-defendants Andrews, Banks, Boswell, Bradford, and Harrison were all parts of a unitary conspiracy to distribute crack cocaine in Sioux Falls. The defendants shared a common purpose and, to achieve that purpose, used mutual dependence and assistance. See United States v. Massa, 740 F.2d 629, 636 (8th Cir. 1984) (quoting United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir. 1980)). 25 That does not end the inquiry, however, because the defendants also argue that the government proved the existence of another drug conspiracy, involving a separate group, the Kimble conspiracy. 4 The defendants argue that the evidence of the Kimble conspiracy prejudiced them because it had a spillover effect by inserting additional evidence of drug dealing into the trial. The government contends that it is irrelevant whether a witness at the trial was involved in another conspiracy, as long as the defendants themselves were all involved in the same conspiracy. This issue has not been precisely addressed by our precedent. 26 We are hesitant to say that the spillover of testimony about other conspiracies in which witnesses were involved could never constitute error. See United States v. Rosnow, 977 F.2d 399, 407-08 (8th Cir. 1992) (per curiam) (holding that evidence of multiple conspiracies among co-defendants at trial resulted in prejudice and mandated reversal of conspiracy conviction); United States v. Rounsavall, 115 F.3d 561, 564 (8th Cir. 1997) (discussing multiple conspiracy issue even though only one defendant was on trial). What is clear, however, is that in this case the co-defendants joined a unitary conspiracy to distribute crack cocaine and there was no appreciable prejudice from the evidence of the Kimble conspiracy. The evidence showed that at times the co- defendants supplied Kimble with drugs. At other times, the groups competed for the same business. The purpose of the testimony regarding the Kimble conspiracy was to show the connections between the co-defendants and how the co-defendants conspired together, either to supply drugs to the Kimble conspiracy or to stop their competition. That there was some overlap with, and some testimony about, Kimble's drug dealing does not mean that there was any prejudice to the defendants in this case. Cf. United States v. Roach, 164 F.3d 403, 412 (8th Cir. 1998) (stating that rival drug dealers may still be part of same overall conspiracy).

existence of multiple conspiracies

33 The ALJ cited the four factors that must be considered in a determination of single employer status: 1) interrelation of operations, 2) common management, 3) centralized control of labor relations, and 4) common ownership. Radio & Television Broadcast Technicians, Local 1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877, 13 L.Ed.2d 789 (1965) (per curiam). The ALJ noted his belief that the Board has stressed the first three factors, particularly centralized control of labor relations. ALJ Dec. at 15 (citing FEDCO Freightlines, Inc., 273 N.L.R.B. 399 (1984), and Truck & Dock Services, Inc., 272 N.L.R.B. 592 (1984)). 14 34 The last three factors were resolved rather easily by the ALJ. With respect to the second factor, the ALJ found that ESI and RSI had identical management. The ALJ noted that Mr. and Mrs. Emsing made all the important management decisions for both ESI and RSI including determining pricing, product mix, work schedules, hiring, firing, and selecting vendors. Additionally, the only person outside the family who carried any managerial title was Dave Davis who was secretary-treasurer of RSI and designated store manager of Rocky's. Davis was secretary-treasurer of RSI in name only and served in that capacity merely as a convenience for store operations. Under the third factor, the ALJ found, for many of the same reasons that were relevant to the second factor, that at all relevant times the labor relations policies of ESI and RSI were under the centralized control of Mr. and Mrs. Emsing. Mr. Emsing testified that he and his wife jointly established the labor relations policies for ESI and the ALJ found this to be adequate to make his finding. As to the fourth factor, the ALJ found that there was substantially identical ownership despite the retention of some treasury shares of ESI by Mr. Emsing's father as a security for the purchase price of the corporation. 35 The critical factor for the ALJ was the first factor--the interrelation of operations. The ALJ found that Emsing's and Rocky's were not directly integrated by serving a common production or sales goal such as where one firm exists to supply a sister firm with the personnel or equipment the other needs to accomplish the overall corporate goal as in Consolidated Dress Carriers, 259 NLRB 627 (1981) and Malcolm Boring Co., 259 NLRB 597 (1981). ALJ Dec. at 17. The ALJ believed that the proper focus for the inquiry should be the day-to-day operations when both Emsing's and Rocky's were open and operating and not what happened in August when Emsing's was closing.

The ALJ Decision

9 We review a district court's grant of summary judgment de novo, using the same standard under Rule 56(c) used by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en banc). 10 Under the Supremacy Clause of the United States Constitution, state laws that 'interfere with, or are contrary to the laws of congress, made in pursuance of the constitution' are invalid. Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 604 (1991) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824)). Whether federal law preempts state law turns principally on congressional intent. Northwest Cent. Pipeline Corp. v. State Corp. Comm'n of Kan., 489 U.S. 493, 509 (1989). In analyzing preemption, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). 11 This court will give preemptive effect to federal law under three circumstances. Larkin v. State of Michigan Dep't of Soc. Servs., 89 F.3d 285, 289 (6th Cir. 1996). First, a federal statute may expressly preempt state law. Gustafson v. City of Lake Angelus, 76 F.3d 778, 782-83 (6th Cir. 1996) (citing Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 203 (1983)). Second, federal law may impliedly preempt state law. Id. (citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984)). Implied preemption occurs: 12 if a scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it, if the Act of Congress touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject, or if the goals sought to be obtained and the obligations imposed reveal a purpose to preclude state authority. 13 Mortier, 501 U.S. at 605 (quoting Rice, 331 U.S. at 230) (alterations omitted). Third, federal law preempts state law when the two actually conflict. Gustafson, 76 F.3d at 782. State and federal law actually conflict when compliance with both federal and state regulations is a physical impossibility, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963), or when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Hines v. Davidowitz, 312 U.S. 52, 67 (1941). 14

Standard of Review and Preemption Standards

Throughout Okeayainneh’s trial, the government repeatedly referenced Exhibit 222: an organizational chart depicting the names and photographs of 20 people involved in the criminal activity at issue, including Okeayainneh and his co-defendants. The photographs were labeled with the roles each member purportedly played in the crime: “Foot Soldier,” “Bank Insider,” “Manager/Facilitator.” Okeayainneh’s photo was labeled “Leader/Organizer.” At the top of the chart appeared the word “Conspiracy” in capital letters. Exhibit 222 was introduced through the government’s first witness, Detective Louis Beauchane, one of the principal investigators in the case. Detective Beauchane identified individual photographs of the people depicted in the chart and testified about their purported roles in the conspiracy, and the government moved to admit Exhibit 222. After it was admitted and published to the jury, Okeayainneh’s trial counsel objected to the exhibit on the basis that it drew legal conclusions. The court ruled counsel’s objection was late, and the exhibit remained in evidence. Okeayainneh argues that the district court erred in admitting Exhibit 222 into evidence over his objection. The government responds that he did not preserve this issue for review because his objection at trial was untimely. To preserve an evidentiary issue for appellate review, a timely objection must be made. Fed. R. Evid. 103(a)(1). “The rule is well settled in this circuit that for an objection to be timely it must be made at the earliest possible opportunity after the ground of objection becomes apparent, or it will be considered waived.” Terrell v. Poland, 744 F.2d 637, 638–39 (8th Cir. 1984). In Terrell, we agreed that a motion to strike made after the close of all evidence was untimely. Id. at 639. Similarly, in McKnight ex. rel. Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1407–08 (8th Cir. 1994), we held that the Federal Rules of Evidence require objections to be -11- “contemporaneous” and ruled that an objection made at the close of a witness’s testimony did not meet that requirement. In the case at hand, however, defense counsel did not wait until the end of Detective Beauchane’s testimony, nor until the close of all evidence. Instead, it appears from the record that counsel raised her objection mere moments after Exhibit 222 was introduced. There was still ample opportunity for the judge to prevent further potential damage. We conclude that Okeayainneh preserved this issue for appeal and that our review is for an abuse of discretion. United States v. Beal, 279 F.3d 567, 570 (8th Cir. 2002). “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, [or] misleading the jury.” Fed. R. Evid. 403. “The danger of permitting presentation of a summary of some of the evidence in a criminal case is plain. The jury might rely upon the alleged facts in the summary as if these facts had already been proved[.]” United States v. Scales, 594 F.2d 558, 564 (6th Cir. 1979). Such evidence is proper, however, when it “assist[s] the jury in understanding the testimony already introduced” and “fairly summarizes” trial evidence. United States v. Boesen, 541 F.3d 838, 848 (8th Cir. 2008). In addition, “summaries may include assumptions and conclusions so long as they are based upon evidence in the record,” United States v. Spires, 628 F.3d 1049, 1053 (8th Cir. 2011) (quotation omitted), but may be rejected if they are too conclusory or inaccurate, see United States v. Crockett, 49 F.3d 1357, 1361 (8th Cir. 1995). The chart at issue in this case was presented before any of the evidence the government claims it was meant to summarize and was referenced repeatedly throughout the remainder of the trial. The government concedes the chart was first introduced at the start of trial, and thereafter, “[w]hen a witness would refer to a defendant by name or nickname, Exhibit 222 would be displayed and the witness would be asked if the person’s picture appeared on the exhibit.” The government -12- argues that the chart was merely used “for the purpose of having witnesses put a face to a name.” But this purpose could easily have been accomplished without the offending captions. In addition to being used as a tool in closing argument, the chart was presented to the jury as substantive evidence and taken into the jury room to be considered during deliberation. Cf. Crockett, 49 F.3d at 1362 (emphasizing concern with the prosecution’s use of summary charts in closing argument and warning against visual aids in which “summary comes wrapped in improper argument”). We conclude that the district court’s decision to admit Exhibit 222 as substantive evidence was an abuse of discretion because it was unfairly prejudicial and conclusory to present a photo of the defendant with a caption labeling him the leader of the conspiracy, when no witness had yet testified to that fact. An erroneous evidentiary ruling is harmless, however, if it did not have a substantial influence on the jury’s verdict. United States v. Samuels, 611 F.3d 914, 919 (8th Cir. 2010). The investigator who testified about the contents of Exhibit 222 had been involved in the investigation since it began in 2009, had knowledge of the people depicted, and could testify as to what his investigation showed their roles to be. The investigator was subject to cross examination about the chart, and Okeayainneh’s counsel specifically elicited from the investigator the concession that the chart was created by the government and simply depicted “what the government thinks is going on.” Okeayainneh’s counsel made the same point in closing argument: “[j]ust because they have a chart with my client’s head at the top doesn’t mean he’s the kingpin of this operation.” In addition, we note that two of the defendants on the chart, identified as “bank insiders”—Sarnor-David and Osei-Tutu—were acquitted of all charges. Thus, the jury’s verdicts reflected an individual assessment of each defendant and the evidence against him or her, not an unthinking acceptance of the government’s views as depicted on the chart. Multiple witnesses testified as to Okeayainneh’s guilt. The government also presented Okeayainneh’s own admissions. When, as here, the government’s evidence of a defendant’s guilt is so overwhelming, any error related to the admission of a summary chart is harmless. Spires, 628 F.3d at 1053. -13-

Conspiracy Chart

Points assessed for a conviction for offenses committed prior to age 18 vary. Three points are added “[i]f the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month.” USSG § 4A1.2(d)(1). In other cases, (A) add 2 points under § 4A1.1(b) for each adult or juvenile sentence to confinement of at least sixty days if the defendant was released from such confinement within five years of his commencement of the instant offense; (B) add 1 point under § 4A1.1(c) for each adult or juvenile sentence imposed within five years of the defendant’s commencement of the instant offense not covered in (A). USSG § 4A1.2(d)(2). Defendant pleaded guilty to retail fraud and was sentenced to six months probation on September 5, 2000. Defendant asserts on appeal that the conviction should not have been counted because the sentence for retail fraud was imposed more than five years before the commencement of the instant offense. However, the application notes clarify that the term “commencement of the instant offense” includes any relevant conduct. USSG § 4A1.2 cmt. n.7. Because there is no question that the defendant was engaged in relevant conduct within five years of the sentence for retail fraud, it was not clearly erroneous to assess one point for this conviction.3 3 Defendant states that the sentence of probation for retail fraud was unlawful because it did not include any term of imprisonment. While the retail fraud statute does not include probation among the listed penalties, Michigan law provides that probation is an available sentence except when excluded by statute. See MICH . COM P . LAW S ANN . § 771.1 (except in certain prosecutions (i.e., murder, treason, criminal sexual conduct, armed robbery or major controlled substance offenses) a criminal defendant may be placed on probation if the court finds that he is not likely to engage again in offensive or criminal conduct and the public good does not require that the defendant suffer the penalty imposed by law). No. 06-1943 9 2. Attempted Assaulting, Resisting or Obstructing an Officer The district court overruled defendant’s objection to the addition of one point for his prior conviction under Michigan law for misdemeanor attempted assaulting, resisting, or obstructing an officer. Defendant argues, as he did at sentencing, that the conviction should have been excluded under USSG § 4A1.2(c)(1), which provides that certain offenses, including “Resisting Arrest” and “offenses similar to [resisting arrest] by whatever name they are known,” are not to be used to calculate a defendant’s criminal history unless the prior offense was similar to the instant offense, the defendant was given probation of at least one year, or the defendant was sentenced to a term of at least 30 days’ imprisonment. Since defendant’s prior sentence was for 10 days or $280 fine, and because the offense was not similar to the instant offense of possession with intent to distribute cocaine, the sentence may be excluded from defendant’s criminal history if it was for resisting arrest or an offense similar to resisting arrest. Although the judgment is not part of the record on appeal, there seems to be no dispute that defendant’s conviction was for misdemeanor attempted violation of § 750.81d(1), which makes it unlawful for one to assault, batter, wound, resist, obstruct, oppose or endanger a person who he knows or has reason to know is an officer performing his duties. M ICH. C OMP. L AWS A NN. § 750.92(3) (Attempt). Although misdemeanor resisting arrest would normally be excluded by USSG § 4A1.2(c)(1), in this case the PSR concluded that the conviction should be counted because a review of the court documents reflected that the conviction had the additional element of assault. The district judge counted No. 06-1943 10 the conviction, indicating that the charging document included assault. In determining the similarity of offenses under § 4A1.2(c), district courts should consider “the similarity between the ‘essential characteristics’ of the activity underlying the offense of prior conviction and those underlying the listed offenses.” United States v. Cole, 418 F.3d 592, 598 (6th Cir. 2005). While attempted assaulting, resisting, or obstructing an officer would seem to encompass both assault and resisting arrest, we need not resolve this issue because any error in counting this conviction would be harmless error. That is, whether defendant is assessed two or three criminal history points, his criminal history category would still be II. As a result, any error in counting this conviction would have no affect on the defendant’s sentencing guideline range. 3. Downward Departure A downward departure in criminal history category may be warranted under USSG § 4A1.3(b) “[i]f reliable information indicates that the defendant’s criminal history category substantially over-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes[.]” As defendant concedes, the refusal to grant a downward departure under the guidelines is not reviewable on appeal unless the record reflects that the district judge was not aware of or did not understand his discretion to make such a departure. United States v. Puckett, 422 F.3d 340, 345 (6th Cir. 2005), cert. denied, 547 U.S. 1122 (2006). Although a defendant remains free to argue that his sentence was unreasonable post-Booker, no such argument has been made in this case. Id. at 344-45. Rather, defendant argues that the following comments suggest that the district No. 06-1943 11 judge did not recognize his authority to depart downward: THE COURT: I think so. I think so. Your argument is preserved, Mr. Hills, but . . . the problem with these so-called guidelines, and they are socalled, is that they make me arrive at something, and obviously there’s a, Well, you can’t believe this person. Well, it’s not objected to. If it’s not objected to, according to the guidelines I have to conclude that it can be used. So your objection is noted, but it’s clearly overruled. I think if anything the benefit of the doubt was given to [the defendant], plus all this money plus the Lincoln Navigator. I mean, . . . this isn’t a close call. Even cursory examination of the transcript makes evident that these comments were directed to the question of what quantity of drugs would be attributed to the defendant from the facts set out in the PSR. Indeed, when defense counsel specifically asked for a downward departure, the district judge denied the motion with the following explanation: THE COURT: Well, a criminal history level of I, I think that’s where defense counsel wishes me to go in this matter, would be as though he had no record whatever or as though what he had was of no significance. And here’s a 22-year-old individual who has not only a series of driving offenses—some of which, I might add, have occurred since the guilty plea [and were still pending at the time of sentencing]—but we have certainly some criminal behavior here that’s of some note. This II does not overrepresent his record. If it were a III or IV, maybe we could look at it a little differently. But no, no, I think this criminal history level of II is appropriate under the circumstances. . . . [I]t might underrepresent, but it certainly doesn’t overrepresent Mr. Punschke’s record as he presently stands here. . . . It was not necessary for the district judge to explicitly state that he knew he had the authority to grant a departure. Puckett, 422 F.3d at 346; United States v. Byrd, 53 F.3d 144, 145 (6th Cir. 1995). Here, the district judge recognized his authority to depart downward, and concluded that a downward departure was not warranted in this case. Consequently, the No. 06-1943 12 refusal to depart downward under § 4A1.3(b) is unreviewable on appeal. AFFIRMED.

Retail Fraud

24 Roberts' second claim is that the Parole Commission violated her rights to due process and equal protection by giving her co-defendants a lower severity rating than she received. Convicted on the same conspiracy count, as well as on counts on which Roberts was not convicted, all three co-defendants received severity ratings of 6. Roberts received a rating of 8. Roberts' contention of disparate treatment is based on her argument that the Parole Commission guidelines call for the same severity rating to be given to the same conspiracy offense. The district court dismissed this claim, ruling that Roberts had failed to state an equal protection or due process claim. 25 In alleging that she received a higher severity rating for the same conspiracy offense, Roberts misunderstands the Parole Commission's guidelines for evaluating the severity of an offense. The offense behavior rated by Commission is not the same as the count on which a prisoner was convicted. As the district court properly held, the Commission is not limited to evidence adduced at trial in determining the severity rating. See 18 U.S.C. Sec. 4207 (1982); 28 C.F.R. Sec. 2.19. Nor is the Commission required to find that each co-conspirator was involved with the same amount of heroin. Any participant in a conspiracy may be equally culpable as a matter of law. The parole inquiry into offense severity is much more factual, however, and focuses on the actual offense behavior of the individual prisoner. See U.S. Parole Commission, Rules and Procedures Manual Sec. 2.20-04 at 71 (1985). The Commission must therefore determine what amounts of heroin each co-conspirator was actually involved with, and whether that involvement was peripheral or managerial. See C.F.R. Sec. 2.20. The Commission determined that all four co-defendants had managerial or proprietary roles in the drug operation. 1 The Commission also determined that different co-defendants were involved with different amounts of heroin. Both determinations were entirely within the discretion of the Parole Commission. 26 The district court properly dismissed Roberts' claims as being without merit. As with Roberts' first due process allegation, this failure to state a constitutional claim means that we lack jurisdiction. In light of Wallace, we affirm this decision, too, on jurisdictional grounds. 27

disparity with co-defendants

The present action began as an adversary proceeding by Tembec in the bankruptcy case. Tembec filed a “Complaint to Determine Validity, Priority and/or Extent of Real Estate Mortgage, Security Agreement of Leases and Rents” against Amzak in August 2010. Tembec’s complaint alleged, in relevant part, that the Amzak mortgage was ineffective, because it had no property description, and the mortgage act of correction was ineffective. Amzak filed its 1 Prior to this sale, the Official Committee of Unsecured Creditors (the “Committee”) in WFA’s bankruptcy sued Amzak to have its mortgage invalidated. When the Committee’s claims were heard in November 2010, WFA’s bankruptcy had been converted from a Chapter 11 case (involving the Committee) to a Chapter 7 case (involving a trustee and no creditors committee). The bankruptcy court dismissed the Committee’s claims because the Committee ceased to exist. The bankruptcy court also dismissed the trustee’s claims asserting the rights of the Committee on the grounds (i) the trustee was bound, as WFA’s successor, by WFA’s release of Amzak in the DIP order, and (ii) the trustee was the successor of the debtor and not of the Committee and could not assert the rights of the Committee. 5 Case: 13-30675 Document: 00512546787 Page: 6 Date Filed: 02/27/2014 No. 13-30675 answer and third-party complaint, requesting a jury trial, against STG and STL. They answered. Amzak also filed a motion for summary judgment on all counts and prevailed. The bankruptcy court dismissed Tembec’s complaint entirely and that ruling was certified as final. Tembec did not appeal. Amzak moved to transfer the case from bankruptcy court to the district court. The district court granted Amzak’s motion to withdraw the reference of the adversary proceeding. Amzak timely filed its amended third-party complaint, still requesting a jury, adding Admiral Insurance Company (“Admiral”) as a third-party defendant and amending its claims and damages against STG, STL, and Admiral (collectively, “defendants”). Amzak’s claims against defendants included: (a) its claim for its loan loss of $10.4 million due to the title defect and (b) its claim for reimbursement of fees and expenses of $347,668 incurred during the bankruptcy case. Its claims were grounded in breach of contract under the title policy against STG and in negligence against all defendants. The parties filed cross-motions for partial summary judgment relating to the loan loss claim. The district court rejected Amzak’s contract and negligence claims but never decided the issue of the validity or invalidity of the title of the mortgage. In May 2013, the district court entered its judgment under Rule 54(b). 2 Amzak timely appealed. 2 After the district court entered this judgment against Amzak on the title claim and the negligence claim, Amzak filed a Motion to Designate Judgments Final and for Stay or Continuance of Case Pending Appeal. The remaining claim involved attorney’s fees, and Amzak argued that the fees claim should be subsumed by the rulings dismissing Amzak’s other claims. The district court disagreed and found that fact issues remained regarding the fees claim and the claim for statutory penalties, and as a result, the remaining claims would be stayed pending appeal. 6 Case: 13-30675 Document: 00512546787 Page: 7 Date Filed: 02/27/2014 No. 13-30675

The Present Cause of Action

31 Plaintiff makes the novel argument that the penalty of removal for state employees is vague and should be interpreted to be the same as a suspension. This argument is without merit. The penalty provision in 5 U.S.C. § 1506(a) clearly gives the employer the choice of removing the employee in question from his office or employment, or forfeiting federal funds equal to two years' pay at the rate or amount the employee was receiving at the time of the violation. Further, for 18 months after his removal from employment, federal funds also will be forfeited if the employee is appointed to an office or employment with a state or local agency within the same state. Id. While Alexander is correct that the threat of a financial penalty is lifted after 18 months, this only means that after a separation of 18 months a state or local agency could hire him without forfeiting federal funds. This is clearly not the equivalent of an 18-month suspension without pay. Alexander's contention is further undermined by the fact that Congress included suspension without pay as a penalty for federal employees who violate the Act, but whose violations do not warrant removal. See 5 U.S.C. § 7326.

Removal Penalty

Defendant-appellee BFP Investments Limited (“BFP Limited”) is a Florida limited partnership that owned multiple commercial condominium properties. In January 2003, BFP Limited filed for Chapter 11 bankruptcy. In May 2003, Greenfield filed a proof of claim for approximately $4.2 million against BFP Limited in the bankruptcy court. Greenfield’s proof of claim was based on a 1997 state-court lawsuit in which he named thirteen defendants, including BFP Limited’s two owners. BFP Limited was not named as a defendant in Greenfield’s 1997 lawsuit; in fact, BFP Limited did not exist at the time of the 1997 lawsuit. In January 2004, the state court entered judgment in favor of Greenfield, for approximately $2.2 million. Again, 2 BFP Limited was not a party to, nor was it declared responsible for, the $2.2 million judgment. In June 2003, BFP Limited filed an objection to Greenfield’s bankruptcy claim. In February 2004, the bankruptcy court sustained BFP Limited’s objection and struck and disallowed Greenfield’s bankruptcy claim. Greenfield appealed and the district court affirmed the bankruptcy court’s decision in October 2004. Greenfield appealed and this Court affirmed the district court’s decision in August 2005. See Greenfield v. BFP Invs., Ltd. (In re BFP Invs., Ltd.), 149 Fed. Appx. 828 (11th Cir. 2005) (unpublished) (“Greenfield I”). The basis for this Court’s decision in Greenfield I was that Greenfield had no valid claim in bankruptcy against BFP Limited.

Greenfield I

Williams contends that the district court's jury instructions created a constructive amendment to her indictment, violating her due process rights under the Fifth Amendment. [8] A constructive amendment to the indictment resulting from the district court's jury instructions is per se reversible error. See Stirone v. United States, 361 U.S. 212, 219, 80 S.Ct. 270, 274, 4 L.Ed.2d 252 (1960); United States v. Behety 32 F.3d 503, 508 (11th Cir.1994). Under the Fifth Amendment, a defendant has the right to be tried on felony charges returned by a grand jury indictment. Stirone, 361 U.S. at 215, 80 S.Ct. at 272. Only the grand jury may broaden the charges in the indictment once it has been returned, and the district court may not do so by constructive amendment. Id. at 215-16, 80 S.Ct. at 272. `A constructive amendment to the indictment occurs where the jury instructions so modify the elements of the offense charged that the defendant may have been convicted on a ground not alleged by the grand jury's indictment.' United States v. Starke, 62 F.3d 1374, 1380 (11th Cir.1995) (quotation marks omitted) (quoting United States v. Lignarolo, 770 F.2d 971, 981 n. 15 (11th Cir.1985)). The indictment charged Williams and her husband, Bunnis Williams, with aiding and abetting each other, in violation of 18 U.S.C. § 2, in conjunction with seven counts of wire fraud and one count of federal funds theft. Williams argues that the district court's jury instructions constructively amended the indictment to allow a jury to find her guilty of aiding and abetting someone other than her husband. We find no such error from our review of the instructions. The district court instructed the jury as follows: [I]f the acts or conduct of an agent, employee, or other associate of a defendant are willfully directed or authorized by such defendant, or if a defendant aids and abets another person by willfully joining together with that person in the commission of the crime, then the law holds such defendant responsible for the conduct of that other person just as though the defendant had personally engaged in the conduct. R. 6 at 18. The district court has discretion in the wording and style of the jury instructions, so long as the instructions accurately reflect the law. Starke, 62 F.3d at 1380. These instructions provided two ways by which the jury could have found Williams's guilt: (1) that Williams committed the offenses as a principal through her direction of ETA employees, or (2) that Williams aided another person to commit the offenses, and thus find her criminally liable as an accomplice. Williams and her husband were each charged with the substantive counts, as well as with aiding and abetting each other, and tried together as co-defendants. Thus, these instructions accurately reflected the distinction between principal and accomplice liability from the indictment. Here, the district court read the pattern jury instruction for 18 U.S.C. § 2. While the district court did not specify Bunnis Williams by name in this pattern charge, it did not impermissibly expand the scope of the indictment. We therefore find no error in the district court's instructions. We must analyze jury instructions in the context of the evidence presented and the government's theory at trial to determine whether a constructive amendment to the indictment has occurred. In the context of the evidence presented in this case, the instructions did not allow the jury to find that the bookkeepers — who were never charged with criminal wrongdoing — were principally culpable for wire fraud and federal funds theft and to base Williams's guilt on her aiding and abetting the bookkeepers she directed. Such a reading of the jury instructions is untenable in light of the prosecution's theory and evidence. We therefore reject Williams's claim that the instruction resulted in a constructive amendment and find no error in the district court's use of the pattern instruction.

Pattern Jury Instructions and Constructive Amendment

171 Garcia claims he is entitled to a new trial pursuant to Federal Rule of Criminal Procedure 33 based upon newly discovered evidence. He contends that the government intentionally failed to turn over an airline ticket that showed that Garcia returned from the Bahamas to Florida on May 28, 1988, via airplane and not as captain of the What's Up for its first smuggling voyage. As a result, he argues, he is entitled to a new trial. In response, the government states that Garcia never presented his claim to the district court in the form of a motion for a new trial as required by Rule 33 and, in any event, such a motion would have been unsuccessful on the merits. In his reply brief, appellant admits that he did not move for a new trial on this ground when he states the following: 172 In the Government's Brief they state that Mr. Garcia never presented his claim regarding the airline ticket to the district court in the form of a motion for new trial pursuant to the Federal Rules of Criminal Procedure 33. The reason Mr. Garcia did not do this is because he was unable to locate this airline ticket. Appellant Garcia's Reply Brief at 10. 10 173 The proper procedure for obtaining a new trial on the basis of newly discovered evidence is by a motion to the trial court. United States v. Boberg, 565 F.2d 1059, 1060 (8th Cir.1977); see also United States v. Atkinson, 512 F.2d 1235, 1239-40 (4th Cir.1975) (We feel also that a motion for a new trial on the ground of after discovered evidence should more properly be made in the district court.). We have before us only appellant's unsubstantiated allegations and accusations of government misconduct. One of the principal rationales for the above quoted general rule is that the district court should have an opportunity to flesh such claims out before an appellant court is forced to render a decision without the benefit of the district court's factual determinations. Because appellant's claim is not properly before us, we decline to reach this issue. We do, however, note some conceptual difficulty in classifying this airline ticket as newly discovered evidence. Surely appellant has known all along that he was a passenger on the flight and the existence of records somewhere documenting that fact, if indeed it is true. Any difficulty in obtaining those records from either the government or some third-party could have been easily rectified by bringing the matter to the attention of the district court. In other words, appellant, at first glance, would appear to have difficulty in establishing his due diligence as required to obtain a new trial on the basis of newly discovered evidence. See United States v. Garcia, 13 F.3d 1464, 1472 (11th Cir.), cert. denied sub nom., Chaves v. United States, 512 U.S. 1226, 114 S.Ct. 2723, 129 L.Ed.2d 847 (1994).

Garcia's Airplane Ticket

6 The district court's grant of summary judgment on the ground of lack of standing is subject to de novo review by this court. See, e.g., Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). 7 Article III of the United States Constitution limits the role of the federal courts to the decision of cases and controversies. U.S. CONST. art III, § 2. Before undertaking to decide any dispute brought before it, a federal court must first assure itself that the dispute presented by the parties represents a justiciable case or controversy; that is, that the plaintiff suffers an actual injury fairly traceable to some challenged action of the defendant and likely to be redressed by the judicial relief requested, and that the factual claims underlying the plaintiff's challenge are concrete enough and the legal issues submitted for decision sharply focused enough to ensure that a genuine clash between the parties exists. See Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471, 102 S.Ct. 752, 757-58, 70 L.Ed.2d 700 (1982). This principle of justiciability derived from Article III serves several important functions, not the least of which [322 U.S.App.D.C. 292] are maintaining the limits on judicial power appropriate in a democratic society, see Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975), and ensuring that the federal courts act only when the disputes brought before them involve sharply-defined issues pressed by truly adversary parties with a genuine stake in the outcome. See Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192 (1977); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). 8 Under the standing component of Article III justiciability doctrine, plaintiffs in a federal court must demonstrate that their claims spring from an injury in fact--an invasion of a legally protected interest that is concrete and particularized, actual or imminent, fairly traceable to a challenged act of the defendant, and likely to be redressed by a favorable decision in the federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351 (1992). Even where these requisites for Article III standing are present, a federal court may still deny standing under certain prudential principles. See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-100, 99 S.Ct. 1601, 1607-08, 60 L.Ed.2d 66 (1979). Standing may be denied on prudential grounds, for example, to litigants who present abstract questions of wide public significance that would more appropriately be addressed by the representative branches of government, or who seek to assert the rights of third parties or to proffer grievances not relevant to the zone of interests intended to be protected or regulated by the statute or constitutional guarantee in question. See Valley Forge, 454 U.S. at 474-75, 102 S.Ct. at 759-60; Gladstone, 441 U.S. at 99-100, 99 S.Ct. at 1607-08. 9 A related component of justiciability which is particularly relevant in the context of actions for preenforcement review of statutes is ripeness, which focuses on the timing of the action rather than on the parties seeking to bring it. In deciding whether a case is ripe for adjudication, federal courts generally consider the hardship to the parties of withholding court resolution (a factor that overlaps with the injury in fact facet of standing doctrine), and the fitness of the issues for judicial decision (a factor that resembles the prudential concerns applied in the standing context). Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1515-16. By refusing to hear disputes which are not yet ripe, federal courts avoid becoming entangled in abstract disagreements, id. at 148, 87 S.Ct. at 1515, enhance judicial economy, and ensure that a record adequate to support an informed decision exists when the case is heard. 10 Even when the criminal statute that a litigant challenges has not yet been enforced against her, the challenger's claim may be justiciable if the challenger can demonstrate that she faces a threat of prosecution under the statute which is credible and immediate, and not merely abstract or speculative. In the proper circumstances, such threats of enforcement can simultaneously ripen a preenforcement challenge and give the threatened party standing. See, e.g., Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298-99, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979); American Library Ass'n v. Barr, 956 F.2d 1178, 1196 (D.C.Cir.1992); see generally 13A CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3532.5 (1984). A credible threat of imminent prosecution can injure the threatened party by putting her between a rock and a hard place--absent the availability of preenforcement review, she must either forego possibly lawful activity because of her well-founded fear of prosecution, or willfully violate the statute, thereby subjecting herself to criminal prosecution and punishment. See Babbitt, 442 U.S. at 298-99, 99 S.Ct. at 2308-09. In such situations the threat of prosecution provides the foundation for justiciability as a constitutional and prudential matter, and the Declaratory Judgment Act, 28 U.S.C. § 2201 (1994), provides the mechanism for seeking preenforcement review in federal court. See Steffel v. Thompson, 415 U.S. 452, 480, 94 S.Ct. 1209, 1226, 39 L.Ed.2d 505 (1974) (the declaratory judgment procedure [322 U.S.App.D.C. 293] is an alternative to pursuit of the arguably illegal activity) (Rehnquist, J., concurring). Federal courts most frequently find preenforcement challenges justiciable when the challenged statutes allegedly chill conduct protected by the First Amendment, but preenforcement challenges have been heard outside of the First Amendment context as well. See, e.g., Regional Rail Reorg. Act Cases, 419 U.S. 102, 122-25, 95 S.Ct. 335, 348-49, 42 L.Ed.2d 320 (1974) (finding hardship sufficient to ripen the controversy and to create a present injury where the challenged statute threatened a taking for which the plaintiffs would never be compensated); Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 506-08, 92 S.Ct. 1749, 1755-56, 32 L.Ed.2d 257 (1972) (finding sufficient injury and ripeness where boat owners were effectively required, by a soon to be implemented state law, to install new sewage pumping facilities on their boats); Abbott Laboratories, 387 U.S. at 152-53, 87 S.Ct. at 1517-18 (finding sufficient hardship where the alternative to risking criminal and civil penalties was far-ranging and expensive relabeling of drug products). 11 B. Challenges to the Portions of the Act Referring to Specific Brand Names and Models 12 Appellants' complaint includes a total of six challenges to the constitutionality of the Act, set out in five counts. Count I includes two claims--one alleging that § 922(v)(1) exceeds the powers of Congress enumerated in the Constitution, and one making the same allegation regarding § 922(w)(1). Count II sets out Intratec's claim that § 922(v)(1), in combination with the definition of semiautomatic assault weapon in § 921(a)(30)(A)(viii), is an unconstitutional Bill of Attainder, and Count V includes Penn Arms' Bill of Attainder challenge to § 922(v)(1) in combination with § 921(a)(30)(A)(ix) insofar as the latter subsection includes Penn Arms' Striker 12 weapon in the definition of semiautomatic assault weapon. Count III states Intratec's claim that § 921(a)(30)(C), which includes semiautomatic pistols with certain combinations of features in the definition of prohibited weapons, is vague in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution, and in Count IV Penn Arms directs a similar challenge to the general language in § 921(a)(30)(A)(ix). 13 Appellants' enumerated powers challenge to § 922(v)(1), and all of their Bill of Attainder claims, involve portions of the Act that single out specific weapons manufactured only by the appellants. These portions of the Act make it unlawful to manufacture or transfer Intratec's TEC-9, TEC-DC9, and TEC-22 models, and Penn Arms' Striker 12 model. See 18 U.S.C. § 922(v)(1) and §§ 921(a)(30)(a)(viii) and 921(a)(30)(A)(ix) (1994). Because the weapon-specific nature of these provisions puts them in a special posture with regard to the issues of ripeness and standing, we address these challenges separately from the challenges based on the generally-worded provisions of the Act. 14 The question of whether a threat of prosecution adequate to satisfy the requirements of justiciability is present in any particular preenforcement challenge is a factual and case-specific one. Federal courts look to a variety of factors to determine whether the plaintiff's decision to forego certain activity is truly motivated by a well-founded fear that engaging in the activity will lead to prosecution under the challenged statute. See, e.g., Steffel, 415 U.S. at 459, 94 S.Ct. at 1215-16; Lion Mfg. v. Kennedy, 330 F.2d 833, 839 n. 10 (D.C.Cir.1964). 15 In concluding that appellants had failed to show that they faced a genuine threat of prosecution in this case, the district judge focused on the circumstances surrounding the visits by ATF agents to appellants' facilities. Navegar, 914 F.Supp. at 636. Finding that such visits to regulated entities are routine and that the visiting agents were not themselves authorized to bring criminal investigations, the judge here concluded that appellants faced no credible threat of prosecution. Id. We think, however, that the district judge failed to consider the full panoply of circumstances relevant to the plaintiffs' claim of an imminent threat of prosecution; the judge focused on a few saplings in a forest of far more significant growth. 16 [322 U.S.App.D.C. 294] The most important circumstance that the district judge overlooked is that the Act in effect singles out the appellants as its intended targets, by prohibiting weapons that only the appellants make. This fact sets this case apart from most others in which preenforcement challenges to the Act have been held nonjusticiable. Cf. San Diego County Gun Rights Comm. v. Reno, 98 F.3d 1121 (9th Cir.1996) (dismissing preenforcement challenge to the Act brought by an individual holder of a federal license to sell firearms) 1 ; but see National Rifle Ass'n v. Magaw, 909 F.Supp. 490 (E.D.Mich.1995) (dismissing preenforcement challenges to the Act, including one by Intratec), appeal pending, No. 95-2150 (6th Cir.). It also makes the applicability of the statute to appellants' business indisputable: if these provisions of the statute are enforced at all, they will be enforced against these appellants for continuing to manufacture and sell the specified weapons (the only possible exception being the prosecution of people making copies or duplicates of the outlawed weapons, as provided in 18 U.S.C. § 921(a)(30)(A)). 17 Because it is clear to whom these provisions of the Act would be applied were they to be applied at all, the imminent threat of such prosecutions can be deemed speculative only if it is likely that the government may simply decline to enforce these provisions at all. This argument has generally been found compelling only when litigants seek preenforcement review of antiquated laws of purely historical curiosity, claiming that the threat of prosecution under these laws has chilled their conduct. See, e.g., Doe v. Duling, 782 F.2d 1202 (4th Cir.1986) (dismissing preenforcement challenges to Virginia laws against fornication and cohabitation which had not been enforced against the conduct in which the plaintiffs desired to engage since the 19th century). But the Violent Crime Control and Law Enforcement Act of 1994 is decidedly not a historical curiosity; in fact, the ink had barely dried on this extraordinarily high-profile piece of legislation when pro-enforcement activities began. And the fact that the Act specifically names products made only by the appellants is telling indeed, because it shows that the law places a high priority on eliminating this portion of the appellants' business. The visits by the ATF agents to appellants' places of business merely provide a bit of additional support for a fear of prosecution already firmly grounded in the language of the Act itself. By sending its agents to notify appellants of the prohibitions of the Act on the day it was passed, directing them to conduct an immediate inventory of grandfathered weapons, and following up the visits by sending appellants a letter reminding them of the prohibitions of the Act, the government made it quite clear that it had every intention of enforcing these prohibitions. As in Lake Carriers' Ass'n, the government affirmatively sought on the basis of the act and the threat of future enforcement to obtain compliance as soon as possible, to make the Act present[ly] effective[ ] in fact for these appellants. Lake Carriers' Ass'n, 406 U.S. at 507, 92 S.Ct. at 1755-56. 18 To conclude that the appellants face no credible threat of prosecution under these portions of the Act, we would have to believe that the government would enact a widely publicized law targeting products that only the appellants make, send its agents to the appellants' facilities on the day of enactment to inform them of the law's prohibitions and to begin quarantining grandfathered units, and soon thereafter remind appellants of the provisions of the Act by letter, but then sit idly by while the appellants continued to manufacture the outlawed weapons. To imagine that the government would conduct itself in so chimerical a fashion would be to declare in effect that federal courts may never, in the absence of an explicit verbal threat, decide preenforcement challenges to criminal statutes. This has never been the law. To require litigants seeking resolution of a dispute that is appropriate for adjudication in federal court to violate the law and subject themselves to criminal prosecution before their challenges may be heard [322 U.S.App.D.C. 295] would create incentives that are perverse from the perspective of law enforcement, unfair to the litigants, and totally unrelated to the constitutional or prudential concerns underlying the doctrine of justiciability. 19 It is, in sum, this threat of prosecution which creates the injury in fact required under standing doctrine, for the threat forces appellants to forego the manufacture and transfer of the weapons specified in the Act. For the same reason, the threat creates the hardship required to ripen the controversy, and because the issues raised in these challenges are purely legal, no prudential considerations weigh against finding that they are appropriate for judicial decision at this time. Thus we hold that the appellants' challenges to the provisions of the Act that single out by model name products that they alone make are justiciable. 20 C. Challenges to the Portions of the Act Identifying Prohibited Materials by Characteristics 21 One of appellants' claims alleging that the Act exceeded the powers of Congress enumerated in the Constitution, and all of their claims that the Act is too vague to comply with the Due Process Clause of the Fifth Amendment to the Constitution, are based on portions of the Act which refer to weapons and accessories sharing certain features, rather than to particular brands and models of weapons. The second enumerated powers claim challenges the portion of the Act outlawing large capacity ammunition feeding devices, which the Act defines as ammunition magazines that ha[ve] a capacity of ... more than 10 rounds of ammunition. 18 U.S.C. §§ 922(w)(1) and 921(a)(31) (1994). The vagueness claims focus on the provisions that outlaw firearms known as ... revolving cylinder shotguns, 18 U.S.C. § 921(a)(30)(A)(ix), and semiautomatic pistols that have two out of five listed characteristics. 18 U.S.C. § 921(a)(30)(C) (1994). Because this distinction in the Act's description of the weapons involved in these counts assumes great importance in our justiciability analysis, we discuss them separately. 22 Appellants' claim to an injury in fact giving them standing to challenge these generic provisions of the Act must, as was true in regard to the other claims, be premised on the assertion that the threat of prosecution under these provisions is genuine and imminent; without such a threat the enforcement of these provisions against appellants would be too remote and speculative to render their challenges justiciable. In seeking to show that they have been threatened with the enforcement of these provisions of the Act, appellants can point to some of the same circumstances that we found relevant to the justiciability of their challenges to the portions of the Act that name individual weapons, including the high-profile nature of their business and the publicity accorded to the Act, the visits by the ATF agents, and the letter from the ATF. But they cannot invoke the one factor that we found most significant in our analysis of the other challenges--the statute's own identification of particular products manufactured only by the appellants. In the absence of this factor, the threat of prosecution becomes far less imminent, and these parties' claims to standing concomitantly much weaker. These generic portions of the Act could be enforced against a great number of weapon manufacturers or distributors, and although the government has demonstrated its interest in enforcing the Act generally, nothing in these portions indicates any special priority placed upon preventing these parties from engaging in specified conduct. In such circumstances we cannot say that a genuine threat of enforcement has given rise to the requisite injury in fact and thus given these parties standing. 23 Further, because the general nature of the language in these portions of the Act makes it impossible to foretell precisely how these provisions may be applied, the issues presented in these challenges are less fit for adjudication, suggesting additional concerns as to their ripeness. We can hold a statute to be impermissibly vague on its face only if we conclude that it is capable of no valid application, see Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 495, [322 U.S.App.D.C. 296] 102 S.Ct. 1186, 1191-92, 71 L.Ed.2d 362 (1982), 2 and in the absence of an enforcement action either commenced or specifically threatened, we have no actual or imminent concrete application of the statute in which to anchor our inquiry into whether any valid application is possible. For these reasons, we hold that the appellants' challenges to the portions of the Act which describe the outlawed items in general categorical terms are not justiciable at this time. 24 For the foregoing reasons, we reverse the judgment of the district court as to the appellants' claims that 18 U.S.C. § 922(v)(1) exceeds the enumerated powers of Congress, that § 922(v)(1) in combination with § 921(a)(30)(A)(viii) is an unconstitutional Bill of Attainder, and that § 922(v)(1) in combination with § 921(a)(30)(A)(ix) is an unconstitutional Bill of Attainder, we affirm the judgment of the district court with regard to dismissal of the appellants' claims that 18 U.S.C. §§ 921(a)(30)(A)(ix) and 921(a)(30)(C) are vague in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution, and that § 922(w)(1) exceeds the enumerated powers of Congress, and we remand the case for further proceedings on the merits of the surviving claims. 25 So ordered.

Justiciability Requirements

Michelle Kosilek -- born in 1949 as Robert Kosilek -- is an anatomically male prisoner in her mid-sixties who suffers from gender identity disorder (GID)1 and self-identifies as a female. In 1992 Kosilek was convicted of first-degree murder and sentenced to a term of life imprisonment without parole for the 1990 strangulation of her then-wife, Cheryl McCaul, whose body was found abandoned in the backseat of a vehicle at a local shopping mall. See Commonwealth v. Kosilek, 423 Mass. 449, 668 N.E.2d 808 (1996). While awaiting trial for McCaul's murder, Kosilek twice attempted to commit suicide. She also once tied a string around her testicles in an attempt at self-castration, but removed the string when it became painful. Since 1994, Kosilek has been housed at MCI-Norfolk, a medium security male prison in Massachusetts. Throughout the twenty-year duration of her incarceration at MCINorfolk, Kosilek has not attempted to harm herself. 1 The term gender identity disorder has recently been replaced with the term gender dysphoria in the medical community. See Am. Psychiatric Ass'n, Gender Dysphoria, http://www.dsm5.org/documents/gender%20dysphoria%20fact%20sheet.pdf (last visited June 3, 2014). To maintain consistency with prior related litigation and evidence in the record, we continue to use the term GID in this opinion. -4-

Michelle Kosilek

Federal courts have inherent power “to control the disposition of the causes on [their] docket[s] with economy SARKAR V. GARLAND 9 of time and effort for [themselves], for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Courts have exercised this authority in several ways, such as staying proceedings and dismissing a case for failure to prosecute. See Dietz v. Bouldin, 579 U.S. 40, 47 (2016) (collecting cases). When considering a request to stay an appeal, we have explained that “competing interests” must be weighed. CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). Those interests include: “the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.” Id. Courts also have used their inherent power to manage their docket to administratively close cases, which is “the practical equivalent of a stay.” Quinn v. CGR, 828 F.2d 1463, 1465 n.2 (10th Cir. 1987); see also Ali v. Quarterman, 607 F.3d 1046, 1049 (5th Cir. 2010). Administrative closure allows a court to “shelve pending, but dormant, cases” without a final adjudication. Lehman v. Revolution Portfolio LLC, 166 F.3d 389, 392 (1st Cir. 1999). Although an administratively closed case is not counted as active, it “still exists on the docket” and “may be reopened upon request of the parties or on the court’s own motion.” Mire v. Full Spectrum Lending Inc., 389 F.3d 163, 167 (5th Cir. 2004). In layman’s terms, the case is asleep but not dead. Because the ability to administratively close a case arises from the court’s inherent authority, there is no statute or rule defining when administrative closure is appropriate; it is a matter of discretion. See Lockyer v. Mirant Corp., 398 F.3d 1098, 1109 (9th Cir. 2005) (recognizing a court’s 10 SARKAR V. GARLAND “discretionary power” to control its docket under Landis). We have used the administrative-closure procedure only in limited situations. One example is when we are seeking action in the case from another court, such as when we (1) order a limited remand to the district court, see Cox v. Allin Corp. Plan, 848 F. App’x 343, 344 (9th Cir. 2021) (unpublished); (2) transfer a petition for review to a district court to determine a disputed citizenship claim, see Anderson v. Holder, 673 F.3d 1089, 1093 (9th Cir. 2012); or (3) certify a question to a state court, see Himes v. Somatics, LLC, 29 F.4th 1125, 1127–28 (9th Cir. 2022). Our sister circuits have likewise granted administrative closure when awaiting action from another forum related to the subject case. See, e.g., WRS, Inc. v. Plaza Entm’t, Inc, 402 F.3d 424, 426 (3d Cir. 2005) (administrative closure due to initiation of bankruptcy proceedings); Quinn, 828 F.2d at 1465 (administrative closure due to pending arbitration). We have also administratively closed a case when we are awaiting a decision in a different case pending in our court or another court that will resolve a key issue in the subject case. See, e.g., Consumer Fin. Prot. Bureau v. CashCall, Inc., No. 1855407, 2019 WL 5390028, at (9th Cir. Oct. 21, 2019) (unpublished) (awaiting a decision from the Supreme Court). In these situations, halting the proceedings serves the efficient resolution of the subject case because we are delaying our decisionmaking to allow action by a different panel or a different forum that will impact the nature of the case pending before us or the basis for our decision. Harkening back to the competing interests at issue in requests for stay, halting the proceedings in these circumstances is efficient because action in the external proceedings may simplify the “issues, proof, and questions SARKAR V. GARLAND 11 of law” to be decided in the subject case. CMAX, Inc., 300 F.2d at 268. Nothing like those circumstances is present here. The only reason the parties seek to shelve this case is because the Government has determined that Sarkar is “not an immigration enforcement priority.” The Government suggests that this case can linger without a decision until such time as the Department of Homeland Security decides “to proceed with removal.” There is no obstacle to our proceeding forward and resolving Sarkar’s case, as the Government conceded at oral argument, nor is it clear that any efficiency is to be gained by delay. We reject the parties’ requests. They have not cited to, and we are unaware of, any authority allowing us to administratively close a case because the parties do not wish to have the court decide their case now but may want it to be decided at some later time. As described, the examples of where we have granted administrative closure involve external factors that impact the decision that we must make. It makes sense as a matter of efficiency for a court to delay its decision when awaiting some action outside its or the parties’ control that will impact the decision to be made. But that is not what is happening here. The parties are asking us not to decide Sarkar’s petition for review, which has been pending for nearly five years, as a matter of their preference. None of the “competing interests” relevant to staying an appeal counsel in favor of granting their request. Id. If this case were administratively stayed the court would lose the effort that it expended in preparing this case for hearing and it would needlessly retain on its docket a case that could be resolved. The parties assert that their interests are not prejudiced by an indefinite stay, but they fail to demonstrate the opposite—that they will be prejudiced by 12 SARKAR V. GARLAND the court simply deciding this case. And there is no indication that the “orderly course of justice” will be served by an indefinite stay; that is, that the case will be easier to decide at some later date. Id. That the typical interests that we must consider in deciding whether to stay an appeal do not counsel in favor of granting the relief the parties seek is enough reason to deny the parties’ motions. This relief is a matter of our discretion, but as the Supreme Court has instructed, “[d]iscretion is not whim.” Golan v. Saada, No. 20-1034, __ S. Ct. __, 2022 WL 2135489, at (June 15, 2022) (alteration in original) (quoting Martin v. Franklin Cap. Corp., 546 U.S. 132, 139 (2005)). But our decision is further supported by the various means that the executive branch has at its disposal to forgo a judicial decision if it deems a case unworthy of enforcement, none of which interfere with normal judicial process. On a broad level, “an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). That is especially true in the immigration context, where the Supreme Court has recognized that “the Attorney General’s discrete acts of ‘commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders’” are exercises in prosecutorial discretion “which represent the initiation or prosecution of various stages in the deportation process.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999) (alterations in original) (quoting 8 U.S.C. § 1252(g)); see Vasquez v. Garland, No. 18-70824, 2021 WL 3485910, at (9th Cir. Aug. 9, 2021) (unpublished) (Bea, J., concurring). “At each stage the Executive has discretion to abandon the endeavor . . . for humanitarian reasons or simply for its own convenience.” Reno, 525 U.S. at 483–84. In essence, the government is SARKAR V. GARLAND 13 always in control of an alien’s removal. See Arizona v. United States, 567 U.S. 387, 396 (2012) (“Federal [immigration] officials . . . must decide whether it makes sense to pursue removal at all.”); see also Memorandum from John D. Trasviña, ICE Principal Legal Advisor, Interim Guidance to OPLA Attorneys Regarding Civil Immigration Enforcement and Removal Policies and Priorities (May 27, 2021) (Trasviña Memo). We list some of the Government’s specific procedural tools. It may move to remand the matter to the BIA. Li v. Keisler, 505 F.3d 913, 918 (9th Cir. 2007) (“[T]he government [retains] the flexibility to voluntarily remand in order to correct prior actions that have been subsequently called into question by emerging case law, claims of changed circumstances, or other novel considerations.”); see also Qianchang Wu v. Lynch, 623 F. App’x 433 (9th Cir. 2015) (unpublished) (granting the government’s remand motion to the BIA for administrative closure). It may also move to reopen proceedings with the BIA under 8 C.F.R. § 1003.2(a). See He v. Gonzales, 501 F.3d 1128, 1130 (9th Cir. 2007) (noting that a party filed a motion to reopen with the BIA “[w]hile their initial petition for review was pending on appeal to our court”). If the Government’s efforts to remand or reopen proceedings before the agency is successful, it has further options for exercising its prosecutorial discretion in that forum. See Trasviña Memo 4–10. The Government can move to dismiss the proceedings altogether. See 8 C.F.R. § 1239.2(c). It can seek to narrow the issues in dispute through stipulation. See Trasviña Memo 4. It can also request a continuance, see 8 C.F.R. § 1003.29, or that the BIA administratively close a case, which is expressly allowed in specified circumstances, see, e.g., 8 C.F.R. 14 SARKAR V. GARLAND §§ 1214.2, 1214.3; see also Trasviña Memo 7–8. And if the Government ultimately takes steps to undermine or displace a final order of removal, we lack jurisdiction to review its choice and must dismiss any petition for review pending on our docket. See, e.g., Lopez-Ruiz v. Ashcroft, 298 F.3d 886, 887 (9th Cir. 2002) (order); see also Viloria v. Lynch, 808 F.3d 764, 767–68, 770 (9th Cir. 2015). The burden is on the Government to use one of the many tools it has for not enforcing immigration law in a particular case if that is its policy preference. Shelving a case indefinitely on our docket to avoid having a final decision rendered in a case properly presented to us is not one of those tools. Indeed, this case demonstrates the absurdity of what the parties are asking. Sarkar filed his petition in August 2017. A stay of removal was entered a few months later, and the case has been fully briefed since August 2018. Given our significant backlog of immigration cases, this case was not moved toward resolution until over three years later in October 2021 when we asked the parties whether they still wanted to proceed to decision or whether they anticipated an alternative resolution. Both parties responded that they wanted to proceed. The court then scheduled the case for oral argument and we began our preparations only to have the parties request a few weeks later that the case be administratively stayed because it is not an enforcement priority. This is not a good use of judicial resources. The executive branch should sort out its enforcement priorities, about which we express no opinion, without burdening the already-strapped judiciary. Finally, we note that regardless of our decision in this case, the Government has still more options for not pursuing enforcement against Sarkar if that is what it wishes. It may decide not to execute a final order of removal. See Trasviña SARKAR V. GARLAND 15 Memo 4. It also may grant Sarkar new relief, for example if Sarkar files a new motion to reopen based on approval of his pending I-130 visa petition. See 8 C.F.R. § 1003.2(c)(1); Kalilu v. Mukasey, 548 F.3d 1215, 1217–18 (9th Cir. 2008) (per curiam) (describing a petitioner’s ability to file a motion to reopen with an approved I-130 visa petition). Nothing about our denial of the parties’ motion for administrative closure prevents the Government from exercising its enforcement prerogative in this case. In sum, our inherent authority to manage our docket, including by granting administrative closures, is not served by keeping this case on our docket indefinitely. The Government has numerous means to avoid enforcement against Sarkar if that is what it wants. We decline to add judicial administrative closure to the list of the Government’s tools. The motions to administratively close this case are denied.

Administrative Closure

38 Wells argues that he did not waive the merger issue, but rather forfeited it by failing to make a timely assertion of the merger issue at trial. Hence, Wells contends that we may perform plain error review upon the merger issue. We agree with Wells. Under Rule 52(b), error means deviation from a legal rule unless the rule has been waived. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Waiver has been defined as the intentional relinquishment or abandonment of a known right. Id. at 733, 113 S.Ct. 1770. Thus, issues not intentionally relinquished or abandoned but nevertheless not raised--that is, forfeited issues--may be reviewed for plain error. 39 At the conclusion of the proof at trial, Wells, through his legal advisor made a Rule 29 motion requesting a motion for a judgment of acquittal based upon the failure of the government to prove any of the elements that is [sic] alleged in Count One of this indictment, and also the failure of proof in connection with Counts Two and Three [the distribution and possession charges]. Tr. at 414-15. Wells made no argument addressing the alleged legal error involved in charging him with two separate offenses for a single incident. The district court denied the motion as to Counts 2 and 3 and reserved judgment as to Count One. Id. In addition, after the jury handed down its verdict of guilty on all three counts, the district court advised Wells that he could renew his Rule 29 motions made prior to the verdict, however, he failed to do so. See Tr. at 520. There is no evidence that Wells intentionally chose not to raise the merger issue for strategic reasons or knowingly and intelligently failed to raise the issue. 40 We find, therefore, that Wells's failure to make the timely assertion of the merger issue at trial amounted to a forfeiture, rather than a waiver. Olano, 507 U.S. at 733, 113 S.Ct. 1770 (quotation marks and citation omitted). As a result, we may review the district court's failure to merge Wells's distribution and possession charges for plain error, pursuant to Rule 52(b). Id. 3

Was the merger issue waived?

Matassarin next contends that the Great Empire ESOP fiduciaries failed to satisfy ERISA requirements and violated their fiduciary duty to her and to the Plan generally. She relies upon ERISA §§ 502(a)(2) and (a)(3). Section 502(a)(2) provides a cause of action for injuries caused by violations of ERISA § 509. Section 509 focuses on fiduciary breaches that cause harm to a plan as a whole: Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary. -28- 29 U.S.C. § 1109(a). The Supreme Court, noting ERISA’s primary concern with the possible misuse or poor management of plan assets, has stated that the “loss to the plan” language in § 1109 limits claims to those that inure to the benefit of the plan as a whole and not to the benefit only of individual plan beneficiaries. See McDonald, 60 F.3d at 237 (citing Massachusetts Mutual Life Insurance Co. v. Russell, 473 U.S. 134, 140-42 & nn. 8-9, 105 S. Ct. 3085, 3089-90 & nn. 8-9 (1985)). Based upon this statutory purpose, we find that the district court properly granted summary judgment on Matassarin’s § 502(a)(2) claim. Most of the ERISA breaches that Matassarin alleges concern only her individual account or, at most, those of the sixty-seven Plan participants who were offered lump-sum distributions. The exception to this is Matassarin’s claim that the defendants failed to conform the Great Empire ESOP to 26 U.S.C. § 409(h) and 26 U.S.C. § 4975(e)(7) and thereby jeopardized the Plan’s taxexempt status. It appears that the original Plan document did fail to allow segregated-account holders to purchase company stock. The amended Plan document remedied that error in order to bring the Plan into compliance with the tax code provisions. The defendants have admitted to omitting mistakenly from the May 1995 follow-up correspondence the fact that participants could select Great Empire securities as the form of distribution. But this omission seems to have been a simple oversight. Nothing in the -29- record or pleadings indicates that participants who were entitled to distribution were in fact denied the right to demand employer securities, such as would disqualify the Plan under those tax code provisions. Matassarin has failed to allege any way in which the defendants’ actions caused a loss to the Plan as a whole as envisioned in § 502(a)(2). We therefore affirm the district court’s grant of summary judgment on Matassarin’s § 502(a)(2) claim. Summary judgment on Matassarin’s § 502(a)(3) claim was appropriate only if Matassarin provided no evidence of any ERISA violation. Under § 502(a)(3), a plan participant may bring an action (A) to enjoin any act or practice which violates any provision of [ERISA’s protection of employee benefit rights] or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of [ERISA’s protection of employee benefit rights] or the terms of the plan. 29 U.S.C. § 1132(a)(3). A plan beneficiary may bring a § 502(a)(3) action against an ERISA fiduciary based on loss to the individual beneficiary as well as based on loss to the plan as a whole. See Varity Corp. v. Howe, 516 U.S. 489, 496, 116 S. -30- Ct. 1065, 1075-76 (1996) (contrasting § 1132(a)(2) with § 1132(a)(3), which does not require loss to the plan as a whole). Matassarin alleges four types of ERISA violations: (1) fiduciary self-dealing, (2) failure to invest prudently, (3) interference with her exercise of protected rights, and (4) failure to provide information. The Great Empire ESOP in early 1995 reabsorbed suspended shares in § 14(h) accounts, paying each account holder the value of his shares as of the December 31 preceding his separation from the Plan. According to Matassarin, the Plan effectively repurchased shares for less than the fair market value on the date of repurchase. Those who benefitted most from this repurchase, she continues, were (1) the Plan fiduciaries, who held the largest share accounts in the Plan; and (2) Lynch and Oatman, whose company, Great Empire, was able to avoid paying fair market value for the shares. Matassarin argues that these actions violated ERISA § 406(b), which prohibits fiduciary selfdealing.17 17. A fiduciary with respect to a plan shall not-- interest or for his own account, (2) in his individual or in any other capacity act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries, or (3) receive any consideration for his own personal account from any party dealing with such plan in connection -31- We need not consider the claim in depth. Under § 502(a)(3), a beneficiary may bring an action to enjoin an ERISA violation or for equitable relief. In this case, Matassarin has nothing to enjoin and no equitable relief available to her on behalf of the Plan as a whole. The “repurchase” took place in 1995. The Plan as a whole did not suffer, and Matassarin’s individual segregated account was unaffected. Even if Matassarin’s § 406(b) allegations are meritorious, the only beneficiaries possibly entitled to relief would be the Plan participants who were allegedly offered less than fair value for the interests in their § 14(h) accounts.18 As we have stated, the district court did not abuse its discretion in finding Matassarin an inappropriate representative for a class that would include those Plan participants. Whereas Matassarin individually has no § 502(a)(3) relief available to her for § 406(b) violations, the district court properly denied her claim for breach of fiduciary duty.19 with a transaction involving the assets of the plan. 29 U.S.C. § 1106(b). 18. We make no finding here as to whether any separated Plan participant with a § 14(h) account would have a claim against the Plan fiduciaries. 19. We have not considered whether the duties set forth in § 406(b) necessarily apply in this ESOP situation. ERISA § 408(e) generally exempts ESOP fiduciaries from § 406 requirements when the questioned transaction involves the acquisition or sale of “qualifying employer securities,” which include stock. 29 U.S.C. § 1108(e); see 29 U.S.C. § 1107(d)(5)(A). Section 408(e) has been interpreted to allow “[a]n ESOP [to] acquire employer securities in circumstances that would otherwise violate Section 406 if the purchase is made for ‘adequate consideration.’” Donovan v. -32- Matassarin next argues that the defendants’ allowing her segregated account to accrue only minimal interest violates the prudent-person investment standard’s diversification requirement under ERISA § 404. ERISA § 404 requires a plan fiduciary to “discharge his duty with respect to a Plan solely in the interest of the participants and beneficiaries and . . . by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so.” 29 U.S.C. § 1104(a)(1)(C); see Metzler v. Graham, 112 F.3d 207, 209 (5th Cir. 1997) (addressing the diversification requirement). The defendants’ failure to diversify Matassarin’s account did not in any way expose it to the risk of large losses and therefore did not breach an explicit § 404 diversification duty. We are mindful, however, that implicit within § 404(a) is the desirability of increasing a plan’s value--preferably ensuring more than passbook interest--through sound investment.20 Cunningham, 716 F.2d 1455, 1465 (5th Cir. 1983). The more likely challenge involving this exemption would question whether an ESOP paid too much for employer securities. We know of none in which a claimant alleged that an ESOP cheated its former participants by paying too little for employer securities. Whereas Matassarin would not be entitled to relief even if § 406(b) does apply, we need not decide the issue here. 20. Section 404(a)(1)(B), for example, requires an ERISA fiduciary to discharge his duties as would “a prudent man acting in like capacity and familiar with such matters,” which would contemplate increasing the plan’s value. 29 U.S.C. § 1104(a)(1)(B). -33- Nonetheless, Matassarin’s QDRO, the terms of which the defendants were bound to apply, requires just passbook interest, rendering it clearly prudent under §404(a)(1)(C) for Great Empire not to diversify in this case. We recognize the aberrancy and difficulty of Matassarin’s situation. In enacting ERISA, Congress sought to ensure that workers who have been promised certain retirement benefits actually receive those benefits. See Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 U.S. 717, 720, 104 S. Ct. 2709, 2713 (1984). Although the primary purpose of an ESOP differs from that of a pension plan, ESOPs remain subject to ERISA’s general protective restrictions and requirements. See Cunningham, 716 F.2d at 1463-68. From Matassarin’s point of view, the QDRO structure has hurt her retirement prospects. While married to Jenkins, Matassarin no doubt looked forward to enjoying with him ERISA sound-investment requirements do not generally apply to an ESOP, which is “designed to invest primarily in securities issued by its sponsoring company.” Cunningham, 716 F.2d at 1458; see 29 U.S.C. § 1104(a)(2) (exempting ESOPs from diversification requirements); 29 U.S.C. § 1107(b), (d) (same); see also Moench v. Robertson, 62 F.3d 553, 568 (3d Cir. 1995) (“ESOPs, unlike pension plans, are not intended to guarantee retirement benefits, and indeed, by its very nature, ‘an ESOP places employee retirement assets at much greater risk than does the typical diversified ERISA plan.’” (quoting Martin v. Feilen, 965 F.2d 660, 664 (8th Cir. 1992)). If Matassarin were an ordinary ESOP participant, the nature of the Plan would probably exempt her account from standard ERISA diversification requirements. But Matassarin is of course not an ordinary ESOP participant, insofar as her account, per the terms of her QDRO, no longer depends upon employer securities. As such, any ESOP exception seems inapplicable. -34- the retirement benefits of his Great Empire ESOP shares. Presumably, she and Jenkins expected that the shares’ value would increase in the years before Jenkins became eligible for retirement. Because the QDRO requires valuation of Matassarin’s shares as of the date of her divorce, she lost the prospect of significant increase in the shares’ value to fund her retirement. In short, Matassarin’s QDRO removed her savings from the ambit of a more traditional ERISA-qualified ESOP or pension plan, which would focus on increasing savings. This case raises the question, then, of how a plan administrator is to treat a beneficiary whose QDRO appears out of line from the greater goals of ERISA. We believe that both ERISA and case law require a plan administrator to follow the dictates of the QDRO. Once a plan administrator determines that a domestic relations order meets the criteria set forth in 29 U.S.C. § 1056(d)(3) and thus is “qualified,” he is required to act in accordance with the QDRO. See, e.g., In re Gendreau, 122 F.3d 815, 817-18 (9th Cir. 1997); Metropolitan Life Insurance Co. v. Wheaton, 42 F.3d 1080, 1085 (7th Cir. 1994). “ERISA does not require, or even permit, a pension fund to look beneath the surface of the order. Compliance with a QDRO is obligatory. . . . This directive would be empty if pension plans could add to the statutory list of requirements for ‘qualified’ status.” Blue v. UAL Corp., 160 F.3d 383, 385 (7th Cir. 1998). Through its QDRO -35- amendments, federal ERISA law defers to domestic relations orders approved in state court proceedings. We do not find the deference to be affected by whether the QDRO may slow the growth of the subject retirement savings. Matassarin makes several arguments as to why her QDRO should not be enforced. She contends, for example, that Jenkins insisted on the QDRO format as necessary to recognition under the Great Empire ESOP, that Menke & Associates unfairly drafted the order, and that she did not realize the implications of the order for her retirement benefits. A United States district court is not the proper forum in which to raise such arguments. We acknowledge that ERISA supersedes state law insofar as the state law “relate[s] to” an ERISA-qualified employee benefit plan. 29 U.S.C. § 1144(a). Federal courts may be called upon to determine the proper beneficiary under a QDRO or to review a plan administrator’s interpretation of a QDRO, as we have done here. But although we read § 1144(a)’s “relates to” language broadly, see Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S. Ct. 2890, 2900 (1983), we cannot say that a federal court’s role extends as far as examining the circumstances under which a potential beneficiary entered and a state court approved a QDRO. Such a claim affects domestic relations, which is not an area of exclusive federal concern. See Memorial Hospital System v. Northbrook Life Insurance Co., 904 F.2d 236, 245 (5th Cir. 1990) -36- (stating that cases in which ERISA preempts state-law claims, the claims address areas of exclusive federal concern). If Matassarin believes that she mistakenly entered the QDRO or was fraudulently induced to do so, then the Kansas state court that approved that order is the entity to hear her complaints. Cf. Perkins v. Time Insurance Co., 898 F.2d 470, 473 (5th Cir. 1990) (holding that a claim that an insurance agent fraudulently induced an insured to surrender his current insurance and participate in an ERISA plan “related to” the ERISA plan only indirectly, so that ERISA would not preempt the state claim). The REA amendments preserve ERISA anti-alienation provisions while leaving domestic relations in the states’ hands. We will not disturb that structure. ERISA § 510, titled “Interference with Protected Rights,” makes it unlawful to discriminate against an ERISA plan beneficiary for exercising his rights or in order to interfere with his attainment of any right. See 29 U.S.C. § 1140. A violation of § 510 requires specific intent to discriminate. See Unida v. Levi Strauss & Co., 986 F.2d 970, 979-80 (5th Cir. 1993). Matassarin alleges that Lynch, Oatman, Jenkins, and Great Empire discriminated against her for seeking her entitlement under her QDRO. Although her claims are not entirely clear, Matassarin apparently argues that because Great Empire sent her the May 1995 letters--which it claims were sent in error--and -37- later denied that she was entitled to any distribution, Great Empire was in fact discriminating against her for seeking what she was due. We find that summary judgment on this claim was appropriate because Matassarin produced no evidence that her inquiries prompted the defendants’ actions or Plan interpretation. Matassarin also claims more general discrimination based on the appellees’ contention that she was the only segregated account holder who was not entitled to a distribution in May 1995. This claim is likewise without merit. Unlike the sixty-seven separated Plan participants, Matassarin had a QDRO, a separate contract that required different treatment for Matassarin than for the sixty-seven holders of § 14(h) accounts offered distributions. Summary judgment was appropriate as to Matassarin’s claims for interference with her protected rights. Matassarin argues that the defendants violated ERISA § 105(a), 29 U.S.C. § 1025(a), which concerns statements furnished by an administrator to participants and beneficiaries: Each administrator of an employee pension benefit plan shall furnish to any plan participant or beneficiary who so requests in writing, a statement indicating, on the basis of the latest available information--(1) the total benefits accrued, and (2) -38- the nonforfeitable pension benefits, if any, which have accrued, or the earliest date on which benefits will become nonforfeitable. 29 U.S.C. § 1025(a). As the provision states, the plan participant must request the statement in writing in order to trigger the administrator’s § 1025 duty. Matassarin seeks penalties of $100 per day under ERISA § 502(c)(1) against the trustees and other fiduciary defendants for Great Empire’s alleged failure to provide information regarding the value of her stock. Section 502(c)(1), similar to § 1025(a), requires the participant to request information before an administrator may be sanctioned for failing to provide it.21 Matassarin does not state what, if any, material she specifically requested and the defendants failed to provide, such as would allow for penalties under § 502(c)(1). This Court reviews only for abuse of discretion a district court’s decision whether to assess 21. ERISA § 502(c)(1) states, in part: Any administrator . . . who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court’s discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper. 29 U.S.C. § 1132(c)(1). -39- penalties under § 502(c)(1). See, e.g., Godwin v. Sun Life Assurance Co., 980 F.2d 323, 327 (5th Cir. 1992) (reviewing only for abuse of discretion the district court’s refusal to award penalties under § 502); Fisher v. Metropolitan Life Insurance Co., 895 F.2d 1073, 1077 (5th Cir. 1990) (same). Given that the defendants do not appear to have denied any request that Matassarin made, the district court did not abuse its discretion in refusing to asses penalties. In her Third Amended Complaint and other pleadings, Matassarin argued that the defendants violated ERISA when they failed to provide her with a summary plan description or with annual reports. She also provided the district court with an affidavit stating that she had not received a summary plan description. We need not examine whether the district court improperly granted summary judgment on this issue,22 insofar as Matassarin fails to brief adequately or otherwise pursue it on appeal and thus has waived it. Accordingly, we affirm the grant of summary judgment as to Matassarin’s ERISA § 502(a)(3) claim.

ERISA Violations and Breach of Fiduciary Duty

Liberty Mutual's second contention— that assigning Tobin an MM account was not reasonable because his disability rendered him unable to manage those accounts — is more substantial. If a proposed accommodation would not be feasible for the employee, it would not assist him in performing his job duties. See Reed, 244 F.3d at 259 (holding that, in order to prove reasonable accommodation, a plaintiff must prove not only that the proposed accommodation is feasible for the employer under the circumstances but also that it would enable h[im] to perform the essential functions of h[is] job); id. (stating that proving an accommodation's effectiveness is part of the plaintiff's burden). Liberty Mutual elicited evidence that managing an MM account required good organizational skills and the ability to work quickly because sales representatives are sometimes bombarded with questions from potential or current clients during their on-site sessions with company employees. Leonard Shepard, the sales representative with the most MM accounts during Tobin's tenure, testified that his encounters with clients at one company, EMC, were hectic and occurred in a high pressure atmosphere — environments that were difficult for Tobin. Unquestionably, such evidence raises some doubt about Tobin's ability to handle MM accounts. However, Robin admitted at trial that, when asked during his deposition why he had not given Tobin an MM account, he had not expressed concern about Tobin's competence. Rather, his reasons focused on Tobin's longstanding under-performance. [20] At trial, Robin reiterated the low-performance concern, as well as a concern about Tobin's ability, and noted that Tobin did nothing to help himself get Mass Marketing accounts. Robin explained that he considered it unfair when other reps [were] out prospecting to get them on their own to just give one to [Tobin] when he was doing nothing to help himself. [21] This testimony, in light of Robin's earlier deposition statements, permitted the jury to infer that Tobin was denied MM accounts primarily because Robin considered him to be undeserving rather than unable to manage them. [22] Indeed, other evidence allowed the jury to find that Tobin could have competently handled an MM account and that Robin had admitted as much. Robin testified that it could be a reasonable assumption that Tobin would have been able to sell more policies if he had access to more people who wanted to buy insurance. At his deposition, Robin agreed that his reports on Tobin stated that he was good at closing sales, [23] and Robin also stated at that time that Tobin's sales results would have improved if he had been assigned MM accounts. [24] Edward Mace, another Liberty Mutual sales representative, testified that some MM accounts were relatively easy to handle because the company would pre-schedule appointments, and [y]ou could sit down and have your day planned ahead for you. Mace also reported that the individual interviews could be spaced farther apart, reducing the time pressure, and that there was a routine to the process — further evidence that handling MM accounts would be manageable despite Tobin's disability. Taken together, this evidence suggests that access to MM accounts might in fact have given Tobin the jump start he claimed to need to compensate for his disability, allowing him to focus on what he could do well — close sales — rather than on prospecting for new business. To be sure, the evidence of Tobin's ability to manage MM accounts was controverted. As we have described, however, the jury had before it sufficient evidence to conclude that assignment to an MM account would have enabled Tobin to achieve his sales quotas and thus to perform the essential functions of his job — making such an assignment a reasonable accommodation. [25]

Ability to Handle MM Accounts

13 Concerning the matter of the alleged removal of documents from Foster's office following his death, the only dispute among the parties appears to be whether Livingstone has satisfied the but for requirement. 14 Livingstone argues that he fulfils the but for requirement in this particular matter under three circumstances previously recognized by the court. First, he invokes the duplication of investigations. Livingstone acknowledges that this circumstance, as previously decided by the court, must involve the IC's duplication of the Department of Justice's (DOJ) preliminary investigation. Livingstone nevertheless claims that he meets the but for requirement because the IC's investigation substantially duplicated Mr. Fiske's investigation of th[e] issue. He attempts to equate Fiske's investigation with that of a DOJ preliminary investigation by arguing that Fiske's investigation was conducted at the request of the Justice Department. 15 The second but for circumstance which Livingstone claims he satisfies is when, absent the Act, the case would have been disposed of at an earlier stage of the investigation. His argument is premised on the seven years the Independent Counsel kept the matter open, versus the less than six months that Fiske took to make his conclusions concerning Foster's death. He asserts that no ordinary prosecutor would have spent the time or money that the IC spent investigating the Foster documents matter absent any evidence that documents were in fact missing. 16 Third, Livingstone claims that he was investigated under circumstances in which a private citizen would not have been investigated. According to Livingstone, these circumstances involved only his leaving the building in which he works carrying a briefcase... at an unusual hour. He further argues that there was an absence of any evidence that documents were, in fact, missing; and that in any event there was irrefutable proof that he was not there at [the stated] hour. Such circumstances, according to Livingstone, would not likely give rise to a criminal investigation of a private citizen. 17 In her evaluation, the IC argues that Livingstone's circumstances do not fit into any of those found by the court to fulfill the but for requirement. With respect to Livingstone's claim that the IC's investigation duplicated that of special counsel Fiske, the IC first notes that Fiske's investigation with respect to the Foster documents matter was not completed before the investigation was transferred to the IC. Therefore, the IC did not duplicate Fiske's investigation, but rather completed it. The IC further notes that, in any event, the but for requirement is met under this circumstance only when there is duplication by the IC of the DOJ's preliminary investigation, and that that was not the situation here. 18 With respect to Livingstone's argument that, absent the Act, the case could have been disposed of at an earlier stage of the investigation, the IC asserts that although the OIC was conducting various investigations for seven years, Livingstone's attorneys' billing records show that the time period he was billed for totaled only 13 months. Furthermore, concerning Livingstone's claim that he was investigated under circumstances that a private citizen would not have been, the IC argues that this investigation involved the question of whether a White House employee had tried to remove documents that were potentially incriminating to the President, the First Lady, and the Deputy White House Counsel from the office of the latter, and that a rigorous investigation would have resulted regardless of who had conducted it. Finally, the IC argues that Livingstone cannot show that this matter would not have been investigated in the absence of the Act, because special counsel Fiske did exactly that. 19 In its evaluation, the DOJ also argues that Livingstone does not meet the but for requirement concerning the Foster documents matter. First, as did the IC, the DOJ disputes Livingstone's argument that the but for requirement is met because the IC duplicated Fiske's investigation. The DOJ also claims that any such duplication must be of the DOJ's preliminary investigation pursuant to the Act, and that here Mr. Fiske's investigation was not a preliminary investigation under the Act. The DOJ further contends that Livingstone invokes an incorrect legal standard when he argues that he fulfils the but for test because he would not have been investigated had he been a private citizen. For its part, the DOJ states that the correct legal standard is whether someone similarly situated would have been investigated in the absence of the Act. Here, according to the DOJ, the preceding investigation of the matter conducted by special counsel Fiske proves Livingstone fails to satisfy the correct standard. 20 We agree with the IC and the DOJ that in this instance Livingstone has not passed the but for test. As noted above, Livingstone argues that he passes the test because duplicate investigations were conducted; because in the absence of the Act the case could have been disposed of sooner; and because he would not have been investigated if he had been a private citizen. The duplicate investigations argument is without merit, as we have consistently stated that for the but for test to be met the IC's investigation must be a duplication of the Attorney General's preliminary investigation. See, e.g., In re Babbitt (Babbitt Fee Application), 290 F.3d 386, 393 (D.C.Cir., Spec. Div., 1999) (per curiam). Livingstone puts forth no argument that such duplication occurred. 21 His argument that in the absence of the Act the case could have been disposed of sooner is also without merit. The circumstances surrounding this matter, i.e., the suspicious death of the deputy White House counsel and the alleged immediate removal from his office of documents potentially incriminating to the President and First Lady, would in all likelihood have been vigorously investigated by any ordinary prosecutor. In In re Pierce (Kisner Fee Application), 178 F.3d 1356, 1360-61 (D.C.Cir., Spec. Div., 1999) (per curiam), the fee petitioner made the similar claim that the IC's investigation far exceeded anything that would have been undertaken by the DOJ. In rejecting this argument, we noted that the nature of the allegations and the prominence of those involved would no doubt have resulted in a complex and lengthy investigation with or without the appointment of an independent counsel. Id. at 1361. Here, Livingstone is in the same situation. 22 As for Livingstone's private citizen argument, the fee applicants in In re Madison Guaranty Savings & Loan (Clinton Fee Application) also made this claim. In rejecting the claim, we noted that the test is not what would have happened if the fee applicant had been a private citizen, but rather what would have happened if there had been no independent counsel statute. In re Madison Guaranty Savings & Loan (Clinton Fee Application), 334 F.3d at 1126. Here, when indeed there was no independent counsel statute, the matter was nevertheless investigated by regulatory counsel Fiske, who at the end of his investigation transferred the matter to the OIC. As such, in the absence of the Act, a similar investigation of the matter would likely have been conducted. 23 As the but for requirement has not been met, no reimbursement for fees incurred in the Foster documents matter will be awarded.

The Foster Documents Matter