text:
ii. “We”, “Us”, “Our” provide a number of related services through this website www.GayGirlNet.com including a dating and friendship online social network service, forums, groups, private messaging service, photo and video-sharing services. (collectively the “Services”).
iii. This document sets out the terms under which GayGirlNet.com Limited provide these Services and constitutes the “Agreement” between You and GayGirlNet.com Limited. By registering on this website you become a user “You” of these Services and agree to be bound by all the terms and conditions of this Agreement. For the purposes of this Agreement if you register your details on the Website You become a “User” and a “Member”. If you do not accept all these conditions, do not use, or continue to use, the Services.
i. To use the Services You must be over 18 years of age. If You are under 18 You must not use the Website or register your details. By using the Services You agree to provide current and accurate information about yourself at registration and to make reasonable endeavours to update such registration information (your “Profile”) so that such information remains current and accurate. This site is for gay females. Heterosexual couples, women in a relationship with a man and looking for a third party to engage in sexual activities and men are prohibited and will have their accounts terminated without notice.
ii. GayGirlNet.com Limited will notify You if You have been accepted and registered as a User. If any Registration Data that You provide is untrue, inaccurate or not current GayGirlNet.com Limited retains the right to terminate your use of the Services immediately.
iii. Access to and use of the Services is through the use of a username and password (the “Login Details”). You must ensure the confidentiality of your password and must not permit any third party to use the Services on your behalf. You agree to immediately notify GayGirlNet.com Limited of any unauthorised use of the Services through your account or any other breach of security known to You.
iv. You may not in any way transfer or allow any other person to use the Services using your Login Details and if you do you are solely responsible for the actions of the person using your Login Details and the content of data provided while signed in with those Login Details.
v. To use the Services and allow other users to locate them the User must complete an online form giving details of the User. This must be filled in openly and honestly and must not be misleading. Until all the compulsory fields in the Profile are completed the User account will be disabled and the User will be unable to search or contact other users of these Services. Once a Profile has been completed the User will be able to search and view the profiles of other users.
vi. GayGirlNet.com Limited reserve the right to modify your profile by removing email addresses, phone numbers or other contact details if they are found in the Profile or anywhere on the Site. Other inappropriate material as defined in “Membership Rules” may also be removed.
vii. Periodically GayGirlNet.com Limited will email the User with newsletters, updates and important announcements about the Services. This includes carefully selected marketing material. Should the User not wish to receive these emails then they should terminate this Agreement (see Termination for details).
ix. The User may at any time change the privacy settings of their profile by selecting [Profile] “Privacy” from the Website. If the User requests to terminate their use of the Services all the information held on them in the profile (apart from the username) will be removed.
GayGirlNet.com Limited reserves the right to retain any Messages that the User may have posted or received unless the other party in the message also requests that the message is removed.
i. As a Member, You can take advantage of many services on the Site for free. However other areas of the Site require payment of a Member subscription.
For a full description of the services offered on this Site and the subscription options for Members, please follow and consult the Premium Membership Page page. (http://gaygirlnet.com/pages/vipcard).
Member subscription payments can be made in UK Sterling.
ii. Please note that any Member subscription paid by You is subject to a minimum contractual period of either one year or month depending on the subscription chosen.
Your subscription purchase includes enrollment into an annual or monthly subscription allowing you to conveniently maintain your Premium Membership.
iv. By subscribing, you authorise GayGirlNet.com Ltd to automatically charge a renewal subscription fee to your credit or debit card or Paypal account; without any additional action by you or any reminder from GayGirlNet.com Ltd; prior to the expiration of the subscription.
v. You may cancel the Premium Membership Subscription at any time for any reason, including if You decide to no longer use the service, by cancelling the subscription through Your Paypal account. To do so log into your Paypal account and go to Account Overview > History > Locate the subscription > Details > Cancel.
If you upgraded using 2CheckOut please follow the instructions found on the email receipt sent at time of upgrade.
vi. GayGirlNet.com Ltd is not responsible for cancelling Your Premium Membership Subscription in the case of either party terminating Your membership of the Site.
vii. No refunds will be paid by Us where You have failed to cancel Your Subscription for Premium Membership as outlined in paragraph iv.
viii. No refunds will be paid by Us if You cancel your subscription at ANY TIME. By subscribing you are agreeing to pay the amount of money with no exceptions whatsoever. You agree that it is Your responsibility to cancel Your subscription and understand that You will not be refunded if You later change Your mind.
i. You warrant and represent to that the information posted in Your Profile, in your Messages, in the forums and in the Groups are posted by You and that You are the sole author of the information.
ii. The design and construction of the website, its content, and the logo used are the intellectual property of GayGirlNet.com Ltd and You cannot copy, reproduce, distribute or create derivative works without the express permission of GayGirlNet.com Ltd.
iii. Except for purposes contemplated by this agreement, you agree that You will keep confidential and not use, any and/or all information relating to the Service which may be disclosed to You or which You may learn, except where such disclosure is required by law.
7. Rules of the Website.
i. Users of the site must follow certain rules when using all areas of the website including but not limited to the members' profiles area, forums, discussion groups, polls, and chat.
a. You agree not to post chain letters and/or junk email to other Members or post messages or other material that promotes another site, service or business.
b. You agree not to publish, post or promote any telephone number, email address or website address in your profile on the site belonging to you or any third party.
c. You agree not to use the Service for illegal or immoral purposes. You will not publish or post any unlawful, homophobic, harassing, defamatory, racist, abusive, threatening, harmful, sexually suggestive, vulgar, obscene, libellous, pornographic or other objectionable material of any kind or nature.
d. You agree not to transmit or post any material that is defamatory, libellous or slanderous or that encourages conduct that could constitute a criminal offence, give rise to civil liability or otherwise violate any applicable laws or regulations.
e. You agree not to post information, pictures and/or any other material which breaches, infringes, violates and/or is contrary to any law, by-law, statute and/or regulation or any other parties' rights in (including but not limited to copyright and other Intellectual Property Rights and/or privacy rights).
f. You agree not to transmit and/or post and/or email to another User any information, pictures and/or any other material, which in the opinion of the website Administrator is sexually explicit, homophobic, harassing, defamatory, racist, abusive, threatening, harmful, sexually suggestive, vulgar, obscene, libellous, pornographic or capable of offending the other Users' sexual orientation, age, political and/or religious beliefs.
g. You agree not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer.
h. You agree not to interfere or disrupt the smooth operation of GayGirlNet.com Ltd Service including using any device, software or routine to attempt to interfere with the proper functioning of this Website or to take any action that imposes an unreasonable or disproportionately large load on GayGirlNet.com Ltd's website infrastructure.
a. Suspend the account until the User or Member agrees to modify the information.b. Modify the User or Member profile.c. Remove any messages posted by the Member without warning.d. Immediately terminate the delivery of the Services to the User or Member.
iv. GayGirlNet.com Ltd reserves the right, without liability, to modify or discontinue any part of the Services, temporarily or permanently. GayGirlNet.com Ltd will give you the maximum amount of notice of such modification or discontinuance as is practicable in the circumstances. Notice of any changes to the service will be made by GayGirlNet.com posting the changes on this website.
i. Either party may terminate this Agreement at any time, for any reason.
a. By sending an email to info@gaygirlnet.com.
iv. Upon termination your right to use the Services immediately ceases and GayGirlNet.com Ltd may immediately delete your profile, messages and images from your account and bar any further access to such data and files or the Services.
v. We are not under any obligation to delete your Profile or other information that we hold about you promptly.
vi. If You terminate the agreement or there is a breach of these terms and conditions then You are not entitled to a refund or any fees paid to You by Us.
vii. Should you object to any provision of the terms and conditions or any subsequent modifications, your only recourse is to immediately Terminate this Agreement.
viii. GayGirlNet.com Ltd shall not be liable to you or any third party for termination of this Agreement in accordance with these terms and conditions.
Viiii. You understand and agree that the Company may, but is not obligated to, review the Site and may delete or remove (without notice) any Site Content or User Content in its sole discretion, for any reason or no reason, including User Content that in the sole judgment of the Company violates this Agreement or the GayGirlNet.com Code of Conduct, or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others.
You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store on the Site or provide to the Company. When you post User Content to the Site, you authorize and direct us to make such copies thereof as we deem necessary in order to facilitate the posting and storage of the User Content on the Site. By posting User Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing. You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.
GayGirlNet.com does not assert any ownership over your User Content; rather, as between us and you, subject to the rights granted to us in these Terms, you retain full ownership of all of your User Content and any intellectual property rights or other proprietary rights associated with your User Content.
GayGirlNet Pages are special profiles used solely for commercial, political, or charitable purposes. You may not set up a GayGirlNet Page on behalf of another individual or entity unless you are authorized to do so.
x. Subject to paragraph ii. above, You can terminate Your Membership at any time by notifying Us at Info@GayGirlNet.com. Please note that any Member subscription paid by You is subject to the minimum contractual period of one Year or one month depending on the Subscription You chose. This means that, where You choose to terminate Your Member subscription before the expiry of this period, You will not receive any refund in respect of this minimum contractual period. No refunds will be paid by Us where Your Membership is terminated by Us as a consequence of Your breach of these Membership Terms and Conditions.
i. Whilst GayGirlNet.com Ltd uses reasonable care in compiling and presenting the information found on this Website, it is provided purely for information and the User should exercise caution before relying upon the information.
ii. GayGirlNet.com Ltd are unable to check the accuracy of the Profiles of any members or guarantee the accuracy of any information posted in a Group and Messages and this information should not be relied upon as accurate. By using this Website You assume the risk that the information on this Website may be incomplete, inaccurate or out of date. GayGirlNet.com Ltd assumes no liability for the content of a Profile, a Group, a Forum or any Messages between Users. Forum posts, messages and content written by all Users express the views and opinions of the author and not of the GayGirlNet.com Ltd and hence the GayGirlNet.com Ltd will not be held liable.
iii. The information included in this website has been compiled from a variety of sources and is subject to change without notice.
iv. GayGirlNet.com Ltd makes no representation or warranty whatsoever regarding the completeness, accuracy, currency, adequacy, suitability or operation of this website, or of the information it contains nor makes any such warranty in respect of any information carried out on any website operated by a third party which may be accessed from this website.
v. GayGirlNet.com Ltd does not endorse the content posted by Users or Members on the website and does not assume any responsibility for any threatening, libellous, obscene, harassing or offensive material contained in such materials.
i. The User/Member assumes complete liability for the content of their Profile and for any Messages that they post to other Members using this Website and for any claims made against GayGirlNet.com Ltd as a result thereof and indemnifies and holds GayGirlNet.com Ltd harmless from all costs, expenses (including solicitor's fees), liabilities and damages resulting from or caused by the publication of the User's Profile or Messages posted by the User. You agree to indemnify, defend and hold GayGirlNet.com Ltd , its parents, subsidiaries, affiliates, officers and employees harmless against any and all losses, proceedings, lost profits, damages, awards, expenses, costs (including increased administration costs and legal costs on a full indemnity basis), claims, actions and any other losses and/or liabilities suffered by GayGirlNet.com Ltd and arising from and/or relating to Your use of the Service, information and/or other material posted on the Service by You and/or arising from or due to any breach of contract, and/or omission and/or any breach of statutory duty by You. This indemnity shall be applicable without any regard to the negligence of any party.
ii. GayGirlNet.com Ltd has no Liability to You arising out of Your use of the Service and/or Your reliance on any information posted by other Members.
iii. GayGirlNet.com Ltd does not accept liability for any damages for loss of profits, use, data or other intangible property or any indirect, incidental or consequential damages, resulting from the use or the inability to use the Services.
iv. We do not guarantee that the Services will meet Your requirements, purpose and/or expectations and GayGirlNet.com Ltd makes no warranty regarding the results of searches that are obtained from the use of the Services or the accuracy or reliability of any content or information obtained through use of the Services. GayGirlNet.com Ltd does not accept liability for any damages or loss of profits resulting from unauthorised access to, deletion or alteration of transmissions or data or failure of the Services to store transmissions or data.
v. GayGirlNet.com Ltd shall have no Liability to You for any delay in performance of this Service and/or any other matters to the extent that such events and/or matters are due to any events outside Our reasonable control.
vi. GayGirlNet.com Ltd 's liability to you in any circumstances is limited to the amount of fees or commissions collected by GayGirlNet.com Ltd from You.
vii. Nothing in this Contract shall exclude or limit any of your statutory rights which may not be excluded or limited due to You acting as a consumer and nothing in this Agreement shall exclude or limit Our Liability for death or personal injury due to Our negligence or any Liability which is due to Our fraud or any other Liability which We are not permitted to exclude or limit as a matter of law.
Viii. j. The Company is not responsible for the conduct, whether online or offline, of any user of the Site or Service. Fraudsters / scammers target social networking sites. We take our member's safety and security very seriously and follow up all reports straight away.
We urge our members NOT to ever send any money if asked to by another member. Please contact us and also if you have any concerns about the genuineness of another user please send a Help Request so we can take a look into the account.
If you are in a country outside of the UK, you are advised to contact the police of your country.
The Site and the Service may be temporarily unavailable from time to time for maintenance or other reasons. Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, User communications. The Company is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer or mobile phone equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Site or combination thereof, including injury or damage to User's or to any other person's computer, mobile phone, or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Service, including any Mobile Client software. Under no circumstances will the Company be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death, resulting from anyone's use of the Site or the Service, any User Content or Third Party Applications, Software or Content posted on or through the Site or the Service or transmitted to Users, or any interactions between users of the Site, whether online or offline. The used or contained in the Site and any Services and Platform Applications offered through the Site at any time without notice. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by Company.
Limitation on Liability IN NO EVENT WILL COMPANY OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SITE OR THE SERVICE, ANY PLATFORM APPLICATIONS OR ANY OF THE SITE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SITE, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE SERVICE DURING THE TERM OF MEMBERSHIP, BUT IN NO CASE WILL THE COMPANY'S LIABILITY TO YOU EXCEED £500. YOU ACKNOWLEDGE THAT IF NO FEES ARE PAID TO COMPANY FOR THE SERVICE, YOU SHALL BE LIMITED TO INJUNCTIVE RELIEF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM COMPANY, REGARDLESS OF THE CAUSE OF ACTION.
i. You agree that GayGirlNet.com Ltd has the right to assign or sub-contract any or all of its obligations under these terms and conditions.
ii. These terms and conditions and any modifications constitute the entire agreement between GayGirlNet.com Ltd and You and is a legally binding Agreement for the provision of the Services.
iii. These terms and conditions shall be governed by and construed in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the English Courts whatever their nature and limited to contractual issues.
iv. If any provision of this Agreement is judged by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement (and the remainder of the affected provision) shall remain in full force and effect. Furthermore, no waiver by GayGirlNet.com Ltd of any breach of this Agreement shall be considered as a waiver of any subsequent breach of the same provision of any other provision.
v. GayGirlNet.com Ltd may change the terms and conditions from time to time. GayGirlNet.com Ltd will post the amended Terms and Conditions on GayGirlNet.com Ltd 's website and will inform you of the change via email. The amendments automatically become effective immediately after they are initially posted on this website and any use of the Services occurring after such a date is subject to the amendments. Your continued use of the Services after the posting of the amended Terms and Conditions on the website constitutes your acknowledgement of the Terms and Conditions and its modifications and agreement to abide by and be bound by the agreement, as amended. These Terms and Conditions may not otherwise be amended, except in writing signed by both parties.
i. When contacting GayGirlNet.com Ltd please include the username used on this website in your message. We reserve the right not to respond to any membership queries that do not include your username.
ii. You can contact GayGirlNet.com Ltd to complain about another Member, or about technical problems or questions with this Website or the Services that it provides by emailing to info@GayGirlNet.com.
ii. Modern information and communication technologies play a fundamental role in the activities of an organisation like GayGirlNet.com Limited. We are based in the United Kingdom and our principal activity is an online social network for dating and friendship.
a. Processed fairly and lawfully. b. Processed only for one or more specified and lawful purposes. c. Adequate, relevant and not excessive for those purposes.d. Accurate and kept up to date - You have the right to have inaccurate personal data corrected or destroyed if the personal information is inaccurate to any matter of fact. Inaccurate information held in your profile can be corrected by You at any time by logging into the Website and visiting the “Edit Profile” page. Other information about you will be corrected upon your request. e. Not kept for longer than is necessary for the purposes it is being processed.f. Processed in line with the rights of individuals - this includes the right to be informed of all the information held about them, and to compensate if they can prove that they have been damaged by a data controller's non-compliance with the Act. If you wish to view the personal data currently held about You by GayGirlNet.com Limited please contact GayGirlNet.com Limited and we will be happy to provide You with the information (we have to charge a £10 fee for this service to cover our costs). g. Secured against accidental loss, destruction or damage and against unauthorised or unlawful processing. All the personal data that we obtain from you is held on a secure database behind a firewall.h. Not transferred to countries outside the European Economic Area (the EU plus Norway, Iceland and Liechtenstein) that do not have adequate protection for individual's personal information, unless a condition from Schedule Four of the Act can be met.iv. Please note that clicking on to links and banner advertisements may result in your transferral to another website, where data privacy practices may be different to that of GayGirlNet.com Limited. Visitors should consult the other websites' privacy policies as we are not responsible for, and have no control over, information that is submitted to or collected by these third parties.
a. Your name. b. Your email address.
ii. Use of the Services requires you to provide us with a valid email address. This information is used for the purpose of keeping you informed by email of news updates, updates of the website, to suggest ways to improve your use of the website, for marketing emails for both GayGirlNet.com Ltd and carefully selected third party businesses and changes in the operation of the website.
iii. If you reveal your email address or any other personal details to another member of The GayGirlNet.com Ltd's website through a message on our Website, GayGirlNet.com Ltd cannot guarantee that this user will keep this information confidential.
a. The purpose of GayGirlNet.com Limited Website is to allow You and other users to share enough personal information about each other to allow potential friendships and romance to occur. The information that you enter in your public Profile (including sensitive information like photographs, sexual orientation, age) will be shared with other users should you wish to put them on our Website. You acknowledge and accept that any details posted by you on this Website and shown in “My Profile” will be accessible by other users of the site.
a. We will keep all communications via our website and to other users secured on a protected server behind a firewall. The messages will only be accessible by You, the person receiving or sending the message and GayGirlNet.com Limited.
a. We gather information and statistics collectively about all visitors to our Website, for example which area users access most frequently and which services users access the most. We only use such data in the aggregate form. This information helps us to determine what is most beneficial for our users and how we can continually improve our online services to create a better overall experience for our users.b. We do not automatically log personal data nor do we link information automatically logged by other means with personal data about specific individuals.
a. We do not collect information about our visitors from other sources, such as public records or bodies, or private organisations.
a. It is possible that GayGirlNet.com Limited or just the website www.GayGirlNet.com and its related domains, could merge with or be acquired by in part or full, another business. If this happens, we may share the information that relates to you including but not limited to, your name and email address, with the new owners of the business and their advisors. You will be sent notice of such an event by email. b. We may also release information relating to you to regulatory or law enforcement authorities, if required to do so. c. We reserve the right to disclose the information we have collected about you to our professional advisors and to other persons to the extent that GayGirlNet.com Limited contracts out any aspect of the operation of its services. These third parties will be acting under similar undertakings of confidentiality as GayGirlNet.com Limited.
5. Children's Privacy i. This website should not be used by people under the age of 18. By using the Services you agree that your are over 18 years of age and GayGirlNet.com Limited will terminate the Services for any user that it finds is under the age of 18 years. ii. We do not knowingly collect personal information from children.
a. Unauthorised access b. Improper use or disclosure c. Unauthorised modification d. Unlawful destruction or accidental loss ii. All our employees and data processors, who have access to, and are associated with the processing of personal data, are obliged to respect the confidentiality of our user's personal data.
i. If you wish to see how the data we hold about you will be displayed to other Users of the Website you can do so instantly and without charge by visiting the “My Profile” page of the Website.
ii. You can ask us for a complete list of information that we hold on you including your name, email address, your profile information, your login information and any messages that you have sent and received (provided you have not deleted them from your in or out message box) by contacting Us. Upon request we will provide you with a readable copy of all this personal data which we keep about you. We will make a £10 charge for this service. iii. IF YOU OR GAYGIRLNET.COM LTD DELETE YOUR ACCOUNT NONE OF YOUR PERSONAL DATA WILL BE AVAILABLE TO EITHER PARTY AS IT WILL BE PERMANENTLY DELETED.
a. Erased. b. Rectified or amended. c. Completed.
ii. To protect the other User/Member GayGirlNet.com Limited reserves the right to keep messages between two Members/Users unless both parties request that the message is removed.

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Rehearing Denied July 16, 1987.
Priscilla F. Gunn, St. Louis, Mo., for appellant.
Stephen D. Hawke, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
Before HEANEY and FAGG, Circuit Judges, and WOODS,* District Judge.
Jose Erasmo Crespo, a Missouri state prisoner serving a life sentence for capital murder, appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. Crespo contends that the district court erred in denying his petition because: (1) the admission of incriminating statements at trial violated his rights under the Constitution and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and (2) the prosecutor deprived him of a fair trial by asking him an improper and prejudicial question during cross-examination. We affirm.
I. ADMISSION OF CRESPO'S INCRIMINATING STATEMENTS.
On March 8, 1981, Crespo surrendered himself to the St. Louis City Police for the shooting of Jose Rodriguez. Detectives James Scego and Daniel Nichols interrogated him for twenty to thirty minutes, and Crespo gave two oral statements. After the first statement in which Crespo admitted shooting Rodriguez in self-defense, the detectives gave Crespo a waiver-of-rights form which contained a statement of his Miranda rights. Crespo signed the form but wrote on it that he did not wish to make a statement. Nevertheless, he continued to talk with Nichols and Scego, revealing the location of the gun with which he shot Rodriguez and signing a consent form enabling them to seize the gun from his home.
At the pretrial motion hearing and at trial, Nichols testified that Scego read Crespo his rights under Miranda before the interrogation began. According to Nichols, Crespo acknowledged that he understood his rights and then explained how he had shot Rodriguez in self-defense. Nichols also testified that Crespo orally qualified his written assertion of rights on the waiver form by telling the detectives he meant to exclude only taped or written statements. Scego did not testify at either the suppression hearing or at trial.
Crespo testified that Nichols and Scego did not read him his Miranda rights, but merely asked whether he understood them. Further, he testified that he told the detectives that he wanted to "hold" his fifth amendment rights until he had seen an attorney. Finally, he testified that he did not orally limit his written statement on the waiver form to refer only to written or taped statements.
Without making factual findings concerning credibility, the state trial court simply denied Crespo's motion to suppress the statements he made during the interrogation. It also admitted Nichols's testimony at trial concerning the statements Crespo made both before and after he signed the waiver form.
After carefully reviewing the record, we agree with the district court's conclusion that the factual findings the Missouri Court of Appeals made in affirming Crespo's conviction are dispositive of the ultimate constitutional questions concerning the admissibility of Crespo's statements.
As to his first oral statement, Crespo claims (1) that the detectives did not inform him of his Miranda rights and (2) that he invoked his right to counsel. The Missouri Court of Appeals explicitly found that Crespo gave the first oral statement "after he had been informed of his rights." State v. Crespo, 664 S.W.2d 548, 551 (Mo.App.1983). Under section 2254(d), we must presume a state appellate court's findings of fact to be correct. Sumner v. Mata, 449 U.S. 539, 545-46, 101 S.Ct. 764, 768, 66 L.Ed.2d 722 (1981). Thus, we defer to the finding that Crespo received his rights at the outset of the interrogation, a finding which is supported in the record by Nichols's testimony at both the suppression hearing and trial.
The trial court was entitled to disbelieve appellant and believe Detective Nichols. * * * Thus, the trial court could have found that appellant never asserted his right to counsel before signing the waiver form. There was no plain error in admitting the first statement.
State v. Crespo, 664 S.W.2d at 551.
This holding leaves no doubt that the court rejected Crespo's factual contention that he asserted his right to counsel. We defer to this implicit finding of fact. See LaVallee v. Delle Rose, 410 U.S. at 692, 93 S.Ct. at 1204.
As to Crespo's second oral statement, the Missouri Court of Appeals found that Nichols and Scego ceased questioning Crespo when they saw what he had written on the waiver form. They told Crespo they could no longer talk with him about the case. Crespo "then said that he meant only taped or written statements" and "proceeded to relate orally more details of the shooting and reveal the location of the rifle." State v. Crespo, 664 S.W.2d at 551.
Barrett desired the presence of counsel before making a written statement. * * * Barrett's limited requests for counsel, however, were accompanied by affirmative announcements of his willingness to speak with the authorities. The fact that officials took the opportunity provided by Barrett to obtain an oral confession is quite consistent with the Fifth Amendment. Miranda gives the defendant a right to choose between speech and silence, and Barrett chose to speak.
Id. 107 S.Ct. at 832.
Thus, Nichols and Scego acted in conformance with the Constitution and Miranda in obtaining Crespo's second oral statement.
Because the Missouri Court of Appeals resolved factual questions concerning the contradictory testimony about the interrogation, the district court correctly rejected Crespo's request for an evidentiary hearing. See Townsend v. Sain, 372 U.S. 293, 312-18, 83 S.Ct. 745, 756-59, 9 L.Ed.2d 770 (1963). As the district court noted, a federal court's obligation to independently review the voluntariness of a confession does not also include holding an evidentiary hearing. Section 2254(d)'s presumption of correctness applies to subsidiary factual findings underlying a state court's resolution of the question of voluntariness. See Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 453, 88 L.Ed.2d 405 (1985).
II. THE PROSECUTOR'S CROSS-EXAMINATION OF CRESPO.
At trial, the prosecutor asked Crespo on cross-examination: "Did you tell * * * [Rodriguez], 'Don't die yet'? Did you tell him that?" State Transcript at 392-93. Crespo contends that this question was so prejudicial that it denied him a fair trial.
We must limit our review of this claim to determining whether the prosecutor's question was so egregious that it fatally infected the entire trial, rendering it fundamentally unfair and denying Crespo due process. Hamilton v. Nix, 809 F.2d 463, 470, 470 n. 4 (8th Cir.1987) (en banc). Crespo can meet this burden only by showing that absent the prosecutor's question there is a reasonable probability that the jury would have returned a different verdict. Id. at 470.
Initially, we note that Crespo's attorney neither objected to this question nor requested an immediate curative instruction. We also note that the trial court's general charge to the jury contained a pattern jury instruction that states in part: "You must not assume as true any fact solely because included in or suggested by a question asked a witness. A question is not evidence, and may be considered only as it supplies meaning to the answer." 1 Mo. Approved Instructions--Criminal 2.02, at 2-5 (2d ed. 1979).
Further, given the admissibility of Crespo's statements to Nichols and Scego, we find that the evidence against him was overwhelming. Although both of Crespo's statements supported his self-defense theory, they gave inconsistent versions of the shooting. Two of Rodriguez's neighbors gave eyewitness testimony that substantially undermined Crespo's self-defense theory. Other testimony rebutted Crespo's claim that he neither armed himself nor went in search of Rodriguez until after Rodriguez came to Crespo's home and made threats against Crespo's life. We thus conclude that there is no reasonable probability that the jury would have returned a different verdict absent the prosecutor's question.
Accordingly, we affirm the district court's denial of Crespo's petition for a writ of habeas corpus.

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TLJ Daily E-Mail Alert No. 1,515, January 8, 2007.
January 8, 2007, Alert No. 1,515.
1/5. The Supreme Court granted certiorari in Tellabs v. Makor. See, Order List [4 pages in PDF] at page 3. The case pertains to the scienter requirements of the Private Securities Litigations Reform Act (PSLRA).
The Congress enacted the PSLRA in 1995 to revise federal securities law to insulate defendants from abusive lawsuits. It was Public Law No. 104-67. It is now codified at 15 U.S.C. § 78u-4 and § 78u-5.
The PSLRA created both a safe harbor for forward looking statements, and a heightened pleading requirement. Plaintiffs must "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind."
This language is vague, and has resulted in conflicting interpretations by the various circuit courts that have interpreted it. It is also important to the technology sector, since it is the target of many actions by law firms that specialize in class action litigation. Many of these suits are meritless.
The Supreme Court also ordered expedited briefing. It wrote that "The petition for a writ of certiorari is granted. The brief of petitioners is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, February 9, 2007. The brief of respondents is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Friday, March 9, 2007. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before 2 p.m., Tuesday, March 20, 2007."
Tellabs makes equipment used in fiber optic cable networks. It is a publicly traded company. The plaintiffs, are nominally Makor Issues & Rights, Ltd. and others. This is a class action lawsuit brought by Milberg Weiss.
The plaintiffs filed a complaint in U.S. District Court (NDIll) against Tellabs, Richard Notebaert and others alleging securities fraud in violation of § 10(b) of the Securities Exchange Act of 1934 (which is codified in 15 U.S.C. § 78j) and Rule 10(b)(5) thereunder, and control person liability by Tellabs executives.
The District Court dismissed the complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. It held that the complaint failed to satisfy the scienter requirements established by the PSLRA. The Court of Appeals reversed in part.
A three judge panel of the U.S. Court of Appeals (7thCir) issued its initial opinion [28 pages in PDF] on January 25, 2006.
The Securities Industry and Financial Markets Association (SIFMA) and the U.S. Chamber of Commerce argued in their joint amicus brief [25 pages in PDF] that the SCUS should grant certiorari.
They wrote that "To avoid dismissal, the PSLRA requires that securities fraud plaintiffs plead ``with particularity´´ facts giving rise to a ``strong inference´´ of scienter. ... Because the courts of appeals are hopelessly divided over the meaning of this frequently litigated standard, ... deficient complaints like the one in this case often escape dismissal. That result frustrates the PSLRA’s goal of curbing abusive securities litigation, which has harmful consequences for the national economy. ... This Court’s review is needed now."
The petitioners are represented by Carter Phillips of the Washington DC office of the law firm of Sidley Austin. The respondents are represented by Richard Weiss of the law firm of Milberg Weiss Bershad & Schulman.
This case is Tellabs, Inc. and Richard Notebaert v. Makor Issues & Rights, Ltd., et al., Sup. Ct. No. 06-484, a petition for writ of certiorari to the U.S. Court of Appeals for the 7th Circuit, App. Ct. No. 04-1687. Judge Wood wrote the opinion of the Court of Appeals, in which Judges Ripple and Sykes joined. The Court of Appeals heard an appeal from the U.S. District Court of the Northern District of Illinois, Eastern Division, D.C. No. 02 C 04356, Judge Amy St. Eve presiding.
1/5. Rep. Bennie Thompson (D-MS) and others introduced HR 1, which states that it is "A bill to provide for the implementation of the recommendations of the National Commission on Terrorist Attacks Upon the United States". This is a huge bill with many different provisions. One title relates to the protection of privacy and civil liberties. The House is scheduled to debate and approve this bill on Tuesday, January 9, 2007.
Privacy and Civil Liberties. Title XIII of the bill addresses the protection of privacy and civil liberties by federal agencies. It includes the "Protection of Civil Liberties Act", which revises the structure of the Privacy and Civil Liberties Oversight Board (PCLOB), and the "Privacy Officer With Enhanced Rights Act of 2007" or "POWER Act", which increases the power and effectiveness of the privacy officer at the Department of Homeland Security (DHS).
This title creates no new substantive rights or law. Nor does it delegate rule making authority to any agency. It pertains solely to the structure of executive departments and agencies, and administrative process.
The PCLOB, which was created by Section 1061(b) of the Intelligence Reform and Terrorism Prevention Act of 2004, which is codified at 5 U.S.C. § 601 note, is part of the Executive Office of the President (EOP). HR 1 would make it "an independent agency within the Executive branch".
The PCLOB is currently chaired by Carol Dinkins. Alan Charles Raul is the Vice Chairman. Both positions require Senate confirmation. The other members, who are not confirmed by the Senate, are Lanny Davis, Ted Olson, and Francis Taylor.
HR 1 would make all positions of a five member board subject to Senate confirmation. All would be for six year terms. However, for the first six years the appointments would be for two, three, four, five, and six years, so that thereafter, one position would open each year.
HR 1 also provides that "in no event shall more than 3 members of the Board be members of the same political party. The President shall, before appointing an individual who is not a member of the same political party as the President consult with the leadership of that party, if any, in the Senate and House of Representatives." That is, HR 1 would structure the PCLOB in a manner similar to the Federal Communications Commission (FCC).
HR 1 also gives the PCLOB, with the support of at least three members, the power to issue subpoenas, and to obtain orders enforcing these subpoenas from "the United States district court for the judicial district in which the subpoenaed person resides".
The PCLOB would also have the power to to hold hearings, and issue reports. It would not have any rulemaking or adjudicatory authority.
The bill requires the Department of Justice (DOJ), Department of Defense, Department of State, Department of the Treasury, Department of Health and Human Services, Department of Homeland Security, and all "intelligence community" agencies to have privacy and civil liberties officers. In addition, the bill provides that the PCLOB may designate any other department, agency, or element of the executive branch to have a privacy and civil liberties officers.
To date, some agencies with privacy officers have not provided those privacy officers with access to the information that they would need to assess the privacy implications of the activities and operations of the agency.
HR 1 addresses this. For example, it provides that "The head of each department, agency, or element shall ensure that each privacy officer and civil liberties officer -- (1) has the information, material, and resources necessary to fulfill the functions of such officer; (2) is advised of proposed policy changes; (3) is consulted by decisionmakers; and (4) is given access to material and personnel the officer determines to be necessary to carry out the functions of such officer."
HR 1 also contains a section that specifically addresses the powers of the privacy officer at the DHS, a agency which has obstructed the work of its privacy officer. The bill provides that this person's powers include subpoenas and taking of oaths.
(E) to take any other action that may be taken by the Inspector General of the Department, as necessary to require employees of the Department to produce documents and answer questions relevant to performance of the functions of the senior official under this section."
Moreover, to protect this person from pressure or retaliation, this section provides job tenure of 5 years.
Other Provisions. Title II of HR 1 amends Title V of the Homeland Security Act of 2002, which is codified at Title 6 of the U.S. Code, by adding a new section that provides for grants to states and regions for interoperable emergency communications.
Title VIII of HR 1 requires the DHS to "establish a comprehensive information technology network architecture for the Office of Intelligence and Analysis.", which "shall, to the extent possible, incorporate the approaches, features, and functions of the network proposed by the Markle Foundation in reports issued in October 2002 and December 2003, known as the System-wide Homeland Security Analysis and Resource Exchange (SHARE) Network."
Title IX of HR 1 requires the DHS to create a "national database of nationwide critical infrastructure assets to identify and prioritize critical infrastructure and key resources and to protect them from terrorist attack". This would be named the "National Asset Database". The bill also requires the DHS to create, as a subset, a "National At-Risk Database".
1/5. House Democrats introduced bills to be approved by the House during the week of January 8, 2007. The bills, and their descriptions contained in the Congressional Record, are as follows.
Rep. George Miller (D-CA) and others introduced HR 2, "A bill to amend the Fair Labor Standards Act of 1938 to provide for an increase in the Federal minimum wage".
Rep. Diana DeGette (D-CO) and others introduced HR 3, "A bill to amend the Public Health Service Act to provide for human embryonic stem cell research".
Rep. John Dingell (D-MI) and others introduced HR 4, "A bill to amend part D of title XVIII of the Social Security Act to require the Secretary of Health and Human Services to negotiate lower covered part D drug prices on behalf of Medicare beneficiaries".
The House will not meet. See, House Majority Leader's weekly calendar [PDF].
Deadline to submit reply comments to the Federal Communications Commission (FCC) regarding competitive bidding procedures for Auction No. 72, the Phase II 220 MHz spectrum licenses auction scheduled to commence on June 20, 2007. See, notice in the Federal Register, December 20, 2006, Vol. 71, No. 244, at Pages 76332-76336.
The House will meet at 10:30 AM for morning hour, and at 12:00 NOON for legislative business. It will consider HR 1, a bill related to recommendations of the 9/11 Commission, and HRes 35, a resolution related to the Select Intelligence Oversight Panel. See, House Majority Leader's weekly calendar [PDF].
9:00 AM. The President's Council of Advisors on Science and Technology (PCAST) will meet. See, notice in the Federal Register, December 22, 2006, Vol. 71, No. 246, at Page 77019-77020. The PCAST web site states that this meeting will take place on January 9-10. Location: Congressional Ballroom, Renaissance Hotel, 999 9th St., NW.
9:30 AM. The Senate Homeland Security and Governmental Affairs Committee will hold a hearing titled "Ensuring Full Implementation of the 9/11 Commission’s Recommendations". See, notice. Location: Room 342, Dirksen Building.
10:00 AM. The Supreme Court will hear oral argument in Sinochem International v. Malaysia International Shipping, a petition for writ of certiorari to the U.S. Court of Appeals (3rdCir) in a case involving personal jurisdiction and the doctrine of forum non conveniens. See, SCUS calendar.
12:15 PM. The Federal Communications Bar Association's (FCBA) Mass Media Practice Committee will host a brown bag lunch titled "New rules for AM and FM allotments and channel assignments". The speakers will include Tom Nessinger and Jim Bradshaw of the FCC's Audio Division. For more information, contact David OConnor at david.oconnor at hklaw dot com or 202-828-1889. Location: Holland & Knight, Lower Level, 2099 Pennsylvania Ave., NW.
12:30 PM. Sen. Ted Kennedy (D-MA) will give a speech. Location: National Press Club, 529 14th St. NW, 13th Floor.
2:00 - 4:00 PM. The American Enterprise Institute (AEI) will host a book forum for John Taylor, author of Global Financial Warriors: The Untold Story of International Finance in the Post 9-11 World [Amazon]. The speakers will be Taylor (former Treasury Under Secretary for International Affairs), John Lipsky (International Monetary Fund), Faryar Shirzad (Goldman Sachs), and Steven Davis (AEI). See, notice. Location: AEI, 12th floor, 1150 17th St., NW.
The House will meet at 10:00 AM for legislative business. It will consider a bill HR 2, related to increase the mandatory minimum hourly wage. See, House Majority Leader's weekly calendar [PDF].
9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Balancing Privacy and Security: The Privacy Implications of Government Data Mining Programs". The witnesses will be former Rep. Robert Barr (R-GA), James Carafano (Heritage Foundation), Jim Harper (Cato Institute, author of Identity Crisis: How Identification Is Overused and Misunderstood, Leslie Harris (Center for Democracy and Technology), and Kim Taipale (Center for Advanced Studies in Science and Technology Policy). See, notice. Location: Room 226, Dirksen Building.
10:00 AM. The Senate Finance Committee will hold a hearing titled "Tax Incentives for Businesses in Response to a Minimum Wage Increase". See, notice. Location: Room 215, Dirksen Building.
11:00 AM - 12:30 PM. The National Science Foundation's (NSF) National Science Board Commission on 21st Century Education in Science, Technology, Engineering, and Mathematics will meet on site and by teleconference. See, notice in the Federal Register, December 29, 2006, Vol. 71, No. 250, at Page 78468. Location: NSF, Room 545, Stafford II Building, 4121 Wilson Blvd., Arlington, VA.
12:00 NOON - 1:00 PM. The Federal Communications Bar Association's (FCBA) Annual Seminar Committee Committee will host a brown bag lunch. For more information, contact Yaron Dori at ydori at hhlaw dot com or 202-637-5458. Location: Harris Wiltshire & Grannis, 1200 18th Street, NW.
2:00 PM. The House Ways and Means Committee (HWMC) will meet to organize for the 110th Congress. See, notice. Location: Room 1100, Longworth Building.
2:00 PM. The House Armed Services Committee (HASC) will meet to organize for the 110th Congress. Location: Room 2118 Rayburn Building.
6:00 - 9:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Patent Law for Non-Patent Lawyers". The speakers will include Anthony Son (Foley & Lardner) and Elizabeth Brenner (Rothwell Figg Ernst & Manbeck). The price to attend ranges from $80 to $135. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.
The Federal Communications Commission (FCC) is scheduled to commence Auction No. 68 (FM broadcast auction). See, October 6, 2006, FCC Public Notice [60 pages in PDF] (DA 06-1949).
The House will meet at 10:00 AM for legislative business. It will consider HR 3, a bill related to stem cell research. See, House Majority Leader's weekly calendar [PDF].
TIME? The Department of Homeland Security's (DHS) Homeland Security Advisory Council will hold a partially closed meeting. See, notice in the Federal Register, December 22, 2006, Vol. 71, No. 246, at Page 77039. Locations: the open portions of the meeting will be held in the Congressional Room, Lobby Floor, Hyatt Regency Washington, 400 New Jersey Ave., NW. The closed portions will be held in the Thornton Room of the Hyatt Regency Washington, and at an undisclosed location.
? 9:30 AM - 5:00 PM. The Antitrust Modernization Commission (AMC) will meet to "deliberate on its report and/or recommendations to Congress and the President regarding the antitrust laws." See, notice in the Federal Register, December 15, 2006, Vol. 71, No. 241, at Pages 75495-75496. Location: Morgan Lewis, Main Conference Room, 1111 Pennsylvania Ave., NW.
10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "Prescription Drug Pricing and Negotiation: An Overview and Economic Perspectives for the Medicare Prescription Drug Benefit". See, notice. Location: Room 215, Dirksen Building.
12:00 NOON - 1:30 PM. The DC Bar Association will host a program titled "Current Topics in Patent Law: Vanquishing the Patent Troll". The speakers will include Robert Resis (Banner & Witcoff). The price to attend ranges from $20 to $30. For more information, call 202-626-3463. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.
12:15 - 1:40 PM. The Federal Communications Bar Association's (FCBA) Transactional Practice Committee will host a brown bag lunch and fee based continuing legal education (CLE) seminar titled "Outsourcing Transactions". The FCBA stated that this lunch will address "Why do telecom companies do outsourcing transactions, what are they trying to accomplish, what issues arise in negotiating and drafting the agreements, and what are the best practices for addressing those issues?" The speakers will be Jonathan Spencer (VP and General Counsel of Shenandoah Telecommunications) and Glynna Christian (LeBoeuf Lamb). The price to attend ranges from $25 to $60. See, registration form [PDF]. Registrations and cancellations are due by 5:00 PM on January 9. For more information, contact Teresa Lloyd at tlloyd at llgm dot com or 202-986-8184 Location: Paul Hastings, 875 15th Street, NW.
6:00 - 8:15 PM. The DC Bar Association will host a continuing legal education (CLE) seminar titled "Trade Secrets in the District of Columbia, Maryland and Virginia". The speakers will include Milton Babirak (Babirak Vangellow & Carr). The price to attend ranges from $80 to $135. For more information, call 202-626-3488. See, notice. Location: DC Bar Conference Center, 1250 H St NW B-1 Level.
Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its 7th Further Notice of Proposed Rulemaking in its proceeding titled "Advanced Television Systems and Their Impact Upon the Existing Television Broadcast Service". This item proposes a new DTV Table of Allotments providing all eligible stations with channels for DTV operations after the DTV transition. The FCC adopted this item on October 10, 2006, and released it on October 20, 2006. See, story titled "FCC Adopts NPRM Proposing New DTV Table of Allotments" in TLJ Daily E-Mail Alert No. 1,473, October 23, 2006. This item is FCC 06-150 in MB Docket No. 87-268. See, notice in the Federal Register, November 15, 2006, Vol. 71, No. 220, at Pages 66591-66631.
Extended deadline to submit reply comments to the Federal Communications Commission (FCC) regarding the intercarrier compensation reform plan known at the Missoula Plan. This proceeding is titled "Developing a Unified Intercarrier Compensation Regime" and numbered CC Docket No. 01-92. See, notice in the Federal Register: September 13, 2006, Vol. 71, No. 177, at Pages 54008-54009, and extension notice in the Federal Register, December 6, 2006, Vol. 71, No. 234, at Pages 70709-70710.
The House will meet at 10:00 AM for legislative business. It will consider HR 4, a bill related to prescription drugs. See, House Majority Leader's weekly calendar [PDF].
12:15 - 1:45 PM. The Federal Communications Bar Association's (FCBA) Legislative and Mass Media Practice Committees will host a brown bag titled "Media Ownership Issues in the 110th Congress". For more information, contact Amy Levine at amy dot levine at mail dot house dot gov or 225-3861. Location: undisclosed.
2:30 PM. The National Science Foundation's (NSF) National Science Board's (NSB) Vannevar Bush Award Committee will hold a closed meeting. The NSB's web site states that this is awarded for "public service activities in science and technology". See, notice in the Federal Register, December 22, 2006, Vol. 71, No. 246, at Page 77071. Location: teleconference and NSF, 4201 Wilson Blvd., Arlington, VA.
5:00 PM. Deadline to submit requests to the Copyright Office (CO) to participate in the January 31, 2007, meeting of the Section 108 Study Group in Chicago, Illinois. See, 17 U.S.C. § 108 and notice in the Federal Register, December 4, 2006, Vol. 71, No. 232, at Pages 70434-70440.
EXTENDED FROM DECEMBER 15. Extended deadline to submit initial comments to the Federal Communications Commission (FCC) to assist the Wireless Telecommunications Bureau (WTB) in drafting a report on the ability of persons with hearing disabilities to access digital wireless telecommunications. This proceeding is WT Docket No. 06-203. See, original FCC Public Notice [4 pages in PDF] (DA 06-2285) and Public Notice (DA 06-2498) extending deadlines.
Martin Luther King's Birthday. The Federal Communications Commission (FCC) and other federal offices will be closed. See, Office of Personnel Management's (OPM) list of federal holidays and 5 U.S.C. § 6103. The National Press Club will be closed.


text:
Garland, Circuit Judge: The defendant in this case, Cor- nell Evans, was convicted of multiple felonies relating to the possession and distribution of illegal narcotics. The principal issue on appeal concerns the testimony of an FBI agent who stated at trial that the government "had received informa- tion" that defendant was involved in drug trafficking. Defen- dant contends that this testimony was hearsay and that its admission was erroneous. Defendant is correct. We con- clude, however, that the error was harmless, and therefore affirm his convictions.
This case arose out of an undercover narcotics operation conducted by the Federal Bureau of Investigation. In the fall of 1996, special agents of the FBI met with Thomas "Tee" Rose, a former District of Columbia resident who was serving a federal prison sentence at the Fairton Correctional Institu- tion and who had two additional state cases pending against him. The agents agreed to help Rose with his sentence and pending charges in return for his assistance in the investiga- tion of other crimes. Thomas Rose told the agents that defendant Evans was involved in drug trafficking, and he referred them to his uncle, George Rose of Pennsylvania, who agreed to assist the FBI provided that his incarcerated nephew would receive the benefit of his cooperation.
eighth" but that there was a shortage, so prices were rising. He agreed to look into current prices, and in a series of further calls the two worked out the details of the transaction. On March 18, 1997, Rose met Evans outside the barber shop and gave him $1,800 in cash for 62 grams of crack. The purchase was captured on tape by a body recorder worn by Rose and on film by FBI surveillance cameras.
Ten days later, George Rose telephoned Evans and the two discussed another drug transaction. On April 1, 1997, Rose again met Evans at the barber shop, where he purchased approximately 124 grams of cocaine powder for $3,600. As before, Rose wore a body recorder that taped the transaction. Rose tried to arrange a third transaction on April 23, but Evans said that his drug supply had dried up.
The FBI arrested Evans more than a year later, on Octo- ber 13, 1998. In a search incident to the arrest, agents discovered four small bags of cocaine powder rolled up in Evans' pants leg. After waiving his Miranda rights, defen- dant admitted the March 18, 1997 transaction but claimed not to remember the subsequent deal on April 1. He told the agents that "Tee" had called him from jail and asked him to "show around" his uncle, George Rose. He said that George Rose had then contacted him and expressed an interest in obtaining cocaine, and that he had agreed to help Rose out. According to Evans, someone in the barbershop whom he did not know had given him the names of two people who could supply him with cocaine. Evans then contacted those people, whose names he also did not remember. The suppliers brought the drugs to Evans at the shop, where he delivered them to Rose. Evans said that he had provided the drugs "as a favor to Tee and George Rose." 2/4/99 a.m. Tr. at 80.
Evans was charged with unlawful use of a communications facility, distribution of cocaine and cocaine base, and posses- sion of cocaine. The case went to trial on February 4, 1999, and defendant was convicted on all counts.
tion: Evans' claim that the district court committed revers- ible error by admitting certain government testimony into evidence. We address that contention first, beginning with a recitation of the relevant facts.
The government's first witness at trial was FBI Special Agent Neil Darnell. After Darnell testified about the origins of the undercover operation, including the FBI's contact with Thomas Rose and George Rose's agreement to cooperate, the prosecutor asked the agent how he "came about knowing Mr. Evans." 2/4/99 a.m. Tr. at 26. Defense counsel objected on the ground that the question necessarily called for hearsay as to what Thomas Rose had told the FBI. The defense empha- sized that Rose was not a witness and would not be available for cross-examination. In response, the prosecutor argued that the evidence was not hearsay because it was only offered "to establish where the FBI met with George Rose and why they did what they did with George Rose." Id. The district court overruled the objection.
The prosecutor resumed his questioning by asking Darnell why he had specifically discussed Evans with George Rose. Agent Darnell answered: "We had received Mr.--or informa- tion that Mr. Evans was involved in drug trafficking and--." Id. at 27. Defense counsel interrupted with an objection, which was again overruled. Agent Darnell then added: "And Mr. Rose was in a position to directly go in and approach Mr. Evans about narcotics." Id. The prosecutor then asked whether the FBI's "information" had come from Thomas Rose, and Darnell answered that it had. The court sustained an objection to this question and answer, and directed the jury to disregard the latter.
it appear more likely that Evans had committed the charged acts, and that Evans would be unable to cross-examine his accuser "because this guy is not going to be here to testify." Id. at 39-40. Again, the government argued that it had elicited the testimony not to prove the truth of the matter asserted, but rather "to prove why the FBI did what they did." Id. at 40. The court denied the mistrial motion without prejudice to its being renewed later in the proceedings. At the end of the government's case-in-chief, defense counsel renewed the motion, and the court made the same ruling.
Evans' defense consisted of the testimony of three wit- nesses, each of whom said they had never seen any indication that defendant distributed drugs, as well as Evans' testimony on his own behalf. On the witness stand, Evans admitted to his participation in the two charged drug transactions. He testified that Thomas Rose had told him that his uncle, George Rose, was coming to D.C. and had asked him to show George around. Evans said he had not expected George to ask him to supply drugs, but that he had been able to obtain some for him from sources whose names he did not remem- ber. Evans maintained that the two transactions with George Rose were the only times he had ever distributed drugs, and specifically denied that he had ever sold drugs with Thomas Rose. He further stated that he had agreed to participate in the two sales because he and Thomas Rose "had a good friendship." 2/5/99 Tr. at 112; see also id. at 124.
The defense renewed its motion for a mistrial two more times--after it rested and at the close of all the evidence. In one colloquy, the court acknowledged that it "might have been a mistake to overrule the objection" to Darnell's testi- mony, but allowed the testimony to stand. 2/4/99 a.m. Tr. at 41.
the entrapment defense, the jury returned a guilty verdict on every count.
Defendant contends that Agent Darnell's testimony that the FBI "had received ... information that Mr. Evans was involved in drug trafficking" was inadmissible hearsay--that is, "a statement, other than one made by the declarant while testifying at the trial ..., offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801 (defining hearsay); see Fed. R. Evid. 802 (making hearsay inadmissi- ble). We review this allegation under the abuse of discretion standard. See United States v. Clarke, 24 F.3d 257, 267 (D.C. Cir. 1994).
The problem with hearsay is that it deprives the defendant of the opportunity to cross-examine the person who uttered the statement at issue. Here, the government presented allegations of prior drug dealing, and the defendant was unable to cross-examine the person who made them. At the time of the testimony, that person--the less-than-reputable convict, Thomas Rose--was sitting in a federal correctional institution. Meanwhile in court, telling Rose's story, was the clean-cut FBI agent, Neil Darnell. Thus, Evans had no opportunity to "test[ ] the recollection and sift[ ] the con- science" of his accuser, nor could he compel him "to stand face to face with the jury in order that they [might] look at him, and judge by his demeanor upon the stand and the manner in which he [gave] his testimony whether he [was] worthy of belief." California v. Green, 399 U.S. 149, 158 (1970) (quoting Mattox v. United States, 156 U.S. 237, 242-43 (1895)). Cross-examination may be the "greatest legal engine ever invented for the discovery of truth," Green, 399 U.S. at 158, but it is not of much use if there is no one to whom it can be applied.
actually had been involved in drug trafficking. But if Dar- nell's testimony about the FBI's "information" did not go to the truth of that assertion, to what did it go? The trial prosecutor said he offered the testimony to establish "why they did what they did with George Rose." For testimony to be admissible for any purpose, however, it must be relevant. See Fed. R. Evid. 402. And to be relevant, it must have a "tendency to make the existence of [a] fact that is of conse- quence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. How was "why they did what they did with George Rose" related to such a fact of consequence? Three possible, interconnected explanations can be inferred from the government's appellate brief and oral argument. We consid- er each in turn.
First, the government suggests that the testimony was relevant to show that Evans had not been improperly target- ed or selectively prosecuted--that is, it was offered to show the state of mind of the FBI agents, rather than the truth of the allegations upon which their state of mind was based. While selective prosecution may qualify as an issue of conse- quence in some proceedings, see generally United States v. Washington, 705 F.2d 489, 494-95 (D.C. Cir. 1983), it was not an issue in Evans' trial. Defendant did not raise such an allegation through argument or testimony, nor did he "open the door" to the matter through inferences made during cross-examination. See United States v. Forrester, 60 F.3d 52, 60-61 (2d Cir. 1995); United States v. Reyes, 18 F.3d 65, 69-70 (2d Cir. 1994). Indeed, the hearsay at issue here was elicited during the direct examination of the government's first witness, before Evans had presented a case or even begun to cross-examine. Moreover, when Evans eventually did put on a defense, it was not selective prosecution but entrapment. Hence, why the agents did what they did--i.e., the agents' motives for investigating Evans--never became a fact of consequence to the determination of the action.
nale here, then explaining why government agents "did what they did" through reference to statements of absent infor- mants would be acceptable in almost any case involving an undercover operation, and in many others as well. That is a loophole this circuit has previously refused to open.
We reject this argument. There was no issue as to the presence of [the defendant's] picture in the array, and therefore no occasion for any explanation. In any event, explanation of a photographic array cannot be allowed to repeal the hearsay rule. Id.; see United States v. Freeman, 514 F.2d 1314, 1317 (D.C. Cir. 1975) (reversing conviction because, inter alia, police testimony recounting witness tip was hearsay and inadmissi- ble to explain why police went to defendant's house), vacated on other grounds, 598 F.2d 306 (D.C. Cir 1979).1 The same response is warranted in this case.
The government's second relevance argument is that Agent Darnell's testimony was necessary to combat the threat of "jury nullification." We are not certain what the government means by this contention. If this is just another way of saying that the government did not want the jury to think it had engaged in selective prosecution, we have already ad- dressed the point above. It appears, however, that the government may mean something more: that the testimony was necessary to ensure that the jury did not miss the context of the events and the moral significance of the allegations, and thus render an unjustified acquittal. It is true, of course, that as a general matter the prosecution is entitled to present the "whole story" of criminal misconduct in order to guard against just such an eventuality. See Old Chief v. United States, 519 U.S. 172, 186-89 (1997); United States v. Crowder, 141 F.3d 1202, 1207 (D.C. Cir. 1998) (en banc). But in presenting that story, the government is as much bound by the rules of evidence as it is on any other issue. No matter how important it is for the government to present a complete, morally compelling narrative, it must present that narrative through admissible evidence, not through hearsay.
__________ United States v. Johnson, 439 F.2d 885, 888-89 (5th Cir. 1971) ("The desire of the government to show the jury why its agents were on the lookout for Johnson can in no way justify the use of prejudicial hearsay.").
ground"). But where those conditions are not met--as they are not here--the government must prove "background" the same way it would any other set of relevant facts.
The government correctly notes that when the "back- ground" being offered is the state of mind of the police, it is technically not hearsay at all. See Gatling, 96 F.3d at 1524. Nonetheless, to be admissible it must still be relevant, and if "background" was related to a fact "of consequence to the determination" of this case, it was only barely so. Even the government concedes that the probative value of Agent Dar- nell's statement as background was "not significant." Br. for Appellee at 15.
__________ 2 Such consideration would be improper not only under Rules 801 and 802, but also under Rule 404(b). The latter states that "[e]vidence of other crimes ... is not admissible to prove the character of a person in order to show action in conformity there- with." Fed. R. Evid. 404(b); see Old Chief, 519 U.S. at 181-82.
__________ explain basis for police action); Reyes, 18 F.3d at 72 (reversing conviction where "resulting prejudice from the receipt of ... in- criminating [out-of-court] declarations was considerable and far exceeded the minimal or non-existent probative value of the [decla- rations'] non-hearsay uses" as background evidence); United States v. Alonzo, 991 F.2d 1422, 1426-27 (8th Cir. 1993) (holding that if a statement "is both permissible background and highly prejudicial, otherwise inadmissible hearsay, fairness demands that the govern- ment find a way to get the background into evidence without the hearsay"); United States v. Mancillas, 580 F.2d 1301, 1310 (7th Cir. 1978) (holding that although giving "the jury a sense of the context of the activities to be described may provide some incidental benefit ...[,] any such value ordinarily is substantially outweighed by the danger of unfair prejudice"); 2 McCormick on Evidence s 249 (5th ed. 1999) ("[Officers] should not ... be allowed to relate historical aspects of the case, such as ... reports of others containing inadmissible hearsay. Such statements are sometimes erroneously admitted under the argument that the officers are entitled to give the information upon which they acted. The need for this evidence is slight, and the likelihood of misuse great."); cf. Gatling, 96 F.3d at 1524 (upholding conviction where "any error that the court made" in admitting out-of-court statements for background pur- poses was harmlessly cumulative); Clarke, 24 F.3d at 267 (affirming where admission of police background testimony, although "ques- tionable," was harmlessly cumulative); United States v. Freeman, 816 F.2d 558, 563-64 (10th Cir. 1987) (finding no error where admission of informant's statements for background purposes was nonprejudicial).
jury would use the agent's testimony in that impermissible way. Indeed, the prosecutor explicitly sought to use Dar- nell's testimony to establish Evans' predisposition in his closing argument. See 2/5/99 p.m. Tr. at 18-19. Although the court correctly barred the government from making that argument, it did not caution the jury against drawing the connection on its own. In failing to do so, the court may have committed error under Rules 801 and 802 by permitting the jury to use the testimony for its truth. See Fed. R. Evid. 801, 802.4 In any event, without a limiting instruction, the risk that Evans would be unfairly prejudiced by the jury's use of the testimony for its truth substantially outweighed the testi- mony's minimal value as background. See Webster, 649 F.2d at 351; United States v. Catanzaro, 407 F.2d 998, 1000-01 (3d Cir. 1969) (reversing conviction where jury may have used hearsay statement as evidence of defendant's predisposition).
__________ 4 Cf. Reyes, 18 F.3d at 69 (holding that even where there have been limiting instructions, "when the likelihood is sufficiently high that the jury will not follow the limiting instructions, but will treat the evidence as proof of the truth of the declaration, the evidence is functionally indistinguishable from hearsay").
5 Darnell's testimony was not the evidence the court actually had in mind when giving the instruction. See 2/5/99 p.m. Tr. at 20 (advising counsel that instruction "pertains to the defendant's ad- mission with respect to the exportation of drugs and not testimony from Agent Darnell"). The instruction, however, did not specify which prior conduct it encompassed.
802.6 This, of course, also greatly increased the risk that the jury would actually use the testimony for that impermissible purpose, further compounding the error committed under Rule 403.
In sum, we conclude that the admission of Special Agent Darnell's testimony was error under the Federal Rules of Evidence: under Rules 801 and 802 because the jury was effectively told that the testimony could be used for its truth, and under Rule 403 because the probative value of the only relevant nonhearsay purpose--general background--was sub- stantially outweighed by the danger of unfair prejudice.
__________ 6 Under Rule 404(b), evidence of prior crimes is admissible to prove the defendant's state of mind, and therefore his predisposi- tion. See Fed. R. Evid. 404(b); United States v. Burkley, 591 F.2d 903, 921 (D.C. Cir. 1979). Like other facts, however, the prior crimes must themselves be proven through admissible (non- hearsay) evidence. See Webster, 649 F.2d at 349-50. As noted in the text, Agent Darnell's testimony could not have been used to prove that the prior crimes occurred (the truth of the matter asserted), and hence had no relevance to the question of defendant Evans' state of mind (predisposition). The most for which Darnell's testimony could have been used would have been to establish his state of mind--a fact not relevant to the state of mind of the defendant. See id.
id. at 124 (citing California v. Green, 399 U.S. 149, 158 (1970)).
Nonetheless, not every use of hearsay violates the Confron- tation Clause. "[W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted excep- tion to the hearsay rule, the Confrontation Clause is satis- fied." White v. Illinois, 502 U.S. 346, 356 (1992); see also Lilly, 527 U.S. at 124-25; Ohio v. Roberts, 448 U.S. 56, 66 (1980). In this case, the government has not suggested any hearsay exception that might apply to Darnell's testimony. Instead, it contends that Darnell's testimony was not hearsay at all because it was not offered to prove the truth of the matter asserted. If that contention were correct, there would be no violation of Evans' confrontation rights. See Tennessee v. Street, 471 U.S. 409, 414 (1985) (holding that the nonhear- say aspect of a confession, not offered to prove its truth, "raises no Confrontation Clause concerns"). As noted above, however, the jury was effectively told that it could use the evidence as proof of defendant's predisposition--i.e., for its truth. That erroneous instruction, coupled with the admis- sion of Darnell's testimony, may well have deprived Evans of his right to confront his true accuser--Thomas Rose. See id. (noting that had jury been asked to infer that defendant's confession proved his participation in the crime, the evidence would have been hearsay and Confrontation Clause concerns would have been implicated); United States v. Jordan, 810 F.2d 262, 264 (D.C. Cir. 1987).
We need not resolve whether the error at issue in this case violated only the Rules of Evidence, or whether it also ran afoul of the Confrontation Clause. Because an error clearly occurred, the dispositive question is whether it was harmless. If it was, it cannot result in the reversal of Evans' convictions regardless of how we classify it. See Fed. R. Crim. P. 52; United States v. Olano, 507 U.S. 725, 731 (1993).
different. See O'Neal v. McAninch, 513 U.S. 432, 438 (1995); Brecht v. Abrahamson, 507 U.S. 619, 622-23, 637-38 (1993). The standard for determining whether a constitutional error is harmless is whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24 (1967); see Neder v. United States, 119 S. Ct. 1827, 1837 (1999). For nonconstitutional errors, the standard is whether the error did not have "substantial and injurious effect or influence in determining the jury's verdict." Kotteakos v. United States, 328 U.S. 750, 776 (1946); see Brecht, 507 U.S. at 637.
In the instant case, however, the difference between the standards does not matter because the error was harmless under both. Although the jury could have used the hearsay testimony to conclude that defendant had a propensity to commit the charged drug offenses, Evans conceded that he committed those offenses, thereby removing the question of propensity from the case. Rather than contest that he sold drugs to George Rose, Evans claimed he was entrapped. The entrapment defense comprises two elements: "government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct." Mathews v. United States, 485 U.S. 58, 63 (1988); see Glover, 153 F.3d at 754. While the admission of Agent Darnell's testimony could have been prejudicial with respect to predis- position, the jury does not consider predisposition unless the defendant has first satisfied the burden of showing govern- ment inducement. See Glover, 153 F.3d at 754 ("[T]he defen- dant bears the initial burden of showing government induce- ment; if he is successful, the burden then shifts to the government to prove the defendant was predisposed to com- mit the crime."); United States v. Whoie, 925 F.2d 1481, 1485 (D.C. Cir. 1991). Evans' jury was instructed accordingly. See 2/5/99 p.m. Tr. at 37. Hence, the key question is whether the defendant presented sufficient evidence of inducement.
established unless the requests are coupled with persuasive overtures." United States v. McKinley, 70 F.3d 1307, 1312 D.C. Cir. 1995). The only "persuasive overture" proffered by defense counsel was Evans' claim that he provided the drugs because he and Thomas Rose "had a good friendship." Al- though we have in the past indicated that "pleas based on ... friendship" can satisfy the inducement prong of an entrap- ment defense, we have never found such a plea sufficiently strong to do so. United States v. Layeni, 90 F.3d 514, 517 (D.C. Cir. 1996); see, e.g., Glover, 153 F.3d at 755; McKinley, 70 F.3d at 1314.
But here there was no plea to friendship at all. According to Evans' own account, his friend, Thomas Rose, "never mentioned" drugs to him. 2/5/99 a.m. Tr. at 124. Rather, he "just asked me to look out for [his uncle], show him around the city." Id. at 123. Evans does not contend that this constituted an implied request to provide George Rose with drugs. To the contrary, defendant testified that he had not expected his friend's uncle to bring up the subject. See id. at 111. Hence, even accepting defendant's version of the facts, it establishes only that he independently decided to provide the drugs out of friendship for George Rose's nephew--not because of any plea from that nephew. This is insufficient to raise a jury question as to inducement, and because the jury was correctly instructed that inducement is a prerequisite for entrapment, defendant's entrapment defense necessarily failed for want of proof. See McKinley, 70 F.3d at 1309. Indeed, under these circumstances, defendant was not enti- tled to an entrapment instruction in the first place. See Glover, 153 F.3d at 755; McKinley, 70 F.3d at 1309. Because entrapment was Evans' only defense (given his concession to having participated in the charged drug transactions), we can say with certainty that the erroneous admission of Agent Darnell's testimony did not contribute to the result in this case.
the trial judge committed reversible error by denying his request to strike a potential juror for cause. Evans ultimate- ly used a peremptory challenge to strike the juror, who was not seated. After the opening brief was filed, the Supreme Court decided United States v. Martinez-Salazar, which held that a defendant cannot assert error after using a peremptory challenge to remove a juror who he alleges should have been excused for cause. See 120 S. Ct. 774, 782 (2000). Evans concedes that Martinez-Salazar resolves this claim.
Second, Evans contends that he should have received the benefit of the "safety valve" provisions of the federal sentenc- ing guidelines, which would have allowed him to obtain a sentence below the statutory minimum of 120 months. See U.S.S.G. s 5C1.2; see also 18 U.S.C. s 3553(f); 21 U.S.C. s 841(b). For a defendant to receive the benefit of the safety valve, the trial court must find, inter alia, that "the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct." U.S.S.G. s 5C1.2(5). The court declined to make that finding, and there is more than sufficient evidence in the record to support the court's decision. Compare, e.g., 5/14/99 Tr. at 10 (de- fense's contention that Evans did not know the names of the two men who supplied the drugs for the charged transac- tions), with id. at 33 (court's conclusion that taped conversa- tions showed Evans knew "fully what the nature and source of supply was ... and whom he has been dealing with and whom he has done other transactions with").
district court and find no error in its decision. See Leandre, 132 F.3d 796; United States v. Dyce, 91 F.3d 1462 (D.C. Cir. 1996).
In closing, we take this opportunity to make a suggestion similar to one made by the Second Circuit in analogous circumstances. See United States v. Reyes, 18 F.3d 65, 72 (2d Cir. 1994). The analysis that has led us to conclude that the agent's testimony was improperly admitted is complicated, and we are well aware that trial courts do not have the opportunity we do to explore such intricacies at length. In this case, as in many, the issue arose without warning in the form of an objection to a question that the examiner had already posed. If the trial was not to be disrupted, the court had to resolve the issue on the spot without benefit of research. Yet, had the error not been harmless, its prejudi- cial impact would have required reversal of Evans' convic- tions.
When the government wishes to offer incriminating evi- dence of uncertain admissibility, these kinds of risks can be obviated through the submission of a motion in limine (writ- ten or oral) prior to the offer and before the jury is seated for the session at which the offer is to be made. In some situations, such advance notice is required by the Federal Rules. See Fed. R. Evid. 404(b).7 Even where it is not, this procedure would advance the government's dual interests in ensuring that defendants are accorded justice at trial, while protecting the integrity of verdicts on appeal.
__________ 7 Rule 404(b) provides that, with respect to evidence of "other crimes, wrongs, or acts,"
upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Fed. R. Evid. 404(b). Although there may have been a Rule 404(b) violation here, defendant has not alleged one.
In the case of Cornell Evans, although we find that error occurred, we also find that the error was harmless. Accord- ingly, defendant's convictions and sentence are affirmed.

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My mom mentioned something out of this chapter to me, so while at soccer practice, I grabbed a few moments to read I Samuel 3. Here are some gleanings.
COMPARE AND CONTRAST: Compare the first verse with the last verse of the chapter.
Frist verse: Samuel is referred to as a child. Last verse: Samuel no longer has the word “child” attached to his name.
First verse: Samuel is “before Eli”. Last verse: Samuel is “in Shiloh”.
To me, Samuel went from a child to a Man of GOD in this chapter–he grew up. I have boys, so this chapter interested me. Here are a few of my thoughts about the “growing up” process in the chapter.
v. 1 = Samuel was ministering (working for the LORD) even before he had knowledge. It was here that he heard the LORD’s voice.
v. 2 = Eli’s weakness is described as “laying down” vrs. standing, “in his place” = in his comfortable home, “eyes dimmed” = blindness that comes on gradually, “could not see” = lost discernment. Eli is the Caregiver/parent of Eli. This is a WARNING to all of us Caregivers.
v. 4 = Samuel had been taught to answer when called.
v. 6 = The LORD called Samuel by his name.
v. 7 = I find great HOPE in this verse in the word “yet”. It is a promise of a coming blessing. Samuel did not yet know the LORD, but he was going to.
v. 8 = Eli (the Caregiver/parent figure) allowed the LORD to speak to Samuel and didn’t interfere with the lesson.
v. 9 = Seven word. “Speak LORD for thy servant heareth.” Only seven words, and yet these words show reverence (LORD), humbleness (thy servant), willingness (go ahead and speak), obedience (I will hear.) Probably a good memory verse!!
v. 10 = Here we get that the LORD called out Samuel’s name twice each time HE called. The LORD called “Samuel, Samuel”. From the verses preceding, Samuel only mentions hearing his name called once. HE called out six times. The LORD is very patient–even with our “hard of hearing” boys.
v. 12 = At first I wanted to take, “I will also make an end” to mean an end of judgement, but the following verses go against that thought. The following verses use the words, “for ever” and “not be purged. . .” This is a warning to us. There is an eternal judgment, that has no end.
v. 14 = Again! a warning about a “forever” judgement.
v. 15 = Just loved the phrase, “morning, and opened the doors of the house of the LORD.” Don’t have any thoughts, but loved the visual picture.
v. 16 = Despite the fact that Samuel knew Eli was going to be judged, Samuel still had respect to the office and position of Eli.
v. 17 = In verse twelve, it says, “I will perform against Eli all things which I have spoken concerning his house.” Eli had already been warned. He already knew, yet he wanted to hear what the LORD had said to Samuel. Was Eli looking for a second opinion? He already knew! Ignoring warnings is dangerous.
v. 19 = I have never been sure who is who in this verse. Who let whose words fall to the ground? Is is “And the LORD was with [Samuel], and did let none of [Samuel’s] words fall to the ground? or is it “And the LORD was with [Samuel], and [Samuel] did let none of [the LORD’s] words fall to the ground. ????
v. 20 = Dan to Beersheba. See a map here.
v. 21 = Samuel grew up. And better than that, he grew up to be a man of GOD. That is my hope, too.
Remember, these are gleanings not accomplishments.
This entry was posted in Sunday and tagged eli, I samuel 3, samuel. Bookmark the permalink.
of God”!!! Barnabus was an encourager!!
Appreciate you pointing out the word “yet”. That is indeed a comfort! Thanks for sharing!

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Gray v. Martino; Public policy and sound morals alike forbid that public officers should demand or receive, for services performed in the discharge of their official duties.
James H. Rice Co. v. McJohn; A fraudulent transfer of propoerty to avoid debt will be set aside; fraudulent conveyance of asset is null and void; levy.
Lindholm v. Brant; Andy Warhol; Red Elvis; usual or customary practices; reasonable commercial standards of fair dealing; authority to convey title; good faith; fraud and embezzlement.
Blinn v. Beatrice Community Hosp. and Health Center, Inc.; promissory estoppel; at-will employee; wrongful termination of employment.
Mobil Oil Exploration & Producing Southeast, Inc. v. U.S.; if a party repudiates a contract, the other party is entitled to restitution for any benefit he has conferred on the repudiating party by way of part performance or reliance.
Strouth v. Pools by Murphy and Sons, Inc.; A material breach of a contract by one party justifies the other party's termination of the agreement. Substantial performance doctrine.
Sisney v. State; a contract made expressly for the benefit of a third person may be enforced by that person, but only when the intent to make the contract inure to the benefit of the third party is clearly manifest.
Office Pavilion S. Florida, Inc. v. ASAL Prods., Inc.; Words of "promise" that by their terms make the putative promisor's performance optional do not constitute a promise at all and are not consideration for the return promise.

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Party Name: James E. AUSTIN and Elizabeth G. Austin, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
Ben A. Matthews of Harper & Matthews, New York City (Vincent P. Uihlein, New York City, on the brief), for petitioners.
Donald P. horwitz, Atty., Dept. of Justice, Washington, D.C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Meyer Rothwacks, Attys., Dept. of Justice, Washington, D.C., on the brief), for respondent.
Before LUMBARD, Chief Judge, and MOORE and HAYS, Circuit Judges.
The Tax Court found that the property involved 'was purchased by petitioners primarily for a residence and secondarily to make a profit.' Petitioners contend that, since the word 'primarily' does not appear in the statute, and since the Tax Court found that the transaction was entered into for profit, the deduction must be allowed. The Tax Court, they say, has no power to classify petitioners' motives as primary or secondary; once it is established that realizing a profit was a motive for purchase of the property the requirements of the statute have been met.
But the position for which petitioners contend would not provide a workable interpretation of § 165. It is true generally of people who buy property for residential purposes that they are interested in making potentially profitable purchases. The statute makes no provision for the apportionment of the loss when a transaction is entered into both to satisfy a personal or family need and to make a profit. A primary motive of acquiring a family residence brings the purchase within the ambit of § 262 of the Internal Revenue Code, 26 U.S.C.A. § 262, which provides that 'no deduction shall be allowed for personal, living, or family expenses.' The logical interrelation of § 165 and § 262 requires a decision as to which of the two motives was dominant, so that one or the other section can be applied. And the decisions of the Supreme Court and of this court have been consistent with this result. In Helvering v. National Grocery Co., 304 U.S. 282, 289 note 5, 58 S.Ct. 932, 936, 82 L.Ed. 1346 (1938), the Supreme Court said: 'The deductibility of losses under ( § 165(c)) 2 may depend upon whether the taxpayers' motive in entering the transaction was primarily profit.' 3 This court has repeatedly held that, in determining the deductibility of a loss, the primary motive must be ascertained and given effect. Arata v. Commissioner, 277 F.2d 576, 578-579 (2d Cir. 1960); Ewing v. Commissioner, 213 F.2d 438, 439-440 (2d Cir. 1954); Meurer v. Commissioner, 221 F.2d 223 (2d Cir. 1955). Cf. Gevirtz v. Commissioner, 123 F.2d 707 (2d Cir. 1941).