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The Respondent is Link Comercial Corp of Punta Del Este, Maldonado, Uruguay.
The disputed domain name <chevroletdealers.com> is registered with Network Solutions, LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 1, 2010. On September 1, 2010, the Center transmitted by email to Network Solutions, LLC. a request for registrar verification in connection with the disputed domain name. On September 1, 2010 Network Solutions, LLC. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 6, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was September 26, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 27, 2010.
The Center appointed Christian Pirker as the sole panelist in this matter on October 5, 2010. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
After reading the Complaint, the Panel noticed that there was evidence missing about the trademarks allegedly owned by the Complainant. Thus, the Panel decided to issue an Administrative Panel Procedural Order requiring the Complainant to produce the evidence and an amendment. The order, issued on October 19, 2010, fixed a deadline of October, 25, 2010, for the Complainant to comply with the order and of October 30, 2010, for the Respondent to submit its comments. The Complainant filed some evidence on October 22, 2010. The Panel and the Center have not received any submissions or supporting evidence from the Defendant in reply to the submissions filed by the Complainant as requested by the administrative panel order No. 1.
The Complainant, General Motors LLC, is world-renowned as an automobile manufacturing company and one of the world’s largest automakers. General Motors LLC sales cars and trucks globally under the following brands: BUICK, CADILLAC, GMC, GM DAEWOO, HUMMER, OPEL AND CHEVROLET.
General Motors LLC is the worldwide owner of the trademark and service mark CHEVROLET which is registered alone and in combination with other words and/or designs and is extensively used by Complainant throughout the world to designate all kinds of vehicle ranging from cars to trucks and for various other associated products and services.
The CHEVROLET mark has been used by the Complainant and its predecessors since 1911. The Complainant submitted, in support of its Complaint against the Respondent, a list and copies of numerous trademark registrations among others in the United States; Uruguay; Australia; Portugal; Algeria; Bahrain; Brazil; China; Denmark; Dominican Republic; Ecuador; Germany; Greece; India, Israel; Jamaica; Mexico; New-Zealand; Spain; Russia; Papua New Guinean; Thailand; Switzerland; Sweden; United Kingdom and Zimbabwe.
- United States Trademark Registration No 216070 CHEVROLET, in Class 19, registered in August 3, 1926.
- International Trademark Registration No 647235 CHEVROLET, in Class 37, registered in June 18 1956, for Building construction; repair; and installation services.
- United States Trademark Registration No 1471518 CHEVROLET, in Class 28, registered in January 5, 1988, in international class 28, for Games and playthings; gymnastic and sporting articles; decorations for Christmas trees.
In 1995, the Complainant also registered the trademark CHEVROLET in Denmark in international classes 18, 25 and 28, in 1996 in Ecuador and in 1997, in Portugal, in international class 12.
On July 2, 1997, Respondent registered the disputed domain name <CHEVROLETDEALERS.COM> with the Registrar.
The Complainant alleges that it owns over 1000 worldwide trademark registrations for the trademark CHEVROLET or containing “Chevrolet” that it has a strong internet presence and has registered and uses numerous domain names containing the name “Chevrolet”.
The Complainant asserts that further to its long and extensive use of the CHEVROLET trademark throughout the world for vehicles, and for a broad range of other related products, the trademark CHEVROLET has gained notoriety over the years and become a worldwide renowned trademark.
1) In respect of the confusing similarity between the disputed domain name and the CHEVROLET trademark that the disputed domain name <CHEVROLETDEALERS.COM> is confusingly similar to the CHEVROLET trademark in which Complainant has rights as the Domain Names, which incorporates wholly the CHEVROLET trademark, and the mere adding of the word “dealers” is not sufficient to distinguish the disputed domain name from Complainant’s renowned trademark CHEVROLET.
2) The Respondent has no rights or legitimate interests in respect of the disputed domain name given that the Respondent has not received any license or consent to use the trademark CHEVROLET from him, nor acquiesced in any way to such use or application of the trademark CHEVROLET by the Complainant. The Respondent hasn’t got further authorization from the Complainant to register the disputed domain name and it registered the dispute domain name in 1997, when the trademark CHEVROLET was already well known worldwide. Prior to the registration of the disputed domain name, the Respondent did not use “Chevrolet” or any mark containing “Chevrolet”. The Respondent does not use the disputed domain name in connection with a bona fide offering of goods and services since the disputed domain name <CHEVROLETDEALERS.COM> is currently associated with links to pay-per-click advertising which proves that the Respondent deliberately seeks to capitalize on identity of the domain name to the Complainant’s trademarks and has deliberately attempted to deceive visitors to the website by portraying to be associated with the Complainant.
3) In respect of Bad faith, the domain name has been registered and used by the Respondent in bad faith considering that CHEVROLET is a world-renowned trademark for several decades, the Respondent was obviously aware of Complainant’s prior trademark right. Further, the Respondent intentionally uses the disputed domain name in order to attract Internet users, for commercial gain, to its own website(s), by creating a likelihood of confusion with the Complainants’ marks.
Accordingly, the Complainant requests the sole Panelist to issue a decision that the disputed domain name <CHEVROLETDEALERS.COM> be transferred to General Motors LLC.
As noted above, the Respondent is in default pursuant to paragraph 5(e) and 14 of the Rules, and paragraph 7(c) of the Supplemental Rules, as no Response was submitted in due time.
It is further noted that the Respondent did not give any response nor communicate any message at any time during the present proceedings.
The term “Chevrolet” is included in trademarks which are registered in numerous countries in various classes (e.g. 12, 18, 25, 28 and 37), mainly for Vehicles; apparatus for locomotion by land, air or water and building construction; repair and installation services.
Complainant is the worldwide owner of the trademark CHEVROLET and derivative trardemarks containing this word in combination with other elements. This Complainant has been using this brand for over 85 years to designate all kind of vehicles and other related products and services throughout the world. The word mark CHEVROLET is registered in various countries all over the world including the United States of America and Uruguay.
In the present case, the trademark appears to be the term “Chevrolet”. Accordingly, this term in its entirety is included in the disputed domain name. Moreover, the adjunction of the word “dealers” to the name “Chevrolet” in the disputed domain name does not diminish the confusing similarity with the trademark, since the essential part of the disputed domain name and the trademark is the term “Chevrolet” and the word “dealers” is an ordinary English world. Domain names that combine a descriptive term with another’s trademark have been held to be confusingly similar to the trademark.
It further appears to the Panel that such descriptive component added to Complainant’s trademark even adds to the confusion by leading users to believe that Complainant operates the web site associated to the disputed domain name. See e.g Dr. Ing.h.c.F.Porsche AG v. Vasiliy Terkin, WIPO Case No. D2003-0888, AT&T Corp. v. WorldclassMedia.com, WIPO Case No. D2000-0553; Scholastic Inc. v. 366 Publications, WIPO Case No. D2000-1627.
It is for the Complainant to demonstrate that this condition is met prima facie. Provided that the Complainant is successful in demonstrating that the condition is met prima facie, it is for the Respondent to demonstrate its rights or legitimate interests. Accordingly, the main burden of proof is on the Respondent.
The Respondent has not challenged the Complainant’s contention. The Panel finds it credible.
Moreover, there is no evidence in the file that the Respondent has any right or legitimate interest in the disputed domain name.
Accordingly, the Panel considers that the Respondent does not have any right or legitimate interest in the disputed domain name.
Paragraph 4(b) of the policy states the following four (non-exclusive) circumstances which, if found to be present, are deemed to provide evidence of bad faith in registering and using the domain name.
The Panel notes that some panelists in certain default cases have accepted credible factual allegations from a complainant as true, particularly as these pertain to paragraphs 4(a)(ii) and 4(a)(iii) of the Policy, regarding the factors that make out illegitimacy of a respondent’s use or the presence or absence of bad faith, e.g., Luis Cobos v. West, North (Nick Handle: JNMTOKTCQD), WIPO Case No. D2004-0182; Microsoft Corporation v. Andrey Tumakov, WIPO Case No. D2002-1039; Plymouth State College v. Domains, Best Domains, WIPO Case No. D2002-0939.
The domain name must not only be registered in bad faith, but it must also be used in bad faith (e.g., World Wrestling Federation Entertainment, Inc. v. Michael Bosman, WIPO Case No. D1999-0001).
The Panel considers that the evidence submitted establishes that the choice of the domain name by the Respondent could hardly be a coincidence. First, adding the word “dealers” to the Complainant’s trademark indicates Respondent’s purposeful choice – and awareness - of a domain name that is confusingly similar to Complainant’s trademark and products. Further, the disputed domain name reverts to a website directory active in the same field as the Complainant. Accordingly, the Panel considers that the disputed domain name was registered in bad faith and is currently used as a “click-through” revenue generating site which provides income to the Respondent by inducing Internet users to click through sponsored links. It is the Panel’s opinion that the intention behind the Respondent’s use of a domain name containing the Complainant’s trademark is merely to capture the Complainant’s customers who are seeking the Complainant’s services, and to re-direct them to other websites. Such use of a domain name is neither legitimate, nor in good faith. Using a domain name to intentionally attract, for commercial gain, Internet users to a website by creating confusion with a complainant’s mark is evidence of bad faith registration under the Policy, paragraph 4(b)(iv) (e.g., Compagnie Générale des Etablissements Michelin CGEM - Michelin & Cie, Michelin Recherche et Technique S.A. v. Horoshiy Inc., WIPO Case No. D2004-0752).
- The disputed domain name may lead customers or potential customers of Chevrolet vehicles or products to believe that they are on the Complainant’s website.
- The Respondent’s use of the domain name has no relation to the Complainant’s activities except for misleading potential customers.
- The Respondent did not actively participate in the proceedings.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <chevroletdealers.com > be transferred to the Complainant.

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ILLINOIS WORKERS’ COMPENSATION COMMISSION, et al., (Central Freight Lines, Appellees).
Honorable John C. Anderson, Judge, Presiding.
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court.
*1 ¶ 1 Held: (1) The Commission considered and rejected the claimant’s claim that he sustained a repetitive trauma injury with a manifestation date of February 19, 2010 (as opposed to a traumatic injury sustained on that date); and (2) the Commission’s finding that the claimant failed to prove that he sustained accidental injuries arising out of and in the course of his employment with the employer was not against the manifest weight of the evidence.
¶ 2 The claimant, George Campbell, filed an application for adjustment of claim under the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2010)), seeking benefits for repetitive trauma injuries to his back and person as a whole which he claimed were causally connected to his employment as a truck driver for the employer. The claimant alleged that he had sustained severe back pain due to “repeated lifting of freight” and “vibration” from a broken seat in his truck. He alleged a manifestation date of February 19, 2010. After conducting a hearing, an arbitrator found that the claimant had failed to prove that he sustained an accident arising out of and in the course of his employment with the employer and denied the claimant’s claim for benefits.
¶ 3 The claimant appealed the arbitrator’s decision to the Illinois Workers’ Compensation Commission (Commission). The Commission unanimously affirmed and adopted the arbitrator’s decision.
¶ 4 The claimant then sought judicial review of the Commission’s decision in the circuit court of Will County, which confirmed the Commission’s decision.
¶ 7 The claimant worked for the employer as a pick-up and delivery truck driver. His duties included driving, loading and unloading freight, and inspecting his truck before and after trips.
¶ 8 In order to load and unload freight, the claimant had open and close the door on his trailer many times per day. To do that, the clamant had to manipulate a latch to open the door, raise the door upward using a handle, and then lower the door again and secure the latch. The claimant testified that, beginning in 2009, the trailer door in his truck became extremely difficult to open. The claimant stated that he reported this issue to the employer in several of his Driver Vehicle Reports (DVRs), which truck drivers were required to prepare each day they drove. During the arbitration proceeding, the claimant introduced copies of 16 DVRs that he had submitted to the employer between June 24, 2009, and August 11, 2009. Five of these reports referenced problems with the trailer door getting stuck or not closing easily.
¶ 9 The claimant testified that he experienced other problems with his truck in 2009, including brakes that were difficult to push (which caused him to jolt back and forth) and a leak in his air-glide seat (which caused him to slam to the floor and to slam his head on the ceiling while driving). He claimed that he reported these problems to the employer both before and after August 11, 2009. Several of the DVRs the claimant introduced mention that the brakes on the claimant’s truck were “bad,” “very stiff,” or “spongy.” However, none of them reference any problems with the driver’s seat. The claimant testified that the employer never fixed any of the truck maintenance problems he reported.
*2 ¶ 10 The claimant testified that, at some point during 2009, he began to experience pain in his back and neck that progressively worsened. The claimant stated that, by January 2010, he was unable to perform his daily activities without pain.
¶ 11 On January 23, 2010, the claimant saw Dr. Shahid Masood, his family physician,1 at Internal Medicine and Family Practice in Joliet. The claimant complained of back and neck pain, and he told Dr. Masood that his back and neck hurt from performing his duties as a truck driver. Dr. Masood’s medical record of that visit reflects that the claimant was complaining of difficulty driving his truck and of pain in his neck and back. Dr. Masood recommended x-rays of the claimant’s cervical and lumbar spine, which were performed on February 5, 2009. The x-rays of the claimant’s cervical spine revealed moderate degenerative disc changes at C4-C5 and C5-C6 but normal anatomical alignment. The x-rays of the claimant’s lumbar spine revealed a very mild spondylosis2 which had progressed when compared to a prior study that was performed in 2007.
¶ 12 The claimant testified that, on the morning of February 19, 2010, he felt a sharp pain in his back while attempting to lift the door on his trailer. The claimant stated that the trailer door would not lift up and he had to exert excessive force to pull it open. The claimant testified that, at approximately 9:00 that morning, he told Tom Kovalik, the general manager of the employer’s Bolingbrook facility, that he had felt pain in his back after pulling his trailer door. According to the claimant, Kovalik asked him whether he needed medical attention, and the claimant responded that he was already seeing a doctor for his back pain. Although the claimant acknowledged that it was the employer’s policy to complete an incident report whenever an employee reported a work injury, the claimant testified that Kovalik did not ask the claimant to complete an incident report and the claimant was unsure whether Kovalik ever completed such a report.
¶ 13 The claimant testified that, during the time leading up to his visit to Dr. Masood in late January of 2010, it did not occur to him that his back and neck symptoms could be work related. On cross-examination, the claimant stated that, although he had been experiencing back pain prior to February 19, 2010, it was on that date that he became aware that his back and neck pain were related to his work. The claimant testified that he filed a claim alleging a February 19, 2010, accident date because his pain had been getting worse and was so “horrible” on that day that he reported it to Kovalik. Although the claimant continued to work after February 19, 2010,3 he testified that his pain became worse thereafter and he was finding it increasingly more difficult to work.
*3 ¶ 14 On February 20, 2010, the claimant returned to Dr. Masood. Dr. Masood’s medical record of that visit reflects that the claimant continued to complain of neck and back pain and reported that he was unable to drive his truck. However, Dr. Masood’s February 20, 2010, medical record does not mention that the claimant reported sustaining a work accident or injury on February 19, 2010. Dr. Masood examined the claimant and reviewed the claimant’s prior x-rays. Upon examination, the claimant complained of tenderness over the cervical and lumbar spine. Dr. Masood ordered MRIs of the claimant’s cervical and lumbar spine.
¶ 15 The MRIs were performed on February 27, 2010. The cervical MRI revealed degenerative changes at C4-C5 and C5-C6 with mild stenosis but without any compression of the spinal cord, and a mild disc protrusion at C6-C7 with no spinal stenosis. The lumbar MRI showed: (1) a “tiny” central disc protrusion at L4-L5 without any spinal stenosis or nerve root displacement; and (2) a mild amount of osteophyte formation in the right paracentral and right lateral location of L5-S1 causing minimal encroachment on the right neural foramen fat.
¶ 16 On March 2, 2010, Dr. Masood drafted a letter to the claimant “strongly recommending” that the claimant apply for Social Security disability benefits.4 In the letter, Dr. Masood stated that the February 27, 2010, MRIs “show[ed] stenosis and disc herniation in [the claimant’s] lumbar and cervical spine.” Dr. Masood further noted that the claimant had “issues of pain in the neck, back, and lower extremities along with numbness and radiculopathy” and “a history of COPD with a nodule in [his] right lung.” Dr. Masood’s letter did not reference any connection between any of the claimant’s medical conditions and his employment.
¶ 17 On March 12, 2010, the employer informed the claimant that its Bolingbrook terminal was being closed, effective immediately. On March 15, 2010, the claimant came to work to pick up his final check. At that time, he had a conversation with Kovalik. The claimant testified that he told Kovalik that he had sustained a work-related injury, that his neck and back injury was “not over,” and that he might never be able to operate a commercial vehicle again because his doctor had recommended that he apply for disability.
¶ 18 Kovalik disputed the claimant’s testimony. During his evidence deposition, Kovalik testified that: (1) Kovalik was the only manager of the Bolingbrook facility during the relevant time period; (2) Kovalik was the “focal point” for handling workplace injuries; (3) when work injuries were reported, Kovalik would enter the information into his computer and send it to his immediate manager and to the employer’s safety department; (4) the claimant never reported that he injured his back or neck at work; (5) when Kovalik spoke with the claimant on March 15, 2010, the claimant told Kovalik that he “may not be working much longer,” but Kovalik was not sure whether this was because of the claimant’s health or because of his wife’s health; (6) Kovalik first became aware that the claimant was claiming a work-related injury when he spoke with one of the employer’s attorneys well after the Bolingbrook facility had been closed; (7) had the claimant reported a work-related injury, Kovalik would have sat down with him, assessed whether medical attention was needed, and completed an incident report; and (8) on a previous occasion, the claimant had failed to report a prior work-related injury, and the employer had initiated disciplinary action against the claimant as a result.
*4 ¶ 19 On March 20, 2010, the claimant returned to Dr. Masood. He complained of pain in his neck as well as back pain that radiated into his legs. He told Dr. Masood that he was no longer able to work. The claimant saw Dr. Masood again on April 27, 2010. At that time, the claimant complained of neck and back pain that radiated sideways. Dr. Masood recommended a neurosurgical consultation and referred the claimant to Dr. Mark Lorenz, an orthopedic surgeon.
¶ 20 That same day, Dr. Masood drafted an opinion letter regarding the claimant’s back condition and its potential cause. In the letter, Dr. Masood noted that he was currently treating the claimant for “back pain resulting from a herniated disc,” and he opined that the claimant’s herniated disc “may have been caused from his duties *** at [the employer].” Dr. Masood stated that the claimant’s duties included, but were not limited to: (1) loading and unloading freight; (2) opening and closing roll-up trailer doors that were in poor operating order; (3) pulling dock plates; (4) restacking freight that had fallen over or had been improperly loaded; (5) hooking and unhooking trailers by dolly handles that were poorly maintained; (6) “hooking air lines to hook/drop hook trailer”; and (7) climbing in and out of his truck. Dr. Masood noted that, “[a]ccording to [the claimant], he had no issues of back pain or any past injuries prior to his employment with [the employer.” Dr. Masood opined that the claimant was no longer able to drive a truck or lift more than 10 pounds.
¶ 21 On July 26, 2010, the claimant returned to Internal Medicine and Family Practice (Dr. Masood’s practice group), complaining of a backache as well as shoulder and neck pain. The claimant did not attribute these problems to a work-related event. The treating doctor assessed spinal stenosis, backache and degenerative disc disease, bilateral upper extremity radiculopathy, and COPD.
¶ 22 On August 11, 2010, the claimant saw Dr. Lorenz for an initial evaluation. Dr. Lorenz’s medical record of that visit reflects that the claimant told him that he was in good health until February 19, 2010, when he forced a door open in the back of his truck that did not work well and hurt his back. The claimant completed a patient questionnaire in which he stated that he began experiencing pain in his spine on February 19, 2010, and that he had no previous problems with his low back. Dr. Lorenz’s medical record notes that the claimant also reported “a number of incidences *** where he was bounced on a malfunctioning air-glide chair causing him to strike the top of the cab as he was driving.” The claimant testified that he also advised Dr. Lorenz that his back had hurt from other repetitive tasks he performed as a truck driver, including lifting trailer doors. However, Dr. Lorenz’s August 11, 2010, medical record does not include any reference to that statement. Upon examination, the claimant exhibited a “fairly significant pain response through essentially all movement and touching of the upper and lower back.” However, Dr. Lorenz noted that: (1) the claimant’s neurological examination was essentially normal; (2) the MRI of the claimant’s lower back was “rather unremarkable”; and the x-rays of the claimant’s lower back showed only “very minimal degenerative changes.” Dr. Lorenz diagnosed the claimant with chronic pain syndrome that was “probably aggravated by the lifting incident at work.” Dr. Lorenz opined that the claimant was unable to work and that he was “definitely not a surgical candidate.” He ordered a repeat MRI of the claimant’s cervical spine.
*5 ¶ 23 The cervical MRI ordered by Dr. Lorenz was performed on August 16, 2010. The MRI revealed degenerative changes at C4-C5 and C5-C6, moderate stenosis at C5-C6, and neural foraminal and mild canal stenosis at C4-C5 and C6-C7.
¶ 24 On December 1, 2011, the claimant underwent a functional capacity examination (FCE). The therapist opined that the claimant demonstrated consistent performance throughout the testing ad that the claimant was able to work at the sedentary level for eight hours per day with occasional lifting of up to 15 pounds.
¶ 25 On December 5, 2011, the claimant returned to Dr. Lorenz. The claimant reported that his back pain was his biggest problem and that he was not concerned about his neck pain. Dr. Lorenz noted that the claimant had degenerative changes in his cervical and lumbar spine and that his neurological examination was normal. He again concluded that the claimant was not a surgical candidate. Dr. Lorenz concluded that the claimant could work in a sedentary position. He recommended that the claimant return to work within the parameters and restrictions set by the FCE.
¶ 26 During his evidence deposition, Dr. Masood testified that he did not recall whether the claimant reported an acute incident of trauma occurring on February 19, 2010, when he saw the claimant the following day. Nor could Dr. Masood remember whether the claimant had reported such an injury at any time during his treatment. He could not recall whether the claimant reported that he had difficulty opening trailer doors or that he sustained any specific injury from lifting trailer doors. Nor did Dr. Masood recall whether the claimant reported any injuries caused by his bouncing around on a malfunctioning air glide driver’s seat. Dr. Masood acknowledged that, if the claimant had reported any such specific incident, he would normally notate the incident in his medical reports.
¶ 27 Dr. Masood testified that the work tasks the claimant was performing as a truck driver during the year leading up to the time he saw the claimant in January and February of 2010 (i.e., the job tasks listed in Dr. Masood’s April 27, 2010, opinion letter) aggravated the claimant’s cervical and lumbar conditions, rendering them symptomatic. Dr. Masood opined that the claimant’s current low back and cervical spine conditions were more related to his driving a truck than to any specific incident of trauma.
¶ 28 During cross-examination, Dr. Masood admitted that the job duties listed in his April 27, 2010, letter were reported to him by the claimant, and Dr. Masood was never able to independently confirm that the information that the claimant gave him about his job duties was correct. Dr. Masood never reviewed a written description of the claimant’s job duties from the employer or a videotape depicting the performance of the claimant’s job duties. Dr. Masood did not know the type of truck the claimant drove, how much time each day the claimant spent driving, unloading freight, or performing his other work duties, how much force was required to lift a roll-up door on a trailer, or the average weight of the freight the claimant lifted on the job.
¶ 31 Dr. Lorenz confirmed his diagnoses of chronic neck and back pain and chronic pain syndrome. He stated that, when he examined the claimant, the claimant exhibited a “significant pain response essentially with everything that we did, all movements and even touching the upper as well as lower part of his back.” Dr. Lorenz noted that the claimant’s neurological examination was normal, and he described the claimant’s pain complaints as “extraordinary and unexpected.” He explained that chronic pain syndrome “suggests a greater pain response that one would expect for the pathology at hand.” He further opined that the claimant was permanently restricted to working at a sedentary level and that this work restriction was causally related to both the degenerative changes in the claimant’s spine and the February 19, 2010, work incident.
¶ 32 On May 8, 2012, the claimant was evaluated by Dr. Kevin Walsh, an orthopedic surgeon who served as the employer’s section 12 independent medical examiner. According to Dr. Walsh’s May 16, 2012, medical report, the claimant reporting suffering from low back pain and neck pain and “he believe[d] his neck pain [was] due to repetitive trauma from operating a truck with a bad air seat causing him to strike his head on the roof of the cab and bounce around inside his cab.” The claimant also reported “a history of low back pain which arose after opening the trailer door on February 19, 2010.” According to Dr. Walsh’s report, the claimant denied having any history of back pain prior to the February 19, 2010, incident.
¶ 34 Dr. Walsh further opined that there was “no evidence in the[ ] medical records that the [claimant] suffered an aggravation or acceleration of a preexisting osteoarthritic spine.” Dr. Walsh concluded that, more likely than not, all of the MRI findings were degenerative rather than traumatic in origin. Moreover, Dr. Walsh opined that there was “no evidence that the [claimant’s] current subjective complaints were causally related” to the work injuries reported by the claimant.
*7 ¶ 35 Dr. Walsh concluded that the claimant “most certainly [was] not a candidate for any surgical intervention.” He opined that the claimant required no further medical intervention, pain management, or work restrictions as a result of his claimed work injuries. Dr. Walsh concluded that the claimant could be released to return to work without restriction based on his objective physical examination and his imaging studies.
¶ 36 During his subsequent evidence deposition, Dr. Walsh testified consistently with his May 16, 2012, medical report. He confirmed that the claimant had reported neck pain which the claimant attributed to repetitive, work-related trauma, and back pain which arose after the February 19, 2010, work incident. Dr. Walsh acknowledged that the February 27, 2010, MRI of the claimant’s cervical spine showed abnormalities and that the February 27, 2010, MRI of the claimant’s lumbar spine showed a “very tiny” central disc protrusion (i.e., herniation). However, he opined that: (1) it was not likely that the claimant injured his back or neck as a result of his work activities; (2) the claimant’s subjective reports of pain were out of proportion to any objective medical findings; (3) the changes seen on the claimant’s spinal MRIs were degenerative in nature and were consistent with the claimant’s age (and also with the fact that the claimant’s symptoms worsened after he stopped working); (4) there was no evidence that the claimant had suffered an aggravation of preexisting degenerative spinal condition; and (5) the degenerative changes to the claimant’s lumbar spine shown on the claimant’s MRI studies were caused by aging and were not caused by the claimant’s work activities.
¶ 38 Moreover, the arbitrator found the claimant’s report that he was asymptomatic until February 19, 2010, to be contrary to the evidence. The arbitrator noted that Dr. Masood’s medical records reflect that the claimant complained of low back or neck conditions in 2002, more than eight years prior to the alleged incident of February 19, 2010.
*8 ¶ 40 Based on all these facts, the arbitrator concluded that the claimant “did not sustain an accident on February 19, 2010,” and found all remaining issues moot.
¶ 41 The claimant appealed the arbitrator’s decision to the Illinois Workers’ Compensation Commission (Commission). The Commission unanimously affirmed and adopted the arbitrator’s decision. The claimant then sought judicial review of the Commission’s decision in the circuit court of Will County, which confirmed the Commission’s decision.
¶ 42 This appeal followed.
¶ 44 On appeal, the claimant argues that the Commission erred as a matter of law by failing to consider the merits of his repetitive trauma claim. In the alternative, the claimant contends that the Commission’s finding that he failed to prove a repetitive trauma injury was against the manifest weight of the evidence. We address these claims in turn.
¶ 45 The claimant argues that the Commission erred by failing to address the merits of his repetitive trauma claim and by analyzing his claim under the wrong legal theory. According to the claimant, the Commission found only that the claimant failed to prove a traumatic accidental injury on February 19, 2010, and did not address the repetitive trauma claim actually pled by the claimant (which alleged February 19, 2010, as a manifestation date, not the date of a traumatic injury). The claimant notes that the Commission’s decision contains no references to “repetitive trauma” or to “manifestation date,” and he maintains that all of the Commission’s stated legal findings relate entirely to its conclusion that the claimant failed to prove a traumatic injury on February 19, 2010 (a claim that the claimant never raised or argued). The claimant maintains that the Commission erred as a matter of law by failing to consider and decide his repetitive trauma claim on its merits according to the proper legal theory. More specifically, the claimant contends that the Commission erred by failing to consider whether the date of injury he alleged in his Application for Adjustment of claim (February 19, 2010) was an appropriate manifestation date for his alleged repetitive trauma. Citing our decisions in Edward Hines Precision Components v. Industrial Comm’n, 356 Ill. App. 3d 186 (2005), and Luttrell v. Industrial Comm’n, 154 Ill. App. 3d 943 (1987), the claimant argues that we should remand this matter to the Commission so that his repetitive trauma claim may be properly analyzed and decided.
¶ 46 The claimant in a worker’s compensation proceeding has the burden of proving by a preponderance of the credible evidence that he suffered an accidental injury which arose out of and in the course of his employment. Paganelis v. Industrial Comm’n, 132 Ill. 2d 468, 480 (1989). An injury is considered “accidental” under the Act if it is caused by the performance of a claimant’s job, even though it develops gradually over a period of time as a result of repetitive trauma. Peoria County Belwood Nursing Home v. Industrial Comm’n, 115 Ill. 2d 524, 529–30 (1987); Fierke v. Industrial Comm’n, 309 Ill. App.3d 1037, 1040 (2000). A claimant alleging a repetitive trauma need not prove a specific traumatic injury or a “final, identifiable episode of collapse” during which the claimant’s bodily structure suddenly gave way. Luttrell, 154 Ill. App.3d at 957. However, an employee who alleges injury based on repetitive trauma must meet the same standard of proof as other workers’ compensation claimants alleging “accidental injury”; there must be a showing that the injury is work-related and not a result of the normal degenerative aging process. Peoria County Belwood Nursing Home, 115 Ill. 2d at 530; Edward Hines Precision Components, 356 Ill. App. 3d at 194. The date of injury in repetitive trauma cases is the date on which the injury manifests itself, meaning the date on which the fact of the injury and the causal relation to work would have become plainly apparent to a reasonable person. Edward Hines Precision Components, 356 Ill. App. 3d at 194.
¶ 48 Contrary to the claimant’s argument, the fact that the Commission’s decision does not reference the manifestation date alleged by the claimant or include the phrase “repetitive trauma” does not establish that the Commission failed to consider the claimant’s claim. The phrase “repetitive trauma” and the concept of a manifestation date were developed “in order to establish a date of accidental injury for purposes of determining when limitations statutes, and notice requirements, begin to run.” Peoria County Belwood Nursing Home, 115 Ill. 2d at 530-31; see also Edward Hines Precision Components, 356 Ill. App. 3d at 194. Thus, where the dates of manifestation or notice are not at issue, the use, or nonuse, of such terms is irrelevant. Edward Hines Precision Components, 356 Ill. App. 3d at 194. Here, the Commission found that the claimant failed to prove a work-related accident. It could have reached that conclusion by determining that the testimony and medical evidence did not support a claim for a work-related repetitive trauma. The Commission did not need to address the propriety of the manifestation date asserted by the claimant to find that the claimant failed to prove a work-related repetitive trauma injury.
¶ 49 In addition, contrary to the claimant’s assertion, Luttrell does not support the claimant’s argument that we should remand this matter to the Commission for further (or more explicit) consideration of his repetitive trauma claim. In Luttrell, the claimant, who suffered from carpal tunnel syndrome, originally filed a claim for repetitive trauma under the Act, but requested during the arbitration hearing that his claim be considered under the Occupational Diseases Act (ODA) (820 ILCS 310/1 et seq. (West 2010)). The arbitrator denied benefits and the Commission affirmed. The circuit court affirmed the Commission’s decision. After the Commission issued its decision, our supreme court decided Peoria County Belwood Nursing Home, which recognized claims for repetitive trauma under the Act. On appeal, we held that carpal tunnel syndrome is not a “disease” under the ODA and remanded the matter to the Commission for consideration of the claimant’s repetitive trauma claim under the Act pursuant to Peoria County Belwood Nursing Home. Luttrell, 154 Ill. App. 3d at 957. We ordered the remand pursuant to section 19(a)(2) of the Act, which provides for the amendment of claims and the taking of further evidence by the Commission whenever a claimant “misconceives his remedy” by filing a claim under the ODA that should have been filed under the Act. 820 ILCS 305/19(a)(2) (West 2010). In this case, the claimant has not “misconceived” his remedy by filing his claim under the ODA. To the contrary, he has already raised a claim for repetitive trauma under the Act which the Commission has considered and rejected. Thus, unlike in Luttrell, section 19(a)(2) of the Act does not apply here, and there is no need for a remand.
*10 ¶ 50 In any event, even assuming arguendo that the Commission did not properly analyze the claimant’s repetitive trauma claim, we could still affirm the Commission’s decision. “We may affirm the Commission’s decision on any basis supported by the record regardless of the Commission’s findings or its reasoning.” Dukich v. Illinois Workers’ Compensation Comm’n, 2017 IL App (2d) 160351WC, ¶ 43 n.6; see also General Motors Corp. v. Industrial Comm’n, 179 Ill. App. 3d 683, 695 (1989). In other words, we review the result reached by the Commission, not the Commission’s reasoning. The Commission’s judgment in this case was that the claimant filed to prove a compensable work-related accident. The dispositive question is whether that judgment is against the manifest weight of the evidence, regardless of the rationale stated by the Commission.
¶ 51 This brings us to the alternative argument raised by the claimant in this appeal. The claimant argues that the Commission’s finding that he failed to prove a work-related accident was against the manifest weight of the evidence. As noted above, to prove a work-related accident under a repetitive trauma theory, the claimant must prove that the injury is work-related and not a result of the normal degenerative aging process. Peoria County Belwood Nursing Home, 115 Ill. 2d at 530; Edward Hines Precision Components, 356 Ill. App. 3d at 194. In cases alleging repetitive trauma, the claimant generally relies on medical testimony establishing a causal connection between the work performed and the claimant’s disability. Nunn v. Illinois Industrial Comm’n, 157 Ill. App. 3d 470, 477 (1987). A claimant may recover for the aggravation or acceleration of a preexisting condition by a work-related repetitive trauma. Cassens Transport Co., Inc. v. Industrial Comm’n, 262 Ill. App. 3d 324, 331 (1994). To be recoverable, the claimant’s work-related injury need not be the sole factor that aggravates a preexisting condition, as long as it is a factor that contributes to the disability. Azzarelli Construction Co. v. Industrial Comm’n, 84 Ill.2d 262, 267 (1981); Cassens Transport, 262 Ill. App. 3d at 331. Cases involving aggravation of a preexisting condition primarily concern medical questions, not legal questions. Nunn, 157 Ill. App. 3d at 478. This is particularly true in a repetitive trauma case, where the claimant must show that the injury is work related and not the result of a normal degenerative aging process. Id.
¶ 52 The existence of an accidental injury arising out of and in the course of employment is a question of fact for the Commission. Cassens Transport, 262 Ill. App. 3d at 331. Thus, where the claimant alleges accidental injuries caused by a repetitive trauma, it is for the Commission to determine whether a claimant’s disability is attributable solely to a degenerative condition or to an aggravation of a preexisting condition due to a repetitive trauma. Id. It is also the Commission’s province to judge the credibility of witnesses, to determine the weight to be given to their testimony, to draw reasonable inferences from the evidence, to resolve conflicts in the evidence (including conflicting medical testimony), to draw reasonable inferences from the evidence, and to choose among conflicting reasonable inferences. Williams v. Industrial Comm’n, 244 Ill. App. 3d 204, 209 (1993); Fierke, 309 Ill. App. 3d at 1039; Fickas v. Industrial Comm’n, 308 Ill. App. 3d 1037, 1041 (1999). We may overturn the Commission’s factual determinations only when they are against the manifest weight of the evidence (Williams, 244 Ill.App.3d at 210), i.e., only when the opposite conclusion is clearly apparent (Westin Hotel v. Industrial Comm’n, 372 Ill. App. 3d 527, 539 (2007)).
¶ 54 Moreover, the claimant’s testimony regarding his alleged repetitive trauma injuries was somewhat questionable given his inconsistent accounts of the date when he began experiencing back pain, his failure to produce evidence supporting his claim of repetitive trauma due to a malfunctioning driver’s seat in his truck, his failure to report the alleged February 19, 2010, incident to Dr. Masood when he saw him the following day, the absence of an incident report for that incident, and Kovalik’s testimony that the claimant never reported experiencing a work-related injury to his back or neck.
¶ 55 Accordingly, there was ample evidence supporting the Commission’s finding that the claimant failed to prove a work-related repetitive trauma. An opposite conclusion is not clearly apparent. We therefore affirm the Commission’s decision. Because we affirm the Commission’s finding of no work-related accident, we do not need to address the claimant’s arguments regarding TTD and wage differential benefits.
¶ 57 For the foregoing reasons, we affirm the judgment of the circuit court of Will County, which confirmed the Commission’s decision.
Justices Hoffman, Hudson, Harris, and Barberis concurred in the judgment.
Dr. Masood had been the claimant’s family physician for approximately 15 years at that time.
“Spondylosis” is a degenerative process affecting the vertebral disc and facet joints that gradually develops with age.
The claimant’s time logs indicate that he worked a full 8.75-hour day on February 19, 2010, 44.42 hours during the week of February 22, 2010, 45.08 hours during the week of March 1, 2010, and 34.65 hours during the week of March 8, 2010.
The letter was dated “March 2, 2009,” but Dr. Masood testified that this was a typographical error. Dr. Masood stated that the letter was actually written on March 2, 2010.
The claimant admitted having one or two prior complaints of back pain over the 15 years that he treated with Dr. Masood, but nothing “major” and nothing to the extent of the pain he began experiencing in January 2010. During an October 22, 2009, medical examination for a commercial driver fitness determination, the claimant indicated that he had no history of spinal injury or disease and no chronic low back pain.
Apparently, the Commission erroneously assumed that the claimant had alleged both a repetitive trauma injury and a traumatic injury sustained on February 19, 2010. It likely made this assumption because Drs. Lorenz and Walsh each opined as to the causal connection between the claimant’s current neck and lower back conditions and the February 19, 2010, work incident. It is not surprising that Drs. Lorenz and Walsh rendered opinions on that issue given that the claimant had told each of them that he felt back pain (i.e., that his preexisting back condition became symptomatic) for the first time during the February 19, 2010, work incident.
The Commission’s decision to reject Dr. Masood’s opinion that the claimant’s job duties aggravated his preexisting cervical and lumbar spine conditions was reasonable because the foundation of Dr. Masood’s opinion was shown to be dubious. During cross-examination, Dr. Masood acknowledged that, in rendering his causation opinion, he relied on the claimant’s description of his job duties, he did not independently confirm the claimant’s account of his duties, and he knew little about the nature of those duties.
Next Next post: West v. Jewett & Noonan Transp., Inc.

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On this page you will find current rental rates for our construction equipment.
All prices are plus VAT from the yard Dreis.
All information without warranty; errors and omissions excepted.
Shortfall diesel 1.50 € / liter.
All rental equipment must be insured with us. For this purpose, the lease insurance is set with the following scope of services and a deductible of € 1,000 net. Starting at a leasing turnover of € 1,000 net and by providing proof of equivalent insurance, rental equipment must not be insured with us.
Information All details are without guarantee.
Damages Small damage to the machine will be charged to the tenant.
Fuel All machines are supplied with a full tank, with the exception of small appliances.
Shortfall in the return can be charged for separately.
Price fixing Any price list is valid until revoked from 01/08/2014. We are entitled to change the prices at any time.
Rates All prices are rental prices in € per day and net prices excl. VAT.
We calculate additional costs for complicated assignments.
Cleaning The machines will be delivered cleaned. Dirty machines are cleaned free of charge after return.
Shipment All prices are exclusive transportation. Lump transport by customers which results in problems, will be charged for separately.
Caveat All offers are subject to change. In cases of high utilization, we will provide comparable machines .
We reserve the right to prior letting or sale.
Accessories Attachments and accessories are chargeable.
The landlord agrees to let the tenant to the rental property for the agreed rental period.
The tenant agrees to the rental equipment only as intended use, to observe health and safety regulations as well as relevant Unfallverhütungsund traffic rules carefully, the rent to pay as agreed, to treat the rental equipment properly, and cleaned at the end of the rental period and return with a full tank.
The tenant agrees to permit the Landlord to display the current status and usage location of the rental property.
The landlord is required to return the rented property in perfect operational condition and completely refilled with the required documents.
If the lessor at the beginning of the rental period with the handover in default, the tenant is entitled to compensation. Notwithstanding § 4 No. 1 is the compensation for each workday capped at the amount of daily net rental for slight negligence of the landlord. After a reasonable period, the tenant may withdraw from the contract if the lessor is still at this time in default.
The tenant is entitled to the rental time to visit before arrival and report any defects. The cost of an investigation to the renter.
When transferring apparent defects, which do not impair the intended use, can no longer be reported if they have not been displayed to the landlord in writing, immediately upon investigation. Upon discovery of other existing defects, those must be reported in writing immediately.
The landlord has to eliminate timely reported defects that were present upon delivery. The cost of removing such defects carries the landlord. The landlord may proceed to the removal by the tenant, then the landlord shall bear the necessary costs. The landlord is also entitled to provide the lessee a functionally equivalent rental equipment. The payment obligation of the tenant moves in significant impairment of the leased premises for the necessary repair time.
If the landlord lapses a reasonable grace period for the disposal of an existing deficiency at handover, the tenant has a right of withdrawal. The right to rescind the tenant also exists in other cases of failure of the removal of an existing defect at handover, by the landlord.
Damages resulting from injury to life, body or health, based on a negligent breach of duty by the landlord or an intentional or negligent breach of duty by a legal representative or agent of the landlord.
if the owner is liable under product liability law for personal injury or material damage to privately used objects.
If through the fault of the landlord of the rental property by the tenant as a result of omitted or incorrect execution of lying before or after the conclusion of suggestions and advice, as well as other ancillary contractual obligations - in particular instructions for operation and maintenance of the rental property - can be used according to the contract does not apply, to the exclusion of further claims of tenant, the provisions of § 3 No. 3 and 4 and § 4, No. 1 accordingly.
The calculation of rent is a work time up to 8 hours daily basis. Billing is based on the five-day week (Monday to Friday). Weekend work, additional working hours and difficult missions are reported to the lessor and shall be charged additionally.
The separately calculated VAT has to be paid by the tenant.
The lien and the right to offset the tenant exist only in case of undisputed or legally established counterclaims by the landlord of the tenant, but not in disputed counterclaims.
If the tenant with the payment of an amount due for more than 10 calendar days without a written request for payment, or was a given from the change of tenants to protest, the landlord is entitled to the rental property after the announcement without recourse to the court at the expense of the tenant, the has to give access to the rental equipment and its withdrawal, and to dispose of otherwise. Remain the landlord is entitled to under the contract claims exist, but are the amounts which have been achieved within the agreed contract period about by renting the landlord or could have settled after deduction of the expenses incurred by the retrieval and re-letting.
Overdue amounts are included in the current account in terms of an agreed for deliveries between the parties current account retention of title.
The lessee shall pay the agreed rental price, less any deductions from security deposit, his claims against his employer, is used for the application of the rented property, the landlord min. The landlord accepts the assignment.
In case of default, the rents will not be credited toward the purchase price. Our payment term is 7 days after receipt of invoice.
80% of the monthly rent will be imputed to the purchase price. Minimum rental period is 3 months.
Resting the work at the work site, for which the equipment is rented, as a result of circumstances which is responsible for neither the tenant nor the principal (eg frost, flood, strike, civil commotion, war, official orders) at least ten consecutive days, so shall apply from 11 Calendar, this time as a style sun time.
The agreed rental period for a definite period shall be extended by the berthing time.
The tenant (see contract front) per cent of the appropriate this time agreed monthly rental basis to a daily shift of 8 hours to pay for the style sun time, if not otherwise agreed, the standard percentage of 75% applies.
The tenant has in writing both to make the setting of the work and of its resumption the Lessor without delay and to demonstrate the style sun time at the request of documents.
to announce necessary inspection and repair work on time and leave promptly carried out by the landlord. The costs borne by the landlord if the tenant and his assistants have noticed any demonstrable due diligence.
The landlord is entitled to inspect the rental property anytime to investigate after prior consultation with the tenants themselves or to be examined by an officer. The tenant is obliged to facilitate the lessor of investigation in every way. The cost of the investigation bears the landlord.
For rental of the rental with operator, the operator may only operate the leased premises, not to other works, are used. In case of damage caused by the operator, the owner is liable only if he has the operator is not properly selected. In addition, the tenant is liable.
The tenant is obligated to indicate the intended return of the rental property to the landlord well in advance (free report).
The rental period ends on the day on which the rental item arrives with all the information necessary for its commissioning parts in ordnungsund contract fair condition in the storage area of the landlord or some other designated destination, but not before the expiration of the contract; Last § 5 No 4 clause applies accordingly.
The tenant has to return the rented in working refueled and cleaned state, or held for pickup; § 7 No. 1b) and 1c) shall apply accordingly.
The return delivery must be made in sufficient time during normal business hours of the landlord that the landlord is in a position, nor to consider the rental on this day.
If the rented returned in a state that indicates that the tenant of its proposed in § 7 maintenance obligation is not fulfilled, there is a payment obligation of the tenant in the amount of the rent as compensation until the end of the breach of contract failure to repair.
The scope of the represented by the tenant defects and damage must be notified to the tenant and it is to give him an opportunity for review. The cost of the necessary repair work to remedy the deficiencies are giving up part of the landlord to the tenant in an estimated amount possible before starting any repair work.
The proper return of the rental property is deemed accepted by the landlord, if visible defects with timely return delivery within the meaning of § 9 No. 4 does not immediately and otherwise, and have not objected when other defects within 14 calendar days after arrival at destination.
The lessee may not authorize a third party to rental equipment assign or grant rights of any kind in or to the rented property rights under this Agreement.
Should a third party assert by seizure, attachment or similar rights to the rental property, the tenant is obliged to report to the owner without delay by registered display and notify the third party thereof by registered mail.
The tenant has to take appropriate measures to safeguard against theft of the rented property.
The tenant must notify the landlord in all accidents and await his instructions. For traffic accidents and theft, the police should be consulted.
If you think the tenant is guilty of violating the above provisions 1 to 4, he is obliged to compensate the owner for all losses which arises from this.
The completed over a certain lease rental agreement is basically irredeemable for the contractor.
The same is true for the minimum rental under a closed indefinitely lease. After expiry of the minimum rental the tenant has the right to terminate the contract for an indefinite period rental agreement with a term of one day.
a week if the rent per month is agreed.
Power of the owner of the right acquired under No. 2 right of termination, § 5 No. 4 in conjunction with § § 9 and 10 apply to an application.
The tenant may terminate the lease after notice without notice, if the use of the rental property due to justifiable reasons, the landlord is not possible in the longer term.
Should it be impossible for the tenant negligently or technically compelling reasons to comply with its obligation under § 9 No. 3 obligation to return the rental property, he is obliged to pay damages.
Deviating agreements or amendments to the contract shall be in writing.
If any provision of this agreement be invalid, the remaining provisions shall not be affected thereby.
Place of performance and exclusive place of jurisdiction - also for actions in Urkundenund change process - is when the tenant a merchant, a legal entity under public law or a public special fund, for both parties and for all claims of the headquarters of the owner or - at its option - the seat of his branch which concluded the contract. The landlord can sue at the general jurisdiction of the lessee.
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Held: Louisiana violated the Double Jeopardy Clause by prosecuting petitioner a second time for first-degree murder after the judge at the first trial granted petitioner's motion for new trial on the ground that the evidence was legally insufficient to support the jury's guilty verdict. This case is controlled by Burks v. United States, 437 U. S. 1 (decided before the Louisiana Supreme Court affirmed petitioner's conviction after the second trial), which held that "the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient" to support the guilty verdict. Id. at 437 U. S. 18. Burks is not to be read as holding that double jeopardy protections are violated only when the prosecution has adduced no evidence at all of the crime or an element thereof. The record does not support the State's contention that the trial judge granted a new trial only because, as a "13th juror," he entertained personal doubts about the verdict and would have decided it differently from the other 12 jurors. The record shows instead that he granted the new trial because the State had failed to prove its case as a matter of law. Pp. 450 U. S. 425.
motion for new trial on the ground that the evidence was insufficient to support the jury's verdict of guilty.
"I heard the same evidence the jury did[;] I'm convinced that there was no evidence, certainly not evidence beyond a reasonable doubt, to sustain the verdict of the homicide committed by this defendant of this particular victim."
for a writ of certiorari. State v. Hudson, 344 So.2d 1 (1977).
Petitioner then sought a writ of habeas corpus in a Louisiana state court, contending that the Double Jeopardy Clause barred the State from trying him the second time. Petitioner relied on our decision in Burks [Footnote 2] that "the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient" to support the guilty verdict. 437 U.S. at 437 U. S. 18. [Footnote 3] The trial court denied a writ, and the Louisiana Supreme Court affirmed. 373 So.2d 1294 (1979). The Supreme Court read Burks to bar a second trial only if the court reviewing the evidence -- whether an appellate court or a trial court -- determines that there was no evidence to support the verdict. Because it believed that the trial judge at petitioner's first trial had granted petitioner's motion for new trial on the ground that there was insufficient evidence to support the verdict, although some evidence, the Louisiana Supreme Court concluded that petitioner's second trial was not precluded by the Double Jeopardy Clause.
We granted a writ of certiorari, 445 U.S. 960 (1980), and we now reverse.
evidence to sustain the jury's verdict."
437 U.S. at 437 U. S. 2. We held that a reversal "due to a failure of proof at trial," where the State received a "fair opportunity to offer whatever proof it could assemble," bars retrial on the same charge. Id. at 437 U. S. 16. We also held that it makes "no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient," id. at 437 U. S. 11 (emphasis in original), or that "a defendant has sought a new trial as one of his remedies, or even as the sole remedy." Id. at 437 U. S. 17.
"[H]ow they concluded that this defendant committed the act from that evidence when no weapon was produced, no proof of anyone who saw a blow struck, is beyond the Court's comprehension."
"[T]he trial judge herein ordered a new trial pursuant to LSA-C.Cr.P. art. 851(1) solely for lack of sufficient evidence to sustain the jury's verdict. . . ."
373 So.2d at 1298 (emphasis in original). This is precisely the circumstance in which Burks precludes retrials. 437 U.S. at 437 U. S. 18. See Greene v. Massey, 437 U. S. 19, 437 U. S. 226 (1978); id. at 437 U. S. 27 (POWELL, J., concurring). Nothing in Burks suggests, as the Louisiana Supreme Court seemed to believe, that double jeopardy protections are violated only when the prosecution has adduced no evidence at all of the crime or an element thereof.
The State contends that Burks does not control this case. As the State reads the record, the trial judge granted a new trial only because he entertained personal doubts about the verdict. According to the State, the trial judge decided that he, as a "13th juror," would not have found petitioner guilty, and he therefore granted a new trial even though the evidence was not insufficient as a matter of law to support the verdict. [Footnote 4] The State therefore reasons that Burks does not preclude a new trial in such a case, for the new trial was not granted "due to a failure of proof at trial." 437 U.S. at 437 U. S. 16.
facts which distinguish this case from Burks, [Footnote 6] and the Double Jeopardy Clause barred the State from prosecuting petitioner a second time.
The judgment of the Louisiana Supreme Court is reversed. It is so ordered.
"The Court, on motion of the defendant, shall grant a new trial whenever:"
"(1) The verdict is contrary to the law and the evidence;"
"(2) The court's ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;"
"(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty;"
"(4) The defendant has discovered, since the verdict or judgment of guilty, a prejudicial error or defect in the proceedings that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before the verdict or judgment; or"
We think it clear that the trial judge in this case acted under paragraph (1) in granting a new trial. See infra at 450 U. S. 43.
Burks involved a federal prosecution, but the Court held in Greene v. Massey, 437 U. S. 19, 437 U. S. 24 (1978), that the double jeopardy principle in Burks fully applies to the States. See Benton v. Maryland, 395 U. S. 784 (1969); Crist v. Bretz, 437 U. S. 28 (1978).
"[The trial judge] did not grant a new trial for a reason that he did not think the state had produced sufficient evidence to prove guilt, but rather because he himself (to satisfy his doubts, not the jury's, which had concluded otherwise) had personal doubts that the evidence was sufficient to prove guilt beyond a reasonable doubt. Commendably and conscientiously, he therefore ordered a new trial. . . . "
"The present is not an instance where the state did not prove its case at the first trial, so that granting a new trial gave the state a second chance to produce enough evidence to convict the accused. If so, as the majority notes, retrial offends constitutional double jeopardy."
373 So.2d at 1298 (emphasis in original).
Whether a state trial judge in a jury trial may assess evidence as a "13th juror" is a question of state law. Compare People v. Noga, 196 Colo. 478, 480, 586 P.2d 1002, 1003 (1978); State v. Bowle, 318 So.2d 407, 408 (Fla.App. 1975), with Veitch v. Superior Court, 89 Cal.App.3d 722, 730-731, 152 Cal.Rptr. 822, 827 (1979); People v. Ramos, 33 App.Div.2d 344, 347, 308 N.Y.S.2d 195, 197-198 (1970). Justice Tate's concurring opinion for the Louisiana Supreme Court suggests that Louisiana law allows trial judges to act as "13th jurors." We do not decide whether the Double Jeopardy Clause would have barred Louisiana from retrying petitioner if the trial judge had granted a new trial in that capacity, for that is not the case before us. We note, however, that Burks precludes retrial where the State has failed as a matter of law to prove its case despite a fair opportunity to do so. Supra at 450 U. S. 43. By definition, a new trial ordered by a trial judge acting as a "13th juror" is not such a case. Thus, nothing in Burks precludes retrial in such a case.
"While the case at bar involves the granting of a motion for new trial by the trial court for insufficient evidence, rather than review at the appellate level, we deem the same principles are applicable to both."
373 So.2d at 1297. The State does not contest this conclusion.


text:
Argued and Submitted Jan. 13, 1988.
Doron Weinberg, Larson & Weinberg, San Francisco, Cal., for defendant-appellant.
Rodolfo M. Orhales, Asst. U.S. Atty., Crim. Div., San Francisco, Cal., for plaintiff-appellee.
Before GOODWIN, FARRIS and NELSON, Circuit Judges.
Thomas Faust appeals his convictions under 18 U.S.C. Secs. 495 and 641 (1982) for forgery and embezzlement.
On October 8, 1980, the federal government entered into a security agreement with Tractug Associates in accordance with the Federal Ship Mortgage Insurance Program, Title XI, Merchant Marine Act of 1936. Under this agreement, the Maritime Administration (MARAD), which is a division within the United States Department of Transportation, guaranteed approximately $25 million in bonds and notes, thus enabling Tractug Associates to obtain financing for the construction of eight tugboats. Thomas Faust organized and was the general partner of Tractug Associates.
Section 2.07 of the security agreement addressed the issue of insurance and possible damage to any of the eight tugboats. The government required that the vessels be insured, with any loss over $100,000 payable to the Secretary of Transportation for distribution "by himself to himself and Tractug Associates." An endorsement subsequently required that losses exceeding $50,000 would be payable jointly to the Secretary of Transportation and Tractug Associates. A copy of the endorsement, signed by Faust, was forwarded by the broker, Fred S. James, to the underwriter, Marine Office of America Corporation (MOAC) on October 6, 1982.
On January 20, 1983, one of the insured vessels, the ZP Chandon, was damaged in an accident off Mobile, Alabama. The damaged tug was taken to Bender Shipbuilding and Repair Company. The vessel had sustained approximately $400,000 damage to its bow strut and propulsion unit (z-peller). To repair the damaged propulsion unit, Faust had parts removed from a partially completed vessel which was also being constructed with Title XI money at Valley Shipbuilding. The parts were transferred from Valley Shipbuilding (one of several companies organized by Faust) and were sent to Bender for installation on the ZP Chandon.
After the ZP Chandon was repaired, Bender refused to release the vessel until it received payment for its work. Faust asked Bender to release the vessel in exchange for an initial payment of $125,000, the balance of the charges to be agreed upon at a later date. This proposal called for MOAC to issue a check for $100,000 and for Faust to add the $25,000 balance which represented the deductible under the insurance policy. Faust and Bender agreed without the knowledge or approval of MARAD. Based upon this understanding and on the representations by Faust, Bender released custody of the ZP Chandon to Faust.
In March 1983, MOAC issued a draft in the amount of $100,000 payable jointly to Faustug Marine Corporation (one of Faust's entities) and to the Secretary of Transportation. The draft was sent to Faust for Faustug to add the $25,000 deductible and then to forward both amounts to Bender. Contrary to the agreement, Faust kept the $100,000 without advising MOAC or Bender. Faust contends, however, that he contacted MARAD and received what he believed to be an oral authorization to endorse the check from Gerald Neuman, the Associate Administrator for Maritime Aids. Faust endorsed the draft by signing his name, his company name and "Secretary of Transportation" followed by his initials "T.F." After Faust deposited the check, Faustug's controller, Thomas Bower, warned Faust that the endorsement was illegal and improper.
Faust contends that he was owed more than $300,000 by the insurance company at the time the $100,000 check was issued--$170,000 to be retained by him and $150,000 to go to Bender. Bender did not receive any of the proceeds of the check. Eventually, however, Bender repossessed the ZP Chandon, and MOAC issued new drafts totaling $149,922 payable to Bender.
In addition, MOAC issued a draft on August 19, 1983, in the amount of $31,469.60, payable to Faustug Marine Corporation and the Secretary of Transportation. Faust again signed both endorsements. This time, however, he did not place his initials next to his signature of "Secretary of Transportation." He deposited the draft into a Faustug operations bank account.
Finally, Faust received a third insurance draft in the amount of $28,348.62, dated September 2, 1983, which also required the endorsement of the Secretary of Transportation. He endorsed it as he had endorsed the second check. This time, Faust was initially unsuccessful in depositing the draft. A bank teller refused to accept the draft for deposit from Faust and directed him to a bank officer. Despite Faust's attempt to explain that the money was due him, the officer told Faust that the draft had been improperly endorsed and would not be accepted. The officer then placed a telephone call to MARAD. He was told by Harry Haskins from MARAD's ship-financing division that the draft was improperly endorsed and should not be accepted. The draft was then returned to Faust. A day later, on September 15, 1983, the same draft was deposited by Faust at another bank.
These events resulted in several civil law suits among MARAD, MOAC, Faust personally and through his various companies, and two commercial banks. Since then, Faustug Marine Corporation and the related businesses have either been dissolved, abandoned, or declared bankrupt. The tug from which Faust removed the parts placed on the ZP Chandon remains scrapped because Faust never replaced the z-peller. The z-peller had a value between $74,000 and $238,000. Faust asserts that the government received an insurance settlement check in the amount of $74,000 after Faust defaulted. After the default, MARAD sustained a $22 million loss when compelled to comply with its security obligations.
Faust was charged with three counts of uttering checks with forged endorsements in violation of 18 U.S.C. Sec. 495 and with three counts of embezzling the proceeds of the checks in violation of 18 U.S.C. Sec. 641. Faust was found guilty of the three Sec. 495 counts and of one Sec. 641 count (Count 2, involving the check for $100,000), and was acquitted of the other two Sec. 641 counts. The court denied Faust's motions for acquittal under Fed.R.Crim.P. 29, made several times during and after trial.
Faust challenges the sufficiency of the evidence on all counts. When reviewing a jury's verdict, this court reviews the evidence in the light most favorable to the government and draws all reasonable inferences supporting the conviction. United States v. Vincent, 758 F.2d 379, 380 (9th Cir.), cert. denied, 474 U.S. 838, 106 S.Ct. 116, 88 L.Ed.2d 95 (1985).
Faust contends that there was insufficient evidence to convict him of embezzlement. He argues that the government failed to prove that the United States suffered a property loss. See United States v. Long, 706 F.2d 1044, 1048 (9th Cir.1983). Faust argues that he was owed money from the insurance company at the time he cashed the checks. This is immaterial. He further claims that the parties entitled to the money eventually received all that was due them. This is untrue, as well as immaterial. In effect, Faust contends that because some funds eventually may have been delivered to the entity entitled to them, he committed no crime in shortstopping delivery by way of his bank account and spending the money.
Our cases have noted that in order to uphold a conviction under Sec. 641, the government must have "title to, possession of, or control over" the funds involved. United States v. Johnson, 596 F.2d 842, 846 (9th Cir.1979). See Long, 706 F.2d at 1048. The government clearly had an ownership interest in the proceeds of each check described in the indictment. The Secretary of Transportation was a copayee of the check. By the terms of the security agreement with Faust, the proceeds of the check were payable to the Secretary for distribution by the Secretary to the Secretary and Tractug. The $50,000 payee clause specified that the insurance policy had been issued to Faust and the United States. See J. Appleman & J. Appleman, 5A Insurance Law and Practice Sec. 3331 at 122 (1970) (the person to whom a policy is issued and in whose name it stands is usually considered its legal owner). These facts prove that the proceeds of the check were a "thing of value" of the government within the meaning of Sec. 641.
Furthermore, this court has also looked to the amount of control the government has retained over funds when seeking to determine whether the funds are government funds within the purview of Sec. 641. See United States v. Von Stephens, 774 F.2d 1411, 1413 (9th Cir.1985); Long, 706 F.2d at 1049-50; Johnson, 596 F.2d at 844-47. Here the government had substantial control over both the tugboats that were being built with Title XI funds and the insurance loss payments. The financing, construction, and operation of the tugboats was governed by the security agreement between Faust and the government. This document addressed numerous issues in detail. Furthermore, 46 C.F.R. Part 298 codified the restrictions imposed on Faust which were intended to protect the government's interest. See, e.g., 46 C.F.R. Sec. 298.40 (1987) (governing defaults, remedies and reporting requirements of ship operator); 46 C.F.R. Sec. 298.41(b) (1987) (authorizing Secretary of Transportation to seize and foreclose vessels in event of default). The government also maintained tight control over the insurance. See, e.g., 46 C.F.R. Sec. 298.32(b)(6) (1987).
Faust relies on cases which require a showing that the government "suffered a property loss" in order to support a conviction under Sec. 641. See Long, 706 F.2d at 1048; United States v. Collins, 464 F.2d 1163, 1165 (9th Cir.1972). However, neither of the cases cited addressed the point which Faust seeks to support. In Collins, a defendant wrongly deposited a city treasurer's warrant in an account controlled by defendant. The warrant was charged against an account in which the Department of Labor had deposited funds for a city program. The defendant later wrote a check against the account which he controlled, and a bank honored the check. Collins, 464 F.2d at 1164-65. The court concluded that the converted funds did not constitute federal government property because the warrant was a city warrant. Id. at 1165. Thus, the issue was the federal nature of the funds. Obviously a property loss had been sustained. See also Long, 706 F.2d at 1048-50 (issue was whether meat which was bought by the government but diverted to defendants before delivery to Fort Lewis was government property). Furthermore, Collins has subsequently been distinguished on the grounds that the federal government in Collins did not retain sufficient control over the federal funds. Johnson, 596 F.2d at 846.
More on point is Ailsworth v. United States, 448 F.2d 439 (9th Cir.1971). In that case a defendant was employed at a Naval supply depot. He had heard that copper could be valuable for salvage. He intended to find out how valuable the copper was, by selling one or two pieces while hiding a pallet full of copper plates until after he had determined whether it was worthwhile to sell it. He was apprehended before he had sold the balance of the copper. The value of the pieces sold was less than $100, but the pallet full of copper plates was worth substantially more than $100. The defendant was convicted of felony theft under Sec. 641 for theft of more than $100 of government property. Id. at 440-41. The question in Ailsworth was whether by hiding the pallets of copper the defendant exercised control over them while intending to steal them. If so, it was no defense that the pallets never left the government's enclosure, nor that the defendant could have changed his mind and decided not to steal them. The court held that by hiding the copper pallets the defendant intended to steal government property within the meaning of Sec. 641. The court reasoned that Sec. 641 requires only an intent to appropriate government property "to a use inconsistent with the owner's rights and benefits." Id. at 442.
There was sufficient evidence to convict Faust of violating Sec. 641.
Faust also contends that the government failed to prove that there was sufficient evidence to convict him of forgery. Faust attacks the forgery convictions on two fronts. First, Faust argues that the forgery convictions cannot stand because the government failed to prove that Faust defrauded the government out of money or property. Second, Faust argues that the government made out at best a case of fraudulent agency endorsement, not forgery.
1. Intent to defraud the government.
Faust contends that his convictions for forgery must be reversed in light of the Supreme Court's decision in McNally v. United States, --- U.S. ----, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). In McNally, the Court considered the mail fraud statute's prohibition on "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." 18 U.S.C. Sec. 1341 (1982). The Court held that the statute did not prohibit schemes to defraud individuals out of their intangible rights. Rather, the Court held that the statute prohibited only schemes to obtain money or property. The use of the disjunctive "or" was meant to make clear that "the statute reached false promises and misrepresentations as to the future as well as other frauds involving money or property." McNally, 107 S.Ct. at 2881.
Faust argues that a similar construction should be used to interpret the language of Sec. 495. The statute describes in the disjunctive the crime of forging, which requires a "purpose of obtaining or receiving ... [a] sum of money," and the crime of uttering, which requires an "intent to defraud the United States."
However, McNally does not involve or even discuss Sec. 495. In McNally, the Court was forced to distinguish several earlier cases which had interpreted a statute prohibiting conspiracies "to defraud the United States, or any agency thereof in any manner or for any purpose." Id. at 2881 & n. 8, distinguishing Hammerschmidt v. United States, 265 U.S. 182, 44 S.Ct. 511, 68 L.Ed. 968 (1924) (construing predecessor of 18 U.S.C. Sec. 371). In Hammerschmidt, the Court had construed the words "to defraud" to include not only schemes to "cheat the Government out of property or money" but also plans "to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest." Hammerschmidt, 265 U.S. at 188, 44 S.Ct. at 512. The McNally Court also distinguished statutes which protect the government alone from those which also protect the citizens at large. McNally, 107 S.Ct. at 2881 n. 8. Considerations in the former type of statute exist which justify a broader scope. Id., citing Curley v. United States, 130 F. 1 (1st Cir.1904). The crime of uttering as codified in Sec. 495 protects only the government. Thus, it prohibits all attempts to interfere with or obstruct lawful government functions by circulating dishonest written material with criminal intent and knowledge of its falsity. Faust's actions clearly fall within this broad proscription.
Moreover, even if the crime of uttering requires an intent to defraud the United States of property, there was sufficient evidence to conclude that Faust violated the statute. In McNally, the Court noted that the phrase "to defraud" "is to be interpreted broadly insofar as property rights are concerned." McNally, 107 S.Ct. at 2879-80, citing Durland v. United States, 161 U.S. 306, 16 S.Ct. 508, 40 L.Ed. 709 (1896). Faust's intent to appropriate the proceeds of the check to a use inconsistent with the substantial rights and benefits of the government was an intent to defraud the United States of a property right as contemplated by Durland and McNally.
In Gilbert v. United States, 370 U.S. 650, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962), the Supreme Court analyzed Sec. 495 and concluded that the statute "does not embrace a purported, but misrepresented, agency endorsement." Id. at 652, 82 S.Ct. at 1401, citing Selvidge v. United States, 290 F.2d 894 (10th Cir.1961). See also Wright v. United States, 172 F.2d 310, 311 (9th Cir.1949) ("the genuine making of a writing for the purpose of defrauding another is not forgery"), cited with approval in Gilbert, 370 U.S. at 658, 82 S.Ct. at 1403. In Gilbert, Milo Gilbert was an attorney representing Daniel and Charline Bartfield. A check had been made out to "Daniel H & Charlene [sic ] R. Bartfield c/o R Milo Gilbert." Gilbert endorsed the checks by signing the Bartfields' names, and then signing "R. Milo Gilbert, Trustee" underneath their names. Id. at 651, 82 S.Ct. at 1400. The court held that this agency endorsement, even if fraudulent and perhaps criminal, did not fall within the scope of the forgery statute. Id. at 652, 658-59, 82 S.Ct. at 1400, 1403-04. Gilbert is another way of saying that all forgeries are fraud, but not all frauds are forgeries.
Gilbert supports the defense to the false endorsement of the first check which had been initialed (Count 1). Faust's failure to use any qualifying adjective before his initials is not significant. See Asher v. United States, 480 F.2d 580, 583 (6th Cir.1973). Neither is it significant that Faust's conduct undoubtedly violated other laws. He was charged in the count with forgery. Faust signed the words "Secretary of Transportation" rather than signing the name of the Secretary and he placed his initials next to this signature. These facts represented that Faust was signing as a purported agent of the Secretary, however fraudulent the representation of agency may have been. See id. Even viewing the evidence in the light most favorable to the government, the evidence proves evil intent and false pretense but does not prove forgery with regard to the first check.
The two checks which Faust endorsed as "Secretary of Transportation" and which he did not initial present a harder question (Counts 3 and 5). On the one hand, there is no representation of agency on the face of the check, as there was in Gilbert and Asher. On the other hand, in offering a check endorsed with the words "Secretary of Transportation," Faust did represent either that the Secretary of Transportation had herself signed the check, or that an agent of the Secretary had signed it. However, there is no indication on the check that Faust had signed the check as an agent of the Secretary. Faust's conduct thus amounted at least to a forgery of an agency endorsement. His defense that it was a fraudulent agency endorsement is no defense. A forged endorsement is also a forgery. Thus, there was sufficient evidence to support convictions of forgery on these counts.
In light of Gilbert, we vacate the conviction on Count 1. There was, however, sufficient evidence to uphold the convictions on Counts 3 and 5.
Faust states, correctly, that it is "reversible error to refuse a charge on a defense theory for which there is an evidentiary foundation and which, if believed by the jury, would be legally sufficient to render the accused innocent." United States v. Lewis, 592 F.2d 1282, 1285 (5th Cir.1979). However, a defendant is not entitled to any particular form of an instruction so long as the instructions given fairly and adequately cover his theories of defense. United States v. Solomon, 825 F.2d 1292, 1295 (9th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 782, 98 L.Ed.2d 868 (1988). The trial court has broad discretion in tailoring the precise language of jury instructions and even " '[i]mperfectly formulated jury instructions will serve as a basis for overturning a conviction only upon a showing of abuse of discretion.' " Id., quoting United States v. Hayes, 794 F.2d 1348, 1351 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987).
Faust first contends that the court erred in denying his requested instruction on agency. The court properly refused to give an agency instruction because there was no indication of agency on the endorsements in the checks that were the subject of Counts 3 and 5;5 nor was there any testimony that Faust was actually an agent, or even reasonably believed that he was an agent, of the Secretary of Transportation. See Jolly v. United States, 411 F.2d 618, 619 (9th Cir.1969); see also United States v. Gilbreath, 452 F.2d 992, 993 (5th Cir.1971).
The trial court's instructions on embezzlement and forgery adequately covered the elements of good faith. The instructions clearly required the jury to find that Faust knowingly and willfully embezzled or converted the property before they could find him guilty. This instruction precluded the possibility that the jury could have convicted Faust of embezzlement despite any belief that Faust acted in good faith. See United States v. Green, 745 F.2d 1205, 1209 (9th Cir.1984) (a defendant is not entitled to a separate good faith instruction when the court gives an adequate instruction on specific intent), cert. denied, 474 U.S. 925, 106 S.Ct. 259, 88 L.Ed.2d 266 (1985).
We similarly conclude that the trial court's instruction on forgery adequately addressed the issue of authority. The instructions required the jury to find that the endorsement was "written or signed without the payee's permission or authority." This was adequate to insure that the jury would not find Faust guilty if it believed, as Faust argued, that one Gerald Neuman had given him authority to endorse the check. The court did not abuse its discretion in denying the particular instruction on authority which Faust requested. See Solomon, 825 F.2d at 1295.
Faust protests the admission of two letters under Fed.R.Evid. 404(b). The first was a letter written by Mustang Power Inc., a marine supply company, in which an estimate was given for ship generators. Faust altered the letter, as shown by his handwriting on a copy of the original letter. Faust photocopied the letterhead, drafted a new invoice and forged the signature of the Mustang Power salesman. Although Faust did not recall whether he had created the invoice, he explained that if he had done so, it would have been to speed up the delivery of equipment and payment thereon. The evidence was clearly relevant to his state of mind and contradicted his professions of good faith or mistake.
Faust contends that admission of these letters was error in three respects. First, he argues that the government failed to meet the foundational requirements of Rule 404(b). Second, he argues the court failed to perform the balancing analysis required by Rule 403. Third, he contends that the prejudicial effect of the evidence outweighed its probative value.
We review the admission of such evidence for abuse of discretion. See United States v. McKoy, 771 F.2d 1207, 1214 (9th Cir.1985) (Rule 404); United States v. Bailleaux, 685 F.2d 1105, 1112 (9th Cir.1982) (Rule 403).
Rule 404(b) is a rule of inclusion. United States v. Bradshaw, 690 F.2d 704, 708 (9th Cir.1982), cert. denied, 463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983). However, evidence of extrinsic acts must be relevant to an actual issue in the case. United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir.1985). The trial court ruled that the government had satisfied its burden of showing the relevance of the Mustang Power letter. Faust contends that knowledge, awareness and lack of accident were not contested issues in this case. Rather, he argues the issue was good or bad faith. We are not impressed with this distinction.
A district court's decision to admit evidence under Rule 404(b) will be upheld on appeal if the evidence is admissible on any of the enumerated grounds. United States v. Green, 648 F.2d 587, 592 (9th Cir.1981). Faust defended his conduct in endorsing and depositing the checks at issue, on the specious grounds that he had authority to do so, or at least believed that he had such authority. In essence he claimed that his intentions were honorable. Thus, intent was clearly an issue; the forged letter was relevant to his intent to forge checks, and to the absence of mistake or accident in signing for the Secretary of Transportation.
Faust contends that the government's failure to show that he lacked authority to alter the Mustang Power letter rendered the evidence's relevance tenuous. See United States v. Hernandez-Miranda, 601 F.2d 1104, 1108-09 (9th Cir.1979). Faust relies on United States v. Peterson, 808 F.2d 969 (2d Cir.1987). In Peterson, the defendant was charged with knowingly possessing a check stolen from the mail (the Azapian check). Her defense was that she had never seen the check, did not endorse it and did not know it was stolen. The government was allowed to introduce the testimony of a handwriting expert that Peterson had endorsed a stolen check payable to Williams. The prosecutor represented that the government had information from Williams that she had never received the check. However, the government did not introduce any evidence to show that the Williams check was ever missing, stolen or deposited by Peterson. Id. at 971-73. The court of appeals reversed, noting among other things, that there was no evidence that Peterson was not authorized to endorse Williams' name. Id. at 975.
We are unpersuaded by Faust's citation of Peterson. Faust's conduct in manufacturing a wholly spurious invoice and signing the Mustang Power's salesman's name was more extensive than Peterson's conduct in endorsing the Williams check. Some gullible person might imagine a scenario in which Peterson could have had authority to endorse the Williams check. Moreover, unlike Peterson, the states of mind in altering the document and forging the signature are essentially the same. In Peterson, a forged endorsement on one check which might not even have been stolen, was offered to prove knowledge, not that another check was forged, but that it was stolen. Here by contrast, one forged signature was offered to prove that Faust operated in a manner that utilized forged signatures.
We conclude that the evidence was relevant and properly admitted under Rule 404(b). Even in the absence of an explicit record documenting the court's balancing of prejudice and probative value, Faust's conclusions about prejudice do not convince us that the letter's probative value was outweighed by its prejudice. On this record, we cannot say that the trial court abused its discretion in admitting the evidence.
Faust also argues that the Cantrell letter was improperly admitted. His argument on this point is less convincing than his argument on the Mustang Power letter. Here, evidence of lack of authority was clear--Bower testified that he had never given Faust authority to sign his name. Faust argues, however, that forgery of a signature in a letter sent in a "commercial dispute" is irrelevant to the forgery of a signature on a check. He contends that the former does not necessarily entail the essential element of criminal forgery, an intent to defraud. However, the Cantrell letter was not introduced merely to show intent to defraud; it was also introduced to rebut Faust's defense that he had authority to endorse the check, or mistakenly believed that he had such authority. The evidence was relevant on this point.
We conclude that the court properly admitted the Cantrell letter under Rule 404(b). Nor are we swayed by Faust's further allegations of prejudice. The prejudice was of Faust's own making. Forgeries tend to embarrass forgers. We cannot conclude that the court abused its discretion in admitting this evidence.
Faust contends that evidence regarding his state of mind was improperly excluded. Specifically, Faust refers to the government's attempt to prove that he signed a loss payee clause in late September 1982, before the insurance check was issued. To this end, the government introduced a copy of an endorsement which was signed by Faust and countersigned by Dean Steeger, a MOAC employee. Faust argues that he did not sign this loss payee clause until August 1983. At that time, he claims he was being blackmailed by MOAC and forced to backdate the endorsement or else risk the chance that loss payments would be withheld. He further testified that when he signed the original, he crossed out the date next to Steeger's name. The original was not produced by the government. Faust postulates that the acquittals on Counts 4 and 6 (involving checks under $50,000) indicate that the date on which Faust signed the endorsement was a pivotal issue for the jury.
To support his testimony, Faust attempted to introduce a draft of a letter he proposed to send to Steeger protesting the newly endorsed payee clause. The letter was offered as circumstantial evidence of state of mind. The government objected to the exhibit as self-serving. The trial court refused to admit the letter, not on the government's grounds, but because Faust's beliefs had just been expressed to the jury. Faust asserts that the exclusion of this letter precluded him from corroborating his story as to what his state of mind was in August 1983.
A trial court's evidentiary ruling will be reversed only where there has been an abuse of discretion, and only if that evidentiary error would have more likely than not affected the verdict. United States v. Emmert, 829 F.2d 805, 808 (9th Cir.1987).
Faust's opportunity to reflect in drafting the letter, however, weighs heavily against admission. Rule 803(3) is related to the exceptions created by Rules 803(1) and (2), which allow statements of present sense impression and excited utterances. See Ponticelli, 622 F.2d at 991; Fed.R.Evid. 803(1), (2). The theory behind all three exceptions is that "[t]he greater the circumstances for misrepresentation, the less reliable is the declaration." Ponticelli, 622 F.2d at 991. The circumstances in this case allowed Faust to think long and hard before drafting the letter. Indeed, the fact that Faust went through several drafts indicates that he had ample time to reflect upon his statements. Thus, any evidence provided by the letter was unreliable, and the court did not abuse its discretion in excluding it. Furthermore, given the fact that Faust was allowed to testify extensively about the content of the letter and his state of mind, we do not find that the admission of the letter would more likely than not have affected the verdict. See Emmert, 829 F.2d at 808.
The conviction on Count 1 is REVERSED. The convictions on Counts 2, 3 and 5 are AFFIRMED.
18 U.S.C. Sec. 641 (1982).
Shall be fined not more than $1,000 or imprisoned not more than ten years, or both.
18 U.S.C. Sec. 495 (1982).
The term "forgery" means that the payee's endorsement on a check was written or signed without the payee's permission or authority.
To act with "intent to defraud" means to act knowingly and with the specific intent to deceive, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one's self.
An act is done knowingly if the defendant realized what he or she was doing and did not act through ignorance, mistake or accident. You may consider the evidence of the defendant's acts and words, along with all the other evidence, in deciding whether the defendant acted knowingly.
Faust, however, did not offer the testimony of a third party who had heard his statement of his belief. This was not a case of exclusion of corroborative testimony. Faust did not attempt to present the testimony of anyone who could testify that Faust had made a declaration of his then existing state of mind. The draft letter adds little, if any, corroboration to Faust's testimony to the same facts. Thus, Parry is distinguishable.

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