¶ 1 Plaintiffs Shari Lynn Crisman, Mark Crisman, and Paul Howard Peters appeal the trial court's entry of summary judgment in favor of defendant Ted Hallows. Because there existed a genuine issue of material fact as to whether Hallows acted within the scope of his employment for the State of Utah, thus precluding summary judgment, we reverse.
¶ 2 “ ‘In reviewing a grant of summary judgment, we consider the facts in the light most favorable to the nonmoving party ....’ ” Hebertson v. Bank One, Utah, N.A., 1999 UT App 342, ¶ 2, 995 P.2d 7 (quoting Parker v. Dodgion, 971 P.2d 496, 496-97 (Utah 1998)).
¶ 3 Shari Lynn and Mark Crisman were owners of a dog named Trooper. Because the Crismans were residents of California and California required dog immunizations to *1250 which Trooper had a prior adverse reaction, the Crismans sent Trooper to live in Utah with Paul Peters, Shari Crisman's brother. Paul Peters already had two dogs, named Kiva and Cody, which he kept with Trooper in a fenced pen located in his fenced yard.
¶ 4 On April 24, 1996, Kiva and Trooper managed to escape their enclosures. At some point after Kiva and Trooper left Peters's property, Hallows, a neighbor of Peters and a thirteen-year employee of the Division of Wildlife Resources (DWR) who then worked at a fish hatchery in Kamas, saw the dogs running loose and shot them. In so doing, Hallows killed Trooper and wounded Kiva. When Peters returned home from work, he discovered Kiva's injuries and took the dog to a veterinarian. Mindful of a prior warning from a neighbor, Gary Rice, that if Peters's dogs ran loose Hallows might shoot them, Peters also called Hallows and accused him of shooting Kiva. During that conversation, Hallows admitted he shot Kiva and killed Trooper and stated that he did so because the dogs had been disturbing his garden and horses.
FN1. Hallows defended his conduct by relying on section 18-1-3 of the Utah Code, which provides that “[a]ny person may kill a dog while it is attacking, chasing or worrying any ... species of hoofed protected wildlife.” Utah Code Ann. § 18-1-3 (1998).
FN2. Although the notice of claim was sent by Peters, who is an attorney, it was sent only in his representative capacity as counsel for the Crismans. However, all three parties were named plaintiffs in this action.
¶ 7 The trial court granted summary judgment in favor of Hallows. In so doing, however, the court purported to make findings of fact which included that (1) Hallows “observed the dogs chasing deer and elk;” (2) he “shot the dogs” “[a]fter personally observing the dogs chasing deer and elk;” and (3) he “act[ed] within the scope of his employment when he shot the dogs.” The court thus concluded that the Immunity Act applied, any action by the Crismans' was barred as untimely, and Peters's action was barred for failure to provide a notice of claim. Plaintiffs appeal.
¶ 8 Plaintiffs argue that because there existed a genuine issue of material fact as to whether Hallows acted within the scope of his employment, the trial court erred in so concluding as a matter of law and in determining that the Immunity Act applied and barred their claims. “ ‘ “Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” [FN3] *1251 Because the question of whether summary judgment is appropriate is a question of law, we accord no deference to the trial court.’ ” Hebertson, 1999 UT App 342 at ¶ 6, 995 P.2d 7 (quoting Parker, 971 P.2d at 497 (quoting Higgins v. Salt Lake County, 855 P.2d 231, 235 (Utah 1993))).
FN3. Because on motion for summary judgment the court does not make findings of fact, but rather determines only whether the movant is entitled to judgment as a matter of law based upon the undisputed material facts, we reject defendant's argument that plaintiffs were required to marshal the evidence to attack what the court labeled as findings of fact.
Nielson v. Gurley, 888 P.2d 130, 134 (Utah Ct.App.1994) (quoting Utah Code Ann. §§ 63-30-11(2), -12 (1993)).
¶ 10 Hallows argues that compliance with the Immunity Act's notice and statute of limitations requirements are jurisdictional whenever a defendant asserts his tortious conduct occurred within his capacity as a governmental employee. We disagree. As plaintiffs correctly point out, the Immunity Act's application turns on what in fact occurred, not on what a defendant asserts occurred. Thus, while failure to comply with the Immunity Act applies to claims for conduct by governmental employees actually occurring in that capacity, it is not invoked for the personal tortious conduct of a person who happens to also be a governmental employee merely because he so asserts.FN4 See Spoons v. Lewis, 1999 UT 82,¶ 7, 987 P.2d 36 (“If [plaintiff] can maintain any viable claims [for a governmental employee's conduct] occurring outside the performance of [his or] her duties, not within the scope of [his or] her employment, and not under color of authority, the Governmental Immunity Act's notice of claim provisions would not apply.”). Consequently, we conclude that notwithstanding their admitted failure to comply with the Immunity Act's notice of claim and statute of limitations requirements, plaintiffs may maintain an action against Hallows for conduct outside the scope of his employment. See id. (holding that although plaintiff failed to provide notice of claim, dismissal was premature when complaint supported action for conduct outside scope of employment).
FN4. Hallows erroneously relies on Nielson for the proposition that his claim of the Immunity Act's applicability alone is sufficient to invoke the Immunity Act's notice requirements. Nielson is distinguishable from the instant case because in Nielson, “it [was] clear that the conduct of which [plaintiff] complain[ed] was conduct that [defendant] engaged in while performing his duties as a State employee and was done under color of that authority,” Nielson, 888 P.2d at 134, whereas here Hallows's conduct may have been completely unrelated to his governmental employment.
¶ 11 “Whether an employee's conduct falls within the scope of employment is ordinarily a question of fact,” and thus should be determined by the trier of fact. Jackson v. Righter, 891 P.2d 1387, 1391 (Utah 1995); see Birkner v. Salt Lake County, 771 P.2d 1053, 1057 (Utah 1989); D.D.Z. v. Molerway Freight Lines, Inc., 880 P.2d 1, 5 (Utah Ct.App.1994).
¶ 12 Plaintiffs assert there was a genuine issue of fact as to whether Hallows acted outside the scope of his DWR employment when he shot the dogs. “ ‘If the employee acts “from purely personal motives ... in no way connected with the employer's interests” ’ ” he has acted outside the scope of his employment. D.D.Z., 880 P.2d at 5 (quoting Birkner, 771 P.2d at 1057 (quoting W. Keeton, Prosser and Keeton on the Law of Torts § 70, at 502 n. 48 (5th ed.1984))) (omission in original). Plaintiffs argue Hallows acted from purely personal motives, and thus outside the scope of his employment, because he shot the dogs for disturbing his garden and bothering his horses. To this end, plaintiffs rely on Peters's affidavit, where he stated that Hallows “admitted that ... he had shot the dogs because they had disturbed his garden and bothered his horses,” and Shari Lynn Crisman's testimony that Trooper was physically incapable *1252 of chasing deer. We agree that this evidence, when viewed in the light most favorable to plaintiffs, is sufficient to create an issue of fact as to whether defendant acted outside the scope of his employment and the trial court thus erred in granting summary judgment. See Apache Tank Lines, Inc. v. Cheney, 706 P.2d 614, 616 (Utah 1985) (per curiam) (“ ‘A single sworn statement is sufficient to create an issue of fact.’ ”) (quoting Webster v. Sill, 675 P.2d 1170, 1172 (Utah 1983)).
¶ 13 Hallows argues his conduct in shooting the dogs was within the scope of his employment for DWR because the dogs were chasing deer or elk that he was required to protect. See Utah Code Ann. § 23-14-1(2)(a) (1998) (“Subject to the broad policymaking authority of the Wildlife Board, the Division of Wildlife Resources shall protect, propagate, manage, conserve, and distribute protected wildlife throughout the state.”). However, because this account of what occurred differs in material respect from plaintiffs' version of events, it merely underscores that summary judgment is inappropriate. Rather, Hallows's version of events shows that there is a fundamental dispute as to what happened, requiring a fact finder to hear the evidence, weigh credibility, and determine the facts.
¶ 14 We conclude that the Immunity Act has no application and thus its notice of claim and statute of limitations provisions do not bar plaintiffs' action for conduct occurring outside the scope of Hallows's employment for DWR. Further, because there existed a genuine issue of material fact as to whether Hallows shot the dogs outside the scope of his employment, the trial court erred in granting summary judgment for Hallows.
¶ 15 Reversed and remanded.
WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge and NORMAN H. JACKSON, Associate Presiding Judge.


text:
CAROL BATCHELDER, Plaintiff, v. IRON GAIT PERCHERONS INC., d/b/a IRON GAIT RESCUE JAMES ERIC BEACH and DENISE S. POLYDOR, Defendants.
IRON GAIT PERCHERONS, INC., Plaintiff, vs. CANDACE ROBINSON LEE., Defendant.
SHANNONDALE FARM, INC., Plaintiff, v. TRACI MORGAN and DENISE COLE, Defendants.
GEORGE D. PETITO, ANITA M. PETITO AND CONNECTIVE LICENSING, LLC, Plaintiffs, v. SMARTPAK EQUINE, LLC., Defendant.
ABRAHAM & VENEKLASEN JOINT VENTURE; ABRAHAM EQUINE INCORPORATED; JASON ABRAHAM, v. AMERICAN QUARTER HORSE ASSOCIATION.
RICHARD HAUSER, Plaintiff, v. GREAT AMERICAN ASSURANCE COMPANY, Defendant.
RUSSELL L. EBERSOLE, d/b/a ABERDEEN ACRES PET CARE CENTER, Plaintiff, v. BRIDGET KLINE-PERRY, Defendant.
LENA WEDENMARK, Plaintiff, v. DONG SEON KIM, Defendant.
Naamah M. Troutman, Plaintiff vs Melissa Thurston Briski, Defendant.
Lindsey Jovanovski, Plaintiff, v. Pamela Brown, Defendant.
Edward Allan Buck Plaintiff v. Cesar Parra, Michael C. Davis, Kathleen Riley, Stephen Kiront, Barry Kiront, David Schrager, Defendants.
Laurie Ryan PLAINTIFF v. Sharon McCusker and Kaiyun Lang DEFENDANTS.
NATIONAL CUTTING HORSE ASSOCIATION, Plaintiff, v. GLORY ANN KURTZ, Defendant.
BARBARA TICHNER, Plaintiff, -against- GOLDENS BRIDGE INC. d/b/a HERITAGE FARM, PATRICIA GRIFFITH and CHRISTOPHER B. MILLER, DVM. P.C., Defendants.
LISA WILLIAMSON Plaintiff/Appellant v. LAKE COUNTY SHERIFF MARK C. CURRAN, JR., ET AL. Defendants/Appellees.

matches: v. v. v. v. v. v. v. v. v. v. v. v.


text:
Gas–liquid reactors are widely used for different applications in the chemical, metallurgical, oil and gas industries. These reactors are broadly categorized into two groups namely tall columns (with height to diameter ratio (H/D) > 5), e.g., bubble column, airlift reactor, etc., and shallow vessels (H/D < 1), e.g., Basic Oxygen Furnace (BOF), Ladle, etc. In these reactors, liquid–phase mixing is achieved either by mechanical agitation or mixing induced by gas bubbles. In the metallurgical industries, due to high temperatures and harsh environment in the molten metal baths, gas–induced mixing is used in the shallow vessels. The extent of gas–liquid mixing is closely related to the local liquid flow field induced by single/multiple bubble plumes and different bottom blowing configurations. In shallow vessels, the free gas–liquid interface influences the meandering motion of the gas plume and also the local liquid recirculation flow.
Furthermore, the top blowing intensifies the sloshing motion of the gas–liquid interface. This leads to change in the liquid flow characteristics and in turn in the overall mixing process. Therefore the primary focus of present work is to understand the effects of (i) uniform and differential flow schemes, (ii) free gas–liquid interface, (iii) combined top and bottom gas blowing configuration and bubble size on the liquid–phase velocity distribution, dynamics of gas–liquid flow and turbulent quantities (e.g., turbulent kinetic energy, rate of kinetic energy dissipation, Reynolds stresses, etc.) by Particle Image Velocimetry (PIV) and their role in liquid phase mixing by Laser Induced Fluorescence (LIF) measurements.
Abhijeet H. Thaker, Abdul Quiyoom and Vivek V. Buwa, “Dynamics of Gas–Liquid Flow and Mixing in a Ladle: PIV and LIF Measurements”, Presented at the 12th International Symposium on Particle Image Velocimetry (ISPIV 2017), Busan, South Korea, 19–21 June 2017.
Abhijeet H. Thaker, Abdul Quiyoom and Vivek V. Buwa, Dynamics of Meandering Bubble Plumes and Their Role in Mixing in Shallow Vessel, submitted to Physics of Fluid (2018).
Sahil V. Bhujbal, Abhijeet H. Thaker, Deepak Sharma and Vivek V. Buwa, “ Effect of Free Interface on Dynamics of Gas−Liquid and Mixing in a Shallow Vessel: PIV and LIF Measurements”, 19th International Symposium on Applications of Laser and Imaging Techniques to Fluid Mechanics (LXLASER–2018), Lisbon, Portugal 16–19 July 2018.
Sahil V. Bhujbal, Abhijeet H. Thaker and Vivek V. Buwa, Effect of Sloshing Gas–Liquid Interface on Dynamics of Meandering Bubble Plumes and Mixing in a Shallow Vessel: PIV and LIF Measurements, 14th International Conference on Gas–Liquid and Gas–Liquid–Solid Reactor Engineering (GLS–14), to be held at Guilin (China), 30 May–03 June 2019 (Accepted).

matches: V. V. V. V. V. V.


An alien who filed his declaration of intention to become an American citizen before the effective date of the Immigration and Nationality Act of 1952, and who otherwise complied with the naturalization laws then in effect, has a "status," "condition," or "right in process of acquisition" preserved by § 405(a), the general savings clause of the 1952 Act, even though his petition for naturalization was filed after the effective date of that Act. Pp. 348 U. S. 529-539.
(a) When subsection (a) of the savings clause was broadened in the 1952 Act, Congress manifested its intention that the Act should take effect prospectively where there was no specific provision to the contrary. Pp. 348 U. S. 533-535.
(b) The 1952 extension of subsection (a) is not limited to situations concerning derivative citizenship. P. 348 U. S. 535.
(c) The fact that, under the 1952 Act, declarations of intention are no longer prerequisite to naturalization is immaterial here, in view of the provision in § 405(a) preserving the "validity" of declarations of intention "valid at the time this Act shall take effect." Pp. 348 U. S. 535-536.
(d) In this case, the alien's inchoate right to citizenship is protected by § 405(a), and is not defeated by any implication stemming from § 405(b). Pp. 348 U. S. 536536-539.
(e) Section 316(a) of the 1952 Act, which imposes a more stringent requirement as to residence than did the prior law, did not "otherwise specifically provide" that the 1952 Act, rather than the prior law, was to apply to the situation of the alien in this case. P. 348 U. S. 539.
"(a) Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization, certificate of citizenship, warrant of arrest, order or warrant of deportation, order of exclusion, or other document or proceeding which shall be valid at the time this Act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any status, condition, right in process of acquisition, act, thing, liability, obligation, or matter, civil or criminal, done or existing, at the time this Act shall take effect; but, as to all such prosecutions, suits, actions, proceedings, statutes [sic], conditions, rights, acts, things, liabilities, obligations, or matters, the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect. . . ."
"(b) Except as otherwise specifically provided in title III, any petition for naturalization heretofore filed which may be pending at the time this Act shall take effect shall be heard and determined in accordance with the requirements of law in effect when such petition was filed."
effect, has a "status," "condition," or "right in process of acquisition" preserved by § 405(a), supra, despite the fact that his petition for naturalization was filed after the effective date of the new Act. The Government contends that petitions for naturalization are to be governed exclusively by § 405(b), and that, since respondent does not come within the terms of that subsection -- his petition not having been filed before the effective date of the new Act -- the savings clause is inapplicable, and the substantive provisions of the 1952 Act apply.
The facts are not in dispute. Respondent was admitted for permanent residence in the United States on March 7, 1948, and, the following month, he filed his declaration of intention to become a citizen. During the next five years, respondent was absent from the United States on business for several periods of less than a year each. Although the aggregate of these absences was some forty-four months, it is conceded that respondent had not at any time abandoned his American residence. Accordingly, all other prerequisites to citizenship having been satisfied, respondent was entitled to be naturalized under the Nationality Act of 1940 upon completing five years of residence. 54 Stat. 1142, 8 U.S.C. (1946 ed.) § 707. But, before this period had run, the Immigration and Nationality Act became effective on December 24, 1952. Section 316(a) of this Act, 66 Stat. 242, 8 U.S.C. §1427(a), imposed a new requirement of physical presence: to be eligible for citizenship, an alien must be physically present in the United States for at least one-half the period constituting his five-year residence. When, on April 24, 1953, Menasche filed his petition for naturalization, he lacked 14 months of fulfilling this new requirement. Thus, if the 1952 Act applies to respondent's case, it is clear he may not be naturalized, while, under the 1940 Act, he is admittedly eligible for citizenship.
The district judge admitted Menasche to citizenship, holding that the 1940 Act governs, because respondent enjoyed a status, condition, and right in process of acquisition preserved by §405(a) of the new Act. 115 F.Supp. 434. The Court of Appeals affirmed. 210 F.2d 809. We granted certiorari because of the importance of the questions presented in this and the companion case of Shomberg v. United States, supra,, in the administration of our nationality laws. 348 U.S. 811.
In interpreting § 405 of the Immigration and Nationality Act in relation to the facts of this case, we must consider the historical background of the savings clause and of the procedure for filing declarations of intention. The declaration of intention was introduced into our law by the second Act of Congress on the subject of naturalization, 1 Stat. 414 (1795), and remained an integral part of our naturalization procedure until the Act of 1952 dispensed with it as a prerequisite to citizenship. 66 Stat. 254, 8 U.S.C. § 1445(f). For the more than 150 years between these enactments, Congress considered it appropriate to require aliens to declare their intention to become United States citizens several years before they petitioned for naturalization. Exceptions were made from time to time to avoid hardship or to expedite the naturalization of a favored group, but, until the 1952 enactment, the declaration constituted the "first papers" toward American citizenship in the usual naturalization procedure. See Joint Hearings before the Subcommittees of the Committees on the Judiciary, 82d Cong., 1st Sess., on S. 716, H.R. 2379, and H.R. 2816, pp. 79-80, 723-725; S. Rep. No. 1515, 81st Cong., 2d, Sess., pp. 732-734.
Savings clauses of the type here involved -- broad, inclusive provisions -- date back to the general statutes on immigration and naturalization enacted in the early part of this century. The Naturalization Act of 1906, 34 Stat.
"shall be construed to affect any prosecution, suit, action, or proceedings brought, or any act, thing, or matter, civil or criminal, done or existing at the time of the taking effect of this Act."
34 Stat. 907. To the same effect is the savings clause of the Immigration Act of 1917. 39 Stat. 897. In the years that followed, amendments to the immigration and naturalization laws were enacted with more limited savings clauses, tailored to the special changes made by the new legislation. 40 Stat. 545, 547, 548; 40 Stat. 559, amended, 55 Stat. 252; 42 Stat. 1022; 43 Stat. 169; 46 Stat. 854. [Footnote 1] These provisions, though differing in their terms, manifested an intention on the part of Congress to save rights which had accrued under prior laws.
"shall be heard and determined within two years thereafter in accordance with the requirements of law in effect when such petition was filed. [Footnote 3]"
The litigation under this section, involving, first, the scope of subsection (a) and, secondly, the relation between the two subsections, throws considerable light on the parallel problems under § 405 presented in the instant case.
"contains the customary clauses by which the status quo is maintained in relation to naturalization proceedings and other related matters."
1st Sess., on H.R. 6127, superseded by H.R. 9980, 411, 484.
The Government would have us limit the 1952 extension of subsection (a) to situations concerning derivative citizenship, arguing that this problem was entirely responsible for the new language on status, condition, and right in process of acquisition. With this we cannot agree. The change in the section was designed to extend a savings clause already broadly drawn, and embodies, we believe, congressional acceptance of the principle that the statutory status quo was to continue even as to rights not fully matured. It should be noted, further, that the conflict between Aberasturi and Bertoldi involved a situation where the alien had failed to take any affirmative action to assert his claim to citizenship. Even the more restrictive Aberasturi opinion recognized that affirmative action by the alien might alter the result there reached. 147 F.2d at 452. If Congress was willing to preserve a "mere condition, unattended by any affirmative action," we think its savings clause also reaches instances, such as this, where affirmative action is present. The whole development of this general savings clause, its predecessors accompanying each of the recent codifications in the field of immigration and naturalization, manifests a well established congressional policy not to strip aliens of advantages gained under prior laws. The consistent broadening of the savings provision, particularly in its general terminology, indicates that this policy of preservation was intended to apply to matters both within and without the specific contemplation of Congress.
they confer no special advantage on the alien declarant. [Footnote 4] But all this is immaterial. First, the congressional resolution of the Bertoldi-Aberasturi conflict indicates a willingness, at least in some situations, to preserve rights in process of acquisition without requiring affirmative action on the part of the alien. It could be argued in the present case that it was Menasche's residence, rather than his filing of the declaration, which gave rise to his rights under § 405(a). And this approach would have the virtue of eliminating the inequitable treatment envisaged by the Government as regards those special groups of aliens who did not have to file declarations as a prerequisite to citizenship. But, while our decision could be rested on this ground, it is sufficient here merely to refer to the provision in § 405(a), derived verbatim from § 347(a) of the 1940 Act, preserving the "validity" of declarations of intention "valid at the time the Act shall take effect."
"a period of 2 years would be granted during which any petition for naturalization filed prior to the enactment of the new measure might be heard under the law in effect when the proceeding was begun."
of rights under the savings clause, and § 347(b) merely a special limitation on these rights. Indeed, there were two cases in which petitions for naturalization filed after the effective date of the 1940 Act were considered solely in relation to § 347(a). In re Samowich, 70 F.Supp. 273; Petition of Rothschild, 57 F.Supp. 814. These decisions ignored the supposedly obvious negative implications of § 347(b), and cast considerable doubt on the Government's present view that § 347(b) automatically removed from the coverage of prior law petitions filed after the effective date of the 1940 Act. Thus, the construction advanced by the Government concerning the relation between § 405(a) and §405(b) would not continue the relation between the predecessor provisions, but would actually be a marked departure. The only significant change made in subsection (b) by the 1952 Act was the deletion of the two-year time limit, and there is nothing to indicate that Congress, in making this change, intended to alter the entire structure of the savings clause by making § 405(b) the exclusive provision for naturalization petitions. See Analysis of S. 3455, supra. The few decisions considering this problem under the 1952 Act accord with the decisions of the District Court and Court of Appeals in the instant case, holding that § 405(a) preserves rights accruing in the pre-petition stages of the naturalization process. United States v. Pringle, 212 F.2d 878, aff'g Petition of Pringle, 122 F.Supp. 90; In re Jocson, 117 F.Supp. 528. We believe that Congress so intended.
See also 54 Stat. 1150, 8 U.S.C. (1946 ed.) § 726; 64 Stat. 1015, 8 U.S.C. (1946 ed., Supp. V) §725(b).
"SEC. 347. (a) Nothing contained in either chapter III or in chapter V of this Act, unless otherwise provided therein, shall be construed to affect the validity of any declaration of intention, petition for naturalization, certificate of naturalization or of citizenship, or other document or proceeding which shall be valid at the time this Act shall take effect; or to affect any prosecution, suit, action, or proceedings, civil or criminal, brought, or any act, thing, or matter, civil or criminal, done or existing, at the time this Act shall take effect; but as to all such prosecutions, suits, actions, proceedings, acts, things, or matters, the statutes or parts of statutes repealed by this Act, are hereby continued in force and effect."
"(b) Any petition for naturalization heretofore filed which may be pending at the time this Act shall take effect shall be heard and determined within two years thereafter in accordance with the requirements of law in effect when such petition was filed."
The alien may, if he wishes, file a declaration of intention with the Immigration and Naturalization Service. 66 Stat. 254, 8 U.S.C. § 1445(f). The apparent object of this optional provision is to preserve the rights of aliens under state laws, where, for example, there may be a requirement that a legally resident alien shall have filed his declaration of intention before he can obtain work. See Joint Hearings on S. 716, H.R. 2379 and H.R. 2816, supra, p. 80; S.Rep. No. 1515, supra, p. 738.
It is possible, although we do not pass on the point in this opinion, that § 405(b) serves a function which carries with it a negative implication different from that advanced by the Government. Section 405(b) provides that pending petitions for naturalization shall be governed by the "law in effect when such petition was filed." (Emphasis supplied.) Section 405(a), on the other hand, provides that nothing in the new Act shall "affect" any of the enumerated subjects, preserving the law as it existed immediately prior to the effective date of the Act. Thus, § 405(b) may "otherwise specifically provid[e]" for a law applicable to pending petitions different from the law preserved by § 405(a) for other protected interests. We have not fully considered, in passing on the question before us, the consonance of such an interpretation with the over-all statutory scheme, but advance it merely as another illustration of the meaning which can be given § 405(b) to avoid both the result pressed by the Government in this case and the objection that §405(b) is rendered redundant by holding that petitioner has rights protected by § 405(a).


Bokwe G. Mofor, on brief, for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division, Christopher C. Fuller, Senior Litigation Counsel, and Jonathan F. Potter, Trial Attorney, United States Department of Justice, on brief, for respondent.
Before SELYA, LYNCH and HOWARD, Circuit Judges.
The petitioner, Jesuette Tobeth-Tangang, a native of Cameroon, petitions for review of a decision of the Board of Immigration Appeals (BIA) denying her motion to reopen removal proceedings in order to allow reissuance of its earlier merits decision. The petitioner claims that neither she nor her attorney received a copy of that decision when it was issued and that, therefore, the BIA abused its discretion in denying her motion. Finding no abuse of discretion, we reject the petition for review.
The basic facts are straightforward. The petitioner entered the United States as a nonimmigrant visitor for business on December 17, 1998. That status allowed her to remain in the United States until March 16, 1999, but prohibited her from taking paid employment during her stay. See 8 U.S.C. § 1101(a) (15) (B). The petitioner nonetheless accepted a paid job and overstayed her prescribed time. On June 16, 1999, the Immigration and Naturalization Service instituted removal proceedings against her by the issuance of a notice to appear. See id. § 1229(a).
The petitioner retained counsel and cross-applied for asylum, withholding of removal, and voluntary departure. She averred in substance that, if deported to Cameroon, she would be at risk because of her prior political affiliation. Her most detailed allegation was that, as a member of the Social Democratic Front, she had been kidnaped, beaten, and interrogated in 1997 by members of the ruling Cameroon People Democratic Movement. Building on that foundation, she suggested that, if she were to return to Cameroon, her political antagonists would kill her.
The Immigration Judge (IJ) held an evidentiary hearing on various dates. Finding the petitioner's testimony lacking both in credibility and in corroboration, the IJ rejected the full panoply of the petitioner's requests for relief and ordered her removed to Cameroon. The IJ filed his decision on May 3, 2000.
On March 26, 2003, the BIA affirmed the IJ's ukase. As required by rule, the BIA mailed a copy of its decision (the Decision) to the attorney's address of record (i.e., to him at the address stated in his entry of appearance form). See 8 C.F.R. § 1003.1(f). The attorney had moved, however, so the copy of the Decision was returned as undeliverable by the postal service. The petitioner claims — and for present purposes, we assume arguendo — that neither she nor her lawyer knew of the Decision until November 5, 2004, when the petitioner attended a meeting convened by immigration officials.
Four days after that meeting, the petitioner, acting through the same counsel, lodged an inquiry with the BIA about the status of her case. In that inquiry, she asserted that neither she nor her attorney had received any correspondence from the BIA since June 1, 2001. The BIA responded promptly, sending the lawyer a copy of the Decision and informing him that he apparently had moved his office without changing the address on file with the BIA.
On December 11, 2004, the petitioner moved for reissuance of the Decision. She implored the BIA to entertain the motion because neither she nor her counsel had contemporaneously received a copy of the Decision. The BIA denied the motion on April 26, 2005. Treating it as a motion to reopen,2 the BIA determined that there had been no defect in service of the Decision and that the petitioner's counsel had neglected to file a change of address form as required by the applicable regulation. See 8 C.F.R. § 1003.38(e).
We review the BIA's decision to grant or deny a motion to reopen for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323, 112 S. Ct. 719, 116 L. Ed. 2d 823 (1992). Within that rubric, we must uphold the BIA's subsidiary findings of fact as long as those findings are supported by substantial evidence. Radkov v. Ashcroft, 375 F.3d 96, 98 (1st Cir. 2004). However, the BIA's legal conclusions are reviewed de novo. Id. Any material error of law automatically constitutes an abuse of discretion. Id.
We discern no abuse of discretion here. The BIA has an affirmative obligation to mail a copy of its final decision to the alien. See 8 C.F.R. § 1003.1(f). Where, as here, the alien is represented by counsel, that duty may be discharged by mailing a copy of the decision to the alien's attorney of record. See id. In this case, the petitioner was represented by counsel, so a proper mailing to the attorney was the legal equivalent of a proper mailing to the petitioner. See id. § 292.5(a).
The mailing here was proper. The record makes manifest that the BIA sent a transmittal letter enclosing the Decision on March 26, 2003 (the day that it rendered the Decision) to the petitioner's attorney at the latter's address of record. The record contains not only a copy of this transmittal letter but also a copy of a second letter sent by the BIA, in November of 2004, following the petitioner's belated inquiry into the status of her case. In that second letter, the BIA explained that the earlier transmittal letter was returned as undeliverable. Finally, the second letter noted that counsel had not advised the BIA of a change in address when he moved his office.
The BIA accepted these facts as true, and so do we. The record permits no other conclusion. The short of it, then, is that the BIA mailed the Decision to the petitioner's attorney within the prescribed time frame and at the address he had specified.
The time for filing a review petition begins to run when the BIA complies with the terms of the applicable regulations by mailing its decision to a petitioner's address of record. Even if, as the petitioners contend, the mailing in this case somehow went awry without any fault on the part of the BIA, that circumstance alone would not excuse the failure to file a timeous motion to reopen.
Radkov, 375 F.3d at 99 (citations omitted). It follows that the BIA's mailing was properly sent. And since its non-receipt was not due to any fault on the part of the BIA, the fact that it was not received does not suffice to excuse the petitioner's failure to file a timely motion to reopen. See id.; see also 8 C.F.R. § 1003.2(c) (2) (requiring that a motion to reopen be made within ninety days of the final administrative decision in the underlying proceeding).
The petitioner argues that the reference to counsel's new address in the signature block of the brief should be deemed sufficient to apprise the BIA of his change of address. We find this argument unconvincing. The regulations prescribe a set procedure by which aliens and their attorneys must keep the BIA informed of changes in address. See 8 C.F.R. § 1003.38(e) (requiring aliens and their counsel to submit an EOIR-33 form within five business days of any change in address). The record is devoid of any indication that the petitioner's counsel complied exactly or substantially with this regulation — and, indeed, the petitioner does not claim that her lawyer did so.
Quasi-judicial proceedings, like judicial proceedings, operate best when clear rules of procedure are prescribed. Once that is done, however, litigants must comply with applicable rules, and the agency, like a court, is entitled to assume that the parties are compliant. Obedience to the rules is important; unless the agency demands such obedience, it cannot command respect. It follows inexorably that non-observance of the rules should neither be indulged nor lightly excused. Cf. de la Torre v. Cont'l Ins. Co., 15 F.3d 12, 16 (1st Cir. 1994) (explaining that a plaintiff who fails to comply with "clearly delineated rules" cannot legitimately be heard to complain when the court holds fast to those rules).
So it is here. The BIA was entitled to rely on the address on file, and had no duty to hunt through every piece of paper pertinent to the case in search of indications to the contrary.
We need go no further. Simply put, the BIA satisfied its legal obligation by mailing the Decision to the petitioner at the unrevoked address furnished by her counsel on the entry of appearance form. See Radkov, 375 F.3d at 99; Nowak v. INS, 94 F.3d 390, 391-92 (7th Cir. 1996). Its subsequent adherence to the regulations governing entries of appearance and changes of address was well within the realm of its discretion. Consequently, there is no principled way that we can overturn the BIA's denial of the motion to reopen.
The petitioner also attempts to attack the correctness of the Decision. That attack falls outside the scope of our review See 8 U.S.C. § 1252(b) (1) (requiring that petitions for review be filed within thirty days of the final administrative decision); see also Stone v. INS, 514 U.S. 386, 406, 115 S. Ct. 1537, 131 L. Ed. 2d 465 (1995) (holding that a court of appeals lacks jurisdiction to review a BIA decision if the petition for review is filed after the statutory deadline). Consequently, we do not address this aspect of the petitioner's asseverational array.


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Roland B. Moore (Court-appointed), Houston, TX, for appellant.
Jeffery A. Babcock, Paula C. Offenhauser, Asst. U.S. Attys., Gaynelle Griffin Jones, U.S. Atty., Houston, TX, for appellee.
Before JONES and STEWART, Circuit Judges, and DUPLANTIER*, District Judge.
Joe Gamboa Rodriguez appeals his conviction for being a felon in possession of a firearm. He contends that the district court erred in several rulings and that the prosecutor impermissibly commented on his post-arrest silence. He also contends that the evidence shows that he was entrapped. We affirm.
On or about 12/2/91, Special Agent Ramon Bazan of the Bureau of Alcohol, Tobacco, and Firearms (ATF) acted as an undercover agent in the purchase of a firearm from Rodriguez. Another ATF agent had provided Agent Bazan with a recording device and instructed him to meet Rodriguez and Albert Martinez Medina (also known as "Beto"), an informant, in the parking lot of a Whataburger restaurant. Agent Bazan met Rodriguez and Medina and bought the firearm from Rodriguez. In a one-count indictment filed 8/19/92, a grand jury charged Joe Gamboa Rodriguez with possession of a firearm by a convicted felon.
At trial, the jury heard Agent Bazan's testimony that Rodriguez showed Agent Bazan a pistol that was in the trunk of the car and that all three men got into the car at Agent Bazan's request. Rodriguez negotiated the price of $100, and Medina remained silent as he had been instructed by the ATF. The jury also heard that Rodriguez said that he could get larger caliber firearms or a machine gun for Agent Bazan. Rodriguez did not appear to Agent Bazan to be afraid. The Government played an audio tape recording of the transaction in open court and provided the jury with a transcript of the taped conversation.
The jury also heard Rodriguez' testimony that, in December 1991, Medina called and asked if he knew where to sell a gun. Rodriguez answered that he did not. Medina called a second time and asked Rodriguez to meet him in the apartment parking lot. Medina offered Rodriguez $20 to sell a gun to Medina's friend, who would buy it if Rodriguez would help. According to Rodriguez, when he refused to help, Medina got angry and threatened to get to him or his family. Rodriguez stated that he took the threat seriously because Medina was a member of the Texas Prison Syndicate and had stabbed someone in prison. After Rodriguez agreed to sell the gun, Rodriguez, Medina, and Lupe, Medina's wife, drove to a Whataburger. During the drive, Medina instructed Rodriguez to say that the pistol was his and that the price was $100.
According to Rodriguez, at the Whataburger, Medina introduced Rodriguez to Agent Bazan, took the gun out of the trunk, put it in the front seat between Rodriguez and Agent Bazan, then went inside with his wife to get something to eat. Rodriguez stated that he followed Medina's instructions by selling the gun to Agent Bazan and talking to Agent Bazan about getting more guns in the future.
The Government called Medina as a rebuttal witness. Medina testified that he worked as an informant for the ATF in ten cases and received payment approximating $10,000 for his services. Moreover, Medina received a favorable plea agreement in a firearms conviction, which included a reduced sentence, a possible further reduction in sentence upon motion by the Government, and protective custody because the Texas Syndicate allegedly had contracted to kill him. Medina testified that the ATF asked him to put the word out that he would be willing to sell "hot" jewelry, gold, VCR's, camcorders, and firearms. About three or four months before the instant sale, Medina spoke to Rodriguez about purchasing guns. Medina denied threatening Rodriguez and stated that Rodriguez eventually contacted him to sell a gun. According to Medina, when he picked Rodriguez up at his apartment, Rodriguez had the gun wrapped in a towel, and Medina opened the trunk to permit Rodriguez to place the gun in the trunk. Contrary to Agent Bazan's testimony yet consistent with Rodriguez' testimony, Medina stated that he was not present during the negotiations between Agent Bazan and Rodriguez.
The jury returned a verdict of guilty, and the district court imposed a term of imprisonment of 188 months, a five-year term of supervised release, and a special assessment of $50.
ISSUE 1: WHETHER THE DISTRICT COURT COMMITTED REVERSIBLE ERROR IN ALLOWING CROSS-EXAMINATION OF THE DEFENDANT REGARDING HIS PRE-TRIAL FAILURE TO MENTION HIS ENTRAPMENT DEFENSE?
[Prosecutor]: And, of course, the reason you didn't tell the police about that threat was because you were afraid of Beto Medina; is that your story?
[Defense counsel]: I'd like--just for the record, I'd like to renew my previous objection.
[Rodriguez]: I was afraid of the Texas Syndicate and him, yes, sir.
[Prosecutor]: And you thought the best time to come in here and tell the story was today?
[Defense counsel]: Again, just for the record, I have to object again.
The government argues that, given the time period that elapsed between this offense and Rodriguez' arrest, it sought to clarify the timing of his claim, as opposed to commenting on the substance of the claim. The government contends that its inquiry "compared the reasonableness of the two year delay in accusing the informant of threatening him with Rodriguez' credibility." According to the government, the prosecutor's inquiry related to Rodriguez' pre-arrest silence, not to his post-arrest silence, and Rodriguez has failed to meet his burden of proving that the sole purpose of the inquiry was to comment upon Rodriguez' post-arrest silence.
When the prosecution uses defendant's post-arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibility of the exculpatory story to the defendant's ostensibly inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous.
When the prosecutor does not directly tie the fact of defendant's silence to his exculpatory story, i.e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming.
When there is but a single reference at trial to the fact of defendant's silence, the reference is neither repeated nor linked with defendant's exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant's silence constitutes harmless error.
547 F.2d at 1249-50 (citations and footnote omitted). Many cases cannot be resolved solely by reference to the Chapman categories; in such instances, we apply a case-by-case approach using the Chapman categories as guidelines for assessing the prejudice to the defendant in the particular context, including the strength of the evidence. Carter, 953 F.2d at 1465.
As in Laury, the instant prosecutor's questions were sufficiently broad as to be construed as commentary on Rodriguez' failure to come forward with his alibi (1) prior to arrest, (2) immediately after arrest and Miranda warnings (the classic Doyle violation), and (3) during the time period prior to trial but following his arrest (the non-classic Doyle violation).3 See Laury, 985 F.2d at 1302 and at n. 11. The Doyle protection derives primarily from the implicit assurance of the Miranda warnings and thus is strongest in the classic Doyle context of immediate post-Miranda-warning interrogation. See Carter, 953 F.2d at 1464.
Rodriguez does not specifically argue that the period in question is immediately following his arrest and Miranda warnings, and the record does not indicate that Rodriguez was Mirandized or that there was any government-induced silence. For these reasons, we deem the relevant period to be the time prior to trial but following his arrest, and we note that it is questionable whether these facts present a Doyle situation at all. Nevertheless, assuming arguendo that there has been a Doyle violation, due to the relevant time period, as well as the absence of indicia of government-induced silence, we deem any such violation to be a non-classic Doyle violation.
Standard of Review: Plain or Harmless Error?
This court normally reviews Doyle violations for harmless error. See Chapman, 547 F.2d at 1247-48. The Government argues that assuming, arguendo, that the prosecutor's questions violated Doyle, "the error was a non-classic Doyle error and is subject to review for plain error." As authority for its argument, the Government relies on Laury and Carter, contends that Rodriguez failed to demonstrate that his substantial rights were adversely affected, and asserts that no relief is warranted.
In Carter, the prosecutor made three comments which were challenged on appeal. The discussion of the second comment (Comment 2) included an analysis of the effect of the district court's curative instruction to the jury, after which the court stated "for these reasons, we assess Comment 2 under the plain-error standard." Id. at 1466. Relying on Carter's discussion of Comment 2, Laury stated in a footnote that "non-classic Doyle violations are reviewed for plain error." Laury, 985 F.2d at 1304 n. 11.
Both Laury and Carter invoked the plain-error standard where there was no objection by the defendant. Carter also applied this standard where there was a delayed objection, followed by a curative instruction. Neither case stands for the proposition that "non-classic Doyle violations are reviewed for plain error." Laury's footnote 11 correctly observes that Carter distinguished between classic Doyle violations and non-classic Doyle violations. In distinguishing between the two types of violations, Carter discussed the role of Miranda warnings and noted that there may be reasons or motives other than reliance on Miranda for the defendant's decision to remain silent. The Carter court discussed three considerations which militated against strict application of Chapman's first rule (that reversal is mandated even if the story is transparently frivolous ) to Comment 2. Carter questioned whether the "strict due process safeguards" of Chapman, derived solely from Doyle, represent the proper approach to assessing the harmfulness of Comment 2. Carter, 953 F.2d at 1465. It is unclear whether the language "strict due process safeguards" refers to the aforementioned Chapman rule or to the harmless error standard of review. Thus, Carter does not expressly state that non-classic violations are reviewed for plain error. We therefore distinguish Laury's footnote 11 as applicable to the facts of that case, and decline to extend it to facts such as the instant case in which the defendant contemporaneously objected to the challenged comments.
For these reasons, we find that neither Carter nor Laury controls the instant case on the question of "plain error versus harmless error" standard of review. Accordingly, even assuming that this is a non-classic Doyle violation, we follow the general rule of harmless error analysis.
An error is harmless if the reviewing court is sure, after viewing the entire record, that the error did not influence the jury or had a very slight effect on its verdict. United States v. Quintero, 872 F.2d 107, 111 (5th Cir.1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990), quoting United States v. Heller, 625 F.2d 594, 599 (5th Cir.1980). Thus, under the harmless error doctrine, we examine whether the improper comment had a significant impact on the jury. See Shaw, 701 F.2d at 383.
Rodriguez's defense was "not so implausible as to be dismissed out of hand," but the evidence of his guilt (if credited by the jury) was overwhelming. See and compare Shaw, Id. (quoting United States v. Impson, 531 F.2d 274, 278 (5th Cir.1976)); United States v. Serrano, 607 F.2d 1145, 1151-1153 (5th Cir.1979); United States v. Dixon, 593 F.2d 626 (5th Cir.1979). The government presented to the jury a tape and transcript of the conversation between Rodriguez and Agent Bazan during the offense itself. This evidence was consistent with Agent Bazan's testimony.
Unlike Laury, the instant prosecutor did not refer to Rodriguez silence while he sat in jail, or to any other time period other than the December 2, 1991 offense and the date of trial, May 10, 1993. The challenged questions which the prosecutor asked Rodriguez on cross-examination do not refer to any specific time period. Thus, although there was a "manifest" intent to refer to Rodriguez' silence, the prosecutor made no reference to constitutionally protected post-arrest silence. However, the record does not reflect that the jury was made aware of the extensive time period between the December 2, 1991 offense and the August 19, 1992 indictment, or the March 5, 1993 arraignment.
While it is possible for the jury to speculate regarding whether the silence questioned is pre- or post-arrest, the character of the remark was not such that the jury would naturally and necessarily so construe the remark. Given the unusual facts of this case, particularly the absence of indicia of government-induced silence, combined with overwhelming evidence in the form of Agent Bazan's testimony which was corroborated by a tape and transcript of the transaction itself, we do not find that the prosecutor's ambiguously broad reference to Rodriguez' silence influenced the jury so as to constitute reversible error.
ISSUE 2: WHETHER THE PROSECUTOR'S STATEMENTS IN HIS CLOSING ARGUMENT CONSTITUTE PROSECUTORIAL MISCONDUCT AND A DENIAL OF DUE PROCESS?
Rodriguez specifies two comments made by the prosecutor during closing argument: (1) "Is this the type of person that you would feel comfortable living next door to you?", and (2) "The defense has the ability to bring any person in the courtroom that they wish to tell you anything that they think would have an impact on this case." After the first comment, defense counsel's objection was sustained and the jury was instructed to disregard the statement. The defense then moved for a mistrial but the district court overruled the motion. After the second comment, counsel approached the bench. The district court stated that the defense objection was a valid one. However, rather than instructing the jury to disregard the statement as requested by the defense, the court overruled the objection and instructed the prosecutor to tell the jury that the defendant has no burden to prove his innocence.
"Counsel is accorded wide latitude during closing argument, and this court gives deference to a district court's determination regarding whether those arguments are prejudicial and/or inflammatory." United States v. Willis, 6 F.3d 257, 263 (5th Cir.1993) (citation and internal quotation marks omitted). Improper comments by a prosecutor may constitute reversible error where the defendant's right to a fair trial is substantially affected. United States v. Anchondo-Sandoval, 910 F.2d 1234, 1237 (5th Cir.1990), quoted in United States v. Andrews, 22 F.3d 1328, 1341 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 346, 130 L.Ed.2d 302 (1994). The pertinent factors to consider include: (1) the magnitude of the prejudicial effect of the statements; (2) the efficacy of any cautionary instruction; and (3) the strength of the evidence of the defendant's guilt. Id.; United States v. Casel, 995 F.2d 1299, 1308 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1308, 127 L.Ed.2d 659 (1994).
The prosecutor's question about Rodriguez' neighborliness was improper but harmless, given the prompt curative instruction to disregard the question, as well as the overwhelming evidence as discussed above. As to the second comment, we find the curative action sufficient to render the error, if any, harmless. Contrary to Rodriguez' assertions, neither comment appears linked to the prosecutor's cross-examination comment on his silence. In the context of the entire trial, we find no error in the district court's evaluation of the prejudicial effect of these comments.
ISSUE 3: WHETHER THE DISTRICT COURT PROPERLY ALLOWED ADMISSION OF FED.R.EVID. 403 AND 404(B) EVIDENCE?
Rodriguez points to the following two statements as prohibited Federal Rule of Evidence 404(b) other crimes evidence of his character. In the first statement, Agent Bazan told the jury that it was his interpretation that Rodriguez' statement that, "Right now, it's slow", referred to Rodriguez' business of buying and selling guns or drugs. The second statement was made during rebuttal by Medina, who gave a nonresponsive answer that he knew Rodriguez "had been out burglarizing". The district court sustained Rodriguez' objection to each of the challenged statements and instructed the jury to disregard them. There was no admission, erroneous or otherwise, of Rule 404(b) evidence, and therefore, we do not analyze these arguments under Rule 404(b).4 Nevertheless, the jury heard the statements; therefore, our inquiry is whether any prejudice therefrom constitutes reversible error.
The prejudicial effect of comments such as these may be reduced by cautionary instruction from the trial judge. See and compare, United States v. Wilkes, 685 F.2d 135, 138 (5th Cir.1982) (citations omitted). See also, United States v. Contreras, 602 F.2d 1237, 1240 (1979), cert. denied, 444 U.S. 971, 100 S.Ct. 466, 62 L.Ed.2d 387 (1979).
Rodriguez asserts that the Government presented two "experienced witnesses" who told the jury their opinion that Rodriguez was a full-time, dangerous criminal and who knew of the prohibited nature of their statements, as well as the respective statement's inflammatory, prejudicial effect upon the jury. Rodriguez contends that "it is crucial that both statements were made long before Rodriguez attempted to raise his defense of entrapment." For the following reasons, we find these arguments unpersuasive.
Only Agent Bazan's comment was made prior to Rodriguez' testimony that he was entrapped. After the district court sustained the Rule 404(b) objection, Agent Bazan went on to testify, without objection, that Rodriguez said that he would try to get a larger caliber firearm, and that when he got something else, he would give Agent Bazan a better deal. Evidence that was independent of Agent Bazan's interpretation was presented to the jury--specifically, the transcript and tape of the conversation in which Rodriguez had said "Right now, it's slow" (which revealed the context of the first challenged statement), as well as Rodriguez' testimony about what he had said and why. Thus, the jury was able to draw its own conclusion from all the evidence and not only from Agent Bazan's interpretation. As to Medina's answer, made during rebuttal, we agree with the district court's observation that any prejudicial effect it may have had was minimal because the jury was already aware of Rodriguez' burglary conviction.
Under these circumstances, we are convinced that the district court's instructions rendered harmless any prejudicial effect from either statement. Accordingly, we find no abuse of the district court's discretion, and no merit to Rodriguez' various arguments on this issue.
ISSUE 4: WHETHER THE TRIAL COURT IMPERMISSIBLY DENIED DEFENDANT'S MOTION TO REOPEN AFTER THE CLOSE OF EVIDENCE TO ALLOW DEFENDANT TO TESTIFY TO HIS CONVERSATION, DURING TRIAL, WITH GOVERNMENT WITNESS MEDINA IN THE PRISON VAN?
My client told me that this morning after the trial yesterday he rode back in the same van with Albert Medina, that they had a conversation, that my client asked Albert Medina, "Why did you do this to me?" Albert Medina said it wasn't you. It was--it's the carnales which is a word the Texas Syndicate members use to refer to themselves.
Among other things in the conversation, my client asked Albert Medina, "Where did you get the gun?" Medina refused to answer. "Did the ATF give you the gun?" Medina said, "No." Then my client asked Albert Medina, "Did you get the gun in a burglary?" Albert Medina said, "I can't tell you." "Why can't you tell me." "I just can't tell you."
The district court noted that the proposed evidence would be cumulative at best, and denied the motion to reopen.
Whether to grant a motion to reopen is within the trial court's discretion, and the parties correctly agree that the denial of a motion to reopen is reviewed for abuse of this discretion. Factors to be considered in determining whether there has been an abuse of discretion in the trial court's denial of defendant's motion to reopen include (1) timeliness of the motion, (2) whether a proffer is made, (3) the character of the proffered testimony, (4) the effect of granting the motion, (5) existence of an explanation for failing to present the evidence during the movant's case-in-chief, (6) whether the explanation is reasonable, and (7) whether the proffer is relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. United States v. Walker, 772 F.2d 1172, 1177 (5th Cir.1985); United States v. Thetford, 676 F.2d 170, 182 (5th Cir.1982).
Rodriguez asserts that the trial court abused its discretion and thereby denied him the chance to add significant impeaching testimony against the Government informant. He observes that the evidence could not have been considered during its case in chief because it did not exist until after the defense rested.
The motion to reopen was timely made, and referred to information which could not have been produced during Rodriguez' case in chief. However, evidence about Medina's involvement with the Texas Syndicate, as well as Rodriguez' testimony that Medina had brought the weapon, had been presented to the jury. For these reasons, we find no error in the district court's observation that this testimony was cumulative and, thus, would not have helped the jury to ascertain Rodriguez' guilt or innocence. This ruling was not an abuse of the district court's discretion.
ISSUE 5: WHETHER THE EVIDENCE, AS A MATTER OF LAW, WAS SUFFICIENT TO SUSTAIN DEFENDANT'S DEFENSE OF ENTRAPMENT?
Rodriguez moved for a directed verdict5 on the issue of entrapment at the close of the Government's case, and concedes that he did not renew his motion at the close of his own case. However, he asserts that because the doctrine of entrapment is a court-created doctrine, rather than a constitutional doctrine, his motion for directed verdict was sufficient to remove this case from the "plain error" standard. He cites no authority for this assertion, and we do not find it persuasive.
When a jury, which was fully charged on entrapment, rejects the defendant's entrapment defense, the applicable standard of review is the same as that which applies to sufficiency of the evidence. United States v. Mora, 994 F.2d 1129, 1137 (5th Cir.1993), cert. denied sub nom., Medina v. United States, --- U.S. ----, 114 S.Ct. 417, 126 L.Ed.2d 363 (1993). When a defendant fails to renew his motion for acquittal at the close of all the evidence, plain error is the standard of review for his challenge to the sufficiency of the evidence. United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir.1992) (en banc), cert. denied sub nom., Harris v. United States, --- U.S. ----, 113 S.Ct. 280, 121 L.Ed.2d 207 (1992); United States v. Thomas, 12 F.3d 1350, 1358 (5th Cir.1994), cert. denied, --- U.S. ----, 114 S.Ct. 1861, 128 L.Ed.2d 483 (1994) (finding plain error standard as proper where the defendant fails to move for judgment of acquittal at the close of evidence).
Because the Government has the burden to prove predisposition, the issue is in essence a challenge to the sufficiency of the Government's evidence. The appellate court must therefore accept every fact in the light most favorable to [sic] jury's guilty verdict, and may reverse only if no rational jury could have found predisposition beyond a reasonable doubt. United States v. Sandoval, 20 F.3d 134, 137 (5th Cir.1994).
The instant jury rejected Rodriguez' entrapment defense after it had been fully charged on entrapment. Therefore we may reverse only if no rational jury could have found beyond a reasonable doubt that Rodriguez was predisposed to commit this offense.
The first step in a successful entrapment defense is to make a prima facie showing by presenting "some evidence" that government conduct created a substantial risk that an offense would be committed by a person other than one ready to commit it. Mora, 994 F.2d at 1137; United States v. Hudson, 982 F.2d 160, 162 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 100, 126 L.Ed.2d 67 (1993) (citations and internal quotations omitted). After the defendant satisfies this threshold requirement, he is entitled to a jury instruction on entrapment, and the burden shifts to the Government to prove, beyond a reasonable doubt, that the defendant was disposed to commit the criminal act before being approached by Government agents. Hudson, Id.
The active, enthusiastic participation on the part of the defendant is enough to allow the jury to find predisposition. Hudson; Mora. Generally speaking, a defendant's testimony cannot by itself establish entrapment as a matter of law because, absent unusual circumstances, the jury is almost always entitled to disbelieve that testimony. Mora, 994 F.2d at 1137 (citation omitted).
Rodriguez argues that his testimony presented evidence of entrapment and that Agent Bazan was unable to say that he had not been entrapped. He contends that the gun was not in Rodriguez' possession; it remained in the trunk of Medina's car, and there were no fingerprints on the gun to tie it to Rodriguez. Rodriguez also argues that government involvement impermissibly led to his entrapment. Just as in Byrd, Rodriguez' arguments, in essence, challenge the sufficiency of the evidence against him.
The jury heard evidence that Rodriguez pulled the gun from the trunk of the informant's car prior to the sale. From both Agent Bazan's testimony and the tape and transcript of the transaction, the jury could reasonably have found that Rodriguez actively and enthusiastically participated in this offense. The only evidence that the informant recruited Rodriguez to participate in the sale of the gun was Rodriguez' testimony, and the jury was entitled to discredit this testimony as well as that of any other witness. There was sufficient evidence to support the jury's verdict: a rational jury could have found that Rodriguez was predisposed to commit this offense.
For the foregoing reasons, Rodriguez' conviction is AFFIRMED.
Where the record is ambiguous, and where the jury was free to think it was Appellant's post-Miranda silence that was being thrown up to him, the rule of lenity dictates that this be considered a per-se Doyle violation. Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980).
The rule of lenity is a principle of statutory construction. Under this rule, ambiguity may not be used to defeat manifest congressional intent. See Bifulco, 447 U.S. at 386, 100 S.Ct. at 2252. Thus, the rule of lenity, as discussed in Bifulco, is inapplicable to these facts which involve neither statutory construction nor congressional intent.

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A., a water and mining company, constructed in 1853, over public land in California, a canal, and its right, which it has ever since exercised, to use the water for mining, agricultural, and other purposes has been uniformly recognized by the local customs, laws, and the decisions of the courts of that State. B. is now the owner of lands through which the canal runs. He acquired title to one portion of them by a preemption settlement made after the passage of the act of July 28, 1886, 14 Stat. 251, and to another portion under the grant made to the Central Pacific Railroad Company, by the amended Pacific Rail road Act of July 2, 1864. 13 Stat. 358. In his suit against A., B. seeks the recovery of damages, and also prays that the canal may be declared a nuisance, and as such abated.
1. That B.'s title under the preemption laws is subject to A.'s right of way under said act of 1888.
2. That said act expressly confirmed to the owners of such canals a preexisting right, which the government had by its policy theretofore recognized. A. had, therefore, within the meaning of said act of 1864, a "lawful claim" to the continued use of the water, which was not defeated or impaired by the grant of the lands to said railroad company.
through which they ran was the public property of the United States. A portion of it is included in the grant made by that act to what has since, by change of name and consolidation of corporate franchises, become the Central Pacific Railroad Company, and the plaintiff in error, by proper conveyance from said company, has become the owner of it. A small part of it is traversed by the canal, and he brought this action in the proper court of that state against said water and mining company, to have the canal declared a nuisance and abated, and to recover $12,000 damages on account of its maintenance on his land.
The case was submitted to the court, which found the facts we have stated, and others that will be referred to.
"That wherever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same, and the right of way for the construction of ditches and canals, for the purposes aforesaid, is hereby acknowledged and confirmed."
As to the canal of the defendant, so far as it ran at that date through the land of the United states, this act was an unequivocal grant of the right of way, if it was no more. As the plaintiff's right to the lands patented to him and his brother commenced subsequently to this statute, he took the title subject to this right of way, and cannot now disturb it.
whether the right was so far vested in that company before the passage of this act of 1866, that the latter would be ineffectual as regards these lands. But we do not think that the defendant is under the necessity of relying on that statute.
It is the established doctrine of this Court that rights of miners, who had taken possession of mines and worked and developed them, and the rights of persons who had constructed canals and ditches to be used in mining operations and for purposes of agricultural irrigation, in the region where such artificial use of the water was an absolute necessity, are rights which the government had, by its conduct, recognized and encouraged and was bound to protect, before the passage of the act of 1866. We are of opinion that the section of the act which we have quoted was rather a voluntary recognition of a preexisting right of possession, constituting a valid claim to its continued use, than the establishment of a new one. This subject has so recently received our attention, and the grounds on which this construction rests are so well set forth in the following cases, that they will be relied on without further argument: Atchison v. Peterson, 20 Wall. 507; Basey v. Gallagher, id., 670; Forbes v. Gracey, 94 U. S. 762; Jennison v. Kirk, 98 U. S. 453.
"Any lands granted by this act, or the act to which this is an amendment, shall not defeat or impair any preemption, homestead, swamp land, or other lawful claim, nor include any government reservation or mineral lands, or the improvements of any bona fide settler on any lands returned or denominated as mineral lands, and the timber necessary to support his said improvements as a miner or agriculturist."
exercise its liberality at the expense of preexisting rights, which, though imperfect, were still meritorious, and had just claims to legislative protection. See Wolcott v. Des Moines Company, 5 Wall. 681; Williams v. Baker, 17 Wall. 144; Leavenworth, Lawrence, & Galveston Railroad Co. v. United states, 92 U. S. 733.
In construing the grant to the Pacific railroad companies this principle is eminently applicable. The lands were vastly greater in extent than those embraced in any previous grant, and surrounded by much more varied circumstances. The number and diversified character of the interests which might be affected largely exceeded any with which Congress had theretofore dealt.
Hence we have in the clause of reservation a much more liberal and extended protection of preexisting rights than in the reservation clause which had become a formula in previous grants.
Not only are prior reservations made by the government, and rights of preemption excepted, but the improvements of bona fide settlers on land returned or denominated mineral lands, and the timber necessary to support the miners' improvements, and any other lawful claim, are unaffected by the grant. Of course, this means any honest claim evidence by improvements or other acts of possession.
The defendant had been in possession of the claim in question for twelve years when this act was passed, and had expended $200,000 upon it. It was of great utility, nay necessity, to a large agricultural and mining interest, and we cannot doubt that it was of the class which this section declared should not be defeated by the grant which Congress was then making.

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D.C. Law Library - § 46–222. Interstate withholding.
↪ § 46–222. Interstate withholding.
§ 46–221. Quashing withholding where judgment obtained to hinder just claims.
§ 46–223. Initiation of withholding in other jurisdictions.
(a) Upon receipt of notice from another state that withholding is required to enforce a support order, including all documents and information necessary to carry out the withholding, the IV-D agency shall implement the withholding in accordance with § 46-207.01.
(b) If the IV-D agency determines that the obligor is no longer employed in the District of Columbia, the IV-D agency shall provide the initiating jurisdiction with the name and address of the obligor and the obligor’s new employer, if known.
(c) The IV-D agency, upon receiving a certified copy of a modification of a support order entered or registered in the District of Columbia, shall initiate necessary procedures to amend or modify a withholding that is based on the support order that has been modified.
“§ 46-222. Interstate withholding; procedure for entering a support order of another jurisdiction for withholding.
“(C) A statement that, if the obligor shows to the Court that an appeal from the order is pending, will be taken, or that a stay of execution has been granted, the Court may stay enforcement of the order until the appeal is concluded, the time for appeal has expired, or the order is vacated, upon satisfactory proof that the defendant has furnished security for payment of the support ordered as required by the initiating jurisdiction.
“(b) Any stay granted as referred to in subsection (a)(3)(C) of this section shall also stay the time limitations for rendering a decision on withholding pursuant to §§ 46-216(b) and 46-210(b).
“(C) The name and address of the agency or person to whom support payments collected by income withholding shall be transmitted.
“(d) If the documentation received by the Court pursuant to subsection (a) of this section does not conform to the requirements of subsection (c) of this section, the Court shall remedy any defect that it can without the assistance of the requesting agency or person. If the Court is unable to make the corrections, the requesting agency or person shall be notified of the necessary additions or corrections. If required by the initiating jurisdiction, the Clerk of the Court shall provide the information necessary to carry out the withholding within 30 calendar days of receipt of the initiating jurisdiction’s request for information. The Court shall accept the documentation required by subsections (a) and (c) of this section even if it is not in the usual form required by state or local rules, so long as the substantive requirements of these subsections are met.
“(e) If the earnings or other income of the obligor is not derived in the District, the Court shall notify the initiating jurisdiction that no action will be taken.
“(f) Entry of the order shall not confer jurisdiction on the Court for any purpose other than withholding of earnings or other income.
“(g) The Court, upon receiving a certified copy of any amendment or modification to a support order entered, shall initiate, as though it was a support order of this jurisdiction, necessary procedures to amend or modify the income withholding order or notice of jurisdiction that was based upon the entered support order.
D.C. Law 15-205, in subsecs. (a), (b), and (c), substituted “Court” for “Collection and Disbursement Unit”.
“(a) For any support order entered in another jurisdiction and subject to withholding pursuant to § 46-207(c) or Chapter 3 of this title, the Court shall implement the withholding upon receipt of notice from the initiating jurisdiction, including all information necessary to carry out the withholding, and, if necessary, provide the initiating jurisdiction with all information necessary to carry out the withholding within 30 calendar days of receiving a request for the information from the initiating jurisdiction.
“(b) The Court or the IV-D agency shall notify the initiating jurisdiction if it determines that the obligor is no longer employed in the District of Columbia and shall provide to the initiating jurisdiction the name and address of the obligor and the obligor’s new employer, if known.
Withholding of income, contests, see § 46-210.
Withholding of income for arrearages, see § 46-209.
Withholding of income, support order of another jurisdiction docketed pursuant to this section, see § 46-207.
For temporary amendment of section, see § 2(e) of the Child Support Enforcement Emergency Amendment Act of 1996 (D.C. Act 11-304, July 31, 1996, 43 DCR 4474), and see § 2(e) of the Child Support Enforcement Congressional Review Emergency Amendment Act of 1997 (D.C. Act 12-31, March 11, 1997, 44 DCR 1904).
For temporary amendment of section, see § 7(r) of the Child Support and Welfare Reform Compliance Second Emergency Amendment Act of 1998 (D.C. Act 12-309, March 20, 1998, 45 DCR 1923), § 7(r) of the Child Support and Welfare Reform Compliance Second Emergency Amendment Act of 1998 (D.C. Act 12-439, August 12, 1998, 45 DCR 6110), § 7(r) of the Child Support and Welfare Reform Compliance Legislative Review Emergency Amendment Act of 1998 (D.C. Act 12-503, October 27, 1998, 45 DCR 8495), and § 7(r) of the Child Support and Welfare Reform Compliance Second Congressional Review Emergency Amendment Act of 1998 (D.C. Act 12-600, January 20, 1999, 46 DCR 1239).
For temporary (90-day) amendment of section, see § 107(s) of the Child Support and Welfare Reform Compliance Emergency Amendment Act of 1999 (D.C. Act 13-126, August 4, 1999, 46 DCR 6606).
For temporary (90-day) amendment of section, see § 107(s) of the Child Support and Welfare Reform Compliance Legislative Review Emergency Amendment Act of 1999 (D.C. Act 13-177, November 2, 1999, 46 DCR 9678).
For temporary (90-day) amendment of section, see § 107(s) of the Child Support and Welfare Reform Compliance Congressional Review Emergency Amendment Act of 1999 (D.C. Act 13-241, January 11, 2000, 47 DCR 581).
For temporary (90 day) amendment of section, see § 107(s) of the Child Support and Welfare Reform Compliance Emergency Amendment Act of 2000 (D.C. Act 13-446, November 7, 2000, 47 DCR 9213).
For temporary (90 day) amendment of section, see § 108(s) of Child Support and Welfare Reform Compliance Congressional Review Emergency Amendment Act of 2001 (D.C. Act 14-5, February 13, 2001, 48 DCR 2440).
For temporary (90 day) amendment of section, see § 3403(o) of Fiscal Year 2005 Budget Support Emergency Act of 2004 (D.C. Act 15-486, August 2, 2004, 51 DCR 8236).
For temporary (90 day) amendment of section, see § 3403(o) of Fiscal Year 2005 Budget Support Congressional Review Emergency Act of 2004 D.C. Act 15-594, October 26, 2004, 51 DCR 11725).
For temporary (90 day) amendment of section, see § 3(w) of Income Withholding Transfer and Revision Emergency Amendment Act of 2005 (D.C. Act 16-167, July 26, 2005, 52 DCR 7648).
For temporary (90 day) amendment of section, see § 3(w) of Income Withholding Transfer and Revision Congressional Review Emergency Amendment Act of 2005 (D.C. Act 16-200, November 17, 2005, 52 DCR 10490).
For temporary (225 day) amendment of section, see § 2(e) of Child Support Enforcement Temporary Amendment Act of 1995 (D.C. Law 11-47, September 20, 1995, law notification 42 DCR 5506).
For temporary (225 day) amendment of section, see § 2(e) of Child Support Enforcement Temporary Amendment Act of 1996 (D.C. Law 11-148, May 20, 1996, law notification 43 DCR 4353).
For temporary (225 day) amendment of section, see § 7(r) of Child Support and Welfare Reform Compliance Temporary Amendment Act of 1998 (D.C. Law 12-210, April 13, 1999, law notification 46 DCR 3832).
For temporary (225 day) amendment of section, see § 107(s) of Child Support and Welfare Reform Compliance Temporary Amendment Act of 1999 (D.C. Law 13-57, March 7, 2000, law notification 47 DCR 1979).
For temporary (225 day) amendment of section, see § 107(s) of Child Support and Welfare Reform Compliance Temporary Amendment Act of 2000 (D.C. Law 13-207, March 31, 2001, law notification 48 DCR 3238).
“(a) Upon receipt of notice from another state that withholding is required to enforce a support order, including all documents and information necessary to carry out the withholding, the IV-D agency shall implement the withholding in accordance with section 8a.
“(b) If the IV-D agency determines that the obligor is no longer employed in the District of Columbia, the IV-D agency shall provide the initiating jurisdiction with the name and address of the obligor and the obligor’s new employer, if known.
Section 5(b) of D.C. Law 16-42 provided that the act shall expire after 225 days of its having taken effect.