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PER CURIAM: Gino Velez Scott, a federal prisoner proceeding pro se on appeal, appeals the dismissal with prejudice, and without an evi-dentiary hearing, of his motion to vacate his sentence, 28 U.S.C. § 2255. We granted a certificate of appealability on the following issue only: “Whether the district court erred in denying appellant’s claim that trial counsel was ineffective for failing to fully advise Scott of potential sentences during plea negotiations, where counsel and appellant’s allegations conflicted, and no evidentiary hearing was held.” Scott argues his attorney provided ineffective assistance of counsel by failing to advise him fully during plea negotiations as to the possibilities for avoiding a mandatory life sentence pursuant to a 21 U.S.C. § 851 enhancement, thus denying him the opportunity to make a knowing and voluntary decision as to whether to plead guilty. He further contends the district court was required to hold an evidentiary hearing because his attorney’s affidavit directly contradicted his allegations and the evi-dentiary hearing would have given Scott the opportunity to prove those allegations. In a § 2255 proceeding, we review the district court’s findings of fact for clear error and its legal conclusions de novo. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir.2008). “A claim of ineffective assistance of counsel is a mixed question of law and fact that we review de novo.” Id. Denial of an evidentiary hearing is reviewed for abuse of discretion. Aron v. United States, 291 F.3d 708, 714 n. 5 (11th Cir.2002). In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set out a two-part inquiry for ineffective assistance of counsel claims: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. at 2064. A habeas petitioner claiming ineffective assistance of counsel must succeed on both prongs of the Strickland test. Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir.2004). The Strickland test applies to challenges of guilty pleas, as well as to convictions by jury. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). In this context, the first prong of Strickland requires the defendant to show his plea was not voluntary because he received advice from counsel that was not within the range of competence demanded of attorneys in criminal cases. See id. at 369-70. The second prong “focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process,” meaning the defendant must show “a reasonable probability that, but for counsel’s errors,” he would have entered a different plea. Id. at 370 (stating the test in the context of an accepted guilty plea); see also Diaz v. United States, 930 F.2d 832, 835 (11th Cir.1991) (applying the test to a rejected plea agreement). The district court “shall” hold an eviden-tiary hearing on a habeas petition “[ujnless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). “[I]f the petitioner ‘alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim.’ ” Aron, 291 F.3d at 714-15 (quoting Holmes v. United States, 876 F.2d 1545, 1552 (11th Cir.1989)). Yet the “district court is not required to hold an evi-dentiary hearing where the petitioner’s allegations are affirmatively contradicted by the record, or the claims are patently frivolous.” Id. at 715. Thus, the petitioner needs to allege “reasonably specific, non-conclusory facts that, if true, would entitle him to relief. If the allegations are not affirmatively contradicted by the record and the claims are not patently frivolous,” the requirement of an evidentiary hearing is triggered and the petitioner must offer proof at that hearing. Id. at 715 n. 6. Scott’s brief in support of his § 2255 motion alleges only that his counsel failed to advise him that he supposedly could have avoided a life sentence by entering a guilty plea without a plea agreement before the Government had an opportunity to file an § 851 information. Scott’s argument assumes a non-negotiated plea would have prevented the Government from requesting the § 851 enhancement, but Scott provides no support for this proposition. Instead, he only notes, “it is common practice to negotiate that a sentencing enhancement not be filed where the defendant agrees to enter a guilty plea.” Scott’s brief in support of his § 2255 motion, however, does not allege the Government was amenable to such a negotiation in the absence of a cooperation agreement. Nor does it allege any other “reasonably specific, non-eonclusory facts” to indicate his counsel gave him constitutionally ineffective advice. Aron, 291 F.3d at 715 n. 6. The district court, thus, did not abuse its discretion in finding Scott was not entitled to an evidentiary hearing, and it did not err in concluding Scott’s motion failed the first prong of the Strickland test. The district court also did not err in finding Scott had failed to satisfy the second prong of the Strickland inquiry. Scott attempts to demonstrate prejudice by suggesting he would have given a guilty plea greater consideration if his counsel had advised him differently and by stating he could have received a lower sentence if he had pled guilty without a plea agreement. In Diaz, we concluded a petitioner had failed to establish prejudice when he argued a guilty plea would have resulted in a lower sentence and offered “after the fact testimony concerning his desire to plead.” 930 F.2d at 835. In this case, Scott only goes so far as to say he should have been able to take the lower sentence into account when deciding whether to plead guilty. Considered in conjunction with his counsel’s affidavit, which indicated Scott strongly advocated his innocence and was not amenable to pleading otherwise, Scott’s argument does not establish a reasonable probability he would actually have pled differently but for his counsel’s alleged advice. See id. at 834-35. Thus, Scott’s argument is insufficient to make the required showing for Strickland’s second prong. In sum, Scott has failed to show that he was entitled to relief or that the district court abused its discretion in failing to hold an evidentiary hearing. Accordingly, we uphold the district court’s denial of Scott’s § 2255 motion. AFFIRMED. . To the extent Scott appears to allege his counsel did not inform him that he faced a life sentence, his own declaration, filed after the district court denied his § 2255 motion, clarifies his counsel did actually advise him to that effect. . Scott’s motion to amend his reply brief is granted.

PER CURIAM: Michael Gallman appeals the district court’s order denying his motion for an evidentiary hearing to establish his substantial assistance to the Government. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Gallman, No. 8:00-cr-00191-HMH-2 (D.S.C. Nov. 18, 2008). We also deny Gallman’s motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

PER CURIAM: Earnest Timothy Rainey, incarcerated for crack cocaine offenses, appeals the district court’s denial of a sentence reduction under 18 U.S.C. § 3582(c)(2). Rainey argues that his mandatory minimum sentence should be set aside because no drug quantity was ever alleged or proven to the jury beyond a reasonable doubt, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Consequently, Rainey contends that Amendment 706 to the Sentencing Guidelines lowered his base offense level and he is entitled to a sentence reduction. We reject these arguments and AFFIRM. I. BACKGROUND A jury convicted Rainey in 1993 of conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841. Based on Rainey’s prior conviction for a felony drug offense, he was subject to a twenty-year minimum mandatory sentence under 21 U.S.C. § 841(b)(1)(A). At the sentencing hearing, Rainey did not dispute the applicability of the statutory minimum mandatory sentence. He only requested that the court sentence him to the low end of his guideline range—twenty years of imprisonment. The district court acquiesced and imposed concurrent sentences of twenty years (240 months of imprisonment) as to each count. In February 2008, the district court, acting on its own motion pursuant to § 3582(c)(2), appointed counsel for Rainey to determine the effect of Amendment 706 on Rainey’s sentence. Amendment 706 permits a sentence reduction “if that sentence was based on the § 2D 1.1 offense level for crack cocaine offenses.” United States v. Williams, 549 F.3d 1337, 1339 (11th Cir.2008) (per curiam). After evaluating responses from Rainey, the government, and the probation office, the district court determined that Rainey was not eligible for a sentence reduction under Amendment 706. This appeal followed. II. DISCUSSION We review a district court’s denial of a § 3582(c)(2) motion for abuse of discre tion, and its legal interpretations de novo. See Williams, 549 F.3d at 1338-39. A district court may modify a defendant’s sentence that was based on a sentencing range which was subsequently lowered by the Sentencing Commission. See 18 U.S.C. § 3582(c)(2). Any reduction, however, must be “consistent with applicable policy statements issued by the Sentencing Commission.” Id. The applicable policy statements expressly prohibit a reduction where an “amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision (e.g., a statutory mandatory minimum term of imprisonment).” U.S.S.G. § 1B1.10, comment. (n.l(A)) (2008). Accordingly, Amendment 706 has no effect on a sentence that was based on a statutory mandatory minimum, rather than on a base offense level in § 2D1.1. See Williams, 549 F.3d at 1342. Furthermore, because a sentencing adjustment under § 3582(c)(2) does not constitute a de novo resentencing, the district court must leave intact all original sentencing determinations except for the amended guideline range. See United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir.2005) (per curiam). Here, Rainey’s sentence was based on the statutory mandatory minimum of twenty years of imprisonment, which applied because of his previous felony drug conviction. The district court was not authorized under § 3582(c)(2) to revisit that sentencing determination. See id. Because Rainey’s sentence was not based on an offense level under § 2Dl.l(c), it did “not fall within the scope of Amendment 706.” Williams, 549 F.3d at 1342 (concluding that Williams was not entitled to a sentence reduction under Amendment 706 because he was subject to a statutory mandatory minimum that replaced his original sentencing guideline range under § 2D1.1). Accordingly, the district court did not err in concluding that Rainey was ineligible for a sentence reduction under Amendment 706. See id. Furthermore, a § 3582(c)(2) motion is not the proper forum for Rainey’s argument that his mandatory minimum sentence violated Apprendi. The plain language of § 3582(c)(2) only permits modifications to a sentence based on guideline amendments by the Sentencing Commission, not Supreme Court decisions. See 18 U.S.C. § 3582(c)(2); see also Moreno, 421 F.3d at 1220 (concluding that “Booker is inapplicable to § 3582(c)(2) motions” because “Booker is a Supreme Court decision, not a retroactively applicable guideline amendment by the Sentencing Commission”). As a result, Apprendi cannot be used as a basis for a § 3582(c)(2) motion. III. CONCLUSION The district court correctly determined that Amendment 706 did not alter Rainey’s sentence because he was sentenced according to the statutory mandatory minimum. Accordingly, we AFFIRM the district court’s denial of a sentence reduction under § 3582(c)(2). AFFIRMED.

PER CURIAM: Rodney Maurice Saunders seeks to appeal the district court’s order denying relief on his 28 U.S.C.A. § 2255 (West 2007) motion. The district court’s order was entered on September 2, 2008, 2008 WL 4133853. Saunders’ notice of appeal was filed on January 26, 2009. In his notice of appeal, Saunders states that he did not receive notice of the district court’s order until January 26, 2009. Where the United States is a party to a civil action, the parties are accorded sixty days after the entry of the district court’s final judgment or order to note an appeal, Fed. R.App. P. 4(a)(1)(B), unless the district court extends the appeal period under Fed. R.App. P. 4(a)(5) or reopens the appeal period under Fed. R.App. P. 4(a)(6). This appeal period is “mandatory and jurisdictional.” Browder v. Dir., Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960)); see Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007). Saunders’ notice of appeal is clearly untimely. However, under Rule 4(a)(6), the district court may reopen the time to file an appeal if: (1) the moving party did not receive notice of the entry of the order within twenty-one days after entry; (2) the motion is filed within 180 days of entry of the judgment or order or within seven days of receiving notice from the court, whichever is earlier; and (3) no party would be prejudiced. We accordingly remand to the district court to determine whether Saunders is entitled under Rule 4(a)(6) to the reopening of the appeal period. The record, as supplemented, will then be returned to this court for further consideration. REMANDED. For the purpose of this appeal, we assume that the date appearing on the notice of appeal is the earliest date it could have been properly delivered to prison officials for mailing to the court. See Fed. R.App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988).

PER CURIAM: Michael Lesane seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2006) petition. The order is not appeal-able unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dis-positive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Lesane has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED.

MEMORANDUM Hector Bardales, Defendant-Appellant, a resident of California, appeals an order of the district court dismissing this action without granting attorney fees to Bardales. Emilia Duarte, Plaintiff-Appellee, a resident of Mexico, moved for dismissal of this action under provisions of Federal Rule of Procedure 41. On review, we determine that the order of the district court dismissing the action without allowing attorney fees did not amount to an abuse of discretion. Accordingly, we AFFIRM. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. . See prior opinion, Duarte v. Bardales, 526 F.3d 563 (9th Cir.2008). . Bardales moves that we take judicial notice of an order from the California Court of Appeals staying proceedings pending resolution of the litigation in federal court and a statement from the pro bono attorney for Emilia Duarte submitted to the California Court of Appeals. We grant the motion but note that the exhibits attached to the motion are irrelevant on the present appeal. . Appellant Bardales requests that the opinion of this court be published. That request is denied.

PER CURIAM: Howard 0. Boisseau, III, appeals the district court’s order denying his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Boisseau, No. 3:00-cr-00245-REP-1 (E.D.Va. Nov. 12, 2008). We also deny Boisseau’s motion for appointment of counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid in the decisional process. AFFIRMED.

PER CURIAM: The Federal Public Defender appointed to represent Rodrigo Mendoza has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mendoza has not filed a response. Our independent review of the record and counsel’s brief discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM: Ronald Wayne Lewis seeks to appeal the district court’s order granting his motion for an independent firearms expert (No. 09-6219), and denying his motion for review of the status of counsel (No. 09-6221). This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Lewis seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss these appeals for lack of jurisdiction. Additionally, we deny Lewis’ motion for release on bond pending appeal, Fed. R.App. P. 9(A)(3), and deny his motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED.

MEMORANDUM Wu, a former witness for the United States Government in a criminal alien smuggling case, petitions for review of an adverse decision of the Board of Immigration Appeals (“BIA”) denying relief under asylum and withholding of removal under the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1231(b)(3)(A). He also seeks review from the BIA’s order denying relief under the Convention Against Torture (“CAT”). 8 C.F.R. §§ 1208.16, 1208.18. The BIA based its decision entirely upon the oral opinion and order of an immigration judge (“IJ”). Because we conclude based on the whole record that the IJ’s determinations were based upon (1) correct applications of the law, and (2) substantial evidence, we deny the petition. INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (upholding on review BIA’s dismissal of petitioner’s request for asylum and for withholding of deportation, because his evidence was not “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution”). First, the petitioner failed to establish that his problems were on account of a protected ground, or because he belonged to a protected group. He failed in this respect to show cognizable past persecution. The record is devoid of any evidence that either Wu or his family in China have ever been harassed, or that the Chinese government has any interest in him. As to whether petitioner established a well-founded fear of future persecution based upon a protected ground, here, too, his evidence was unconvincing— to quote the IJ, his evidence was “weak” and not persuasive. Accordingly, the IJ’s and the BIA’s conclusion that petitioner failed to establish his status as a “refugee” is well supported by the evidence. See 8 U.S.C. § 1158(b)(1). Second, and for the same reasons, petitioner failed to demonstrate “a clear probability” that he will be persecuted on account of a protected ground in the country to which he will be removed. INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). Thus, he is not eligible for mandatory withholding of removal. 8 U.S.C. § 1231(b)(3)(A). Third, protection under CAT requires a showing that it is “more likely than not” that an applicant will be tortured in the country of removal. 8 C.F.R. § 1208.16(c)(2). Although the reason for asserted torture need not arise in connection with a protected ground, the potential torture must be inflicted by or at the instigation of or with consent or acquiescence of a public official or other person acting in an official capacity. 8 C.F.R. § 1208.18(a)(1), (a)(6). Inasmuch as petitioner’s evidence in support of his CAT claim is the same as his evidence related to asylum and withholding is one and the same, it, too, does not demonstrate that he is “more likely than not” to be tortured in China. It may be that he might be prosecuted for crimes, but the record evidence does not show that such proceedings would amount to torture. DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

PER CURIAM: Appellant Ficus Farm, Inc. (“Ficus Farm”), a nursery located in Loxahatchee Florida, appeals from the district court’s August 27, 2008, 2008 WL 4057741, order granting final summary judgment to United States Department of Agriculture-Risk Management Agency (“RMA”) et al. The suit arose out of an insurer’s decision not to indemnify Ficus Farm for part of its claimed nursery losses. Ficus Farm had claimed an insurance loss of palms, ferns, Jessamine and Veriegated Ginger plants due to excessive moisture following a series of storms in 2005. The RMA reviewed the insurer’s decision and upheld the insurer’s partial denial of Ficus Farm’s claim because the owner of Ficus Farm (1) had misrepresented material facts to the insurer; (2) had destroyed certain crops without the written permission of the insurer in violation of the policy; and (3) had failed to mitigate its losses. The district court upheld the agency determination, concluding that there was substantial evidence to support each of the agency’s findings, and its conclusion. After thorough review, we affirm the final order of summary judgment based on the district court’s well-reasoned and thorough opinion. AFFIRMED.

MEMORANDUM Jose Luis Flores-Lopez appeals from his guilty-plea conviction and 51-month sentence for being an illegal felon found in the United States, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Flores-Lopez’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal. Accordingly, counsel’s motion to withdraw is granted, and the conviction and sentence are affirmed. In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062 (9th Cir.2000), we remand the case to the district court with instructions that it delete from the judgment the incorrect reference to 8 U.S.C. § 1326(b). See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir.2000) (remanding sua sponte to delete the reference to § 1326(b)). Appellant’s request that this Court order the government to provide a proof of claim is denied. AFFIRMED; REMANDED to correct judgment. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

OPINION SAND, District Judge. By order of the New York County Surrogate’s Court, defendant Victor M. Castela-zo, Sr. (“guardian”) was appointed guardian of the property of Victor M. Castelazo, III and Laura C. Castelazo, his infant grandchildren (“infants”). Pursuant to the Surrogate Court’s order, all moneys and properties of the infants were paid over and delivered to defendant Manufacturers Hanover Trust Company (“MHT”) as depository, and MHT was directed to comply with the directions of the guardian as to the investment or reinvestment of the property and the income collected from that property. Plaintiff’s complaint alleges that defendant Haythe and Curley (“H & C”) acted as counsel to the guardian and the infants “at all relevant times.” In August 1984, the guardian authorized MHT to follow the written instructions of his financial advisor, Toni Vallen (“Vallen”), to sell, deliver or exchange securities held in the custody accounts. In or about October, 1987, the guardian, through Vallen, opened two accounts with plaintiff Fahnestock & Co. Inc. (formerly Edward A. Viner & Co., Inc.) through Pace Securities, Inc., plaintiff’s forwarding broker, for the purpose of engaging in transactions involving the purchase and sale of securities. Evidently, on October 8, 1987 oral instructions had been issued to MHT by the guardian’s son purportedly revoking Vallen’s authority to trade on behalf of the accounts. The complaint alleges that on or about October 16, 1987 and October 27, 1987, the guardian through Vallen, directed that shares of certain specific securities be purchased in the accounts. The complaint also alleges that plaintiff purchased the shares and that the guardian failed to pay plaintiff for the purchases. Plaintiff commenced an action against Vallen alleging that she was part of a conspiracy to manipulate the prices of various securities, including those allegedly involved in the transactions which form the basis for this action. The case, Edward A. Viner & Company, Inc. v. Capital Shares, et al., 87 Civ. 7788 (LBS), is presently before this Court along with eight other actions arising out of the same alleged conspiracy. Plaintiff, through different counsel, commenced this action on February 2, 1990 in the Supreme Court of the State of New York, asserting causes of action against the guardian for breach of contract, against MHT for breach of contract as a third-party beneficiary, and against all the defendants for negligence. The action was removed to this Court on March 1, 1990. Presently before the Court are plaintiffs motion to remand the case to state court and the motions of defendants MHT and H & C to dismiss or for summary judgment and for sanctions. Plaintiff contends that this action was improperly removed. Specifically, plaintiff argues that its complaint does not state a “separate and independent” claim against defendant Castelazo, the one defendant with diverse citizenship to plaintiff, of the type which would make this action properly removable under 28 U.S.C. § 1441(c). We need not consider plaintiffs argument concerning separateness, however, for we find that there was no reasonable basis for predicting that state law might impose liability against defendants MHT and H & C, and we find that these defendants were joined in this action for the sole purpose of defeating diversity. As a result, we conclude that this action was properly removable under 28 U.S.C. § 1441(a) because without the improper joinder of MHT and H & C, this action would have fallen within this Court’s original jurisdiction. We find no merit to plaintiff’s argument that defendants did not remove this action under Section 1441(a). The notice of removal clearly states that removal is taken “[pjursuant to 28 U.S.C. §§ 1441(a) and 1441(c)” and that the claims were asserted “for the sole purpose of attempting to prevent or defeat a removal of the Action to [federal] court.” See Notice of Removal at 1 & 4. Discussion In order to show that the naming of non-diverse defendants was a fraudulent joinder effected to defeat diversity jurisdiction and that the action was therefore properly removable under Section 1441(a), defendants must show bad faith with sufficient certainty and that there is no “reasonable basis for predicting that state law might impose liability on the non-diverse defendant.” American Mut. Liability Ins. Co. v. Flintkote Co., 565 F.Supp. 843, 845 (S.D.N.Y.1983); Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir.1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 701, 79 L.Ed.2d 166 (1984); Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983). All factual and legal issues must be resolved in favor of the plaintiff. S.A. Auto Lube, Inc. v. Jiffy Lube Int’l, Inc., 842 F.2d 946, 950 (7th Cir.1987). The Court must examine plaintiff’s claims to determine whether they have any merit and thus preclude a finding that they were fraudulently asserted to defeat diversity. There is no basis in fact or under New York law for plaintiff’s contract claim against MHT. Under New York law, only an intended beneficiary of a contract may assert a claim as a third party. Port Chester Elec. Constr. Corp. v. Atlas, 40 N.Y.2d 652, 655, 389 N.Y.S.2d 327, 330, 357 N.E.2d 983 (1976). An intended beneficiary is one whose “right to performance is ‘appropriate to effectuate the intention of the par ties’ to the contract and either the performance will satisfy a money debt obligation of the promisee to the beneficiary or ‘the circumstances indicate that the prom-isee intends to give the beneficiary the benefit of the promised performance.’ ” Lake Placid Club Attached Lodges v. Elizabethtown Builders, Inc., 131 A.D.2d 159, 521 N.Y.S.2d 165, 166 (3rd Dep’t 1987) (quoting Restatement Second of Contracts § 302(1)(a) & (b) (1979)). See also Septem-bertide Publishing B. V. v. Stein and Day, Inc., 884 F.2d 675, 679-80 (2d Cir.1989); Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., Inc., 66 N.Y.2d 38, 45, 495 N.Y.S.2d 1, 5, 485 N.E.2d 208 (1985) (third party’s right to enforce contract generally upheld when no one other than third party can recover or language of the contract “clearly evidences an intent to permit enforcement by the third party”). Plaintiff argues that it is the intended third party beneficiary of the written authorization given by the guardian to MHT. This authorization letter reads in full: You are authorized and requested at any time and from time to time without further approval by the undersigned to follow the written instructions of— Toni Vallen — Valcorp Management Inc. to sell, deliver or exchange any securities or other property at any time held in my Custody Account, against receipt by you of such payment, securities or other property, as shall be set forth in such written instructions, and to follow such written instructions to receive or purchase with and to the extent of any cash to my credit with you as Custodian or with your Banking Department, or otherwise, and make payment therefor against receipt of the securities or other property to be acquired as set forth in such written instructions. This authorization shall continue in full force and effect until receipt by your Custody Department of written notice from me of the revocation thereof. Even if we assume that this letter somehow constituted a contract, the clear purpose of the letter was for the guardian, pursuant to his duty to make investment decisions on behalf of the infants, to authorize the custodian of the accounts to follow the instructions of a particular financial advisor. It is entirely implausible that it was the intention of the parties to confer some benefit on a clearing broker acting on behalf of the brokerage firm where the financial advisor opened the accounts or that the parties intended the letter to create any rights enforceable by Viner. There is also no basis in law or fact for plaintiff’s negligence claims against MHT and H & C. Plaintiff contends that MHT and H & C negligently failed: to advise Vallen of the purported revocation of her authority, to recover copies of the trading authorizations from Vallen, and to advise plaintiff of the purported revocation of Val-len’s authority. It is axiomatic that “[a] defendant may be held liable for negligence only when it breaches a duty owed to the plaintiff.” Strauss v. Belle Realty Co., 65 N.Y.2d 399, 402 (1985). Plaintiff,, the clearing broker, cannot establish that MHT owed it any duty. MHT’s role in the events giving rise to this action appears confined to the ministerial act of refusing to pay plaintiff for the securities purchases after receiving instructions not to do so. Plaintiff offers no suggestion of a possible source of any duty, and there is no allegation that MHT even had any contact with plaintiff aside from the isolated transactions discussed above. Under the Surrogate Court’s order, MHT was only to “comply with the directions of [the guardian],” and this Court has already determined that the order required MHT “to act simply as a custodian” and “imposed no independent obligation on MHT to review the financial merits of the guardian’s decisions.” Haythe & Curley v. Victor M. Castelazo, Sr., et al., 88 Civ. 4740 (LBS) (S.D.N.Y. January 30, 1990) (memorandum endorsement). The authori zation letters given by the guardian to MHT merely directed MHT to follow the directions of Vallen to sell, deliver or exchange securities. That MHT, by accepting oral instructions from the son of the guardian, appears not to have complied with the terms of the written authorization given to MHT by the guardian does not help plaintiff establish that MHT owed it a duty. Similarly, plaintiff cannot establish that H & C owed it a duty. Plaintiffs complaint alleges only that H & C acted as counsel to the guardian and alleges no additional facts from which the Court could infer that H & C had any relationship whatsoever with plaintiff. H & C’s involvement in the transactions which form the basis for plaintiffs action appears to be limited to receiving copies of the broker’s confirmations for possible use in preparing annual accountings filed by the guardian with the Surrogate's Court. Additionally, a partner of H & C was apparently present when the instructions to follow Vallen’s written instructions were revoked. As with MHT, there is no indication that H & C had any other contact with plaintiff. Plaintiff also seems to suggest that MHT and H & C negligently breached their duties to exercise control over Vallen or to warn plaintiff about her activities. A defendant is only liable for failing to control a third party when a “special relationship” exists between the defendant and the victim or the defendant and the third party. Einhorn v. Seeley, 136 A.D.2d 122, 525 N.Y.S.2d 212, 214-15 (1st Dep’t), appeal dismissed, 72 N.Y.2d 914, 532 N.Y.S.2d 848, 529 N.E.2d 178 (1988). Similarly, absent a special relationship, there is no general duty to warn others of a foreseeable risk of harm even if one has knowledge of a risk that exists. Andrulonis v. United States, 724 F.Supp. 1421, 1485-86 (N.D.N.Y.1989). The relationships between employers and employees, owners and occupiers of premises, common carriers and their patrons, and hosts who serve alcoholic beverages to their guests have been found to constitute special relationships. Einhorn, supra 525 N.Y.S.2d at 214-15. There is no basis for finding that MHT had a “special relationship” with Val-len. There appears to be no authority which remotely supports the proposition that a bank acting simply as a custodian of certain accounts had some duty to control a financial advisor selected by the guardian, the only party charged with investing the money in the accounts, or to warn a potential victim with which it had had no prior contact of that financial advisor’s fraud. While it is now apparent that “at some time” Vallen was “an officer or employee” of MHT, see Deposition of Nathan Hale at 5, neither plaintiff’s complaint nor its initial motion papers demonstrated any awareness of this fact. More significantly, as plaintiff seems to concede, see Lowenthal Affidavit ¶ 4, Vallen was apparently not an employee or officer of MHT during the periods of time relevant to this action. There is similarly no basis for finding that H & C had a “special relationship" with Vallen. Plaintiff attempts to premise a “special relationship” between H & C and Vallen upon deposition testimony to the effect that Vallen “had been a source of legal business, including the Castelazos, for H & C.” See Hale Deposition at 6. However, there appears no basis in New York law for the proposition that a “source of legal business” has a special relationship with counsel such that a victim of the “source’s” fraud with no relationship to counsel has a cause of action against counsel for failing to control the source or warn the victim. Evidence that considerations other than the merits motivated counsel’s decision to bring this action in state court came to light at oral argument. Presently in this Court, there are no less than nine cases arising from the same alleged securities fraud conspiracy, one of which was commenced by this plaintiff represented by different counsel. If this case were litigated in federal court, plaintiff would in all likelihood be faced with a motion under Fed.R. Civ.P. 42(a) to consolidate this case with the other actions. At oral argument, after informing the Court that he was a contingent fee litigator and that Viner’s other counsel was paid on an hourly basis, counsel posed the rhetorical question: “How can I possibly inject myself into [these other actions]? Different lawyers, different deal, that’s all.” Transcript of Oral Argument dated April 5, 1990 at 21. Because Viner would not require two counsel if the actions were consolidated, there would probably not be a way for counsel to inject himself into the proceedings. In light of these circumstances and the obvious lack of merit to plaintiffs claims, the Court can only conclude that MHT and H & C were joined solely to defeat diversity. Plaintiffs motion to remand this case to state court is denied, and the motions of MHT and H & C for summary judgment are granted. The Court also grants defendants’ motions for sanctions. Rule 11 sanctions are warranted “where it is clear that: (1) a reasonable inquiry into the basis for a pleading has not been made; (2) under existing precedents there is no chance of success; and (3) no reasonable argument has been advanced to extend, modify or reverse the law as it stands.” International Shipping Co. S.A. v. Hydra Offshore, Inc., 875 F.2d 388, 390 (2d Cir.), cert. denied, — U.S. -, 110 S.Ct. 563, 107 L.Ed.2d 558 (1989). The Court has determined that there was no basis under New York law for plaintiff’s claims against MHT or H & C, and therefore, MHT and H & C are entitled to their costs. Defendants are directed to submit to the court by August 13, 1990 affidavits itemizing their costs. Plaintiff may submit responsive documents by August 27, 1990. SO ORDERED. . Counsel for MHT affirms that she forwarded a copy of this endorsement to plaintiff’s counsel on February 15, 1990, along with copies of stipulations of discontinuance for what were apparently substantively similar claims asserted against MHT by other parties in a related case. Arzt Affidavit ¶ 51.

OPINION CEDARBAUM, District Judge. PacifiCorp Capital, Inc. commenced this diversity action against the City of New York and City official Joseph A. Messina to enjoin payment on a contract for the purchase of computer equipment from the International Business Machines Corporation (“IBM”). PacifiCorp seeks both a preliminary and a permanent injunction against the award of the contract to IBM, and asks for a permanent injunction awarding the contract to PacifiCorp based on its proposal of an Amdahl 5890-400E computer. All parties consented to IBM’s motion to intervene as a defendant. In accordance with Fed.R.Civ.P. 65(a)(2) and upon the consent of the parties, the evidence in this case was presented during a one-day consolidated preliminary and final injunction hearing. In addition, prior to the bench trial, PacifiCorp and the City submitted a stipulation of facts, and, as a result, most of the facts are undisputed. As will be discussed more fully below, after carefully considering all the evidence and evaluating the credibility of the witnesses, I find that the award of the contract to IBM was not in accordance with the requirements of the state and local law. Accordingly, the award of the contract is vacated, and the City is directed to award the contract in accordance with the requirements of Section 343 of the City Charter. The Facts PacifiCorp is a corporation organized under the laws of the state of Virginia and has its principal place of business in Virginia. PacifiCorp is a third party vendor of computers; it leases and sells computers it acquires from others. The City is a municipal corporation organized under the laws of New York State. Defendant Joseph A. Messina is Executive Director of the Financial Information Services Agency (“FISA”) of the City. He is sued in his official capacity. Defendant-Intervenor IBM is a New York corporation with its principal place of business in New York. IBM is primarily engaged in the business of manufacturing, selling and leasing computers and computer parts, including software. FISA is responsible for the computerization of all of the City’s fiscal affairs. In addition to its original responsibilities, FISA’s duties now include the management of the City’s payroll system and the development and implementation of a comprehensive tracking system to monitor and report on all City contracts and vendors. Recognizing its need to improve and modernize its computer mainframe central processing unit (“CPU”) in order to carry out all of its responsibilities, on November 1, 1989 FISA issued a Request for Proposals (“RFP”) that solicited proposals for an improved CPU, specifically an IBM model 3090-400E or equivalent, and for an optional upgrade of the IBM Model 400E to an IBM Model 400S or equivalent. An upgrade is a process by which additional features or equipment are added to an existing processor so as to enable it to perform greater or different functions. The CPU was part of a procurement involving the purchase of hardware, software and maintenance. FISA concluded that it was not required to use competitive bidding for the CPU, and issued an RFP to facilitate the procurement. The RFP invited proposers to offer either new or used equipment. Proposals were due November 21, 1989. The RFP contained detailed specifications for the equipment and listed the required hardware and software components and features. In addition, the RFP requested that the proposer state the environmental and technical characteristics of the CPU it was proposing. Four vendors submitted timely proposals —IBM, PacifiCorp, Cashflow Design, Inc. and Amdahl Corporation. PacifiCorp submitted two proposals, one for IBM equipment and one for Amdahl equipment. Pa-cifiCorp's IBM proposal offered an IBM 3090-400E for a price of $5,370,500, with trade in prices totalling $265,000 for FISA’s current equipment. FISA evaluated the cost to it of PacifiCorp’s IBM proposal based on the cost of the initial processor (excluding the upgrade) and found an adjusted total cost of $7,485,037 after adding costs for delivery and installation, five-year maintenance, energy cost and software. PacifiCorp’s Amdahl proposal offered an Amdahl 5890-400E for a price of $3,491,263 with an upgrade to the Amdahl 5890-600E. FISA evaluated the cost to it of Pacifi- Corp’s Amdahl proposal based on the cost of the initial processor (excluding the upgrade) and found an adjusted total cost of $7,330,807, adding costs for delivery and installation, five-year maintenance, energy cost and software and an additional $1,879,-237 for “residual value difference.” FISA added the same $1,879,237 for “residual value difference” to Amdahl’s proposal for the same machine, and FISA evaluated the total cost of the Amdahl proposal to it based on the initial processor (excluding the upgrade) as $7,483,157. The basis for FISA’s conclusion that there was a residual value difference of $1,879,237 to be added to Amdahl’s proposal and PacifiCorp’s Amdahl proposal was that that figure represented the difference between the price quoted by PacifiCorp for the IBM 3090-400E Processor Complex and the price quoted by PacifiCorp for the Am-dahl 5890-400E Processor Complex. Since in FISA’s capacity study, the necessity for an upgrade had been forecast, FISA treated the prices that PacifiCorp proposed for the IBM and Amdahl 400E units as representing what it could expect in a trade for them at the time of upgrade. The difference in price between the two units represented what FISA felt was the difference in trade-in value, or the “residual value difference.” FISA evaluated the total adjusted cost of IBM’s proposal for an IBM 3090-400E as $6,606,279, after taking into account maintenance and energy costs. After FISA made the $1,879,237 addition to Pacifi-Corp’s Amdahl proposal and to Amdahl’s proposal, FISA determined that IBM offered FISA the lowest cost proposal. FISA submitted a report to the Department of General Services, which in turn submitted a report to the Office of Management and Budget, which in turn submitted a report to the Board of Estimate requesting the Board of Estimate’s approval of the award to IBM. After receiving and evaluating all the proposals, the City’s budgetary constraints forced FISA to reconsider its upgrade plans and to eliminate the upgrade and limit the procurement to the purchase of the IBM 3090-400E or equivalent. As a result, FISA based its award decision solely on the “E” level processor and did not consider the upgrade. FISA did not announce this change to the offering companies, nor did FISA revise any of the reports that it had submitted to the Department of General Services and the Office of Management and Budget which it knew would go to the Board of Estimate. Consequently, the report ultimately submitted to the Board of Estimate by the Office of Management and Budget was both outdated and inaccurate. For example, the report to the Board of Estimate stated that PacifiCorp’s Amdahl proposal had been eliminated because its proposed upgrade was not responsive. In fact, PacifiCorp’s Amdahl proposal had not been disqualified. On January 25, 1990, the Board of Estimate adopted a resolution approving the award to IBM. PacifiCorp was informed of the decision on January 26, 1990. FISA concluded that it was in the City’s best interest to obtain delivery of the CPU by January 31, 1990. The IBM 3090-400E was delivered and installed by IBM at FISA’s facilities on the weekend of January 27 and 28, 1990. Installation was required over the weekend because computer operations are slowest at that time. Discussion A. New York General Municipal Law Section 103 and its Exceptions PacifiCorp claims that it is entitled to injunctive relief because the award of the contract violated section 103 of the New York General Municipal Law (“GML”) and was arbitrary and capricious. GML section 103 requires competitive bidding for municipal contracts. Under that statute, all municipal purchase contracts involving an expenditure of more than five thousand dollars must be awarded to the lowest responsible bidder. There are two exceptions to this requirement. The first, known as the “service” exception, was developed as a judicial gloss on GML section 103. The New York courts have construed section 103 as inapplicable to municipal contracts which require special skill and expertise. The second is an express exception in the statute for local laws enacted prior to September 1, 1953. Although PacifiCorp argues that these exceptions are coextensive, nothing in the statutory language or history supports that contention. Each of these exceptions will be considered in turn. 1. The “Service” Exception All parties recognize that the New York courts have exempted “service” contracts from the competitive bidding requirement of GML section 103. Under New York law, when a municipality is purchasing services which require scientific knowledge, skill, expertise and experience, it is not required to award the contract to the lowest bidder. This “service” exception dates back to the New York Court of Appeals decision in People, ex rel. Smith v. Flagg, 17 N.Y. 584 (1858) and has been applied by the New York courts in several cases. See, e.g., Burroughs Corp. v. New York State Higher Education Services Corp., 91 A.D.2d 1078, 458 N.Y.S.2d 702 (3d Dep’t 1983); American Totalisator Co., Inc. v. Western Regional Off-Track Betting Corp., 44 A.D.2d 750, 396 N.Y.S.2d 301 (4th Dep’t 1974). The defendants rely particularly on Burroughs, a case in which the court found that the purchase of computer hardware and software fell within the service exception to the competitive bidding requirement. The facts and the RFP in Burroughs showed that in that case the government agency was seeking the design of a computer system to meet its future needs: Both the RFP and the undisputed facts contained in the record establish that, rather than a group of physical articles of electronic hardware, [the governmental agency] primarily was seeking the design of a computer system which would provide prompt, efficient, cost-effective computer services to satisfy its growing and increasingly complex needs for the next five years. Such a design required the employment of the highest skills in the field of computer science. Vendors were allowed considerable discretion in the RFP in proposing the hardware and software components of the system, and they were also encouraged by [agency] officials to be innovative and flexible in meeting the required specifications in their design proposals. Burroughs, 91 A.D.2d at 1078-80, 458 N.Y.S.2d 702. Although the defendants contend that the award of this computer contract to IBM falls within the service exception and is governed by Burroughs, the RFP and facts of this case do not suggest that the City was seeking the design of a computer system. On the contrary, an examination of the RFP and the other evidence shows that the City knew the specific type of computer equipment it needed to meet its needs, namely an IBM 3090-400E or equivalent. FISA had conducted its own study of its computer needs and had hired an independent consultant, Systems Methods Associates (“SMA”), to perform a capacity study for FISA. See Defendant’s Exhibit A. Both FISA and SMA specifically recommended that the City procure an IBM 3090-400E or equivalent. The proposers had little discretion under the RFP in selecting the hardware or software. The RFP did not invite innovative design proposals for a computer system. The only services which the RFP called for were installation and maintenance, services which accompany many machine purchases. According to Mr. Messina’s testimony, competitive bidding should be used either when the City seeks to purchase a specific item, or when the City can bid out a detailed list of specifications. When competitive bidding is used, the contract must be awarded to the lowest responsible bidder. Messina testified that his staff recommended that the procurement be by RFP, Primarily because there are a few manufacturers of computers and a few vendors that sell different manufacturers and we were looking for the best proposal for the city, also being that we could not clearly state the definite specifications as it pertains to the environmentals needed to support that computer. Transcript at 13. In this case, the City’s RFP was very specific and did not ask for proposed designs for FISA’s computer system. While I do not reach the question of whether this contract must be competitively bid, I find that this contract does not fall within the service exception to the bidding requirements of section 103. 2. City Charter Section 343 GML section 103(1) states that it is applicable “[ejxcept as otherwise expressly provided by an act of the legislature or by a local law adopted prior to September first, nineteen hundred fifty-three ...” N.Y.Gen.Mun.Law § 103(1) (McKinney 1990). City Charter section 343 is such a local law and applies to the facts of this case. City Charter section 343(a) provides: If the several parts of the work, labor or the supplies, materials and equipment to be done or furnished shall together involve the expenditure of more than five thousand dollars, or in the case of construction, repair, rehabilitation or alteration, the expenditure of more than fifteen thousand dollars, such work or labor or supplies, material, and equipment or construction, repair, rehabilitation or alteration shall be obtained only by contract on public letting founded on sealed bids under such regulations as shall be made by the board of estimate, except that in a special case the board of estimate by a two-thirds vote may order otherwise. N.Y.City Charter § 343(a) (emphasis added). The City argues that the RFP process used in the procurement of this contract was done pursuant to the “special case” exception of City Charter section 343(a). The City appears to argue that all computer procurements are special cases within the meaning of section 343. As discussed above, PacifiCorp contends that if, as I have determined, the contract does not come within the “service” exception to GML section 103, it cannot be a special case within the meaning of City Charter section 343. As discussed above, I reject PacifiCorp’s contention that a special case is limited to GML section 103’s service exception. I turn then to the special case exception to competitive bidding. Few New York courts have addressed the question of what constitutes a special case under City Charter section 343. As both PacifiCorp and the City recognize, a special case exists when only one manufacturer or producer can supply the product. See Tinston v. City of New York, 17 A.D.2d 311, 234 N.Y.S.2d 730 (1st Dep’t 1962), aff'd, 13 N.Y.2d 850, 242 N.Y.S.2d 490, 192 N.E.2d 271 (1963); Matter of Wade Electrical Contracting Co., Inc. v. Davis, No. 15576/82 (Sup.Ct.N.Y.Co. July 28, 1982). That is not the situation here. A special case has also been held to exist when the lowest bidder has given a prohibited gift to a public official. See Kayfield Constr. Corp. v. Morris, 15 A.D.2d 373, 225 N.Y.S.2d 507 (1st Dep’t 1962). No similar allegation is made here. In addition, time pressure sometimes justifies a special case exception to the competitive bidding requirement. See Cascione v. Morns, 40 Misc.2d 431, 243 N.Y.S.2d 67 (Sup.Ct.Queens Co.1963). The evidence in this case, however, does not suggest that only IBM could provide the computer in the time frame set out in the RFP, nor has the City made that allegation. When contracts are competitively bid, they must be awarded to the lowest bidder. Although neither the statute nor the decisions clearly define the special case exception, both clearly suggest that a special case is limited to circumstances in which it can be demonstrated that it is impractical and inappropriate for price alone to be the determining factor. The decisions of the New York Court of Appeals which construed the predecessor statutes to City Charter section 343 are perhaps the best guide to the proper application of the special case exception. See Matter of Emigrant Industrial Savings Bank, 75 N.Y. 388 (1878); Phelps v. Mayor, 112 N.Y. 216, 19 N.E. 408 (1889). Although the earlier versions of the statute did not contain the words “special case,” the decisions themselves used those words to describe the circumstances in which competitive bidding was not required. “As cases might arise where from the nature of the work, or other circumstances, it would be either impracticable or unsuitable to contract for the work or supplies in that manner [i.e. via competitive bids], a discretion was lodged in the common council im-powering them to direct otherwise in special cases ..." Matter of Emigrant Industrial Savings Bank, 75 N.Y. 388, 394 (1878) (emphasis added). See also James Shewan & Sons, Inc. v. William Wirt Mills, 211 A.D. 687, 693, 208 N.Y.S. 381, 385 (1st Dep’t 1925) (“The charter provision was intended to limit the departure from the wholesome requirement for public letting to such particular and specific cases as to the board of alderman might seem to justify a relaxation of the rule in a special case.”) These early decisions do not provide a specific definition of “special case,” but they do make clear that the Board of Estimate must decide on a case-by-case basis whether to dispense with the requirement of competitive bidding. The law confers upon the common council the power and duty of deciding in each particular case whether [the provisions of the charter requiring advertisement for sealed proposals and a contract with the lowest bidder] shall be dispensed with, and requires a vote of three-fourths of all the members elected to accomplish that purpose. This is eminently a discretionary power which cannot be delegated. It is their judgment which the law requires and not that of any officer they may designate. There is no provision in the law itself authorizing them to delegate this power, and the case falls within the settled principle that powers of this description, involving the exercise of judgment and discretion cannot be delegated.... Matter of Emigrant Industrial Savings Bank, 75 N.Y. 388, 393 (1878); see also Phelps v. Mayor, 112 N.Y. 216, 219-20, 19 N.E. 408 (1889); James Shewan & Sons, Inc. v. William Wirt Mills, 211 A.D. 687, 691, 208 N.Y.S. 381 (1st Dep’t 1925). Thus, the City’s contention that all computer contracts are special cases under section 343 is not supported by the law. Only the Board of Estimate can determine what constitutes a special case, and it can do so only on a case-by-case basis. The evidence shows that the Board of Estimate did not have sufficient factual information to exercise its judgment when it awarded this contract pursuant to the special case exception. Although the language of the Board of Estimate resolution recites that the contract is awarded pursuant to City Charter section 343(a), it also states that the contract is awarded without public letting in accordance with the report of the Deputy Director of Management and Budget. That report (Defendant’s Exhibit J) does not attempt to explain to the Board of Estimate why this procurement should be treated as a special case by the Board. Both Mr. Messina’s testimony and the Guidelines for Mayoral Agency Contracting make clear that in some situations competitive bidding is not the most desirable procurement method: The term “special case” applies to those situations for which competitive sealed bidding would not be suitable. * sfs * * % * While competitive sealed bidding is used for procurements when competition can be based on price alone, the RFP process is a valuable means of ensuring that specialized experience, professional skills and innovation are also given consideration when selecting a contractor. When the requirements of a project are not sufficiently defined for the use of competitive sealed bidding, the RFP process is appropriate for soliciting the information the agency requires to select a contractor. Guidelines for Mayoral Agency Contracting, Part II, Ch. 1, 1 (1989). The report sent to the Board of Estimate in this case did not advise the Board that this procurement should not be based on price alone. Nor did it identify any other circumstances that made this procurement a special case. Rather, it appears that FISA determined that this was a special case, and did not seek the Board of Estimate’s determination on the question as the law requires. Even if the report to the Board of Estimate is generously interpreted as presenting an overall explanation of why this is a special case, the information contained in that report was inaccurate and thus could not properly serve as the basis for the Board of Estimate’s special case determination. The report to the Board of Estimate was misleading because it stated that Paci-fiCorp’s Amdahl proposal had been eliminated based on its conclusion that the proposed upgrade was not responsive. “FISA eliminated the Cashflow Design, PCC [Paci-fiCorp], and Amdahl proposals of 5890 processors from further consideration because they were deemed non-responsive with respect to not offering “S” Level technology.” Defendant’s Exhibit J at 2. However, as noted earlier, FISA had decided to eliminate the upgrade from its consideration and, as a result, PacifiCorp’s Amdahl proposal was not disqualified. Mr. Messina acknowledged that the report was erroneous in this regard. In addition, in that report, IBM is clearly presented as the lowest bidder due to the irrational residual value difference calculation. The residual value of a computer represents today’s best estimate of the amount of money that the City could anticipate receiving for the disposition of the computer at some future date. As discussed above, the City used the difference between PacifiCorp's proposed prices for both the Amdahl and IBM models to determine the residual value and compute the total cost of PacifiCorp’s proposals. However, the testimony of Robert Townsend, Deputy Executive Director of Computer Systems at FISA, Brian Battle, Executive Vice President of PacifiCorp, and Jan Hal-vorsen, Vice President of Gartner Group Inc., an information technology consulting firm, showed that this method of computation was arbitrary and capricious. Mr. Townsend testified that using Pacifi-Corp’s proposed prices to determine the residual value was his idea. He did not consult with the proposers or his staff regarding this calculation; it just “dawned on” him. Transcript at 128. Mr. Townsend concluded that since the City would need an upgrade some time in the near future, he had to take into account the residual value difference between the two computers. To calculate the residual value, he just decided to use the difference between PacifiCorp’s proposed prices. He then added that number to the proposed prices for the Amdahl machines to determine the total cost of both PacifiCorp and Amdahl’s proposals for Amdahl equipment. Mr. Townsend admitted that he did not know when the City would need to upgrade. In addition, Mr. Townsend made no attempt to survey the trade-in values of the machines or to calculate what the machines might be worth at any particular point in time. Nor did he take into account the time value of money. The testimony of Mr. Battle and Ms. Halvorsen demonstrated that this method of computing residual value was irrational. It was not rational to take the difference between the PacifiCorp bids and assume that the residual value difference would be equal to the absolute difference in the prices proposed by one supplier at one moment in time no matter when the City decided to dispose of the equipment. As Ms. Halvorsen testified, residual value computations begin with average selling prices, not the price of one vendor who may have received a good or bad deal for a particular machine. Nor was it rational to assume that the absolute difference in price would remain constant over time. Finally, it was irrational to ignore the time value of money in making the calculation. The report's reliance on that calculation was particularly problematic because, as Mr. Townsend testified, the Board of Estimate was interested primarily in cost. Transcript at 110. The presentation of the residual value difference figure in the report also was confusing because most of the other numbers presented assumed a five-year procurement while the residual value calculation assumed a much shorter term procurement. Defendant’s Exhibit J at 8. Thus, even if the Board of Estimate were using this report to determine if this was a special case, it is unlikely that the Board of Estimate knew it was awarding the con tract to anyone other than the lowest bidder. Nor is it clear that the Board of Estimate even knew that PacifiCorp’s Am-dahl proposal was still under consideration. In sum, under City Charter section 343, the Board of Estimate has the power to award contracts without public letting in special cases. While the decisions do not define what constitutes a special case, City Charter section 343 does require that the Board of Estimate exercise its discretion to award a contract pursuant to this exception. In this case, the Board of Estimate was not asked to exercise its discretionary power nor did it have sufficient information for that purpose. The information presented to the Board of Estimate about this procurement did not explain why this procurement was a special case. Moreover, the information provided was inaccurate and cannot properly serve as a basis for a special case determination. Since the Board of Estimate was not able properly to consider whether this contract should be awarded pursuant to the special case exception, the contract award did not comply with the requirements of City Charter section 343. Conclusion Accordingly, the award of the contract to IBM is vacated and the City is directed to award the contract in accordance with the statutory requirements. The foregoing opinion shall constitute my findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52. SO ORDERED.

ORDER NORGLE, District Judge. Before the court is the motion of defendants, Shiley Incorporated and Pfizer Inc., to dismiss plaintiff’s complaint based on the statute of limitations, pursuant to Fed. R.Civ.P. 12(b). For the following reasons, the court grants the motion. Shiley Incorporated and Pfizer, Inc. formerly manufactured and sold a type of “mitral valve” or heart valve. On March 20, 1986, the deceased, Robert Kumpfer, had one of these valves implanted in his heart. Sometime in May 1986, Mr. Kump-fer suffered a cardiac arrest, which ultimately led to his death on July 28, 1986. On February 26, 1990, Patricia Kumpfer, the decedent’s wife, learned of possible defects in the valve implanted in her husband through publication of congressional hearings concerning the valves. On March 26, 1990, Mrs. Kumpfer filed the instant complaint in state court, alleging claims under the Illinois Wrongful Death Act, the Illinois Survival Act and the Illinois Family Expense Act. On April 23, 1990, defendants removed this cause of action to this court, pursuant to 28 U.S.C. § 1441. Defendants move to dismiss plaintiffs complaint as time barred for failure to file the action prior to the running of the statute of limitations. As this action is present in this court based on diversity jurisdiction, the applicable statute of limitations is that applied by the state; i.e. Illinois. Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1937); Lofton v. General Motors Corp., 694 F.2d 514, 516, n. 3 (7th Cir.1982). In Illinois, the statute of limitations for a personal injury action, whether brought by the person injured or by another for injury to that person, is two years from the date the cause of action accrues. III.Rev.Stat. ch. 110, 1113-202, 1113-203. The issue before the court is the date on which plaintiffs cause of action accrued. An injured party’s cause of action accrues, and the statute of limitations begins to run, when that person knows or reasonably should have known of the injury and also knows or reasonably should have known that the injury was caused by the actions of another. Lofton, 694 F.2d at 517 (citing Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 52 Ill.Dec. 1, 421 N.E.2d 864 (1981). When the plaintiff becomes apprised of this knowledge, she is under an obligation to further determine whether an actionable wrong has been committed. Nolan, 85 Ill.2d at 171, 52 Ill.Dec. at 5, 421 N.E.2d at 868; see also, United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (applying the discovery rule to claims under the Federal Tort Claims Act). Plaintiff argues that, under the discovery rule, her cause of action did not accrue until February 26, 1990, the date on which she learned, through the publication of congressional hearings, of possible defects in her husband’s heart valve. However, plaintiff’s reliance on the discovery rule is misplaced. It is clear that, in Illinois, the discovery rule does not act to toll the running of the statute of limitations in a case where the injury was sudden and traumatic. Lofton, 694 F.2d at 518. “[W]e have held that an action to recover for personal injuries resulting from a sudden and traumatic event accrues when plaintiff first knew of his right to sue, i.e., at the time when the injury occurred.” Id. (citing Nolan, 85 Ill.2d at 171, 52 Ill.Dec. at 3, 421 N.E.2d at 866); see also Bates v. Little Co. of Mary Hospital, 108 Ill.App.3d 137, 142, 63 Ill.Dec. 887, 891, 438 N.E.2d 1250, 1254 (1st Dist.1982). As the facts alleged in plaintiff’s complaint show, Mr. Kumpfer suffered a cardiac arrest sometime in May 1986 and eventually died on July 28, 1986. Therefore, plaintiff was aware of both her injuries and those of her husband, at the latest, on July 28, 1986. Plaintiff argues that the cardiac arrest of May 1986 was not “sudden and traumatic” because her husband had a heart condition. Therefore, she reasons, a cardiac arrest is not such an unusual occurrence as to warrant further investigation as to the cause of injury. This argument was squarely rejected in a similar case, Lutes v. Farley, 113 Ill.App.3d 113, 68 Ill.Dec. 695, 446 N.E.2d 866 (3rd Dist.1983). There, the mother of a stillborn child asserted a cause of action for medical malpractice more than two years after the stillborn birth. No inquiry was made at the time of death and it wasn’t until plaintiff’s sister informed her of possible medical malpractice, more than two years later, that an inquiry was made. The court there held: Certainly, the stillborn birth of a child is a sudden, traumatic event which should prompt some investigation by the injured party and trigger the application of the discovery rule. In contrast, where the injury is one with an insidious onset for which a date of injury cannot be fixed, particularly by a layman, the discovery rule is not applied to bar a cause of action brought more than two years after the injury occurs, (citations omitted) Lutes, 113 Ill.App.3d at 115-16, 68 Ill.Dec. at 697, 446 N.E.2d at 868; see also Berry v. G.D. Searle & Co., 56 Ill.2d 548, 309 N.E.2d 550 (1974) (holding that the statute of limitations for a stroke caused by the drug Enovid begins to run on the date of the injury). Likewise, in the case before us, the decedent’s cardiac arrest was sufficiently sudden and traumatic to prompt the plaintiff to make some inquiry as to the cause of death. Moreover, plaintiff was aware that the heart valve had been implanted in her husband only months before. A cardiac arrest and subsequent death four months after such surgery should certainly prompt a plaintiff to investigate whether the injury may have been caused by a defect in the heart valve. Plaintiff’s cause of action accrued on July 28, 1986 and the statute of limitations on this cause of action ran out on July 28, 1988. Since plaintiff filed this action on March 26, 1990, she has failed to file within the applicable statute of limitations period. Accordingly, the court grants defendants’ motion to dismiss plaintiff’s complaint in its entirety. IT IS SO ORDERED. . Ill.Rev.Stat. ch. 70, ¶ 1 et seq. . Ill.Rev.Stat. ch. llO'A ¶27-6. . Ill.Rev.Stat. ch. 40, ¶ 1015. . The court notes that, in addition to being limited to a two year statute of limitations for any personal injury claims, a two year statute of limitations is expressly applicable to plaintiffs claims in count I under the Wrongful Death Act (III.Rev.Stat. ch. 70, ¶ 2), count II under the Illinois Survival Act (III.Rev.Stat. ch. 110, ¶ 13-203), and count III under the Family Expense Act (III.Rev.Stat. ch. 110, ¶ 13-202, see also, Hobby v. Johns-Manville Sales Corp., 573 F.Supp. 53 (S.D.Ill.1983)).

PER CURIAM: Petitioner is a federal prison inmate. He appeals the district court’s order denying his 28 U.S.C. § 2255 motion to vacate his sentences, claiming that he was denied Sixth Amendment right to effective assistance of counsel because of a conflict of interest involving his trial counsel. We granted his motion to a certificate of ap-pealability (“COA”) as to the following issues: (1) Whether the trial court conducted an adequate United States v. Garcia, 517 F.2d 272 (5th Cir.1975)[, abrogated in part by Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 1053, 79 L.Ed.2d 288 (1984) ], hearing to discern whether there as a conflict of interest resulting from trial counsel’s possible participation in [MeCorkle’s] criminal activity. (2) Whether [McCorkle] waived his right to conflict-free counsel, in light of the fact that [he] may not have been informed at the hearing held pursuant to Garcia of the potential consequences of proceeding to trial with an attorney who may have been involved in [McCorkle’s] criminal conduct. (3) If [MeCorkle] did not waive his right to conflict-free counsel, whether trial counsel acted under a conflict of interest at trial based on his possible participation in [McCorkle’s] criminal activity, and if so, whether the district court erred in finding that trial counsel was not ineffective at trial. (4) Whether the trial court should have removed [McCorkle’s] trial counsel on the basis that he may have participated in [McCorkle’s] criminal activity, even if [MeCorkle] waived his right to conflict-free counsel. (5) Whether [McCorkle’s] appellate counsels were ineffective for failing to argue that the Garcia hearing was insufficient. I. Petitioner contends that the Garcia hearing the district court conducted was inadequate because the court failed clearly to identify the potential conflict of interest resulting from his trial counsel’s possible participation in his criminal activities. Specifically, he contends that he did not know, and the trial court did not address the possibility, that trial counsel’s role in establishing a Legal Trust Account (“LTA”) constituted criminal activity, thus creating a conflict of interest. He asserts that, because he was unaware of counsel’s criminal activity, he did not know the legal ramifications of the conflict. A defendant’s Sixth Amendment right to effective assistance of counsel is denied when defense counsel has an actual conflict of interest that adversely affects the defendant. United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir.1993). A defendant, however, may waive Ms’right to conflict-free counsel. See Garcia, 517 F.2d at 276. To be effective, a waiver of a constitutional right “must be an intentional relinquishment or abandonment of a known right.” Garcia, 517 F.2d at 276 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). To be valid, a waiver must be not only voluntary, but it also must be “knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” Garcia, 517 F.2d at 276 (citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747, 756 (1970)). The trial court must evaluate each potential conflict of interest that is apparent to the court. Garcia, 517 F.2d at 277. In a § 2255 motion to vacate proceeding, the burden of proof rests upon the movant to establish that he did not competently and intelligently waive his constitutional right. See Johnson, 304 U.S. at 468-69, 58 S.Ct. at 1025. A defendant may waive his right to conflict-free counsel “by choosing to proceed to trial with an attorney who has an adverse conflict of interest.” Rodriguez, 982 F.2d at 477. A waiver of the right to conflict-free counsel “disposes of the need to evaluate the actual or potential ineffectiveness of counsel caused by the alleged conflicts of interest.” Id. “The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the [defendant].” Id. (quotation omitted). A proper waiver “must be established by clear, unequivocal, and unambiguous language.” Id. (quotation omitted). In order for a waiver to be valid the record must show “that [1] the defendant was aware of the conflict of interest; [2] realized the conflict could affect the defense; and [3] knew of the right to obtain other counsel.” Id. While the court should seek to elicit a narrative response from the defendant, “[mjere assent in response to a series of questions from the bench may in some circumstances constitute an adequate waiver.” Garcia, 517 F.2d at 278. Here, the district court conducted an adequate Garcia hearing because it: (1) explained petitioner’s right to conflict-free counsel; (2) elicited testimony concerning the facts and circumstance of the case; (3) discussed the rule prohibiting counsel from assisting in fraudulent conduct; (4) explained the dangers of counsel having a conflict of interest with a client; and (5) explained petitioner’s right to obtain or talk with other counsel. Moreover, because the court conducted an adequate Garcia hearing, petitioner knowingly and voluntarily waived his right to conflict-free counsel as: (1) he was aware of the possible conflict of interest; (2) the court explained that a conflict could affect his defense; and (3) he knew of his right to obtain conflict-free counsel. II. With regard to the third issue, petitioner first argues that counsel’s representation was a per se violation of the Sixth Amendment right to effective assistance because counsel participated in petitioner’s criminal activities. This argument fails because this circuit does not recognize a per se violation of the right to effective assistance of counsel. See Pegg v. United States, 253 F.3d 1274, 1277 (11th Cir.2001) (declining to apply the Second Circuit’s per se analysis, but instead using the actual conflict with an adverse effect analysis). Petitioner’s second argument is that counsel had an actual conflict of interest based on counsel’s desire to secure payment from the LTA, which kept him from effectively representing petitioner’s best interests. Where an ineffective assistance claim is based on a conflict of interest, “a defendant must show first, that his attorney had an actual conflict of interest, and second, that the conflict adversely affected counsel’s performance.” Pegg, 253 F.3d at 1277 (emphasis omitted); see also Mickens v. Taylor, 535 U.S. 162, 172 n. 5, 122 S.Ct. 1237, 1244 n. 5, 152 L.Ed.2d 291 (2002) (“An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.”). “An ‘actual conflict’ of interest occurs when a lawyer has ‘inconsistent interests.’” Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir.1999) (en banc) (citation omitted). The conflict cannot be merely possible, speculative, or hypothetical. Reynolds v. Chapman, 253 F.3d 1337, 1342 (11th Cir.2001). To distinguish between actual and possible conflicts of interest, we “will not find an actual conflict of interest unless [the defendant] can point to specific instances in the record to suggest an actual conflict or impairment of [his] interests.” Id. at 1343. The defendant “must make a factual showing of inconsistent interests and must demonstrate that the. attorney made a choice between possible alternative causes of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to [himself]. If he did not make such a choice, the conflict remain(s) hypothetical.” Id. (citation omitted) (omission in original). “To prove adverse effect, a defendant needs to demonstrate: (a) that the defense attorney could have pursued a plausible alternative strategy, (b) that this alternative strategy was reasonable, and (c) that the alternative strategy was not followed because it conflicted with the attorney’s external loyalties.” Id. Here, petitioner’s attorney did not have an actual conflict of interest that adversely effected his representation of his client. Thus, petitioner was not denied effective assistance of counsel. III. Petitioner argues that, because the district court knew that counsel was involved in forfeiture proceedings involving the LTA, it was fully aware of counsel’s potential involvement in his criminal activities and should have disqualified him. While “a criminal defendant has a presumptive right to counsel of choice, and courts should hesitate to disqualify defense counsel, ... that right is not absolute.” United States v. Ross, 33 F.3d 1507, 1522-23 (11th Cir.1994) (citation omitted). In determining whether to disqualify counsel, the district court must balance “(1) the right to be represented by counsel of choice and (2) the right to a defense conducted by an attorney who is free of conflicts of interest.” Id. at 1523 (citing Wheat v. United States, 486 U.S. 153, 162-63, 108 S.Ct. 1692, 1698-99, 100 L.Ed.2d 140 (1988)). Although a defendant may waive his right to conflict-free counsel, a district pourt does not have to accept waiver of that right. Ross, 33 F.3d at 1524. Because the district court conducted an adequate Garcia hearing and was unaware that petitioner’s counsel may have participated in petitioner’s criminal activity, it did not err by accepting petitioner’s waiver of the right to conflict-free counsel. IV. Petitioner’s final argument is that, because he has a valid Sixth Amendment claim based on the district court’s failure to explore his attorney’s involvement in petitioner’s criminal activity, which resulted in a conflict of interest, the lawyers who represented him in appealing his convictions and sentences were ineffective by failing to raise the conflict issue on appeal. “An ineffective assistance of counsel claim is properly raised in a collateral attack on the conviction under 28 U.S.C. § 2255.” United States v. Butler, 41 F.3d 1435, 1437 n. 1 (11th Cir.1995). Ineffective assistance of counsel claims need not be raised on direct appeal, as the Supreme Court has held that “an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003). Petitioner suffered no prejudice through appellate counsel’s failure to challenge his Garcia hearing on direct appeal because an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, regardless of whether it was raised on direct appeal. We have carefully reviewed the issues cited in the COA and have found no error in the district court’s treatment thereof. The court’s order denying § 2255 relief is, therefore, AFFIRMED. . This case is before this court for the third time. See United States v. Venske, 296 F.3d 1284 (11th Cir.2002) (affirming petitioner's convictions and remanding the case for resentencing); United States v. McCorkle, 321 F.3d 1292 (11th Cir.2003) (dealing with the forfeiture of funds); and United States v. McCorkle, 141 Fed.Appx. 860 (llth Cir.2005) (vacating petitioner’s sentences and remanding for re-sentencing).

OPINION SAND, District Judge. A pro se prison inmate brings this action under 42 U.S.C. § 1983, claiming that two prison officials engaged in a pattern of harassment in retaliation for his commencement of law suits. The prison officials move for summary judgment, claiming that their actions were undertaken at least in part for valid institutional reasons, that they are entitled to qualified immunity, and that plaintiff is collaterally estopped from raising parts of his claim. Defendants also move to amend their answer. I. Background Plaintiff Baker is an inmate confined to the' Green Haven Correctional Facility. Defendant Raymond Morgan, a civilian employee of the New York State Department of Correctional Services, works under the Superintendent of Industry at Green Haven overseeing the operations of all the Industries Shops, which are components of a profit-making corporation which employs inmates. Defendant Bernard Zlochower (sued herein as “Zlochowon”), also an employee of the New York State Department of Correctional Services, works under defendant Morgan as the General Industrial Training Supervisor at Green Haven. According to plaintiff, he has been employed in the prison' upholstery shop since July 6, 1983, first as an upholsterer and then as a clerk. In this capacity, plaintiff had reached a pay grade of 4.3. When plaintiff learned that the'point value system for the shop was to be changed, he filed a grievance along with other inmates. Some time thereafter, plaintiff noticed that “his hours of work were short.” Plaintiff’s supervisor, Mr. Tinsley, informed him that defendant Morgan had deducted an hour of pay because plaintiff had failed to punch his time card in or out. Plaintiff alleges that pursuant to defendant Morgan’s own rules only a half an hour should have been deducted. Baker Affidavit (“Baker”) at 1. Defendant Morgan affirms that two hours of pay were deducted from plaintiff’s paycheck, one for not punching in his time card on August 16, 1987 and another for punching in other inmates’ cards on September 6, 1987. Morgan Affidavit (“Morgan”) ¶ 7. Though the rules suggest that an inmate is to lose lk hour for his first infraction and 1 hour for a second infraction, Morgan Exhibit B, the record does not indicate whether plaintiff’s August 16, 1987 infraction was his first. Plaintiff alleges that on October 21, 1987 defendant Zlochower came to the shop with forms for several other inmates to sign for failing to punch in or out. In Zlochower’s presence, plaintiff then assisted these other inmates with grievance forms, writing Zlo-chower’s name on the forms. Later, when plaintiff and other inmates were discussing Morgan’s behavior with respect to the pay deductions, Zlochower allegedly “rushed over, stating ‘you all are no lawyer, I give you all a direct order to get to work.’ ” Plaintiff also indicates that he had several other similar confrontations with Zlochower in October 1987. By petition dated May 26, 1988, plaintiff and other inmates instituted a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules in state court to challenge the time card penalties as vio-lative of their due process rights. The petition was dismissed on July 14, 1988, and the dismissal was affirmed by the Appellate Division on January 16, 1990. Plaintiff maintains that on February 10, 1988, Morgan watched him prepare part of his complaint for the Article 78 proceeding, asked if he was getting a copy, and then responded that it would come to him to answer anyway. Months later, Morgan apparently came to the shop, handed plaintiff an envelope with his answer to the complaint and told plaintiff that he had told him it would come back to him to answer. Plaintiff further contends that some time in May 1988 Morgan told him that he hoped plaintiff’s family had money because he would sue them if plaintiff put “his name on another paper.” Another inmate corroborates plaintiff’s account of this last confrontation. See Cook Affidavit at 2. Plaintiff alleges on the week of October 18, 1987 his bonus pay was $1.91 short. He indicates that he was assured by Mr. Tinsley that Morgan had said it would be in his next paycheck. When plaintiff did not see the money in his next paycheck, he spoke with Morgan who allegedly told him “he was on first names with the Governor and Commissioner, that I was not getting paid until he was ready and that might be never.” Morgan contends that he investigated the complaint, found the error, and learned that the amount had already been added to plaintiffs salary. Morgan ÍÍ 8. Plaintiff alleges that beginning the week of June 12, 1988 he stopped receiving pay for time spent participating on an “Inmate Liaison Committee.” When plaintiff complained to Commissioner Coughlin, he apparently started to get paid again. Plaintiff maintains that the payment stopped again when defendant Morgan was served with the complaint in this action. Morgan points out that pursuant to a prison directive inmates are to be paid for absences due to participation on a “grievance committee,” but not for absences due to participation on a “liaison committee.” Morgan ¶ 10; Exhibit F at 5. Plaintiff alleges that several more confrontations with Morgan took place during August of 1988. On one occasion Morgan allegedly told the staff at the shop that plaintiff was to make chairs, not do clerk work. On another occasion, Morgan allegedly threatened plaintiff that if he did not make a chair, his pay grade would be reduced. From August 19, 1988 until September 12, 1988 petitioner was absent from the shop because he was serving a sentence of confinement in the Special Housing Unit at Green Haven for a disciplinary violation. Plaintiff alleges that he specifically asked that he be given 25 days confinement, not 30, so he would not lose his job. During plaintiff’s absence, Zlochower allegedly started telling inmates that plaintiff was “not coming back to the shop.” Another inmate, Juan Pacheco, affirms that he and Mr. Tinsley agreed that Pacheco would work in plaintiffs job until plaintiff returned. Pacheco also affirms that on one occasion Morgan raised the possibility of Pacheco keeping the job permanently and that he rejected Morgan’s suggestion. Pacheco further affirms that after plaintiffs confinement ended Zloehower asked Pacheco to keep the job and that he again refused citing the agreement with Tinsley. Pacheco also indicates that at a subsequent meeting with Morgan and Zloehower, Morgan told him explicitly that the shop could have a clerk and that it could be Pacheco but not plaintiff. The parties do not dispute that at some point it was decided that the shop would no longer employ a full time clerk. While Morgan states that this decision was made for the sake of “efficiency,” Morgan ¶ 10, plaintiff argues that it was to prevent him from having the job. It is also undisputed that when plaintiff returned to the shop, he was assigned to work at upholstery tables with a salary grade level of 2.3, instead of 4.3. Morgan suggests that this was the highest grade position for which there was a vacancy at the time. Morgan 1110. Petitioner filed a grievance in connection with his job change and received a response indicating that his grievance had been researched and that the investigator agreed that “grievant [was] much more valuable as a upholsterer than a clerk.” Plaintiff proceeding pro se commenced this action on October 31, 1988 pursuant to 42 U.S.C. § 1983, alleging that defendant had retaliated against him for exercising his constitutional rights. II. Discussion Fed.R.Civ.P. 56(c) stipulates that a motion for summary judgment is to be granted if there is “no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” The Court should not “resolve disputed issues of fact” but should “assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). At the same time, the non-moving party must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Plaintiff appears to allege that defendants' actions constitute a pattern of harassment in retaliation for plaintiffs efforts to seek redress from prison authorities and courts on behalf of himself and other inmates. Plaintiff's Rule 3(g) Statement. It is well established a claim for relief can be stated under section 1983 for job reassignments or terminations which were in retaliation for an inmate’s efforts to seek vindication of his legal rights or for helping other inmates to petition for redress of their grievances. Gill v. Mooney, 824 F.2d 192, 194-95 (2d Cir.1987); Jackson v. Cain, 864 F.2d 1235, 1248-49 (5th Cir.1989); Harris v. Fleming, 839 F.2d 1232, 1236-1238 (7th Cir.1988); Rizzo v. Dawson, 778 F.2d 527, 531-32 (9th Cir.1985). Indeed, any “otherwise routine administrative decision” made in retaliation for the exercise of constitutional rights could give rise to a cause of action. Gill, 824 F.2d at 194; Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986). In order to prevail on a claim of retaliation for the exercise of constitutional rights, plaintiff must show that the allegedly retaliatory action “would not have been taken but for the exercise of such rights,” Jones v. Coughlin, 696 F.Supp. 916, 920 (S.D.N.Y.1988); Hilliard v. Scully, 648 F.Supp. 1479, 1487 (S.D.N.Y.1986), and must include factual allegations with a “high level of detail.” Gill, 824 F.2d at 194. If the retaliatory actions would have been taken on a constitutionally valid basis in any event, summary judgment is warranted. Sher v. Coughlin, 739 F.2d 77, 82 (2d Cir.1984) (citing Mount Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). The affidavits offered by plaintiff set forth sufficient facts for the Court to conclude that there are genuine issues for trial. It is apparent from plaintiff’s allega tions that he is something of a “jailhouse lawyer.” It is also apparent that defendants have paid close attention to plaintiffs legal activities and have viewed them with concern. Plaintiff describes what amounts to threats and intimidation by defendants in connection with his naming them as parties in legal actions. The sequence of events described by plaintiff also suggests a possible correlation between the actions taken by defendants and plaintiffs legal activities. See Murphy v. Lane, 833 F.2d 106, 108-09 (7th Cir.1987) (“chronology of events from which retaliatory animus on part of the defendants could be inferred” sufficient to overcome motion to dismiss). For example, plaintiff alleges that he first ceased being paid for the time he spent participating in the inmate liaison committee shortly after he commenced his Article 78 action and then stopped receiving the pay again when he commenced this action. Indeed, another inmate observes that “[a]ll of Mr. Baker [sic] problems started when he started to file his complaints about the taking of his money and other inmates started to do the same.” Cook Affidavit. Though they do not explicitly deny that retaliation took place, defendants counter that each of their actions were undertaken at least in part for valid institutional reasons. At least with respect to the decision not to pay plaintiff for his absences from work due to the Inmate Liaison Committee and the decision to assign him a lower paying job after his return from disciplinary confinement, however, a fact-finder could conclude that defendants’ sole motive was to retaliate against plaintiff for naming them in his complaints and that these actions would not have been taken otherwise. Although the prison rules do appear to indicate that plaintiff is not entitled to be paid for absences from work due to meetings of the Liaison Committee, plaintiff's uncontradicted allegation is that he had been getting paid for such absences and that payment stopped only when he filed his Article 78 action and then again when he filed this action. In addition, though defendants argue that the full time clerk position was eventually eliminated for reasons of efficiency, this is wholly contradicted by Juan Pacheco’s allegations that before the decision was made he was told no less than four times by one or the other of the defendants that he could keep the full time clerk job and that he was told at least once that plaintiff could not have the job. Plaintiff’s allegations closely resemble those of the plaintiff in Harris v. Fleming, 839 F.2d at 1236-38, who was fired from two prison jobs the same month he achieved a remand from the Court of Appeals in a suit against prison personnel. Two days after plaintiff declined to settle a later case, he was fired from a third job and transferred to a cell with a known homosexual. The Court found that the plaintiff’s allegations and the timing of the terminations and transfer, standing alone, were sufficient to defeat summary judgment. In this case, in addition to the correlation between the timing of defendants’ actions and developments in plaintiffs law suits, plaintiff has recounted a variety of incidents which, if true, establish that defendants were concerned with plaintiff’s litigation and were prepared to take steps to hinder it. Defendants contention that they have qualified immunity from suit for damages does not warrant granting their summary judgment motion. Government employees “performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The Second Circuit has held that at least with respect to transfers in retaliation for exercise of constitutional rights, “a reasonable jury could find that a reasonable commissioner of corrections would be aware of [the illegality of his actions],” and thus might not be able to establish the defense of qualified immunity. Meriwether v. Coughlin, 879 F.2d 1037, 1046 (2d Cir.1989). We believe that the same can be said with respect to retaliatory job reassignments. Defendants move to amend their answer to assert defenses of collateral estop-pel and res judicata, arguing that some of the issues in this action and in plaintiff’s earlier Article 78 proceeding are identical. Though leave to amend a pleading is to be given “when justice so requires,” Fed.R. Civ.P. 15(a), it need not be given when the amendment would be futile. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). A plaintiff is barred from relitigating in a subsequent section 1983 action any issues he had a full and fair opportunity to litigate in a prior state court action. Allen v. McCurry, 449 U.S. 90, 94-99, 101 S.Ct. 411, 414-417, 66 L.Ed.2d 308 (1980). Although there is a slight overlap between the facts which provide the basis for the claims in this action and the Article 78 proceeding, the issues involved are entirely different. In the Article 78 proceeding, a group of inmates challenged the time-card procedures at Green Haven as violative of due process, whereas here plaintiff as an individual alleges that two prison officials engaged in a pattern of retaliation for his exercise of his constitutional rights. Because we believe that there is no basis whatsoever for defendants’ affirmative defenses, an amendment to their pleading would be futile. III. Conclusion For the foregoing reasons, defendants’ motions to amend their answer and for summary judgment are denied. The parties are to advise the Court by August 15, 1990 when they will be ready for trial. SO ORDERED.

OPINION BROTMAN, District Judge. Currently before the court is defendant’s motion to dismiss for lack of in personam jurisdiction and, in the alternative, his motion to dismiss based on forum non conve-niens. For the reasons stated herein, defendant’s motion will be denied. I. FACTS AND PROCEDURE On March 30, 1989, plaintiff filed a complaint in this court as a result of an automobile accident that occurred at the Hunter Mountain Ski Slope festival grounds in Hunter Village, New York on July 16, 1988. Defendant’s car allegedly rear-ended the car that plaintiff was driving. Defendant filed his answer to the complaint on June 21, 1989. Defendant is a resident of Queens, New York and works in New York. He maintains he has no contacts with the state of New Jersey that permit this court to exercise jurisdiction over him. In the alternative, defendant maintains that to subject him to litigation in a state to which he has no connection offends judicial notions of fair play and substantial justice; therefore, this court should dismiss the action based on forum non conveniens. Plaintiff argues that defendant’s jurisdictional motion was filed after the final date set for such motions in this court’s Scheduling Order of August 2, 1989 and, therefore, this court should not consider it. II. DISCUSSION A. Personal Jurisdiction. The due process clause “protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he or she has established no meaningful ‘contacts, ties, or relations.’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S.Ct. 2174, 2181, 85 L.Ed.2d 528 (1985) (quoting International Shoe v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 159-60, 90 L.Ed. 95 (1945)). The due process clause requires that individuals have fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign. Id. (citing Shaffer v. Heitner, 433 U.S. 186, 218, 97 S.Ct. 2569, 2587, 53 L.Ed.2d 683 (1977) (Stevens, J., concurring in judgment)). The constitutional touchstone is whether the defendant purposefully established minimum contacts in the forum state. Id. at 474, 105 S.Ct. at 2183. Under due process, “the defendant’s conduct and connection with the forum state- [must be] such that he [or she] should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295, 100 S.Ct. 559, 566, 62 L.Ed.2d 490 (1980). Jurisdiction over the person, however, is a waivable defect that must be asserted early in the action by the party who would take advantage of it. C. Wright, A. Miller, E. Cooper, 13 Federal Practice and Procedure § 3522, at 78 (citing Petrowski v. Hawkeye-Security Ins. Co., 350 U.S. 495, 76 S.Ct. 490, 100 L.Ed. 639 (1956)). Rule 12(h)(1) of the Federal Rules of Civil Procedure provides: A defense of lack of jurisdiction over the person ... is waived (A) if omitted from a [preanswer] motion ... or (B) if it is neither made by [preanswer] motion nor included in a responsive pleading or an amendment thereof.... Fed.R.Civ.P. 12(h)(1). Notably, defendant raised the issue of lack of in personam jurisdiction in his answer. Answer at f 6 (“Personal jurisdiction of the defendant has not been obtained in this matter under the laws and statutes of New Jersey”). Thus, he has not waived this defense under Rule 12(h)(1). Nonetheless, defendant filed his motion to dismiss for lack of jurisdiction on November 27, 1988, more than two months after the scheduling deadline for jurisdictional motions. Counsel for defendant submits that settlement negotiations between plaintiff’s attorney and defendant’s insurance carrier delayed his filing of the motion to dismiss because the motion would be unnecessary if the matter settled out of court. Ongoing settlement negotiations, however, do not give cause to ignore the court’s Scheduling Order. In fact, defendant could have asked the court for an extension of time to file jurisdictional motions to preserve his right to do so. The statute of limitations for filing this action in New York is three years, see N.Y.Civ.Prac. L & R. § 214; thus, plaintiff may still file a timely complaint in a New York court, which presumably would have in personam jurisdiction over this defendant. Dismissal of this case, therefore, would not cause an extremely unfair result because plaintiff’s cause of action is not extinguished. This court concludes that defendant has waived his right to assert lack of personal jurisdiction over him by failure to file timely his motion to dismiss on that basis. Although defendant raised the defense in his answer, he failed to comply with the express order of this court to file jurisdictional motions by September 12, 1989. Defendant’s motion to dismiss based on lack of personal jurisdiction will be denied as untimely under this court’s Scheduling Order. B. Forum Non Conveniens. A district court may, in the exercise of its sound discretion, dismiss a case “when an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would ‘establish oppressiveness and vexation to a defendant ... out of all proportion to' the plaintiffs convenience’ or when the ‘chosen forum [is] inappropriate because of considerations affecting the court’s own administrative and legal problems.’ ” Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241,102 S.Ct. 252, 258, 70 L.Ed.2d 419 (1981) (quoting Roster v. American Lumbermens Mutual Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 831-32, 91 L.Ed. 1067 (1947)). A district court entertaining a forum non conveniens motion must first decide whether an adequate alternative forum exists to hear the case. Piper, 454 U.S. at 254 n. 22, 102 S.Ct. at 265 n. 22. Ordinarily, this requirement will be satisfied when the defendant is amenable to process in the other jurisdiction. If there is an adequate alternative forum, the district court must consider and balance several private and public interest factors that are relevant to the forum non conveniens determination. Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43 (3d Cir.1988) (citations omitted). Plaintiff’s choice of forum should rarely be disturbed unless the balance of factors is strongly in favor of the defendant. Id. The defendant bears the burden of persuasion as to all elements of the forum non conveniens analysis. Id. at 43-44. To carry its burden, defendant “must provide enough information to enable the District Court to balance the parties’ interests.” Id. at 44 (quoting Piper, 454 U.S. at 258, 102 S.Ct. at 267). The private interest factors, as set forth by the United States Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947), include: relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining willing, witnesses; ... and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. Id. To examine the relative ease of access to sources of proof, and the availability of witnesses, the district court must scrutinize the substance of the dispute between the parties to evaluate what proof is required, and determine whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiff's cause of action and to any potential defenses to the action. Van Cauwenberghe v. Biard, 486 U.S. 517, 528, 108 S.Ct. 1945, 1952-53, 100 L.Ed.2d 517 (1988) (quoting Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843). The Gulf Oil Court also observed that “[fjactors of public interest also have place in applying the doctrine [of forum non conveniens ].” 330 U.S. at 508, 67 S.Ct. at 843. These factors include: the administrative difficulties flowing from court congestion; the “local interest in having localized controversies decided at home”; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty. Piper, 454 U.S. at 241 n. 6, 102 S.Ct. at 258 n. 6 (quoting Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843). In evaluating the public interest factors, the district court must “consider the locus of the alleged culpable conduct, often a disputed issue, and the connection of that conduct to plaintiff’s chosen forum.” Van Cauwenberghe, 486 U.S. at 528, 108 S.Ct. at 1953. Applying these factors, this court finds that defendant has failed to overcome the presumption in favor of plaintiff’s chosen forum. Initially, the court notes that New York courts are a suitable alternative forum for this matter. The incident occurred in New York State. The defendant lives in New York State and is amenable to process there. Examining the private factors, the court finds that the balance tips in favor of the plaintiff’s chosen forum. To examine the relative ease of access to sources of proof and the availability of witnesses, the district court must scrutinize the substance of the dispute between the parties to evaluate what proof is required, and determine whether the pieces of evidence cited by the parties are critical, or even relevant, to the plaintiffs cause of action and to any potential defenses to the action. Here, the incident occurred in New York State. Plaintiff resides in New Jersey, as do the passengers in her car who are potential witnesses. Courts in New York would have availability of compulsory process for attendance of unwilling witnesses from upstate New York that would not be available to this court; however, defendant has failed to show that any such witnesses exist. The proximity of New Jersey and New York make the cost of obtaining willing witnesses for trial not overly burdensome. The court finds that the proximity of New Jersey and New York and the residence of several witnesses in New Jersey provide relatively easy access to sources of proof. Likewise, this case is a simple tort action against a single defendant that does not present practical problems that would make trial of the case unnecessarily complex, unduly long, or excessively expensive. The public factors also weigh in favor of plaintiffs chosen forum. While the factor of court congestion does not favor either forum, the local interest in having localized controversies decided at home weighs in favor of plaintiffs chosen forum because, as a resident, she is entitled to litigate in her home forum. At least one factor, the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action, weighs in favor of a New York forum. This court, however, frequently must apply the law of other jurisdictions. This task does not create an undue burden on the court. The factor of avoidance of unnecessary problems in conflict of laws weighs only slightly in favor of a New York forum because this simple tort case does not present a thorny choice of law question. Additionally, there is no imposition on local citizens to serve on jury duty to adjudicate the rights of a local resident. In sum, defendant has failed to meet his burden to overcome the strong presumption in favor of plaintiffs chosen forum. While some factors favor defendant here, the court can not conclude that the factors “establish oppressiveness and vexation to a defendant ... out of all proportion to the plaintiffs convenience.” Koster v. American Lumbermens Mutual Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 832, 91 L.Ed. 1067 (1947). III. CONCLUSION This court will deny defendant’s motion to dismiss for lack of in personam jurisdiction because defendant’s motion did not comply with this court’s scheduling order; thus, defendant waived this objection to the court’s jurisdiction. Additionally, the court will deny defendant’s motion to dismiss for forum non conveniens because defendant failed to meet his burden to overcome plaintiff’s choice of forum.

MEMORANDUM OPINION BRIAN BARNETT DUFF, District Judge. Harold Hemstreet owns two patents for a device which is capable of automatically reading and sorting written documents. Various companies manufacture such optical character readers, or OCR’s; Mr. Hem-street has licensed some of those companies, among them International Business Machines, Inc. (IBM) and Recognition Equipment, Inc. (REI). Others, such as Computer Entry Systems Corp, (CES), the defendant in this case, are currently involved in legal disputes with him regarding his rights under the patents. Still others, it may be presumed, are manufacturing OCR’s with impunity. CES claims that whether or not Mr. Hemstreet’s claim of infringement is valid, he is too late to bring this suit. This court finds that the memo-randa, affidavits and other evidence submitted by the parties clearly demonstrate that CES is entitled to summary judgment on each of Mr. Hemstreet’s claims. I. Summary Judgment Standard The law governing summary judgment is well settled, and requires only a brief recitation here. Rule 56(c) of the Federal Rules of Civil Procedure requires the court to grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” When there is enough evidence in favor of the non-movant that a jury could reasonably return a verdict for that party, a “genuine issue” exists and summary judgment is not appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Questions about the sufficiency of the evidence submitted with the summary judgment motion should be resolved in favor of the non-movant. Rodeo v. Gillman, 787 F.2d 1175 (7th Cir.1986). See also, generally, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). II. Laches CES’s first argument in support of its motion for summary judgment is that Mr. Hemstreet is barred, by the equitable doctrine of laches, from bringing his claim now. The equitable doctrine of laches, once established, allows an infringer to bar the patent holder filed the suit. Jamesbury Corp. v. Litton Industrial Products, Inc., 839 F.2d 1544, 1550 (Fed.Cir.1988). The defense of laches is available in patent actions if the alleged infringer establishes that: 1) Plaintiff unreasonably and inexcusably delayed in asserting its claim for patent infringement; and 2) Plaintiff’s delay in bringing an action resulted in material prejudice to the defendant. (The longer the delay, the less need to show specific prejudice). Leinoff v. Louis Milona & Sons, Inc., 726 F.2d 734 (Fed.Cir.1984). See also Jamesbury, 839 F.2d at 1551-52. CES has of fered facts to support each of these propositions, and Mr. Hemstreet has failed to successfully rebut them. The crucial fact here is that Mr. Hem-street had, in 1983, all the facts pertaining to CES’s alleged infringement that he had in 1989, when he finally filed suit. Yet Mr. Hemstreet argues that he didn’t really know whether CES equipment infringed his patents until he took the deposition of John Guthrie, CES’s Vice President of Engineering, after he had already filed this suit. Hemstreet’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment at 3. Mr. Hemstreet cannot have it both ways. Either he knew enough in 1983, and should have filed suit then, or he didn’t and therefore should not have filed suit in 1989. Following are some of the undisputed facts in this case. In July, 1983, Mr. Hem-street wrote to Amer-O-Matic Corp., a CES subsidiary (see fn. 1, above), accusing it of manufacturing equipment which infringed Mr. Hemstreet’s patents. Because the contents and interpretation of the letter is critical to both parties’ arguments, as well as this court’s holding, this court sets it forth in full: Gentlemen: We represent Harold S. Hemstreet, owner of the above-listed patents granted January 23, 1973, both of which are entitled “METHOD AND APPARATUS FOR IDENTIFYING LETTERS, CHARACTERS, SYMBOLS, AND THE LIKE.” On information and belief, your company manufactures equipment which infringes the above patents. Mr. Hemstreet stands ready to negotiate a reasonable settlement and to license you under the patents. We have previously licensed IBM and REI. In the case of REI, it was necessary to litigate before a jury, and settlement was reached in the course of trial. At present, we are litigating another action for infringement of said patents in the United States District Court for the Northern District of Illinois. That case, filed by us on November 17, 1981, is entitled “Harold S. Hemstreet vs. Burroughs Corporation, No. 81 6412.” The action is pending before Judge William T. Hart of that Court. Enclosed are copies of the patents. We would appreciate hearing from you after you have studied them. Defendant’s Undisputed Fact # 41, Harold Hemstreet Deposition (HH Dep.) Ex. 17A. Mr. Hemstreet claims, in support of another argument, which this court will address below, that “[t]he July 1, 1983 letter put CES on notice of a claim for infringement. ... Since a claim was made against [CES], litigation or settlement was part of Hemstreet’s clear pattern of conduct.” Hemstreet’s Local Rule 12 Statement, # 44. If that is so, why did Mr. Hemstreet wait over six years before continuing on his “clear pattern of conduct”? Mr. Hem-street has not offered, and this court cannot postulate, an acceptable explanation. The Federal Circuit, as well as various other Circuit Courts, has adopted a presumption in cases in which laches is asserted as a defense to a claim of patent infringement which seems reasonable to this court. The statute of limitations for patent actions, 35 U.S.C. § 286 (1952) is six years. The Federal Circuit uses that number as its yardstick in determining whether a patent owner’s delay in bringing suit for infringement has prejudiced the defendant. Where the patent owner’s delay exceeds six years, a rebuttable presumption of both unreasonableness on the part of the patentee and prejudice to the alleged infringer arises. Leinoff, 726 F.2d at 741-42; see also Jamesbury, 839 F.2d at 1552. See also Baker Manufacturing Co. v. Whitewater Manufacturing Co., 430 F.2d 1008, 1009-10 (7th Cir.1970); Olympia Werke Aktiengesellschaft v. General Electric, 712 F.2d 74, 77 (4th Cir.1983). Once the presumption arises, as this court holds it has here, the burden shifts to the plaintiff to show that its delay was neither unreasonable nor prejudicial. Mr. Hemstreet sent the letter to CES in July, 1983. He filed suit in August, 1989. Mr. Hemstreet is unable to carry his burden. Mr. Hemstreet’s claim that the 1983 letter, to which CES did not respond, upon which he never ‘followed-up’, and after which he remained silent for over six years, was sufficient to put CES on notice that he intended to pursue his claim of infringement. Mr. Hemstreet argues that his delay in filing suit, or otherwise communicating with CES regarding his rights under the patent, is excusable because he was involved in other litigation (involving his rights under the patents) between 1983 and 1989. Hemstreet v. Burroughs Corporation and Harris Trust and Savings Bank, Civil Action 81 C 6412. Hemstreet’s Local Rule 12 Statement, Further Undisputed Facts ##74-90. This court disagrees with both those contentions. It is true that involvement in other litigation against one alleged infringer can sometimes excuse the failure to sue another alleged infringer. That limited ‘escape clause’ does not, however, give a patent holder carte blanche to sit on his rights indefinitely. As the court stated in James-bury, “in order to excuse delay based on other litigation, the patentee must give notice to the alleged infringer of the existence of the other litigation and of an intent to enforce its rights against the infringer at the conclusion of the other litigation.” 839 F.2d at 1533 (footnote omitted). See also Hottel Corp. v. Seaman Corp., 833 F.2d 1570 (Fed.Cir.1987); A.C. Aukerman Co. v. Miller Formless Co., Inc., 693 F.2d 697, 699 (7th Cir.1982) (the excuse of pending litigation is “acceptable only if other alleged infringers are given notice of the prior suit [citation omitted] and are informed of the patentee’s intent to pursue litigation against them at the close of the earlier suit. [Citation omitted.]) Mr. Hemstreet did notify CES of the Burroughs litigation in his July, 1983 letter. Nonetheless, that letter gave rise to no more than an inference that Mr. Hem-street intended to sue to enforce his rights under the patents, either during, or after the close of,- the Burroughs litigation. Thus, this court finds that Mr. Hemstreet has fallen short of the standard for excusable delay based upon other litigation. Accordingly, this court agrees with CES that Mr. Hemstreet is barred, by the doctrine of laches, from recovering any damages from CES which accrued prior to August 9,1989, the date he filed this suit. III. Estoppel The doctrine of laches does much to defeat Mr. Hemstreet’s claim against CES, but it does, not destroy it entirely. If laches were the only argument CES advanced, Mr. Hemstreet would still be entitled to collect damages which arose after he initiated this suit. Laches is not, however, the only weapon in CES’s arsenal. CES also claims that Mr. Hemstreet is es-topped from collecting any post-filing damages. To prove equitable estoppel, CES must prove both elements of laches, that is, unreasonable delay and prejudice and, in addition, CES must show that Mr. Hemstreet’s affirmative conduct induced CES to believe that he had abandoned his claims, and that CES did in fact believe that, to its detriment. Illinois Tool Works v. Grip-Pak, Inc., 725 F.Supp. 951 (N.D.Ill.1989). CES is not entitled to the same presumptions in its estoppel argument as it was given when this court considered its laches claim. Mr. Hemstreet’s prolonged silence weighed heavily in CES’s favor when it claimed laches. Silence is not nearly so probative when the defendant claims estoppel. “For silence to work an estoppel, some evidence must exist to justify an inference that the silence was sufficiently misleading to amount to ‘bad faith.’ ” The silence must be sufficient “to induce the alleged infringer to reasonably infer that the patentee has abandoned his patent claims” against the alleged infringer. Jamesbury, 839 F.2d at 1554. (Citations and footnotes omitted). See also Hottel Corp. v. Seaman Corp., 833 F.2d 1570, 1573 (Fed.Cir.1987). While Mr. Hemstreet had the burden of disproving CES’s laches claim, CES retains the burden of proving that it is entitled to estop Mr. Hemstreet from recovering his post-filing damages. This court has already decided that Mr. Hemstreet’s delay was unreasonable and prejudicial. The questions remaining, then, are 1) whether Mr. Hemstreet’s (at least) six year silence was misleading, and 2) whether CES was in fact misled, and consequently acted to its detriment. This court answers both questions in the affirmative. The first question is whether CES was reasonable in inferring from Mr. Hem-street’s actions that he had abandoned his claim. Mr. Hemstreet does not dispute that after he wrote to CES in July, 1983, he never again raised his claim of infringement until February, 1989, shortly before he filed suit. In the meantime, as Mr. Hemstreet was aware, or reasonably should have been aware, CES was continuing to expand its OCR business. Mr. Hemstreet has acknowledged that, as part of his effort to protect his patents, he read trade journals and attended trade shows which featured OCR equipment. Defendant’s Statement of Undisputed Facts ## 17-20. Some of the specific reports which Mr. Hemstreet maintained in his files, and shows which he attended, featured CES equipment. Id. The issue, of course, is not whether Mr. Hemstreet attended shows, or read reports, but whether his actions could reasonably have been expected to lull CES into believing he had abandoned his claims against it. The evidence that he was aware of what was going on in the industry, however, is also evidence of what was happening during the span between 1983 and 1989. CES was expanding, and its expansion was public knowledge. CES was continuing to manufacture and market its OCR’s, and that too was public knowledge. It was reasonable for CES to expect that if someone did have a claim against it for patent infringement, that person would have come forward with more than a single letter in nearly six years, or indeed, with some claim prior to 1983 — CES began developing OCR’s in 1971, and marketing them in 1973. Defendant’s Statement of Undisputed Facts, ## 3, 4. As the Seventh Circuit stated in Aukerman, “[mjere lapse of time, without more, is not sufficient to found a defense of estoppel [citations omitted], but notice from a patentee to the defendant that infringement has occurred, accompanied by a threat of enforcement, and followed by an extended period of nonenforcement, is affirmative conduct from which an alleged infringer could reasonably infer that the claim against it had been abandoned. [Citations omitted.]” 693 F.2d at 701. This court therefore finds that the undisputed evidence shows that Mr. Hemstreet’s delay in asserting his claim and filing his suit was sufficient to cause CES to infer that he had abandoned his claim against it. This court further finds that CES did in fact believe that, and acted to its detriment in reliance upon that belief. As this court has already noted, CES began its development of OCR equipment in 1971. Mr. Hemstreet failed to notify it of any potential claim until 1983. After sending a single letter stating that “[o]n information and belief”, CES’s OCR equipment infringed his patents, Mr. Hemstreet never again asserted a claim against CES until he notified it that he intended to file suit. In the meantime, CES spent over $23 million on research and development, $6.5 million on direct marketing costs, and $20 million to expand (or consolidate) the facilities it used to manufacture its OCR’s. That is detrimental reliance. This court therefore concludes that Mr. Hemstreet is estopped from collecting any damages which may have arisen due to CES’s alleged infringement of his patents between the date he filed suit and the date his patents expired. IV. Conclusion Mr. Hemstreet is barred, by the doctrine of laches, from asserting any claims against CES for damages which arose prior to the date he filed this suit. He is es-topped from collecting damages which may have arisen after the suit was filed. Accordingly, this court grants CES’s motion for summary judgment as to each count of Mr. Hemstreet’s complaint. . Mr. Hemstreet has alleged that CES manufactures infringing equipment. He also claims that Amer-O-Matic Corp. (AOM), a company which CES acquired in 1982, manufactured infringing equipment both before and after its acquisition by CES. For simplicity’s sake, this opinion will refer to both companies as CES, except where it is necessary to specifically mention AOM. . A 1975 report about OCR’s which Mr. Hem-street produced from his personal files in connection with this suit profiles 42 companies which manufactured OCR’s. Defendant’s Statement of Undisputed Facts, ## 24-29. Mr. Hem-street also had a 1978 report profiling 32 manufacturers. . "HEMSTREET was not able to determine whether infringement of his patents existed until after the deposition of John Guthrie, ... taken in January, 1990.” The instant suit was filed on August 3, 1989. . Mr. Hemstreet has made a general denial of facts regarding AOM. He does not deny the facts asserted by CES, rather he denies the relevance of occurrences prior to 1983. Therefore, Defendant’s #41 is "undisputed”. This court also notes that Mr. Hemstreet has failed, in many respects, to comply with the requirements of Local Rule 12. The Rule requires the party opposing a motion for summary judgment to submit a statement demonstrating how facts which the movant has offered as “uncontested” are, in fact, contested. Mr. Hemstreet has submitted numbered arguments about how this court should construe the facts submitted by CES, rather than clear statements explaining to this court why those facts are actually in dispute. . That litigation actually began in 1981, and was not finally concluded until September 9, 1988. Hemstreet’s Local Rule 12 Statement, Further Undisputed Facts ##74-89. . “Post-filing” damages are also limited, since Mr. Hemstreet’s patents expired on January 23, 1990. Thus, the only damages he could possibly recover are those which accrued between the date he filed suit, August 3, 1990, and the expiration date. . There was other correspondence during that time. CES acknowledged Mr. Hemstreet's July, 1983 letter; and three letters between Mr. Hem-street and CES related to CES’s request for copies of the license agreements Mr. Hemstreet had already negotiated. Also, in 1977, Mr. Hem-street had written to CES, without identifying himself as a patent holder, requesting information about CES’s OCR equipment. See Appendix to Defendant's Motion for Summary Judgment, Ex. 16, 18C, 19A, 20 and 20A. . Mr. Hemstreet responds to CES’s claim of expenditures by arguing that "[t]he expansion of facilities since 1983 has been to consolidate space, because the acquisitions by CES of other companies gave CES scattered facilities.” Whether or not it is true that CES expanded certain facilities in order to consolidate space, the only reasonable purpose for such a consolidation is reliance on the continued growth and profitability of the OCR business. Furthermore, the expansion of facilities accounts for less than half of the substantial amount CES expended on its OCR business.

RULING ON RONALD GELET’S MOTION TO DISMISS POLOZOLA, District Judge. L. Jerome Stanley, Dr. Jacques de la Bretonne, and Ed W. Litolff, Jr. filed this suit for breach of contract in the 19th Judicial District Court for the Parish of East Baton Rouge against Numero Uno Franchise Corporation (Numero Uno) and Ronald Gelet. The suit was timely removed to this court by the defendants based on 28 U.S.C. § 1332. Gelet has now filed a motion to dismiss under Rules 12(b)(2) and 12(b)(4) and (5) of the Federal Rules of Civil Procedure. Gelet conténds the Louisiana courts have no personal jurisdiction over him. He further argues that he was not properly served Under Rule 4 of the Federal Rules of Civil Procedure. After reviewing the record in this case, the Court, on its own motion, transfers this case to the Central District of California. A district court may issue an order transferring a case to another district, sua sponte. The action may be transferred to any other district where it might have been brought for the convenience of parties and witnesses, and the interest of justice. Each of these requirements is supported by the facts of this case. Plaintiffs have filed this suit alleging breach of contract. Plaintiffs contend that Numero Uno did not adequately perform its obligations under the franchise agreement thereby causing them damage and ultimately forcing their business to close. Section XV of the Franchise Agreement requires the Court and the parties to apply California law. The record also reveals that Stanley previously filed suit in this court against these same and other defendants wherein the same relief was requested. That suit was transferred to the Central District of California and resolved in that forum. Finally, all the defendants reside in or are citizens of California. All of the other Numero Uno restaurants are located in southern California. The Court finds it will be in the interest of justice and the convenience of the parties if the suit was tried in California. The Court finds that the Central District of California is the most convenient forum in which to adjudicate this claim. Therefore: IT IS HEREBY ORDERED that this suit be transferred to the United States District Court for the Central District of California. . Mills v. Beech Aircraft Corp., Inc., 886 F.2d 758 (5th Cir.1989); Jarvis Christian College v. Exxon Corp., 845 F.2d 523 (5th Cir.1988). . 28 U.S.C. § 1404(a); Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). . L. Jerome Stanley v. Numero Uno Franchise Corp., et. al, CA 88-344. . Southern Investors II v. Commuter Aircraft Corp., 520 F.Supp. 212 (M.D.La.1981).

OPINION BELLONI, District Judge. The matter before the court is a motion for summary judgment (# 14) by United States of America. The United States is seeking forfeiture of $15,460.00 in U.S. Currency in which Pedro Morales claimed a property interest. UNDISPUTED FACTS On September 30, 1988, at approximately 12:45 a.m., Senior Trooper John Anderson of the Oregon State Police stopped a 1978 Ford Thunderbird for not maintaining a single lane of travel. Pedro Osegiiera Morales (Morales), the driver, stated to Trooper Anderson that he had been in the State of Washington visiting relatives. A police computer check revealed that the car was registered to Morales’ brother, Jose Morales. Morales acknowledged that the registered owner of the car was his brother and stated that he had just bought the car from his brother. Trooper Anderson observed that Morales was unusually nervous and noted that personal belongings normally associated with vacation travel were not in the car. Trooper Anderson requested to search the car and Morales consented. Trooper Anderson found the defendant United States Currency hidden beneath the rear seat of the car. The $15,460.00 dollars of U.S. currency was in bundles of $1,000.00, held together with rubber bands and concealed inside a white plastic bag. When Trooper Anderson asked Morales about the money, Morales denied any knowledge of the money. Detective Clair of the Josephine County Sheriffs Office was asked to come to the scene. The police dog Taska, which is trained to detect the odor of controlled substances, alerted a controlled substance in response to an odor in the back seat of the automobile. Trooper Anderson removed a back panel and found nothing inside; but he observed an area large enough to conceal and transport a large quantity of narcotics. At the Rouge River Police Station, Trooper Anderson concealed the currency and the dog Taska again located the bag of currency. Trooper Anderson advised Morales that the currency was being seized and Morales responded by stating that was no problem. On January 25, 1989, Morales appeared at the Portland FBI station and again stated that he was not aware that there was money hidden in his brother’s car. Morales’ brother had left the car with him when he returned to Mexico for his employment. Morales submitted a letter to the FBI written in Spanish by his brother. The letter stated that the money was his brother’s savings and was intended for the purchase of two station wagons which would have been used at Nabisco Company. The letter was written on Nabisco letterhead stationary. The FBI contacted the employer of Morales’ brother, Nabisco. An employee of Nabisco confirmed that Morales’ brother worked for Nabisco but did not state that the money was intended for the purchase of vehicles for the Nabisco Company. The United States filed the forfeiture complaint on November 7, 1989 and a civil in rem arrest warrant was issued on November 13, 1989. The Defendant currency was arrested on November 21, 1989. Claimant, Pedro Oseguera Morales filed a claim and answer on or about December 11, 1989. No other persons have filed claims. DISCUSSION The government moves for summary judgment on the issue of whether the United States currency can be forfeited. 21 U.S.C. § 881(a)(6) provides for a forfeiture when the government has shown probable cause that things of value were intended to be furnished by any person in exchange for a controlled substance. Morales then carries the burden of persuading the court by a preponderance of evidence that the property was either not involved in the violation alleged or that a valid defense to the forfeiture exists. 19 U.S.C. § 1615 (1981). Probable cause for forfeiture is generally defined as reasonable grounds for belief of guilt, supported by less than prima facia proof but more than a mere suspicion. United States v. 1982 Yukon Delta Houseboat, 774 F.2d 1432, 1434 (9th Cir.1985). “Probable cause for forfeiture cannot be shown unless the aggregate of facts gives rise to more than mere suspicion that the property was exchanged for or intended to be exchanged for drugs.” United States v. Padilla, 888 F.2d 642, 643-44 (9th Cir.1989). Probable cause can be based on circumstantial evidence or inadmissible hearsay. 1982 Yukon Delta Houseboat, 774 F.2d at 1434. “Summary judgment procedures under Rule 56 Fed.R. Civ.P., must necessarily be construed in the light of the statutory law of forfeitures, and particularly the procedural requirements ...” United States v. $5,644,540 in U.S. Currency, 799 F.2d 1357 (9th Cir.1986). The court finds that the aggregate of the facts give rise to probable cause to forfeit the currency. When Trooper Anderson stopped the automobile in which Morales was driving, he noticed that Morales was nervous and he did not appear as if he was on a vacation. After Morales consented to Trooper Anderson’s search of the automobile, Trooper Anderson found the defendant currency concealed under the seat. The police dog alerted a controlled substance in response to an odor in the back seat and again alerted a controlled substance on the currency bag after the officer concealed the bag at the police station. The currency was in bundles of $1,000.00. I find that these facts are sufficient to find probable cause that the currency was involved in the exchange of a controlled substance. The government contends that Morales does not have standing to participate in the forfeiture proceeding. The burden of establishing standing in a forfeiture proceeding is on the claimant. United States v. $122,043 in United States Currency, 792 F.2d 1470, 1473 (9th Cir.1986). Morales must allege and prove a valid property interest in the forfeited property. Baker v. United States, 722 F.2d 517 (9th Cir 1983). Claimant argues that he has a possesso-ry interest in the property because he possessed the property at the time the police officer confiscated the defendant currency. Morales asserts that because he was the sole occupant of the vehicle and because the cash was found in the said vehicle he had a possessory interest. Morales, however, did not know of the defendant currency until Trooper Anderson discovered it. The government asserts that an unknowing possessory interest in the property cannot establish standing. To establish standing, a claimant in a forfeiture proceeding does not have to be the owner of the property but must have an interest in the property. United States v. 1982 Sanger 24' Spectra Boat, 738 F.2d 1043, 1047 (9th Cir.1984). “When there is some meaningful interference with an individual’s possessory interest in that property, a fourth amendment seizure has occurred.” Id. quoting United States v. Jacobson, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Since Morales did not know that the currency was in the vehicle until after the police located and seized it, he did not have a possessory interest in the defendant currency and a meaningful interference with the property did not occur. See United States v. $5,644,540.00, 799 F.2d 1357, 1365 (9th Cir.1986) (viewing and touching containers of money in a truck of a vehicle is not sufficient to establish standing). A possessory interest in the property must exist before the seizure of the property. See United States v. One 1967 Chris Craft 27-Foot Fiber Glass Boat, 423 F.2d 1293 (5th Cir.1970). The court finds that Morales does not have standing to claim an interest in the forfeited property. Morales also asserts that he should be permitted to amend his claim to allege that he is an agent for his brother, Jose Oseguera Morales and that his brother has an ownership interest in the defendant currency. Jose Morales should have filed a claim within ten days after the process had been executed and the claim should have been made under oath and verified that he authorizes Pedro Morales to be his an agent. Jose Oseguera Morales has not made any claim or verified that Pedro Morales is authorized to act as his agent. Morales is not entitled to amend his claim to include his brother. See United States v. One 1971 BMW 4-Dr. Sed., 652 F.2d 817 (9th Cir.1981); 21 U.S.C. § 881, Supplemental Rule C(6). Since no other persons have filed claims, default judgment is granted. CONCLUSION The government’s motion for summary judgment (# 14) against claimant Morales is granted. Default judgment is granted against all other persons who may assert a claim.

PER CURIAM. In 1993, Alphonso Prince was convicted by a jury of one count of conspiracy to possess with intent to distribute cocaine base, commonly known as “crack,” in violation of 21 U.S.C. § 846, two counts of aiding and abetting possession with intent to distribute crack in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A) and 18 U.S.C. § 2, two counts of aiding and abetting the use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. §§ 2 and 924(c)(1), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court found Prince’s Guidelines range to be 262 to 327 months, and sentenced him to 322 months imprisonment. In 1996, Prince moved to correct or vacate his sentence pursuant to 18 U.S.C. § 2255, arguing his weapons convictions were invalid based on Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The court granted his motion and vacated the two counts of aiding and abetting the use of a firearm in relation to a drug trafficking crime. When resentencing Prince on the remaining counts, the court granted the government’s request that, under U.S. Sentencing Guidelines Manual § 2Dl.l(b)(l), Prince’s offense level be increased by two levels as a result of his possession of a dangerous weapon. This resulted in an adjusted Guidelines range of 324 to 405 months. The court again sentenced Prince to 322 months imprisonment. In 2008, Prince moved for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c) and Amendment 706 to the Guidelines, which reduced the base offense level for crack offenses by two levels. He also sought an evidentiary hearing and a full resentencing, specifically challenging the attributable drug amounts, the enhancement imposed for possession of a firearm during a drug offense, the enhancement imposed for obstruction of justice, his criminal history score, and the application of the 18 U.S.C. § 3553(a) factors. The district court calculated an amended Guideline range of 262 to 327 months, and resentenced Prince to 260 months impris onment. The district court thus implicitly denied Prince’s request for an evidentiary hearing and to conduct a full resentencing. Prince appeals, arguing that the district court had authority to reduce his sentence below the amended Guidelines range and erred by not doing so. His argument, however, is foreclosed by United States v. Starks, 551 F.3d 839 (8th Cir.2009), in which we held a resentencing court does not have the authority to reduce a defendant’s sentence to a term below the amended Guidelines range. Id. at 843. The district court thus did not err in refusing to consider a further reduction in Prince’s sentence. Moreover, as noted in Starks, “proceedings under § 3582(c) ‘do not constitute a full resentencing of the defendant.’ ” Id. at 842 (citing U.S. Sentencing Guidelines Manual (U.S.S.G.) § lB1.10(a)(3)). The district court may only consider the Guidelines amendment at issue and “shall leave all other [G]uideline applications decisions unaffected.” U.S.S.G. § lB1.10(b)(l). As such, the district court did not err by rejecting Moore’s request for an evidentia-ry hearing or a full resentencing. For these reasons, the judgment of the district court is affirmed. . The Honorable Paul A. Magnuson, United States District Judge for the District of Minnesota. . We note the district court resentenced Prince to 260 months imprisonment, two months below the low-end of his amended Guidelines range of 262 to 327 months. This was permissible under U.S.S.G. § IB 1.10(b)(2)(B), which provides: If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) of this subsection may be appropriate. Because Prince's sentence prior to moving for a sentencing reduction under 18 U.S.C. § 3582(c) was two months below the low-end of his then-applicable Guidelines range, the district court had the authority to resentence him to a term of imprisonment two months below the applicable amended Guidelines range. In addition, we note, the government did not appeal or cross-appeal Prince's sentence. Cf. Greenlaw v. United States, — U.S. -, 128 S.Ct. 2559, 2566, 171 L.Ed.2d 399 (2008).

Opinion for the Court filed by Circuit Judge TATEL. TATEL, Circuit Judge: Appealing the dismissal of her employment discrimination case, appellant argues that the district court abused its discretion in denying her motion to amend her complaint to correct an erroneous statutory citation. ' She also argues that the district court erred in finding her claims of race discrimination and retaliation barred by a settlement agreement. We agree with appellant regarding the motion to amend: Absent evidence of prejudice, delay — the only reason given by the district court— cannot justify denying a motion to amend to clarify the legal basis for a complaint. Unable to assess on appeal the extrinsic evidence necessary to determine precisely which administrative complaint and which incidents were in fact covered by the settlement agreement, we reverse the dismissal of appellant’s Title VII claims and remand to the district court for further proceedings. I Appellant Sepedra Harrison, an African-American female employee of the Internal Revenue Service, began working in 1991 as a secretary for Michael Sincavage, the Chief of the Office of Disclosure. In 1992, she filed a complaint with the agency’s EEO office, alleging that she had been passed over for a promotion in favor of a less experienced white woman. Several months later, while Harrison’s complaint was pending, Sincavage detailed her to the Tax Check Unit where, according to Harrison, the work was more stressful and her mental and physical health began to deteriorate. She claims that although she made her health problems known to Sinca-vage and others and repeatedly a requested a transfer out of the Tax Check Unit, the agency refused until she was “forced to the point of a breakdown.” Complaint ¶ 19. Yet nonminority employees suffering similar health problems, she says, were transferred immediately. In informal and formal EEO complaints, Harrison alleged that during her detail to the Tax Check Unit, as well as after her September 1993 transfer back to the Office of Disclosure, Sincavage and others harassed her, threatened to discipline her, and subjected her to discriminatory working conditions. Under IRS EEO procedures, before the agency will accept a formal complaint for investigation, an employee must file an informal complaint; informal complaints require “informal pre-complaint EEO counseling.” Dep’t of the Treasury, Individual Complaint of Employment Discrimination (notice on form). Exactly how many formal and informal complaints Harrison filed during this period and precisely what they alleged is not at all clear. Her affidavit and interrogatory answers refer to a September 20 informal complaint, which became formal on November 22, and a December 1 informal complaint, which apparently concerned retaliation for making the first complaint formal. Yet Harrison’s reply brief accuses the government of “erroneously” stating that she filed EEO complaints on November 22 and December 1 (the same dates mentioned in her own affidavit and interrogatory answers). And Harrison’s reply brief mentions for the first time a November 15 informal complaint. Because of the confusion about Harrison’s administrative complaints, and because only the November 15 complaint was included in the record, we asked the parties at oral argument to give us copies of all relevant complaints. In response, they submitted the September 20 informal complaint, the November 22 formal complaint, and another copy of the November 15 informal complaint. However, they did not submit a December 1 complaint, even though they had repeatedly referred to one, or a pre-November 15 formal complaint, even though the November 15 complaint alleges retaliation for having filed an earlier formal complaint. While Harrison’s various complaints were being investigated, the IRS and Harrison signed a settlement agreement dated January 6, 1994. Titled “Precomplaint Agreement in the Discrimination Complaint of Sepedra E. Harrison,” the agreement does not indicate which complaints or incidents it resolves. It provides simply: “It is hereby agreed by the undersigned representative for the Internal Revenue Service and Sepedra E. Harrison that the following constitutes a full and complete settlement of the alleged issue of discriminated [sic] based on Race, Sex and Retaliation.” Precomplaint Agreement in the Discrimination Complaint of Sepedra E. Harrison 1 (Jan. 6, 1994). In return for Harrison’s promise “[n]ot to pursue the matter, which is stated above, in the EEO informal or formal process” and “[n]ot to institute any further legal, equitable and/or administrative appeals on the matter(s) raised,” id., the agency agreed to transfer Harrison to another position in the IRS’s EEO and Diversity Office. Following that transfer, the agency’s EEO office processed Harrison’s November 22 formal complaint, eventually dismissing it because it “concerns the same matters that were the subject of another complaint that was settled.” Letter from Michael Morgan-Gaide, Director, Regional Complaint Center, Department of the Treasury, to Greg- ■ ory L. Lattimer, Attorney for Sepedra Harrison (Sept. 11,1995). Harrison then filed suit in the United States District Court for the District of Columbia. Count one of her complaint alleged that the agency’s delay in transferring her violated the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (1994). Count two alleged that the delay in granting her a transfer amounted to disparate treatment in violation of Title VII, 42 U.S.C. §§ 2000e et seq. Count three alleged that the agency retaliated against her for filing the EEO complaints, also in violation of Title VII. The retaliation count alleged, among other things, a physical assault that Harrison claims occurred the day after the settlement agreement was signed. See 12/16/97 Tr. at 3-4 (quoting Harrison’s statement that Sinca-vage reached across his desk and grabbed her wrist as she was moving files from the office). The IRS moved for dismissal or summary judgment, arguing that the ADA does not apply to noncongressional federal workers, that the settlement agreement covered all of Harrison’s Title VII retaliation and discrimination claims, and that Harrison failed to state a cause of action based on the alleged assault or to exhaust her administrative remedies for that claim. Harrison responded that she had mistakenly cited the ADA and sought leave to amend the complaint to allege that her disability discrimination claim actually arose under the Rehabilitation Act of 1973, 29 U.S.C. § 791 (1994). Opposing dismissal of her Title VII claims, Harrison submitted an affidavit stating that the settlement agreement settled not all of her EEO complaints, but only one informal “precomplaint” that “addressed specific retaliatory actions that had occurred from the time of [the] filing of the November 22 formal complaint and November 30, 1993.” Harrison Aff. ¶ 2. She also argued that the settlement agreement could not bar her claims regarding the alleged assault because the assault had not occurred until after she signed the agreement. The district court, finding it “too late in the process for Plaintiff to amend her complaint,” granted the government’s motion to dismiss her ADA claim. See Harrison v. Rubin, No. 95-2256 (D.D.C. Dec. 19, 1997) (“District Court Order”). Finding Harrison’s retaliation and discrimination claims barred by the settlement agreement, the court dismissed the remaining counts. See id. Harrison appeals both orders. II Federal Rule of Civil Procedure 15(a) requires that leave to file an amended complaint “shall be freely given when justice so requires.” Explaining its denial of Harrison’s motion to amend, the district court stated: “Two years have passed since the filing of her complaint. The case is nearing trial, and the parties have almost concluded their pre-trial discovery. The Court finds that it is too late in the process for Plaintiff to amend her complaint.” District Court Order at 1. We review the denial of a motion to amend for abuse of discretion. See Material Supply Int’l, Inc. v. Sunmatch Indus. Co., 146 F.3d 983, 991 (D.C.Cir.1998). Harrison argues that where as here a plaintiff seeks to amend a complaint to add a new legal theory, the district court may deny the motion only if the amendment would prejudice the defendant. According to the government, undue delay is a permissible basis for denying any motion to amend. The government relies on Foman v. Davis, but that case simply reversed a district court’s unexplained denial of a motion to amend where “the amendment would have done no more than state an alternative theory for recovery.” 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Although this Circuit has recognized undue delay as a basis for denying a motion to amend, we have done so only where plaintiffs sought to add new factual allegations. See, e.g., Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 247 (D.C.Cir.1987). Where an amendment would do no more than clarify legal theories or make technical corrections, we have consistently held that delay, without a showing of prejudice, is not a sufficient ground for denying the motion. See, e.g., Material Supply Int’l, Inc., 146 F.3d at 991. As we said in Hanson v. Hoffmann, the crux of “the liberal concepts of notice pleading embodied in the Federal Rules” is to make the defendant aware of the facts. 628 F.2d 42, 53 (D.C.Cir.1980). “Unless a defendant is prejudiced on the merits by a change in legal theory,” we explained, “a plaintiff is not bound by the legal theory on which he or she originally relied.” Id. at 53 n. 11 (citations omitted). Applying these standards, we conclude that the district court should have granted Harrison’s motion to amend to substitute the Rehabilitation Act for the ADA. Harrison sought to add no new factual allegations. In opposing the motion, the government claimed no prejudice. In denying the motion, the district court found no prejudice, and for good reason: Claims and defenses under the two statutes are virtually identical. See, e.g., Zulele v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th Cir.1999) (“There is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act.”). The government nevertheless urges us to affirm the district court because in 1996 Harrison’s lawyer, after obtaining a delay to amend the complaint, told the court: “I’m not amending. I’m not filing any other lawsuits. We are going forward on this case, and that’s it.” 4/2/97 Tr. at 4. But as we read the record, counsel’s statement had nothing to do with his later effort to amend Harrison’s complaint to correct the erroneous reference to the ADA. When counsel assured the court in 1996 that he was prepared to go forward without further amendments, he was referring only to his decision to add no other counts or allegations based on Harrison’s other EEO administrative complaints. See id. at 2-4. We reverse the district court’s dismissal of Harrison’s disability discrimination claim and remand for further proceedings. Ill Challenging the district court’s dismissal of her Title VII claims, Harrison argues that the Precomplaint Agreement settled only an informal complaint concerning certain retaliatory acts by Sinca-vage from November 22 to November 30, 1993. According to Harrison, the agreement resolved none of the discrimination and retaliation claims included in her November 22 formal complaint, the basis for this lawsuit. She relies on the following passage from her affidavit: “[The settlement] agreement was only to address the informal complaint of December 1, and in no way did it affect the formal complaint of November 22.” Harrison Aff. ¶ 4. Harrison also points out that the settlement agreement is titled “Precomplaint Agreement,” and that “precomplaint” is the term used to describe an informal complaint, not a formal complaint. The government originally disagreed with Harrison’s position. It argued that the Precomplaint Agreement settled all of Harrison’s then-pending EEO administrative complaints, including the November 22 formal complaint. It was on the basis of this argument that the district court dismissed Harrison’s Title VII claims. See District Court Order at 2. The government has now abandoned this position. In a motion to remand filed just two days before oral argument, the government advised us that it now agrees with Harrison that “the parties entered into the Settlement Agreement in order to settle the claims raised by Appellant in an informal complaint pending before the agency” and thus “technically settled only one of Appellant’s two administrative complaints.” Appellee’s Mot. to Remand at 2. Although the government does not tell us which informal complaint it believes was settled, it apparently disagrees with Harrison’s claim that the parties settled only the complaint alleging retaliation for having filed the November 22 formal complaint. Echoing the reasoning of the agency’s EEO office, see supra at 252, the government argues that the complaint the parties actually settled concerned the same matters that Harrison complained about in her November 22 formal complaint and that formed the basis of her complaint in district court. According to the government, Harrison conceded during administrative discovery that the matters she raised in her formal complaint and those that she settled in the informal complaint were “the same.” Complainant’s Interrogatory Answers ¶ 24. Disputing the government’s interpretation of her “concession,” Harrison insists that she meant onfy that the two complaints concerned the same general “matters” — i.e., discrimination and retaliation — but not the same incidents and dates. We do agree with the government about one thing: This issue requires remand. In view of the government’s change in position, no one anjr longer defends the district court’s rationale for dismissing the Title VII counts. Both parties agree that the plain language of the settlement agreement is ambiguous, and both now resort to extrinsic evidence. Under these circumstances, we reverse the dismissal of Harrison’s Title VII claims and remand to the district court to determine whether, based on all the evidence, the Precomplaint Agreement bars Harrison from pursuing claims based on the incidents alleged in her November 22 administrative complaint. If the court concludes that the agreement does not bar those claims, then Harrison’s allegation of a postsettlement assault can proceed without regard to her failure to exhaust administrative .remedies. See Loe v. Heckler, 768 F.2d 409, 420 (D.C.Cir.1985) (where the ends of administrative exhaustion have been served by pursuing administrative remedies for the underlying complaint, separate exhaustion of administrative remedies for related post-complaint conduct is not required); Webb v. District of Columbia, 864 F.Supp. 175, 184 (D.D.C.1994) (“[T]o force an employee to return to the state agency and the EEOC every time he claims a new instance of discrimination in order to have the courts consider the subsequent incidents along with the original ones would erect a needless procedural barrier.”) (internal quotation marks and citation omitted). So ordered.

SUMMARY ORDER Defendant-Appellant Leonard Howell appeals from his conviction imposed by the United States District Court for the Northern District of New York (McAvoy, «/.). Following a jury trial, Howell was convicted of conspiracy to distribute and to possess with intent to distribute methamphetamine, in violation of 21 U.S.C. § § 841(a)(1) and 846. Howell was acquitted on one count of possessing a firearm following a felony conviction, in violation of 18 U.S.C. § 922(g). We assume the parties’ familiarity with the facts, procedural history, and scope of the issues presented on appeal. Howell argues on appeal that he was prejudiced at trial by the admission of inadmissible hearsay testimony by Agent Joyce, a law enforcement officer. Howell further contends that he received ineffective assistance of counsel because his attorney “proved” his guilt. Howell did not object below to Agent Joyce’s testimony, and so our review is for plain error. Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). To show plain error, “there must be (1) error, that is (2) plain, and (3) affect[s] substantial rights.” Id. (alteration in original) (internal quotation marks omitted). The Government concedes, and we agree, that Agent Joyce’s testimony contained inadmissible hearsay and that the admission of this evidence constituted error that was manifest. We conclude, however, that admission of this evidence did not affect Howell’s substantial rights because much of the substance contained in Agent Joyce’s disputed testimony was already in the record from admissible sources. Consequently, these admissions, erroneous though they were, do not rise to the level of plain error. With respect to Howell’s ineffective assistance of counsel claim, we note that this Court has generally been disinclined to entertain such claims on direct review. See United States v. Gaskin, 364 F.3d 438, 467-68 (2d Cir.2004). In this instance, we believe the better course is for Howell to pursue this claim through a collateral attack pursuant to 28 U.S.C. § 2255. We therefore dismiss this claim without prejudice to its being renewed in a timely habeas petition. United States v. Doe, 365 F.3d 150, 152 (2d Cir.2004). Accordingly, Howell’s appeal is DISMISSED WITHOUT PREJUDICE in part, and the judgment of the District Court is AFFIRMED.

JACOBS, Circuit Judge: The successor corporation to The Coleman Company, Inc. and other corporate and individual defendants (“Coleman”) appeal from the October 10, 1997 order of the United States District Court for the Southern District of New York (Batts, J.) granting partial summary judgment to participants in Coleman’s defined benefit pension plan and declaring that the participants (Coleman’s former employees) are entitled to the surplus assets in the plan— a total of $13,895,380, plus interest. (Coleman also appeals from the January 12, 1998 order denying reconsideration of that ruling.) We reverse. BACKGROUND From May 9, 1955 until June 30, 1989, Coleman operated The Coleman Company, Inc. Pension Plan for Weekly Salaried and Hourly Paid Employees (“the Plan”), an employee benefit plan under section 3(3) of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1002(3) (1994), that was subject to coverage under section 4(a) of ERISA, 29 U.S.C. § 1003(a). The Plan is a defined benefit plan because it predetermines the level of benefits to which participating employees will ultimately be entitled. See Brillinger v. General Elec. Co., 130 F.3d 61, 62 (2d Cir.1997), cert. denied, — U.S. -, 119 S.Ct. 1025, 143 L.Ed.2d 37 (1999). All fund contributions were made by Coleman, and were then used to pay out current benefits or invested to provide benefits in the future. The amounts of Coleman’s contributions were based upon actuarial calculations of future benefit payments and rates of return for Plan investments. Coleman terminated the Plan as of June 30, 1989. After satisfaction of all Plan liabilities to its participants and their beneficiaries, a surplus of $13,895,380 remained. Those residual assets are at stake in this case. A group of former Plan participants brought this lawsuit, alleging that reversion of the remaining assets to Coleman would constitute (inter alia) a violation of ERISA, 29 U.S.C. § 1344(d)(1)(C). Coleman answered that it was entitled to the surplus assets under both ERISA and the terms of the Plan. Upon cross-motions for summary judgment, the district court granted partial summary judgment in favor of the participants on their first claim for relief and dismissed the participants’ remaining claims. The district court then certified the case for immediate appeal, see 28 U.S.C. § 1292(b). Coleman now appeals. DISCUSSION We review the district court’s grant of summary judgment de novo. See Young v. County of Fulton, 160 F.3d 899, 902 (2d Cir.1998). In doing so, we construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir.1998). I ERISA distinguishes between two types of employee pension plans: “defined benefit plans” (like Coleman’s), and “individual account plans” (also known as “defined contribution plans”). 29 U.S.C. § 1002(34)-(35). In an individual account plan, the employer and employees contribute to individual employee accounts; each employee’s retirement benefit is based upon the contributions, gains, losses, and expenses attributable to the account of that employee. See 29 U.S.C. § 1002(34). “[Ujnder such plans, by definition, there can never be an insufficiency of funds in the plan to cover promised benefits, since each beneficiary is entitled to whatever assets are dedicated to his individual account.” Hughes Aircraft Co. v. Jacobson, — U.S. -, -, 119 S.Ct. 755, 761, 142 L.Ed.2d 881 (1999) (citation and internal quotation marks omitted). In a defined benefit plan, the employer contributes assets into a pool of funds from which predetermined benefits are paid. See Brillinger, 130 F.3d at 62. “[T]he employee, upon retirement, is entitled to a fixed periodic payment regardless of the performance of the plan’s assets.” Id. (citation omitted). To estimate the contributions required over time to yield those fixed payments, employers retain the services of an actuary to make calculations about various factors, “including (1) the rate of return on the investment of plan assets over the life of the plan; (2) the date that the payment of benefits will commence; (3) administrative expenses that the plan will incur; and (4) the period of time during which benefits will be paid.” Wachtell, Lipton, Rosen & Katz v. Commissioner, 26 F.3d 291, 293 (2d Cir.1994). However careful and prescient the actuary, these calculations can only approximate the amount of benefits ultimately required; therefore, [i]f unsuccessful investment of the plan assets impairs the plan’s ability to make up the scheduled payments from the plan assets, the employer must nonetheless make up any deficiency from its own assets. By the same token, if the investment of plan assets is successful and produces a surplus, the employer benefits. Brillinger, 130 F.3d at 62 (citation omitted) (emphasis added). “Since a decline in the value of a [defined benefit] plan’s assets does not alter accrued benefits, [participants] similarly have no entitlement to share in a plan’s surplus — -even if it is partially attributable to the investment growth of their contributions.” Hughes Aircraft Co., — U.S. at -, 119 S.Ct. at 761-62. II Although participants in a defined benefit plan lack any presumptive entitlement to surplus assets, employers also lack any such entitlement unless the plan provides for an employer distribution. Under ERISA, the residual assets of an employee benefit plan can be distributed to an employer only when three conditions have been fulfilled: “(A) all liabilities of the plan to participants and their- beneficiaries have been satisfied, (B) the distribution does not contravene any provision of law, and (C) the plan provides for such a distribution in these circumstances.” 29 U.S.C. § 1344(d)(1). There is no dispute here that the first two conditions have been met: the Plan’s liabilities were satisfied, and distribution to Coleman would not be unlawful. The question is whether the Plan provided for distribution of the remaining assets to Coleman. The relevant provisions are contained in two documents—a 1977 Trust Agreement (established to implement the original 1955 Plan’s provisions) and a 1984 amended restatement of the original Plan (“the 1984 Plan” or “the Plan”). Section 15.2 of the 1977 Trust Agreement states that Coleman “shall have no beneficial interest in the Trust Fund either during its continuance or upon termination of this Trust, except as otherwise provided, in the Plan." (Emphasis added.) The Plan does otherwise provide. Section 11.5(d)(2) of the 1984 Plan states that upon termination, the Company may take any surplus: (d) If, after the full equity of each Class has been set aside from the Trust Fund, there is any balance remaining in the Trust Fund, the Trustee shall dispose of such balance as follows: (2) If the Plan is being discontinued as to all Employees, the Trustee shall dispose of such balance as the Company may direct. In the event of a Change in Control, the Company’s directions shall conform to the requirements of Section 11.6. The only stated limitation (a specified change in corporate control) requires the Trustee to distribute any surplus pro rata among the Plan participants and beneficiaries. In holding that the Plan does not confer on Coleman the power to direct self-payment of any surplus upon the termination and winding up of the Plan, the district court relied on Section 9.2(c) of the 1984 Plan, which it read as not fully compatible with Section 11.5(d)(2); although Section 9.2(c) confers on Coleman a power to order reversion to itself of “any funds remaining in the Trust Fund” upon termination, such funds remaining are subject to the qualifying phrase “as a result of overpayment.” The passage reads: (c) Irrevocability. The Company and any Adopting Employer shall have no right, title, or interest in the contributions made by it to the Trustee or Trustees, and, except as permitted by Section 15.4, no part of the Trust Fund shall revert to the Company or any Adopting Employer, except that after satisfaction of all liabilities of the Plan, any funds remaining in the Trust Fund as a result of overpayment may revert to the Company or Adopting Employer. In the event of a Change in Control, such reversion shall not take place and the provisions of Section 11 shall apply. (Emphasis added.) The district court found that these provisions created an ambiguity (resolved by the court against Coleman): “one paragraph [Section 11.5(d)(2) of the 1984 Plan] provides for a determination by the Company regarding the remaining funds while the other sections [Section 15.2 of the 1977 Trust Agreement and Section 9.2(c) of the 1984 Plan] provide for reversion only of overpayment.” “Resolution” of this ambiguity, the district court reasoned, “turns on the word ‘overpayment’ ” in Section 9.2(c). The district court defined the word as “payment in excess of what is due” (citing Webster’s Third New International Dictionary (1986)) and found “that a return on an investment does not constitute an ‘overpayment.’ ” Because “the surplus assets in the Plan resulted from a high return on monies invested in the Plan, not from excess money contributed to the fund,” the district court concluded that the surplus did not result from “overpayment,” and therefore that Coleman was not entitled to the surplus. Applying the principle of contra proferentem, the district court construed any ambiguity it could not otherwise resolve against Coleman and declared that the participants are entitled to the Plan’s surplus. Ill We agree with the , district court that resolution of this case rests on the meaning of the word “overpayment”: upon termination of the Trust, the Plan confers on Coleman a “beneficial interest” in “any funds remaining in the Trust as a result of overpayment.” We disagree, however, with the district court’s conclusion that the qualifying phrase creates an ambiguity. “A word or phrase is ambiguous when it is capable of more than a single meaning ‘when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.’ ” United Nat’l Ins. Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105, 107 (2d Cir.1993) (quoting Garza v. Marine Transp. Lines, Inc., 861 F.2d 23, 27 (2d Cir.1988) (citation omitted)). “Courts may not create an ambiguity where none exists.” Id. at 108 (quoting Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293, 306 (2d Cir.1987)) (internal quotation marks omitted). We conclude that the other terms of the Plan, and its purpose and design, sufficiently fix the meaning and that the word “overpayment” in Section 9.2(c) of the Plan means the overage of the Plan assets (those contributed by Coleman, and any corresponding investment returns) net of plan liabilities (including the funding of vested pension obligations) at the time the Plan is terminated. The question in this case is whether (as the district court held) the fact of overpayment is determined by reference to the actuarially established schedule of payments, and the amount of overpayment is any erroneous contribution in excess of that amount; or whether (as we conclude) the fact and amount of overpayment are determined by reference to the surplus of assets available to fund the Plan’s liabilities when the Plan is terminated. Like the district court, the participants define overpayment as “payment in excess of the actuarial amount due.” Essentially, they argue, if Coleman contributes only the amounts that the actuary estimates will cover future benefits, there is no overpayment even if those amounts, augmented by investment returns, prove to be greater than needed to fund benefits and other liabilities. According to plaintiffs, Coleman can be deemed to have overpaid (and, by the terms of the Plan, be entitled to that portion of the surplus) only if Coleman’s periodic payments exceeded the amounts specified in those actuarial estimates. This view of overpayment rests on a misunderstanding of the fundamental nature of defined benefit plans. As the Supreme Court recently stated, the participants in a defined benefit plan “have no entitlement to share in a plan’s surplus.” Hughes Aircraft Co., — U.S. at -, 119 S.Ct. at 761. Because employers rely upon multi-variable actuarial estimates in determining the amount to contribute to their plans, see Wachtell, Lipton, Rosen & Katz, 26 F.3d at 293-94, it is inevitable that their contributions (plus any investment returns) will ultimately prove to be either more or less than required. See Hughes Aircraft Co., — U.S. at -, 119 S.Ct. at 761; Brillinger, 130 F.3d at 62. But the fact of a surplus or deficit, and its amount, can only be determined by hindsight. The district court relied in part on the somewhat tautological definition of the compound word “overpayment” in Webster’s Third New International Dictionary—“payment in excess of 'what is due”—without consulting the definitions of the constituent word “payment.” Among the meanings of “payment” is “the discharge of a debt or an obligation.” Webster’s Third New International Dictionary. Although Coleman had obligated itself to make periodic contributions to fund the Plan, Coleman’s obligations to the participants were not “discharged” until all benefits had been paid (because Coleman would have had to make good any deficiency in Plan assets, see Brillinger, 130 F.3d at 62). Therefore, the fact of overpayment can only be determined upon termination of the Plan, when Coleman can determine whether it discharged its obligation “in excess of what is due,” and the amount of any such overpayment must be the overage of assets net of Plan liabilities. Our reading of “overpayment”—which obviates the ambiguity on which the district court relied—is confirmed elsewhere in those parts of the Plan that address changes in corporate control, and which are geared evidently to inhibit an acquirer in some circumstances from using a Plan surplus to finance a takeover. The relevant provisions reference the termination of the Plan and describe the kind of computation that would be entailed in that event—the very calculation that would be made if the “overpayment” contemplated in Section 9.2(c) is (as we hold) the overage of assets net of pension obligations and other liabilities: 10.3 Change in Control. Notwithstanding the preceding provision of this Section 10 or any other provisions of this Plan, in the event of any such merger, consolidation, or transfer of assets or liabilities which is effected within three years following a Change in Control, the Accrued Benefit of each Participant and Beneficiary, ... shall be increased as set out in Section 11.6 such that any excess, as of the date of any such transaction, of the fair market value of the assets of the Plan over the present value of all accrued benefits hereunder (determined as if the Plan had terminated immediately prior to such transaction) is exhausted. (Emphasis added.) It is very difficult to understand why that calculation would be done in the event that “the Plan ... terminate^]” except to calculate the amount of surplus available for distribution to someone. If (as the district court and the participants believe) the provisions they cite direct the surplus to Plan participants and beneficiaries, it would be unnecessary to provide specially for the channeling of surplus to Plan participants and beneficiaries in the event of a “Change in Control.” But that is exactly what the Plan does: 11.6 Change in Control; Termination. Notwithstanding the preceding provisions of this Section 11 or any other provision of the Plan, in the event this Plan is terminated within three years following a Change in Control, the assets of the Plan shall be applied in accordance with the preceding provisions of this Section 11 to satisfy all liabilities to Participants and Beneficiaries. If after satisfaction of such liabilities, there are assets remaining in the Plan, such assets shall be applied on a pro rata basis to increase the benefits of such Participants and Beneficiaries .... (Emphasis added.) The participants posit one final question: if, in Section 9.2(c), the word "overpayment" means overage of assets net of liabilities, and the surrounding text seemingly already permits reversion to the company of "any funds remaining" "after satisfaction of all liabilities of the Plan," what is the limiting effect of the phrase "as a result of overpayment"? After all, an interpretation of a contract that affords "a reasonable and effective meaning to all the terms of a contract is generally preferred to one that leaves a part unreasonable or of no effect." Rothenberg v. Lincoln Farm Camp, Inc., 755 F.2d 1017, 1019 (2d Cir.1985). The answer is apparent in the text of the Plan. The procedure for distributing Plan assets at discontinuance is set forth in Section 11.5. If the discontinuance is as to all employees, then (in a nutshell) the actuarial value of the total accrued benefits of various classes of employees and pensioners is calculated, and assets of the trust fund sufficient to fund those benefits are “set aside” for each class. The Plan’s Retirement Committee has discretion to use the funds set aside in this manner for the benefit of each class by either purchasing annuity contracts, making the pension payments from the funds, or providing a lump-sum cash distribution. Section 11.5(d)(2) provides that if “after the full equity of each Class has been set aside from the Trust Fund, there is any balance remaining in the Trust Fund,” the Trustee may dispose “of such balance as the Company may direct.” This mechanism does not contemplate that the amounts set aside to fund benefits, including possible periodic payments over the life of the beneficiaries, are outside the trust fund; rather, they are cordoned off within it. The disputed Section 9.2(c) should be read in light of this setting aside of assets. “[A]fter satisfaction of all liabilities of the Plan” in the manner more specifically described in Section 11.5, the Trust Fund very likely could contain two types of assets: (i) amounts set aside for the funding of benefits, i.e., the Plan’s liabilities; and (ii) amounts representing the overage of Plan assets net of those liabilities, ie., funds remaining “as a result of overpayment.” Only the latter amounts can properly be deemed surplus to which Coleman is entitled. The sensible proviso in Section 9.2(c), allowing reversion to the Company only of “any funds remaining in the Trust Fund as a result of overpayment,” is perfectly consistent with the idea that Coleman may direct to itself the full surplus assets of the Plan. CONCLUSION We conclude that Coleman is entitled to the surplus assets under ERISA and the terms of the Plan. Accordingly, we reverse the district court’s October 10, 1997 and January 12, 1998 orders, and remand to the district court with directions to enter summary judgment in favor of Coleman. . Section 9.2(b) of the Plan provides for contributions as follows: (b) Contributions. (1) No Employee shall be required or allowed to make any contributions to the Plan. (2) The Company shall make contributions from time to time during the continuance of the Plan to the Trust Fund. The Company expects to make sufficient contributions to provide the benefits specified in the Plan. (3)Forfeitures arising under this Plan because of termination of employment before a Participant becomes eligible for vesting, or for any other reason, shall be applied to reduce the cost ol' the Plan and not to increase the benefits otherwise payable to Participants. . Section 4 of the Plan provides benefit schedules for a variety of retirement circumstances (normal, early, disability, etc.). . Defined benefit plans may allow for employer-only contributions, employee-only contributions, or a combination of the two. See 29 U.S.C. § 1054(c). However, Coleman's Plan is funded by the employer only. . The district court also relied in part on our opinion in Frank L. Ciminelli Constr. Co. v. Buffalo Laborers Supplemental Unemployment Benefit Fund, 976 F.2d 834 (2d Cir.1992). In Ciminelli, there had been a payment in excess of the predetermined periodic contribution (which the opinion calls an "overpayment” passim), and recovery was barred as untimely under ERISA § 403(c)(2)(A)(ii), 29 U.S.C. § 1103(c)(2)(A)(ii), which limits the period in which an employer may bring an action for the recovery of such overpayments. See id. at 835-37. The word "overpayment” is not an ERISA term of art, however, and its use in Ciminelli does not fix or limit the meaning of that word in the Coleman Plan. . This does not mean that summary judgment is only appropriate where such meaning can be afforded to all terms of a contract. The relevant inquiry in deciding a motion for summary judgment is whether "there is no genuine issue as to any material fact," Fed. R.Civ.P. 56(c), "a situation that obtains not only when the language is unambiguous, but also when the language is ambiguous and there is relevant extrinsic evidence, but the extrinsic evidence creates no genuine issue of material fact and permits interpretation of the agreement as a matter of law,” Nycal Corp. v. Inoco PLC, 988 F.Supp. 296, 299 & nn. 9-11 (S.D.N.Y.1997), aff'd, 166 F.3d 1201 (2d Cir.1998). . Even if all accrued benefits had been paid out of Plan assets, amounts would have to be set aside in the trust fund sufficient to cover any contingent liabilities of the Plan.

THE COURT, after taking time to consider, was of opinion that the want of the name of the prosecutor indorsed upon the indictment, is not sufficient ground to arrest the judgment, and overruled the motion. See Virginia v. Leap [Case No. 16,964], at April term, 1801.

PAUL KELLY, Jr., Circuit Judge. Defendant Warren Elvin Ensminger appeals Ms eighteen-month sentence and conditions of probation for violation of 18 U.S.C. § 1001 (false statements). The district court adopted the offense level calculation contained in the presentence report under USSG § 2F1.1 (1997), which governs offenses involving fraud and deceit, including a ten-level enhancement for an intended loss of $540,700 and a two-level enhancement for more than minimal planning. In addition, the district court imposed several conditions of probation, including the monitoring of Mr. Ensminger’s financial dealings. Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse in part and affirm in part. Background Since Mr. Ensminger’s appeal only deals with the propriety of his sentence and probation conditions, we briefly set out the factual background of this case. Mr. En-sminger was indicted on three counts. Counts one and two charged him with a scheme to obtain an ownership interest in certain real property through submitting bogus financial instruments in violation of 18 U.S.C. §§ 2 and 1341. Mr. Ensminger allegedly purchased at least- six false money orders and mailed two of them to different banks, in order to pay off outstanding promissory notes executed by his mother. Count three charged him with presenting a document to the U.S. Marshal’s Office which falsely indicated that he had prevailed in a civil action against the Farm Credit Bank of Wichita, Kansas, when in fact, Mr. Ensminger knew that the action had been dismissed. This document, which Mr. Ensminger entitled “Special Execution and Order of Assistance for Possession,” also indicated that the lawsuit entitled him to possession of certain real properties located in Major County, Oklahoma. Mr. Ensminger pled guilty to count three in exchange for the dismissal of counts one and two. Mr. Ensminger filed several objections to the presentence report, and the district court heard argument on these objections at the sentencing hearing on April 8, 1998. Mr. Ensminger contended that the amount of intended loss should not be calculated at the full value of the properties in question ($540,700), but rather on the one-ninth interest Mr. Ensminger would have received as a beneficiary of his mother’s estate had his scheme been successful. Alternatively, Mr. Ensminger argued that there was no possibility of his scheme being successful, and thus that the amount of intended loss should be zero. He further argued that a more than minimal planning enhancement should not be applied to his case. The district court rejected his arguments and sentenced Mr. Ensminger to eighteen months imprisonment and two years of supervised release. Mr. Ensminger appeals, contending that the district court erred in (1) enhancing his offense level based on an intended loss of $540,700; (2) enhancing his offense level based on a finding of more than minimal planning; and (3) imposing special conditions of supervised release relating to financial disclosures and restrictions. Discussion On appeal, “[w]e review the district court’s legal interpretation of the guidelines de novo, and review its findings of fact for clear error, giving due deference to the district court’s application of the guidelines to the facts.” United States v. Janusz, 135 F.3d 1319, 1324 (10th Cir.1998) (citations omitted). A. Amount of Intended Loss The district court sentenced Mr. Ensminger based on the uncontested value of the properties, $540,700, that he attempted to have the U.S. Marshal seize. Mr. Ensminger argues that the district court erred in sentencing him based upon an intended loss of greater than $500,000, see USSG § 2Fl.l(b)(l)(K), because there was no possibility of loss occurring as a result of his “Special Execution and Order of Assistance for Possession.” He asserts that he was “incapable of causing loss because of governmental control over the civil execution process and judicial intervention.” Aplt. Brief at 14. Mr. Ensminger relies upon our decisions in United States v. Galbraith, 20 F.3d 1054 (10th Cir.1994), and United States v. Santiago, 977 F.2d 517 (10th Cir.1992). In Galbraith, the defendant argued that “because his offense was committed in response to an undercover sting operation structured so there was no possibility of loss to a victim, the intended or probable loss was zero.” Galbraith, 20 F.3d at 1059. We agreed, stating that the loss defendant subjectively intended to cause is not controlling if he was incapable of inflicting that loss. Because this was an undercover sting operation which was structured to sell stock to a pension fund that did not exist, defendant could not have occasioned any loss even if the scheme had been completed. Id. Galbraith relied in part on Santiago, in which we held that “whatever a defendant’s subjective belief, an intended loss under Guidelines § 2F1.1 cannot exceed the loss a defendant in fact could have occasioned if his or her fraud had been entirely successful.” Santiago, 977 F.2d at 524. In that case the defendant fraudulently filed a claim of $11,000 with his insurance company. However, the market value of the car that he falsely claimed was stolen was only $4,800, which was the maximum amount the insurance company would have paid had his scheme been successful. In finding that the $4,800 was the intended loss, we looked to the economic reality of the situation and established the principle that “the fair market value of what a defendant has taken or attempted to take defines the upper limit for loss valuation.” Id. at 525. While there is no dispute that the fair market value of the properties that Mr. Ensminger attempted to obtain was $540,-700, see Apit. Brief at 12-13, there is also no dispute that there was no way in which the scheme could have been successful. Although Mr. Ensminger successfully persuaded a deputy clerk to sign the "Special Execution" document, the properties he sought had already been sold to third parties. No record facts suggest that there was even a remote probability that he could have either obtained the properties or the proceeds from the sale of the properties. While it is true that Mr. En-sminger tried to obtain the properties, and perhaps thought he could succeed, under Gal braith we must still consider that "the loss defendant subjectively intended to cause is not controlling if he was incapable of inflicting that loss." Gaibraith, 20 F.3d at 1059. Ordinarily, it would be necessary to remand for a determination on this issue; however, because the uncon-troverted facts establish that there was no possibility for Mr. Ensminger to have succeeded in his scheme we hold that the ten-level enhancement was clearly erroneous-applying Galbraith, the intended loss was zero. We note that a number of circuits have disagreed with our analysis of intended loss in Galbraith~ reasoning that it "is inconsistent with application note 10 to section 2F1.1 of the guidelines, which by authorizing a downward departure `where a defendant attempted to negotiate an instrument that was so obviously fraudulent that no one would seriously consider honoring it' implies that the unlikelihood of an actual loss does not affect the computation of the `intended loss.'" United States v. Coffman, 94 F.3d 330, 336 (7th Cir.1996) (quoting USSG § 2F1.1 commentary at n. 10 (1997)); see, e.g., United States v. Studevent, 116 F.3d 1559, 1561-64 (D.C.Cir.1997); United States v. Wai-Keung, 115 F.3d 874, 877 (11th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1095, 140 L.Ed.2d 150 (1998); United States v. Ismoila, 100 F.3d 380, 396-97 (5th Cir.1996); United States v. Robinson, 94 F.3d 1325, 1328 (9th Cir.1996). However, because “one panel of this court is bound by the precedent of an earlier panel absent en banc reconsideration or a superseding contrary decision of the U.S. Supreme Court,” LeFever v. Commissioner of Internal Revenue, 100 F.3d 778, 787 (10th Cir.1996), we are bound to apply Galbraith. B. More Than Minimal Planning Mr. Ensminger next contends that the district court erred in enhancing his base offense level by two levels for “more than minimal planning” pursuant to USSG § 2Fl.l(b)(2)(A). According to Mr. Ensminger, the government failed to prove that he engaged in more planning than was necessary for committing the offense in its simple form. Because the district court’s finding is essentially factual, we review it only for clear error. The Guidelines regard “more than minimal planning” as present “in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune.” USSG § 1B1.1 commentary at n. 1(f) (1997). In its ruling on the enhancement, the district court considered the following conduct: Mr. Ensminger took a form from the U.S. Attorney’s Office and adapted it into his “Special Execution and Order” document, complete with detailed property descriptions; he presented the document to the district court clerk’s office and convinced a deputy clerk to sign it; he then submitted the document to the U.S. Marshal’s Office and, after he was informed that he needed additional money for processing fees, he had another person resubmit the document three weeks later with the proper fees; he followed this up with a telephone call to the Marshal’s Office, a letter to the district court judge who had earlier presided over his civil case, and a letter to the U.S. Marshal demanding action on the seizure. See 4 R. at 19-20. The court concluded: “This is not an isolated instance. It is a case where several different times Mr. Ensminger was given a chance to back out of his criminal conduct for one thing but it’s also simply repeated acts that were more than opportune.” 4 R. at 20. Mr. Ensminger argues that his actions after presenting the document to the U.S. Marshal’s Office should not be considered, because the false statement was made when the document was presented. However, we agree with the district court that those actions were repeated acts done in furtherance of his central scheme to fraudulently obtain the properties. See United States v. Channapragada, 59 F.3d 62, 65-66 (7th Cir.1995) (affirming enhancement for “repeated acts” where defendant misrepresented value of collateral and repeated it three more times). Therefore, the district court’s two-level adjustment was not clearly erroneous. C. Special Conditions on Probation Finally, Mr. Ensminger challenges the imposition of special conditions of supervised release relating to financial disclosures and restrictions. He contends that the conditions are not reasonably re lated to the crime of conviction. We review for abuse of discretion. See United States v. Edgin, 92 F.3d 1044, 1047 (10th Cir.1996). Although a district court has broad discretion in setting conditions of supervised release, see id. at 1048, any condition chosen must (1) [be] reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D); (2) involve[] no greater deprivation of liberty than is necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and (3) [be] consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 944(a). 18 U.S.C. § 3583(d)(l)-(3). The district court imposed the special conditions at the end of the sentencing hearing, after it had resolved all the objections to the presentence report and after Mr. Ensminger had already made his final statement. Mr. Ensminger did not object to the conditions. However, under similar circumstances in Edgin, we found that there was no waiver of the issue for appeal. See Edgin, 92 F.3d at 1049. In Edgin, we considered the propriety of a special condition which prevented the defendant from contacting his son. Because the district court in Edgin failed to make factual findings or provide any reasons for that special condition, we remanded so that the court could state its reasoning. Likewise, the district court in the case at bar provided no reasons for its conditions of financial disclosures and restrictions. However, in Edgin we noted that a father generally “has a fundamental liberty interest in maintaining his familial relationship with his son,” id., and stated that the district court must “fine-tune” restrictions of such a liberty interest to meet the goals of § 3553(a)(2)(B)-(D). Here no such fundamental interests are involved, and thus the same level of “fine-tuning” is not required. Under § 3583(d), a special condition of supervised release must be reasonably related to “the nature and circumstances of the offense and the history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1), and must involve no greater deprivation of liberty than is reasonably necessary in light of the need “to protect the public from further crimes of the defendant.” All three counts of the indictment relate to Mr. Ensminger’s attempts to defraud financial institutions. See 2 R. at 3. Mr. Ensminger belongs to an organization, “We The People,” which “does not believe the federal banking system has authority after they ceased being backed by the gold standard.” 2 R. at 12. After First National Bank of Okeene, Oklahoma and Federal Land Bank of Enid, Oklahoma refused to honor the false money orders which formed the basis of counts one and two, Mr. Ensminger filed “Notices of Defaults” against the banks. Given Mr. Ensminger’s history and characteristics, and the need to protect the public from further similar crimes, we conclude that financial conditions imposed upon Mr. En-sminger meet the requirements of 18 U.S.C. § 3583(d). Although we AFFIRM the district court’s enhancement for more than mini mal planning and imposition of special conditions, we REMAND to the district court to VACATE its sentence and resentence in accordance with this opinion. . This conclusion is not based on "governmental control over the civil execution process and judicial intervention,” Aplt. Brief at 14, as Mr. Ensminger asserts. Such control does not preclude a remote possibility that he could have succeeded in his scheme. Rather, our conclusion is based on the fact that the properties had already been sold to third parties. . The dissent also cites cases from other circuits which "recognize the narrow holding of Galbraith.” However, in each of those cases the defendant's scheme had some possibility of success, but was thwarted by police intervention. Here, by contrast, police intervention was totally unnecessary, as Mr. En-sminger’s scheme was inherently incapable of causing a loss due to the sale of the properties to third parties. . At the end of the sentencing hearing, the court imposed the following special conditions on his term of supervised release: You will disclose all assets and liabilities to the probation office. You will not transfer, sell, give away or otherwise convey any asset without first consulting with the probation office. You will, upon request of the probation office, authorize release of any and all financial records, income tax records and Social Security records. You will maintain a single checking account in your name which you will use for the deposit of all income and other pecuniary proceeds and used [sic] for the payment of all personal expenses. All other bank accounts must be disclosed to the probation office. You will not make application for any loan or enter into any credit arrangement without consulting the probation office. If you maintain an interest in any business or enterprise, you will, on request, make available any of the records of that business to the probation enterprise [sic]. 4 R. at 25-26. . Under these provisions of 18 U.S.C. § 3553(a), a court must consider (a) "the nature and circumstances of the offense and the history and characteristics of the defendant,” and (b) the need to "afford adequate deterrence to criminal conduct,” "protect the public from further crimes of the defendant,” and "provide the defendant with needed ... training, medical care, or other correctional treatment.” STEPHEN H. ANDERSON, Circuit Judge, dissenting in part: The majority reverses the ten-level enhancement for an intended loss of $540,-000, finding that our prior decisions in United States v. Galbraith, 20 F.3d 1054 (10th Cir.1994) and United States v. Santiago, 977 F.2d 517 (10th Cir.1992), are indistinguishable from this case and compel the conclusion that the intended loss was zero. Because I conclude that those decisions are distinguishable and do not compel that conclusion, I respectfully dissent from Part A of the majority opinion. Galbraith involved a government sting operation, in which the defendant attempted to purchase stock in a company, drive up the price, and then sell it to a European pension fund. Unbeknownst to the defendant, the European pension fund did not exist and the FBI terminated the sting operation and arrested the defendant before any stock was actually bought or sold. We held in that case that “The intended or probable loss was zero” because: the loss defendant subjectively intended to cause is not controlling if he was incapable of inflicting that loss. Because this ivas an undercover sting operation which was structured to sell stock to a pension fund that did not exist, defendant could not have occasioned any loss even if the scheme had been completed. Galbraith, 20 F.3d at 1059 (emphasis added). In so holding, we relied in part on Santiago, in which the defendant attempted to defraud his insurance company by falsely reporting that his car, with a “blue book” value of $4,800, had been stolen, and submitting a claim for $11,000 for the “stolen” car. Because an acquaintance involved in the scheme notified law enforcement authorities, the scam did not succeed. After noting that no actual loss occurred because of police intervention, we held that the “intended [and] probable loss” was $4,800 because the “insurance company would not have paid more than the car’s $4,800 blue book value in any circumstances.” Santiago, 977 F.2d at 524, 526. Considering Santiago and Galbraith together, I do not believe that the intended loss is zero whenever the actual loss is zero, even where, as here, the scheme to defraud is doomed from the beginning. There is a distinction between a scheme, as in Galbraith, which is structurally and inherently incapable of causing any loss (an undercover reverse sting operation involving the sale of overvalued stock to a non-existent entity) and a scheme such as Mr. Ensminger’s which, while extremely unlikely to result in any loss, nonetheless could have occasioned a loss had the scheme succeeded. The majority opines that Mr. Ensminger’s plan was incapable of success because, while he had successfully persuaded a deputy clerk to sign the “Special Execution” document, the properties had in fact already been sold to third parties, and Mr. Ensminger would therefore have been unable to obtain them. But that is no different from Santiago, in which the acquaintance had notified authorities, who then notified the insurance company, so that the defendant would in fact have been unable to collect any insurance proceeds. Indeed, if a person presents an instrument to a bank with the intent of defrauding it of $100,000, but the bank in fact has no money, the person has no less attempted the fraud, and intended a loss, even though in fact no loss could have, occurred. Other courts have recognized the narrow holding of Galbraith. Indeed, in United States v. Studevent, 116 F.3d 1559, 1564 (D.C.Cir.1997), the court expressed its disagreement with what it viewed as Galbraith’s holding but noted that Galbraith itself was correctly decided under any view of intended loss: The victim in Galbraith-a, pension fund to which overvalued stock was to be sold-was a Potemkin institution fabricated by law enforcement officials. Galbraith thus never could have defrauded anyone. Studevent, on the other hand, stole checks from real entities and thus had real potential victims who could have been defrauded but for the intervention of the FBI. Studevent, 116 F.3d at 1563 n. 3; see also United States v. Rizzo, 121 F.3d 794, 802 (1st Cir.1997) (“Unlike the fictitious victim in Galbraith, the intended victims of Riz-zo’s counterfeit check scheme were actual corporations.”); United States v. Coffman, 94 F.3d 330, 337 (7th Cir.1996) (“[E]ven if ... [Galbraith ] were decided correctly, [it] would not carry the day for the defendants[] [because it is a case] where the fraud would have done no harm even if the defendants had not been interrupted[ ] [whereas h]ere the fraud had a real victim in its sights but was interrupted before it could do any harm.”); United States v. Falcioni, 45 F.3d 24, 27 (2d Cir.1995) (noting Galbraith’s “limited exception to use of the intended loss figure” and stating that “Falcioni’s plan failed to result in loss, not because his victim was a non-existent entity, but rather because [an acquaintance] notified law enforcement authorities”); cf. United States v. Sheets, 65 F.3d 752, 753-54 (8th Cir.1995) (holding defendant liable for intended loss created by filing false tax return for someone else, even though intended victim demonstrated to IRS that tax return was bogus). In sum, rather than implicitly criticize our holding in Galbraith, as does the majority, I would simply confine Galbraith to its narrow factual setting. And, following Santiago, I would calculate the intended loss of Mr. Ensminger’s scheme not at zero, as does the majority, but, as did the district court, at the fair market value of the real property which was the object of his attempted fraud. . The reference to “probable” loss in Santiago and Galbraith stems from that fact that, prior to November 1, 1991, Application note 7 to § 2F1.1 referred to "probable or intended loss.” Effective November 1, 1991, “probable” was deleted. U.S.S.G.App. C, amend. 393. . The majority suggests that Galbraith is inconsistent with application note 10 to § 2F1.1, which authorizes a downward de parture "where a defendant attempted to negotiate an instrument that was so obviously fraudulent that no one would seriously consider honoring it.” If a downward departure is authorized for an obviously fraudulent scheme, so the argument goes, the guidelines must have assumed that the unlikelihood of success is irrelevant to the calculation of intended loss. But the extreme unlikelihood of success is still different from structural and absolute impossibility. The fact that a scheme's success may depend on the stupidity or naivete of others does not mean that it is incapable of success. Even the most harebrained of schemes may, perchance, succeed, whereas a government sting of the sort employed in Galbraith could never, under any circumstance, result in a loss to anyone.

The only occurrence, therefore, which it is material to notice on this trial, was the following: There were two of the petty jury (Thomas Coates and William Callady) who being called, and not challenged, alledged sickness in excuse for not serving, and they were, for the present, set apart: But the whole pannel having been eventually drawn out of the balloting box, without furnishing twelve names unchallenged, and those jurors persevering in their excuse, the counsel for the prisoner retracted his challenge of another juror, who was, thereupon, qualified by order of THE COURT.

JUDGMENT PER CURIAM. This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is ORDERED AND ADJUDGED that the district court’s order filed December 8, 2008, 2008 WL 5169120, be affirmed. The court did not err in dismissing appellant’s complaint without prejudice for lack of subject matter jurisdiction because the complaint does not identify or suggest any federal question. See 28 U.S.C. § 1331. In addition, the complaint does not involve a dispute between citizens of different states. See 28 U.S.C. § 1332. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.

PER CURIAM: Fausto Caballero-Mejia appeals his 60-month sentence imposed after he pleaded guilty to violating 8 U.S.C. § 1326 by reentering the United States after having been deported. Caballero-Mejia argues: (1) that the district court improperly increased Caballero-Mejia’s offense level by 16 levels at his sentencing; (2) that the district court erred in enhancing his sentence using a prior conviction not alleged in the indictment; and (3) that his 60-month sentence is substantively unreasonable. We affirm. I. Caballero-Mejia first contends that the district court incorrectly calculated his offense level under the sentencing guidelines. At Caballero-Mejia’s sentencing, the district court applied U.S.S.G. § 2L1.2(a) and therefore started with a base offense level of 8 for violating 8 U.S.C. § 1326. Under U.S.S.G. § 2L1.2(b)(l)(A), however, a defendant’s base offense level is increased by 16 levels if the defendant “previously was deported ... after—... (ii) a crime of violence.” In this case, Caballero-Mejia had an earlier conviction for robbery. Robbery is listed as a “crime of violence” in U.S.S.G. § 2L1.2, Commentary, Application Notes (l)(B)(iii). Thus, the plain language of the guidelines supports the district court’s 16-level increase in Caballero-Mejia’s offense level. Caballero-Mejia argues that the legislative intent behind § 2L1.2(b)(l)(A) implies that a crime must be an aggravated felony in order to qualify as a crime of violence. We rejected that argument in United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir.2008) (“Because Gonzalez can point to no authority requiring a “crime of violence” to also constitute an “aggravated felony” ... the district court committed no error [in increasing Gonzalez’s offense level by 16 levels based on her past robbery conviction].”). Caballero-Mejia’s prior robbery conviction meets the express definition of a “crime of violence” under § 2L1.2(b)(l)(A)(ii) and therefore satisfies the requirements for a 16-level enhancement. Accordingly, the district court did not err when it increased Caballero-Mejia’s offense level by 16 levels. II. Second, Caballero-Mejia contends that the district court violated his Fifth Amendment rights when it used his prior robbery conviction, which was not alleged in his indictment under 8 U.S.C. § 1326, to increase his sentence. Subsection 1326(a) outlaws reentry into the United States after deportation and provides for a maximum sentence of two years imprisonment. Subsection 1326(b) allows penalties of up to ten or up to twenty years for aliens who re-enter the United States after deportation following the commission of certain crimes. In this case, Caballero-Mejia was sentenced to 60 months (five years) based in part on his prior robbery conviction. Caballero-Mejia concedes that the Supreme Court has refused to accept his argument that the Fifth Amendment requires the prior conviction to be listed in his indictment. See Almendarez-Torres v. United States, 523 U.S. 224, 227, 118 S.Ct. 1219, 1222-23, 140 L.Ed.2d 350 (1998). In Almendarez-Torres, the Court rejected a defendant’s claim that he could not be sentenced to more than two years under § 1362 because his indictment failed to list the prior aggravated felonies on which his 85-month sentence was based. Id. at 227, 118 S.Ct. at 1223. The Court stated: We conclude that the subsection [§ 1362(b) ] is a penalty provision, which simply authorizes a court to increase the sentence for a recidivist. It does not define a separate crime. Consequently, neither the statute nor the Constitution requires the Government to charge the factor that it mentions, an earlier conviction, in the indictment. Id. at 226-27, 118 S.Ct. at 1222. As Caballero-Mejia concedes, Almendarez-Tor-res remains good law until superseded by a statutory revision or overturned by the Supreme Court. See Gonzalez, 550 F.3d at 1324-25 (relying on Almendarez-Torres to reject a Fifth Amendment claim identical to Caballero-Mejia’s). Accordingly, the district court did not err in sentencing Caballero-Mejia to more than two years, although the indictment did not include his predicate offense. III. Third, Caballero-Mejia contends that his 60-month sentence was substantively unreasonable. We review the substantive reasonableness of a sentence for an abuse of discretion. Gall v. United States, 552 U.S. 38, -, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). Caballero-Mejia, as the party who is challenging the sentence, “bears the burden of establishing that the sentence is unreasonable in the light of both [the] record and the factors in section 8553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir.2005). In this case, Caballero-Mejia’s guidelines range was 77 to 96 months. Caballero-Mejia argues that his 60-month sentence was substantively unreasonable because the predicate robbery offense occurred 14 years ago, when he was 18, and his only role was as the getaway driver. He also asserts that the district court failed to consider a new amendment to U.S.S.G. § 2L1.2, Application Note 7 (2008), which specifically authorizes a downward departure in cases where the “crime of violence” is not also an aggravated felony. However, Application Note 7 became effective in November 2008, after Caballero-Mejia was sentenced. In any case, the Application Note does not require a downward departure, but only says that one “may be granted”—and here, Caballero-Mejia did receive a sentence below the guidelines range. In addition, the district court observed that Caballero-Mejia had been to prison twice before, and stated that it felt the sentence provided adequate deterrence and protection for the public. Finally, Caballero-Mejia received the sentence that his attorney as much as requested. At sentencing Caballero-Mejia’s attorney told the district court that “I think a sentence of 60 months under— based on these guideline calculations are— is a reasonable sentence.” The district court was well within its discretion in sentencing Caballero-Mejia to 60 months. AFFIRMED.

MEMORANDUM Richard J. Hardenbrook appeals pro se from the district court’s judgment dismissing his action for failure to state a claim upon which relief can be granted. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Fed. R.Civ.P. 12(b)(6). Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005). We affirm. The district court properly dismissed Hardenbrook’s third amended complaint because it failed to state a cognizable legal theory upon which relief can be granted. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1988) (“Dismissal can be based on the lack of a cognizable legal theory[.]”). Hardenbrook’s remaining contentions are without merit. All pending motions are denied. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

MEMORANDUM Petitioner Antonio Ramos petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) finding that Ramos is removable as an aggravated felon and is ineligible for an INA § 212(h), 8 U.S.C. § 1182(h), waiver. Ramos also petitions for review of the BIA’s denial of his motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we deny the petition. In dismissing for lack of jurisdiction Ramos’s prior petitions for review, Nos. OB-73335 & 04-74002, this court necessarily found that Ramos’s conviction under California Penal Code § 273.5 constituted an aggravated felony. This determination is binding, and Ramos is precluded from re-litigating this issue. See Nunes v. Ashcroft, 375 F.3d 805, 809-10 (9th Cir.2004). Although issue preclusion may not apply where a petitioner can “identify a change in controlling law,” see id. at 808, Ramos’s reliance on United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir.2002) (en banc), is misplaced. Corona-Sanchez was decided prior to this court’s dismissal of his previous petitions, and thus cannot qualify as a “change in controlling law.” Ramos’s contention that the waiver provision of INA § 212(h), 8 U.S.C. § 1182(h), violates the Equal Protection Clause is foreclosed by Taniguchi v. Schultz, which held “that a rational basis does exist for denying the § 212(h) waiver to aggravated felon LPRs but not to other aliens.” 303 F.3d 950, 957 (9th Cir.2002). DENIED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

HOFFMAN, District Judge. The claim in this case is founded on a grant made by Governor Alvarado on the eleventh day of June, 1839. The expediente is produced from the archives, and the genuineness of the original grant fully established. The island which is the subject of the grant appears to have been used almost immediately after the grant by the claimant for the raising of cattle, horses, etc., a considerable number of which he placed upon it. He also built upon it a small house, which was occupied by his major domo. The claimant although he did not personally reside on the island, frequently visited it; and on one occasion remained upon it three months, superintending, among other things, the erection of a dam to form a reservoir for the use of his cattle. • His title to the land seems to have been generally known and recognized, and the cattle upon it were marked with his ' brand. He afterwards built three other houses and put a portion of the land under cultivation, and at the time of the war his cattle were used to the number of five hundred. The only doubt which can be suggested with regard to the validity of the claimant's title is, whether the governor had a right to grant islands upon or near the coast. But it appears that the grants of this and other islands were made by the express direction of the superior government of Mexico; and the govern- or was enjoined to grant the islands to Mexicans in order to prevent their occupation by foreigners, who might injure the commerce and fisheries of the republic, and who, especially the Russians, might otherwise acquire a permanent foothold upon them. AVe agree with the board in the opinion that this express authority to make these grants removes all doubt on the subject. The board have unanimously confirmed this claim, and we see no reason for reversing their decision. Their "decree must therefore be affirmed. [On appeal to the supreme court the decree was reversed and the cause remanded, with directions to dismiss the petition. 23 How. (64 U. S.) 273.]

MEMORANDUM ORDER ON MOTION TO DISMISS TASHIMA, District Judge. This case involves a dispute over money which was held in escrow by the United States and which it paid out to a third party. Plaintiff Nottingham, Ltd. (“Nottingham”) claims the money belonged to it, and that the government “converted” the money when it was disbursed to the third party. The government has moved to dismiss for lack of subject matter jurisdiction under F.R.Civ.P. 12(b)(1), invoking the United States’ sovereign immunity. Because this case falls within the Federal Tort Claims Act’s (“FTCA”) waiver of sovereign immunity, 28 U.S.C. § 2674, the motion to dismiss is denied. I. Background In 1982, Nottingham became a limited partner in Alderwood Baldwin Park (the “partnership”) of which Dick Scott, Inc. (“Scott”) was the general partner. The partnership was formed to develop a condominium project. San Marino Savings and Loan Association (“San Marino”) provided financing for the project through a Joint Venture Agreement. In 1984, San Marino was placed in receivership and the Federal Savings and Loan Insurance Corporation (“FSLIC”) took over its operations. FSLIC sought to cancel the Joint Venture Agreement. The parties to that agreement reached a settlement. Nottingham did not participate in the settlement or the negotiations leading up to it. As part of that settlement, FSLIC was to place a sum of money in escrow to protect it from any claims by Nottingham. In January, 1988, FSLIC disbursed the money it was holding in escrow to Scott, the general partner of the partnership. Nottingham claims that by that time the partnership had ceased to exist; accordingly, that the money being held in escrow should have been paid to it. Nottingham claims its right to those funds arose out of the partnership agreement. The government was not a party to the limited partnership agreement. Nottingham contends that the government’s payment of the money to Scott constituted conversion under California law. The government has moved to dismiss for lack of subject matter jurisdiction. The government offers two reasons why jurisdiction does not exist in this case. Each is discussed in turn. II. Contract Claim v. Conversion Under the FTCA the United States is liable “in the manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. Nonetheless, where a tort claim “is essentially for breach of a contractual undertaking, and the liability, if any, depends wholly upon the government’s promise, the action ... cannot be under the Federal Tort Claims Act.” Woodbury v. United States, 313 F.2d 291, 296 (9th Cir.1963) (emphasis added). The Woodbury rationale, whether an asserted tort claim is, in substance, a contract claim against the government, has since been discussed in a number of Ninth Circuit cases. See, LaPlant v. United States, 872 F.2d 881 (9th Cir.1989); Love v. United States, 871 F.2d 1488 (9th cir.1989); Fort Vancouver Plywood Co. v. United States, 747 F.2d 547 (9th Cir.1984); Walsh v. United States, 672 F.2d 746 (9th Cir.1982); Martin v. United States, 649 F.2d 701 (9th Cir.1981); Rowe v. United States, 633 F.2d 799 (9th Cir.1980). In each of those cases, the government owed a duty to the plaintiff which arose from a contract between them. The court tried to determine whether the tort claim was, in substance, a claim based on that contract. In fact, in Love, the court found FTCA jurisdiction over a conversion claim, even though it implicated a contract between the government and the plaintiff. The government now asks the court to extend the Woodbury analysis to a case in which the contract at issue does not involve the government and, therefore, in which the plaintiff could not bring a contract action against the government. The government has cited no case in which a contractual relationship with a third party was found to transform a tort action into one that was in substance a contract claim. This is not surprising because Woodbury’s rationale was that plaintiff should pursue its contract claims against the government under the Tucker Act. The court therefore declines to extend Woodbury to this case where plaintiff would have no contract remedy before the Claims Court. Love permits the maintenance of a conversion claim under the FTCA. III. Interference with Contractual Relations One of the exceptions to the FTCA’s waiver of sovereign immunity bars claims “arising out of ... interference with contract rights.” 28 U.S.C. § 2680(h). The Ninth Circuit has held that this exception applies to the- specific tort of that name, rather than to the more general situation in which the government’s actions in some way implicate a contract between third parties. Fort Vancouver Plywood Co., 747 F.2d at 553. The court also set forth the elements of that tort: “[I]n this circuit, the tort of interference with contract rights requires inter alia the existence of a special economic relationship between plaintiff and a third party, which relationship is disrupted by intentional acts of the defendant.” Id. The defendant must have intended to induce the breach. General Business Sys. v. North American Philips Corp., 699 F.2d 965, 981 (9th Cir.1983). The California tort of conversion, which plaintiff claims the government has committed, is substantially different from interference with contract rights. Conversion is “the wrongful exercise of dominion over personal property of another.” 5 Wit-kin, Summary of California Law, Torts § 610. Unlike the tort of interference with contract rights, conversion requires no showing of wrongful motive, intent, or knowledge. Id. at § 624. Because conversion is not the equivalent of the tort of interference with contract rights, the interference with contract rights exception under § 2680(h) does not apply to this case. For the foregoing reasons, IT IS ORDERED: 1. The motion to dismiss is DENIED. 2. The United States is granted 30 days within which to file and serve its answer. . The Court is aware that issuance of the mandate in Love and LaPlant has been stayed because of a conflict between those cases. However, the conflict concerns only the one issue of “whether an action ... for breach of duty of good faith under Montana law sounds in tort or contract.” Love, 871 F.2d at 1495 (emphasis added).

OPINION SWEET, District Judge. Dr. Nercy Jafari (“Jafari”) has moved under Rule 15, Fed.R.Civ.P., to amend his complaint to name additional defendants in his breach of contract action against Dennis DiLorenzo (“DiLorenzo”). DiLorenzo has moved for summary judgment on Jaf-ari’s contract claim and opposes his motion to amend. For the reasons set forth below, DiLorenzo’s motion for summary judgment is granted, and Jafari’s motion to amend is denied. Parties Plaintiff Jafari is a surgeon and a resident of Allentown, Pennsylvania. Defendant DiLorenzo is a New York resident working as a fine art consultant, both independently and as an employee of W.C.F. Galleries. Prior Proceedings Jafari commenced this action for breach of contract in April 1989, demanding both compensatory and punitive damages. Di-Lorenzo moved to dismiss the complaint on July 11, 1989 and the motion was denied in an opinion dated September 25, 1989. On February 9, 1990, Jafari filed a motion to amend his complaint to name two additional defendants: Herbert Batliner, the Painting’s alleged owner at the time of the events in question, for breach of the alleged contract, and Renee Fotouhi, who ultimately bought the Painting from DiLo-renzo and sold it through Sotheby’s to Jaf-ari, for tortious interference with the alleged contract. On February 22, 1990, DiLorenzo filed a motion for summary judgment. Oral arguments from both parties were heard on March 9, 1990, and the motions are considered fully submitted as of that date. Facts Jafari and DiLorenzo met by chance in October 1987 outside the New York art gallery where DiLorenzo worked. Jafari expressed his interest in acquiring a painting by Salvador Dali. DiLorenzo informed him that the gallery had no Dalis, but also told him that he knew of a Dali for sale. Jafari gave DiLorenzo his name and address, and DiLorenzo sent him some transparencies of Dali’s “Grand Opera” (the “Painting”). Shortly thereafter, Jafari visited New York City to view the Painting and to discuss price terms with DiLorenzo. DiLoren-zo rejected Jafari’s first offer, and soon told Jafari that he would only be able to offer the painting until December 31, 1987, the owner’s deadline. Before Jafari would agree to buy the painting, he wanted the original certificate of authenticity (the “provenance”), which DiLorenzo was unable to provide. On December 31, 1987, the owner gave DiLorenzo an extension to the end of January to sell the painting; DiLorenzo immedi ately called Jafari to give him another opportunity to buy it. Because DiLorenzo still could not supply the provenance for the Painting, Jafari requested that an expert from Christie’s examine it. On January 26, 1988, the Christie’s expert assured Jafari that the Painting was authentic. Outside Christie’s, in DiLoren-zo’s car, DiLorenzo and Jafari negotiated the terms of the transaction. DiLorenzo claims that he wrote the terms on his letterhead stationery because it was the only paper available. He also claims that his initials on the paper refer only to a price change (from $212,000 to $210,000), and not to authenticate the writing as a binding agreement. However, even at this time, Jafari was demanding that DiLorenzo furnish the provenance. DiLorenzo finally obtained a letter from noted Dali expert Robert Decharnes attesting to the authenticity of the Painting. On February 13,1988, DiLorenzo met with Jaf-ari in New York City to discuss the letter. DiLorenzo claims Jafari said he would pay the $210,000 in a certified check by February 16, 1988. However, DiLorenzo did not receive the check on February 16, and therefore, DiLorenzo did not ship the Painting to Jafari. The owner gave DiLorenzo yet another extension to sell the painting, but only if DiLorenzo would receive payment immediately. On March 11,1988, DiLorenzo again contacted Jafari and told him that he could have another chance to buy the Painting, but he would have to pay for it immediately- Jafari, unsatisfied with the expert opinions already received, asked DiLorenzo if one more expert could examine the Painting. DiLorenzo agreed, and on March 24, 1988 Jafari came to New York City where Dali expert Albert Field again confirmed the Painting’s authenticity. DiLorenzo therefore demanded the immediate payment of the $210,000, but Jafari had not brought the certified check. Instead, he asked DiLorenzo to come to his attorney’s office in Philadelphia on the following day for payment. Jafari claims DiLorenzo said he would bring the original authenticating document. In his testimony, Jafari admits that if DiLorenzo had not brought the documents, he would have proceeded only upon the advice of his attorney. DiLorenzo claims he merely said he would “try” to get to Philadelphia, but did not promise anything. DiLorenzo did not go to Philadelphia the next day, and in fact, sold the painting to Renee Fotouhi (“Fotouhi”). Fotouhi then presented and consigned the Painting to Sotheby’s for sale at auction. Jafari finally acquired the painting at the auction for $330,000. Standards for Summary Judgment Summary judgment is proper only where there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In a motion for summary judgment, the moving party bears the burden of proving that no issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Furthermore, in deciding a motion for summary judgment, the court must draw all inferences in favor of the non-movant, and must view all evidence in the light most favorable to the non-movant. Accordingly, the facts presented here are viewed in the light most favorable to non-movant Jafari. Breach of Contract DiLorenzo sets forth two theories for his summary judgment motion: (1) no contract was ever formed between the parties, and (2) even if a contract was formed, Jafari breached by failing to pay for the Painting within a reasonable time. Jafari contends that a contract existed from the January 26, 1988 memo, and that DiLorenzo breached when he sold the Painting to Fotouhi. Ultimately, DiLorenzo’s first theory concerns whether or not he and Jafari intended to be bound for the sale of the Painting sometime before DiLorenzo sold it to Foto-uhi. The intent to contract, an indispensable part of any contract claim, is therefore in dispute under this theory. Where intention is in dispute, summary judgment is improper. Thompson v. Gjivoje, 896 F.2d 716, 721 (2d Cir.1990) (“[wjhere contractual language is ambiguous and subject to varying reasonable interpretations, intent becomes an issue of fact and summary judgment is improper”); Burger King Corp. v. Horn & Hardart Company, 893 F.2d 525, 528 (2d Cir.1990) (“[i]f there is conflicting extrinsic evidence regarding the parties’ intent, the district court may only identify the issues at the summary judgment stage, not resolve them”); Curry Road Ltd. v. K Mart Corp., 893 F.2d 509, 511 (2d Cir.1990) (intent of parties question of fact, and therefore, summary judgment improper). For the purposes of this summary judgment motion only, however, we assume that Jafari and DiLorenzo did form a contract on January 26, 1988, when the Christie’s expert verified the Painting and the parties agreed on the purchase price. We further assume that the memo handwritten and initialled by DiLorenzo satisfies the Statute of Frauds requirement. Although this contract did not specify the payment and delivery dates, we can imply the time term into the contract. New York’s UCC 2-309(1) states in pertinent part that “[t]he time for shipment or delivery or any other action under a contract if not ... agreed upon shall be a reasonable time.” Furthermore, UCC 1-204(2) provides that “a reasonable time ... depends on the nature, purpose and circumstances of such action.” Therefore, both Jafari and DiLorenzo were obliged by this contract to perform, tender payment and ship the Painting, within a reasonable time given the nature and purposes of the contract. See Zev v. Merman, 73 N.Y.2d 781, 536 N.Y.S.2d 739, 533 N.E.2d 669 (1988). The purposes of this contract were twofold: Jafari would obtain the Painting he desired, and DiLorenzo expected quick payment of the $210,000 purchase price. Thus, each party was expected to substantially perform his obligation or face liability to the other. “Although the issue of substantial performance is usually one of fact, ‘if the inferences are certain, the question involves only a matter of law and is to be decided by the court’.” Anderson Clayton & Co. v. Alanthus Corp., 91 A.D.2d 985, 457 N.Y.S.2d 578, 579 (1983) (citing 22 N.Y.Jur.2d, Contracts, § 320, pp. 198-99). Both parties admit to knowledge of DiLo-renzo’s deadline to sbll the Painting. Therefore, Jafari was aware at the time the agreement was formed that a time constraint underlay the entire contract, and that payment was expected as soon as possible. It is also undisputed that DiLorenzo was willing to accept a certified check or a deposit; Jafari admits that he tendered neither payment nor a deposit at any time before DiLorenzo sold the Painting to Foto-uhi. Finally, it is undisputed that DiLoren-zo was ready to complete the transaction at any time. Jafari admits that he would not commit himself until he was given the provenance. Jafari even admitted that if DiLorenzo had appeared at the office on March 25, 1988 without the provenance, Jafari would have proceeded only upon the advice of his attorney. In other words, Jafari conceivably was unwilling to tender payment as late as March 25, 1988. The failure to tender payment is a material breach of a contract. See Truglia v. KFC Corp., 692 F.Supp. 271, 276 (S.D.N.Y.1988), aff'd without op., Truglia v. KFC Corp., 875 F.2d 308 (2d Cir.1989); see also Schneider v. Dumbarton Developers, Inc., 767 F.2d 1007, 1014 (D.C.Cir.1985) (“we find that the [buyers] failed to pay the seller any money ... indeed it is difficult to imagine anything more material”). Jafari did not tender payment or deposit between January 26 and March 24, 1988. Given DiLorenzo’s known deadline, Jafari’s failure to pay within this time amounts to a material breach of the contract. Moreover, where a party materially breaches, he has failed to substantially perform the contract, and the other party is discharged from performing his obligation. Ferrell v. Secretary of Defense, 662 F.2d 1179, 1181 (5th Cir.1981); Merritt Hill Vineyards, Inc. v. Windy Heights Vineyard, Inc., 61 N.Y.2d 106, 460 N.E.2d 1077, 1081, 472 N.Y.S.2d 592, 596 (1984); Restatements (Second) of Contracts § 241. Consequently, when Jafari materially breached, DiLorenzo was no longer bound to deliver the Painting to Jafari, and was free to sell it to Fotouhi on March 25, 1988. Therefore, even assuming a contract existed, it was Jafari — not DiLorenzo — who materially breached. Therefore Jafari cannot recover for purchasing the Painting at a higher price later. Motion to Amend Because this court finds that DiLo-renzo was not bound even if a contract existed, Jafari’s motion to amend becomes moot. If DiLorenzo were the agent for alleged-owner Batliner, then Batliner is also released from any obligation to Jafari. Similarly, Fotouhi could not have induced DiLorenzo to breach the contract since Di-Lorenzo had been released of his obligation by Jafari’s non-performance. Therefore, Jafari’s motion to amend is denied. For the foregoing reasons, DiLorenzo’s motion for summary judgment is granted, and Jafari’s motion to amend is denied. It is so ordered. . W.C.F. Galleries was originally named as a defendant in the present action. However, in an opinion dated September 25, 1989, this court granted W.C.F.'s motion to dismiss, because the court found that DiLorenzo was not acting in his capacity as an employee of W.C.F. . DiLorenzo admitted that he would have been willing to accept a certified check for the painting. In the opinion of September 25, 1989, this court held that DiLorenzo therefore waived the "wire-transfer” method of payment stated in the January 26 memo. . Jafari has submitted (Plaintiff's Exhibit E), a letter from DiLorenzo to the original owner of the painting, stating that DiLorenzo had “sold” the painting and expected payment on February 16, 1988. .In his proposed amended complaint, Jafari lists both Fotouhi and Fotouhi Fine Art, Ltd., as additional defendants. . It is relevant that Jafari received the provenance from Sotheby’s only after he had paid for the Painting. Jafari was therefore willing to pay before receiving the provenance, so that his delay in paying DiLorenzo within a reasonable time indicates an inability or unwillingness to consummate the transaction.

CYNTHIA HOLCOMB HALL, Circuit Judge. The United States appeals the district court’s order suppressing a statement made by Skye Renee Davis to local and federal authorities because it was obtained in violation of the Fourth Amendment to the U.S. Constitution. The district court suppressed the statement because the officers’ delay in presenting Davis to a magistrate for a determination of whether probable cause supported her warrantless arrest was for the sole purpose of investigating whether Davis had committed federal firearm offenses. We have jurisdiction to review the district court’s suppression order pursuant to 18 U.S.C. § 3731, and we affirm. I. On May 2, 1997, Davis reported to the St. Paul, Minnesota, police that several guns had been stolen from her car. Officer Michael Johnson responded to the report, and went to Davis’ residence to investigate the matter. After hearing Davis’ version of events, however, Johnson revealed to Davis that he doubted the veracity of her story, and suspected that she was actually involved in the illegal trafficking of firearms. He informed her that if she did not tell him the truth, he would investigate his suspicions. Johnson also told Davis that if he uncovered evidence implicating Davis in illegal activities, she could go to jail and lose custody of her two-year-old child. Davis then admitted that she had just made a false report of theft. In response, Johnson arrested Davis and took her to the police station to “talk to an investigator downtown” and to “see what happens from there.” Davis was placed in a holding cell at the police station while Johnson conferred with Sergeant Joe Flaherty. After this conversation, Johnson had no further involvement in the case, and did not file a police report documenting his arrest of Davis. After a delay of over two hours, Flaherty and Special Agent Catherine Kaminski, of the Federal Bureau of Alcohol, Tobacco and Firearms, interviewed Davis. Davis received her proper Miranda warnings, and made a third statement wherein she confessed to helping her boyfriend illegally traffic in firearms. Davis was not charged with any crime that day, however, and was released after agreeing to cooperate with federal authorities in obtaining evidence against her boyfriend. Despite the fact that she was detained for over two hours before her interview with Flaherty and Kaminski, administrative booking procedures were never initiated, and Davis was never presented to a magistrate for a determination of whether probable cause supported her warrantless arrest by Johnson. Kaminski later testified that she thought that Davis’ statements to her and Flaherty constituted probable cause to arrest Davis on federal charges. Kaminski stated that she knew on the day of the interview with Davis that she would recommend to the United States Attorney that Davis be prosecuted for federal firearm offenses. Nonetheless, it was not until nine months later, on February 19, 1998, that the grand jury returned an indictment alleging that Davis had made false statements to acquire sixteen firearms, in violation of 18 U.S.C. § 922(a)(6). In response to the indictment, Davis moved to suppress, among other statements, her admission of guilt to Kaminski and Flaherty. Chief Magistrate Judge Franklin Noel recommended that the statement be suppressed because Davis was not provided with a prompt judicial determination of probable cause following her arrest. District Judge John Tunheim adopted the recommendation of the magistrate judge because the statement “was the product of defendant’s being detained for over two hours for the sole purpose of investigating whether she had committed a federal gun crime.” The government now appeals the district court’s suppression of Davis’ statement to Kaminski and Flaherty. II. We must decide whether the failure to present Davis to a magistrate for a probable cause determination violated the Fourth Amendment to the U.S. Constitu tion. If it did, then Davis’ statement to Kaminski and Flaherty was unconstitutionally obtained. “We review the district court’s factual determinations concerning the detention for clear error; the district court’s ultimate conclusion as to whether the Fourth Amendment was violated is a question of law subject to de novo review.” United States v. Pereira-Munoz, 59 F.3d 788, 791 (8th Cir.1995). We have previously stated that "[t]he fourth amendment requires prompt judicial determination of probable cause as a prerequisite to an extended restraint on liberty following an arrest without a warrant." Wayland v. City of Springdale, 933 F.2d 668, 670 (8th Cir.1991). Importantly, "[a] defendant may be detained only for as long as it takes to process `the administrative steps incident to arrest.' " Id. (quoting Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). The Supreme Court has held that "judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein." County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). Nevertheless, the Court has also made clear that a probable cause determination in a particular case is not constitutional simply because it was conducted within 48 hours of arrest. See id. "Such a hearing may . violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably." Id. Cases establish that a delay may be unreasonable if it is motivated by a desire to uncdver additional evidence to support the arrest or to use the suspect's presence solely to investigate the suspect's involvement in other crimes. See id.; Willis v. City of Chicago, 999 F.2d 284, 288-89 (7th Cir.1993). Here, Davis has met her burden of establishing that her probable cause determination was unreasonably delayed by police efforts to investigate her possible involvement in federal gun crimes. In reaching this conclusion, we assume, as did the district court, that probable cause supported Johnson's initial arrest of Davis, ostensibly for filing a false police report. Nevertheless, the fact that probable cause supported the initial arrest does not make Davis' subsequent detention constitutional. See Wayland, 933 F.2d at 669 ("Gerstein may be violated even in situations where probable cause for the arrest exists."). Evidence adduced before the magistrate judge established that Johnson “detained defendant with the singular intent of investigating further the possibility that [Davis] ... had violated federal gun laws.” Johnson arrested Davis and transported her not to the jail, but directly to the police station, where she was placed in a holding cell for over two hours. Johnson never filed any report recording his arrest of Davis for making a false police report or for committing any other crime. In addition, booking procedures were never initiated-Davis was never fingerprinted or otherwise administratively processed. Kaminski’s testimony indicates that the sole purpose of Davis’ interrogation was to uncover evidence of federal gun crimes. Davis was not permitted to leave the station until she had incriminated herself and agreed to assist the authorities in their investigation. Based on these facts, we cannot say that the district court committed clear error by concluding that Davis was detained for the sole purpose of inves tigating whether she had committed other criminal offenses, not to process her on charges of making a false police report. Although Riverside only explicitly stated that delays in probable cause determinations resulting from police efforts to justify the suspect’s original arrest would be unreasonable, later cases have clarified that this principle applies with equal force to situations where the delay is based solely on police efforts to investigate additional crimes in which the suspect might have participated. See id. at 56; Willis, 999 F.2d at 289; see also Kanekoa v. City & County of Honolulu, 879 F.2d 607, 612 (9th Cir.1989) (“[T]he fourth amendment does not permit the police to detain a suspect merely to investigate.”). In Willis, which involved a section 1983 claim, the court found that the suspect “was detained solely to permit the police to place him in lineups relating to other uncharged crimes.” Willis, 999 F.2d at 288. The court found that Riverside condemned this action because, as in situations where a suspect is detained to allow officers to obtain additional evidence to justify their initial arrest, the suspect was “subjected to unreasonably prolonged custody without judicial scrutiny so that the police [could] undertake further investigatory steps that requirefd] the presence of the defendant, a presence that cannot properly be required without a prior judicial determination of probable cause.” Id. at 289. Similarly here, Davis was detained only so that officers could question her about further crimes that she may have committed. The government attempts to bolster its position by relying on the relatively brief period for which Davis was detained-well under three hours. The government points out that the detention in Willis lasted for forty-five hours. In addition, the Supreme Court has emphasized that “[i]n evaluating whether the delay in a particular case is unreasonable ... courts must allow a substantial degree of flexibility.” Riverside, 500 U.S. at 56. But the Supreme Court has also indicated that this flexibility is required to account for the inevitable administrative delays that are necessary to process individuals before they may be presented to a magistrate for a probable cause determination. See id. at 56-57; Wayland, 933 F.2d at 670 (“A defendant may be detained only for as long as it takes to process the administrative steps incident to arrest.”) (internal quotation omitted); Kanekoa, 879 F.2d at 612 (noting that investigation of a suspect is not an administrative- step incident to arrest). Here, there were no such administrative delays-no booking process was ever initiated. Riverside does not establish a per se rule that an individual may be detained for 48 hours by local authorities for any purpose whatsoever. Nor does it stand for the proposition that authorities may violate the Constitution as long as they do so for only a brief period of time. The result we reach today is also entirely consistent with our prior decisions in Warren v. City of Lincoln, 864 F.2d 1436 (8th Cir.1989) (en banc) (plurality opinion), and United States v. Boyer, 574 F.2d 951 (8th Cir.1978). In both of those cases, administrative processing provided an adequate explanation for the delay in presenting the detained individual to a magistrate for a probable cause determination. See Warren, 864 F.2d at 1442 (noting that delay of two hours and twenty minutes in presenting the suspect to a magistrate was explained by the fact that during the delay the suspect was “questioned about his background and activities that night, fingerprinted, photographed, processed [on the charge for which he was arrested], and allowed to acquire money with which to post bond”); Boyer, 574 F.2d at 955 & n. 10 (permitting admission of statements at trial that were made during an interview that was conducted before the suspect was presented to a magistrate because the delay was occasioned by the fact that by the time the suspect was booked, it was too late to obtain the services of a magistrate until the next morning). The police in Boyer did question the suspect about his crime before he was presented to a magistrate for a probable cause determination. The government seizes on this fact to argue that the questioning of Davis here was also permissible. But that aspect of Boyer is irrelevant to our holding today. Police may well have been able to question Davis about various aspects of her suspected gun trafficking pending completion of the booking process and location of an available magistrate. What is objectionable here is that Davis was detained for the sole purpose of enabling local and federal authorities to interrogate her about other possible crimes that she may have committed. No process was ever initiated that would have culminated in Davis being presented to a magistrate to determine whether probable cause existed to arrest Davis for filing an allegedly false police report. As a result, the district court did not err as a matter of law in finding that Davis’ statement to Kaminski and Flaherty was the product of a Fourth Amendment violation. Davis has established that her probable cause determination was unreasonably delayed by the officers’ attempts to investigate her role in additional crimes. III. The government also claims that the district court erred by refusing to grant the government a second evidentiary hearing to further explore the circumstances of Davis’ detention. We review the district court’s decision to deny an evidentiary hearing for an abuse of discretion. See United States v. Vig, 167 F.3d 443, 450 (8th Cir.1999); United States v. Hiveley, 61 F.3d 1358, 1360 (8th Cir.1995) (per curiam). The government first argues that it had insufficient notice of the fact that the magistrate judge was considering suppressing Davis’ statement to Flaherty and Kaminski because of a Gerstein violation. But the government was on notice that Davis was moving to suppress her statements because of alleged constitutional violations. At the evidentiary hearing before the magistrate judge, Davis testified as to the length of her detention before she was interrogated by authorities. In addition, at the close of the hearing, the magistrate judge specifically requested the government’s position as to Davis’ right to a probable cause determination on the charge for which Johnson had arrested her. As a result, we cannot say that the district court abused its discretion in declining the government’s request for an additional evidentiary hearing, a request that was made only after the magistrate judge had issued his unfavorable ruling. The government also argues that a second evidentiary hearing is required because insufficient evidence supports the district court’s conclusion that Davis was detained solely for the purposes of investigating additional crimes. Specifically, the government contends that Flaherty’s testimony is vital to ascertaining the reasons for Davis’ incarceration because he was the official who had primary custodial responsibility for Davis during most of her detention. The government claims that the testimony of Johnson cannot adequately establish the reasons for the delay in presenting Davis to a magistrate because he was not involved in Davis’ detention after he delivered her to the police station and placed her in a holding cell. The government correctly notes that Johnson’s intent in arresting Davis is irrelevant as long as there is sufficient objective evidence establishing probable cause for the arrest. See Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); United States v. Clarke, 110 F.3d 612, 614 (8th Cir.1997) (“In analyzing [defendant’s] ... arrest under the fourth amendment, we ... ignore the officers’ subjective intentions and focus solely on the objective question of whether probable cause existed.”). Here, probable cause presumably existed for Johnson to arrest Davis for filing a false police report. But the subjective intent of police officers is an appropriate consideration in evaluating the reasonableness of the delay in presenting a suspect to a judicial officer for a probable cause determination. See Riverside, 500 U.S. at 56 (examining whether delay in presentation to magistrate was unreasonable because the delay was “for the purpose of gathering additional evidence to justify the arrest, ... motivated by ill will against the arrested individual, or [represented] delay for delay’s sake”). Johnson’s testimony clearly establishes that the delay itself, not the arrest, was subjectively unreasonable. Johnson testified that he detained Davis and brought her to the police station so that she could be interrogated by investigators on possible federal gun crimes. Johnson never attempted to charge defendant for making a false police report. Instead, Johnson informed Flaherty of his gun trafficking suspicions, turned defendant over to Flah-erty and Kaminski for interrogation on possible firearm offenses, and left the station without ever filing a report on Davis’ arrest. This evidence, when combined with Kaminski’s description of Davis’ questioning by her and Flaherty, provides ample support for the district court’s finding that the delay in presenting Davis for a probable cause determination was unreasonable. The district court’s conclusion is further supported by the fact that no booking procedures were ever initiated, Davis was never charged with making a false police report, and Davis was never presented to a magistrate for a probable cause determination. While Flaherty’s testimony would doubtlessly have been relevant, it was by no means necessary. If the government thought that his testimony was vital to the court’s inquiry, it could have requested that Flaherty testify at the first evidentia-ry hearing. Indeed, the magistrate judge had already delayed the first hearing once so that Johnson could be located to offer testimony on the circumstances of Davis’ arrest and detention. There is no indication that the government could not have made a similar request to obtain Flaherty’s attendance at that hearing. IV. The district court properly found that the delay in presenting Davis to a magistrate for a probable cause determination constituted a violation of the Fourth Amendment because that delay was for the sole purpose of using Davis’ presence to investigate other crimes with which she might have been involved. The decision of the district court is AFFIRMED. . The Honorable John R. Tunheim, United States District Judge for the District of Minnesota. . Approximately a month after these events, in June of 1997, Kaminski began to suspect that Davis had revealed to her boyfriend that she was cooperating with authorities. . The district court also adopted the magistrate judge’s recommendation to suppress Davis’ admission to Johnson that she had made a false report of stolen firearms because Johnson had failed to give Davis her Miranda warnings before that statement was made. The government does not appeal this ruling. . While at the suppression hearing Johnson had difficulty naming any particular crime that he suspected Davis had committed at the time he arrested her, it appears from the facts of this case that probable cause existed to find that Davis had made a false police report to Johnson in violation of Minnesota law. See Minn.Stat. § 609.505. . For example, Johnson testified that he brought Davis to the police station to "talk to an investigator downtown and then we’ll see what happens from there.” Johnson had previously testified that he had told Davis that he "wanted her to come with me down to the St. Paul Police Department, that we would talk to an investigator, and then we’ll see at that time where this case goes." . We reject the government’s attempt to distinguish Willis by relying on the Seventh Circuit’s subsequent decision in United States v. Sholola, 124 F.3d 803 (7th Cir.1997). In Sho-lola, police had arrested the suspect on suspicion of credit card fraud, but later uncovered evidence of the suspect’s involvement in drug trafficking. See id. at 810. This incriminating evidence was revealed in part by a search of a locker to which the suspect had consented during the approximately forty hours that he waited to be presented to a magistrate for a probable cause determination. See id. at 809-10. The Seventh Circuit rejected the suspect’s attempt to suppress evidence seized from the locker on the grounds that Gerstein had been violated because officers had continued to investigate the suspect before he had been presented to a magistrate for a probable cause determination. Sholola is readily distinguishable from the case at hand. First, nothing we say today prevents police from investigating a detained suspect on the crime for which he or she was arrested, or for other unrelated charges, while the suspect is being booked or waiting for an available magistrate. Here, however, no administrative processing was ever initiated. Second, Sholola merely held that the suspect had been unable to meet his burden of rebutting the Riverside 48-hour presumption of reasonableness. See id. at 819; see also id. at 823 (Wood, J., concurring). Here, Davis has. Third, the suspect in Sholola was eventually presented to a magistrate for a probable cause determination on the offense for which he was arrested, unlike Davis. Fourth, while statements in Sholola could be seen as undercutting Willis, Sholola expressly noted that its situation was different from that in Willis because Willis involved an instance where the police "had detained [the suspect] ... solely for the purpose of using his physical presence to further investigate other crimes.” Id. at 820 (emphasis removed). That is precisely what happened with Davis in this case. . We do not decide whether suppression is necessarily the appropriate remedy for a Ger-stein/Riverside violation. The Supreme Court has not decided the issue, and we decline to do so here because the government did not argue before the district court that suppression was an improper remedy. See Powell v. Nevada, 511 U.S. 79, 85, 114 S.Ct. 1280, 128 L.Ed.2d In. * (1994) (stating that "[w]hether a suppression remedy applies in ... [the Riverside] setting remains an unresolved question,” and declining to decide the issue because it "was not raised, argued, or decided below”); see also Perkins v. Grimes, 161 F.3d 1127, 1130 (8th Cir.1998); Warren, 864 F.2d at 1439 ("As a general rule, we do not consider arguments or theories on appeal that were not advanced in the proceedings below.”) (internal quotations omitted). Indeed, the government only asks that we consider the propriety of suppression insofar as we might direct the district court to consider the issue if we were to remand the case for further proceedings. Since we find no error that would justify such a remand, see infra, Part III, we need not address the matter further. . In reaching our conclusion, we also reject the government’s reliance on United States v. Clarke, 110 F.3d 612 (8th Cir.1997), which, as the government concedes, did not even purport to discuss Riverside. Similarly, we decline the government's invitation to import 18 U.S.C. § 3501, which addresses the voluntariness of confessions made while a suspect is in custody but has not yet been presented to a magistrate, into the Fourth Amendment context. Finally, the delays approved of in United States v. Alvarez-Sanchez, 511 U.S. 350, 114 S.Ct. 1599, 128 L.Ed.2d 319 (1994), do not affect our analysis because Alvarez-Sanchez was careful to note that it did not consider these delays in the context of Riverside. See id. at 360 n. 5.

OPINION WILKINSON, Chief Judge: William Nathaniel Cobb was convicted of carjacking, 18 U.S.C. § 2119, use of a firearm during a crime of violence, 18 U.S.C. § 924(e), and bank fraud, 18 U.S.C. § 1344. Cobb appeals the district court’s denial of his motion to dismiss the carjacking and firearm counts. He argues that the federal carjacking statute, which also defined the crime of violence for his firearm conviction, exceeds Congress’ authority under the Commerce Clause. Because we find the carjacking statute to he within the bounds of Congress’ commerce power, we affirm the judgment of the district court. I. On the morning of October 6, 1995, Amanda Yezerski departed Charleston, South Carolina in her Mercury Cougar for Savannah, Georgia. Along the way she stopped in Summerville, South Carolina to retrieve cash from an automatic teller machine (ATM) and to fill her ear with gas. While pumping gas at a service station, Yezerski saw the defendant loitering in the area. Once she finished at the pump, Yezerski walked around to the driver’s side of her car and again noticed Cobb through her peripheral vision. Before she was able to shut her door and drive away, Cobb cornered Yezerski against her car. Yezerski observed that Cobb was carrying a tote bag with a gun partially protruding from it. He demanded her car and told her not to scream. Yezerski did scream, however, and Cobb pulled her from the car and squeezed past her into the driver’s seat himself. When she reached into the ear in an attempt to retrieve her keys, Cobb started the car. He then proceeded to pull Yezerski’s body partially into the car, such that her legs were left dangling out the open door. Cobb then exited the gas station and drove across a multilane highway into a store parking lot, where he pushed Yezerski from the car and drove away. At the point Yezerski began screaming at the gas station, another woman who had stopped there became aware of the carjacking in progress. That woman, Tuesday Crosby, jumped into her truck and pursued the carjacker. When Cobb exited the store parking lot after pushing Yezerski from the car, Crosby followed him onto the interstate. She ended her pursuit, however, when Cobb extended his arm out the ear window and pointed a gun in Crosby’s direction. Cobb then moved into the emergency lane and sped off. Cobb escaped with both Yezerski’s Mercury Cougar and purse, which held her cash, debit card, ATM card, and checkbook. Evidence showed that Cobb used Yezerski’s debit card to purchase clothing, that he and another woman successfully forged one of Yezerski’s checks, and that Cobb made at least five unsuccessful attempts to withdraw money using the stolen ATM card. Cobb was eventually arrested and indicted by a grand jury on one count of carjacking, 18 U.S.C. § 2119, one count of use of a firearm during that carjacking, 18 U.S.C. § 924(c), and five counts of bank fraud, 18 U.S.C. § 1344. Cobb moved to dismiss the first two counts of the indictment, arguing that the federal carjacking statute was an unconstitutional exercise of Congress’ power under the Commerce Clause. The district court denied Cobb’s motion and a trial was held in May 1996. The jury found Cobb guilty on all counts of the indictment. The district court sentenced Cobb to a total imprisonment term of 248 months. Cobb now appeals the district court’s denial of his motion to dismiss. II. At the time Cobb committed the acts charged in the indictment, the federal carjacking statute provided: Whoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall— (1) be fined under this title or imprisoned not more than 15 years, or both, (2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and (3) if death results, be fined under this title or imprisoned for any number of years up to life, or both, or sentenced to death. 18 U.S.C. § 2119. Arguing against the weight of all seven circuits that have considered the question, see United States v. Romero, 122 F.3d 1334, 1339 (10th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1310, 140 L.Ed.2d 474 (1998); United States v. McHenry, 97 F.3d 125, 126-29 (6th Cir.1996), cert. denied, — U.S. ——, 117 S.Ct. 992,136 L.Ed.2d 873 (1997); United States v. Coleman, 78 F.3d 154, 158-60 (5th Cir.), cert. denied, — U.S. -, 117 S.Ct. 230, 136 L.Ed.2d 161 (1996); United States v. Hutchinson, 75 F.3d 626, 627 (11th Cir.) (per curiam), cert. denied, — U.S.-, 117 S.Ct. 241, 136 L.Ed.2d 170 (1996); United States v. Bishop, 66 F.3d 569, 575-90 (3d Cir.), cert. denied, 516 U.S. 1032, 116 S.Ct. 681, 133 L.Ed.2d 529 (1995); United States v. Robinson, 62 F.3d 234, 235-37 (8th Cir.1995); United States v. Oliver, 60 F.3d 547, 549-50 (9th Cir.1995), Cobb challenges Congress’ authority to enact this criminal statute. He contends that, in light of the Supreme Court’s decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), section 2119 is beyond the reach of Congress’ commerce power and therefore unconstitutional. Cobb’s challenge is without merit. The Lopez Court’s articulation of the scope of Congress’ commerce power is by now familiar. The Court recognized Congress’ authority to (1) “regulate the use of the channels of interstate commerce;” (2) “regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce;” and (3) regulate “those activities that substantially affect interstate commerce.” 514 U.S. at 558-59, 115 S.Ct. at 1629-30 (citations omitted). When determining whether the Gun-Free School Zones Act of 1990 fit within the third category, the Court found that 18 U.S.C. § 922(q) lacked a “jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” 514 U.S. at 561, 115 S.Ct. at 1631. Because section 2119 does contain just such a jurisdictional element, and because the statute falls within Congress’ power to regulate the instrumentalities of interstate commerce, we reject Cobb’s constitutional challenge. A. The Lopez Court acknowledged that Congress could include a jurisdictional element in criminal statutes to ensure that each instance of criminalized conduct also has “an explicit connection with or effect on interstate commerce.” 514 U.S. at 562, 115 S.Ct. at 1631. The Court cited its prior interpretation of the former felon-in-possession statute in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), as an example of such a jurisdictional requirement. In Bass, the Court suggested that the government could satisfactorily prove a nexus with interstate commerce by demonstrating “that the firearm received has previously traveled in interstate commerce.” Id. at 350, 92 S.Ct. at 524. The Court confirmed that this reading was correct in Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977), holding that the government need only prove “that the firearm have been, at some time, in interstate commerce.” Id. at 575, 97 S.Ct. at 1969. In United States v. Wells, 98 F.3d 808 (4th Cir.1996), we rejected a Lopez challenge to 18 U.S.C. § 922(g), which criminalizes the shipment, transport, possession, or receipt of a firearm by a specific class of persons. Section 922(g) permits the government to prove a commerce nexus by showing that the defendant received a firearm “which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g). We turned aside the constitutional challenge, holding that the jurisdictional element both distinguished the case from Lopez and satisfied the requirements of the Commerce Clause. 98 F.3d at 811. The federal carjacking statute also contains an express jurisdictional element. Section 2119 applies only to the forcible taking of motor vehicles that have been “transported, shipped, or received in interstate or foreign commerce.” Thus, in Cobb’s case the government was forced to prove—and did ■prove—that Yezerski’s- Mercury Cougar was manufactured in Ohio and shipped in interstate commerce to South Carolina. Like our decision in 'Wells, therefore, we find that section 2119’s jurisdictional element “distinguishes Lopez and satisfies the minimal nexus required for the Commerce Clause.” 98 F.3d at 811. Additionally, we note that our holding is in accord with the decisions of four other circuits that have' similarly relied on section 2119’s jurisdictional element in finding the statute a valid exercise of Congress’ authority under the Commerce Clause. See Coleman, 78 F.3d at 159; Bishop, 66 F.3d at 585-88; Robinson, 62 F.3d at 237; Oliver, 60 F.3d at 550. B. Section 2119 is also a valid exercise of Congress’ power to regulate an instrumentality of interstate commerce—cars. In Lopez, the Court confirmed that Congress can protect such instrumentalities, “even though the threat may come only from intrastate activities.” 514 U.S. at 558, 115 S.Ct. at 1629. The Court cited Perez v. United, States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359-60, 28 L.Ed.2d 686 (1971) (aircraft); Houston, East & West Texas Ry. Co. v. U.S. (Shreveport Rate Cases), 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914) (railroads); and Southern Ry. Co. v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911) (rail cars), as examples of cases involving Congress’ use of this power. Lopez, 514 U.S. at 558, 115 S.Ct. at 1629. The Court has also held that interstate roads, Alstate Const. Co. v. Durkin, 345 U.S. 13, 15-16, 73 S.Ct. 565, 566-67, 97 L.Ed. 745 (1953), and toll roads and drawbridges connecting interstate roads, Overstreet v. North Shore Corp., 318 U.S. 125, 129-30, 63 S.Ct. 494, 497-98, 87 L.Ed. 656 (1943), are instrumentalities of interstate commerce because they are essential to the carriage of persons and goods moving in interstate commerce. As the Third Circuit has observed, “Instrumentalities differ from other objects that affect interstate commerce because they are used as a means of transporting goods and people across state lines. Trains and planes are inherently mobile; highways and bridges, though static, are critical to the movement of automobiles.” Bishop, 66 F.3d at 588. Undoubtedly, if planes and trains qualify as instrumentalities of interstate commerce, so too do automobiles. The fact that not every car, train, or plane trip has an interstate destination has never been thought to remove these means of transport from the category of an instrumentality of commerce. Cars, like trains and aircraft, are both inherently mobile and indispensable to the interstate movement of persons and goods. We therefore hold that section 2119 is a valid exercise of Congress’ power to regulate and protect an instrumentality of interstate commerce. In this respect, our conclusion is in accord with the decisions of four other circuits. See McHenry, 97 F.3d at 126-27; Bishop, 66 F.3d at 588-90; Robinson, 62 F.3d at 236-37; Oliver, 60 F.3d at 550. III. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED. . Although Cobb originally raised sentencing issues in his brief to this court, his counsel conceded at oral argument that the district court correctly sentenced his client and that, therefore, the sole remaining issue was the constitutional challenge we address herein. . Because we find that section 2119's jurisdictional element satisfies the nexus required by the Commerce Clause and that section 2119 regulates an instrumentality of interstate commerce, we need not decide whether the statute can be sustained as a regulation of an activity that substantially affects interstate commerce.

CUDAHY, Circuit Judge. This is an antitrust suit by the owners and operators of the Chicago Ridge The-atre (the “Chicago Ridge”), a motion picture theater in the Chicago area, against the owners and operators of the Evergreen Theatre (the “Evergreen”), another Chicago area movie house, and six motion picture distributors. The complaint charges a conspiracy to license movies to the Evergreen for an exclusive “first run” free and clear of any run made available to the Chicago Ridge. The matter was tried to the court, which entered judgment for the defendants at the close of the plaintiffs’ case. See Fed.R.Civ.P. 41(b). The plaintiffs appeal and we reverse and remand. I. The Chicago Ridge Theatre Limited Partnership is the lessee and operator of a four-screen movie theater, the Chicago Ridge, at 95th Street and Ridgeland Avenue, just southwest of Chicago in Chicago Ridge, Illinois. This partnership is affiliated with F & F Management Company which performs certain management functions for it. We shall refer to these entities collectively as the “plaintiffs.” In 1982, the plaintiffs filed an antitrust suit under section 1 of the Sherman Act, 15 U.S.C. § 1 (1982), seeking injunctive relief and treble damages pursuant to sections 4 and 16 of the Clayton Act, 15 U.S.C. §§ 15, 26 (1982). Named as defendants were the Evergreen Theatre Corporation and the M & R Amusement Corporation, the owners and operators of the Evergreen. The Evergreen is located on 95th Street in Chicago, 6.1 miles east of the Chicago Ridge. Additional defendants are six distributors of motion pictures (Columbia, Embassy, Paramount, United Artists, Universal and Orion). Late in March 1981, several of the plaintiffs’ representatives met with representatives of the Evergreen’s operator. At that time, the Evergreen representatives made it clear that they would not play films at the Evergreen “day and date” (i.e., simultaneously) with a showing of the same films at the Chicago Ridge. At the request of the Evergreen’s operator, each distributor defendant agreed that the Evergreen would receive the first run of any picture licensed to be shown at the Evergreen, to the exclusion of the Chicago Ridge. That is, the Evergreen would receive “clearance” over the Chicago Ridge with respect to films played at the Evergreen. The distributor defendants knew of M & R Amusement Corporation’s refusal to play “day and date” with the Chicago Ridge. The Chicago Ridge was constructed in 1981 and consisted of three (later four) separate auditoriums for the showing of movies. The plaintiffs claim that they would not have expended capital to build the Chicago Ridge had they known that their new entrant would be precluded from getting attractive first-run films because of the clearance granted to the Evergreen. The parties agree that the first-run exhibition of motion pictures is the cream of the exhibition business. The complaint demanded treble damages as well as a temporary and permanent injunction prohibiting the defendants from granting the Evergreen a clearance over the Chicago Ridge for first-run films. The theory of the plaintiffs’ case is that it is unlawful to grant a clearance between theaters if they are not in substantial competition. Supplemental Appendix of Appellants at 11, 30 (hereinafter “Plaintiffs’ Appendix”). Plaintiffs argue that this is the teaching of United States v. Paramount Pictures Corp., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948), which has generally been thought to be the controlling case in the area of motion picture distribution clearances. The plaintiffs also relied on a conspiracy theory, described by the distributor defendants as “coerced acquiescence.” In essence, plaintiffs alleged a series of vertical agreements made jointly between each of the six distributor defendants and the Evergreen’s operator, motivated by the “circuit buying power and aggressiveness” of that operator. I Supplemental Appendix of Defendants-Appellees at 78, 82. According to this theory, the defendant distributors agreed with the Evergreen’s operator to refuse to license the Chicago Ridge for first-run films for which the Evergreen had a first-run license. The defendants filed motions for summary judgment denying the conspiracy allegations and asserting that the plaintiffs had affirmatively proved that there was substantial competition between the theaters, which would make clearance a permissible competitive action. In January 1983 the plaintiffs withdrew their motion for a preliminary injunction and in February of that year the district court denied summary judgment and narrowed the issues for trial. The court accepted the plaintiffs’ position (with which the defendants apparently agreed) that “a clearance can never be justified between two theaters not in substantial competition.” Chicago Ridge Theatre Ltd. Partnership v. M & R Amusement Corp., No. 82 C 3141, mem. op. at 13 (N.D.Ill. Feb. 22, 1983). The court disagreed with the plaintiffs’ assertion that the agreement to ensure clearance for the Evergreen over the Chicago Ridge could be held unlawful without an inquiry into its reasonableness. The district court stated: When we examine defendants’ conduct under the rule of reason, we find that plaintiffs’ conspiracy theory collapses into its second theory [lack of competition between the theaters]. The only reason plaintiffs suggest that the clearance is unreasonable is that the Evergreen and the Chicago Ridge are not in substantial competition. This is plaintiffs’ second, supposedly independent theory of liability. Id. at 12. The district court therefore ordered a trial limited to the following issues: (1) Has M & R [the Evergreen’s operator] and/or the Evergreen agreed with one or more of the other defendants that the Evergreen would receive a clearance over the Chicago Ridge? (2) Did plaintiffs adequately demand that they be licensed day and date with the Evergreen until the point at which further demands were futile? (3) Are the Evergreen and the Chicago Ridge in substantial competition? Chicago Ridge Theatre Ltd. Partnership v. M & R Amusement Corp., No. 82 C 3141, mem. op. at 2 (N.D.Ill. Nov. 6, 1984). The case was tried to the court without a jury in January 1985. At the beginning of the trial the district court explained to counsel that in a nonjury case, if a motion for a finding is made by the defendants at the close of the plaintiffs’ case, the district court need not view the evidence in the light most favorable to the plaintiffs but instead may weigh the evidence and assess the credibility of the witnesses. The burden of persuasion is on the plaintiffs; if at the close of the plaintiffs’ case the court is not persuaded by the plaintiffs’ submissions, the court should find for the defend ants. See Fed.R.Civ.P. 41(b); see also Furth v. Inc. Publishing Corp., 823 F.2d 1178, 1179 (7th Cir.1987). In accordance with this framework, at the close of the plaintiffs’ case, the court scheduled argument on the defendants’ Rule 41(b) motions to dismiss, and after hearing argument took the matter under advisement. In July 1987 the court issued its memorandum opinion and order entering judgment for the defendants. II. The controlling issue upon which the district court’s decision rests is its determination that the Chicago Ridge and the Evergreen theaters are in substantial competition. In reaching that conclusion, the district court relied explicitly upon the “testimony” of the defendants’ three expert economic witnesses, Stephen Shavell, Michael Baumgardner and James Folsom, as well as upon the plaintiffs’ witnesses. Unfortunately, the defendants never put on their case and their witnesses did not in fact testify. The defendants’ evidence upon which the court relied was merely prefiled testimony of the three expert witnesses which in fact had never been received in evidence. The witnesses were never sworn in open court, never identified the testimony as their own and were never subjected to cross-examination. The district court stated: Defendants on the other hand introduced the testimony of Stephen Shavell, professor of law and economics at Harvard Law School ...; James Mack Folsom, a Ph.D. in economics ...; and statistician and psychologist Michael H. Baumgardner, a Ph.D. in social psychology and quantitative methods.... Chicago Ridge Theatre Ltd. Partnership v. M & R Amusement Corp., No. 82 C 3141, mem. op. at 9 (N.D.Ill. July 14, 1987) (hereinafter “1987 Opinion”) [available on WESTLAW, 1987 WL 13990] (emphasis added). If the district court did in fact rely substantially on this unintroduced testimony in reaching its decision holding against the plaintiffs, the plaintiffs were denied due process of law and there must be a new trial or other proceedings. The defendants make a valiant effort to show that the district court relied only upon the plaintiffs’ own evidence in finding that the two theaters were in substantial competition with each other, or that even if the court erred, the unintroduced evidence was merely cumulative and the decision may stand without it. The defendants primarily assert that the district court did not depend upon any unintroduced evidence in making the finding in question. They quote certain excerpts from the district court’s opinion that seem to support their view of the case: Thus, whether Chicago Ridge plays day and date with the Evergreen as to all of its auditoria or only as to one auditorium, plaintiffs’ own study [see infra p. 7] shows that the Evergreen will suffer a substantial loss of patronage, revenue, and profits. In short, plaintiffs’ evidence shows the existence of substantial competition between the Evergreen and the Chicago Ridge. 1987 Opinion at 11, 12 (emphasis in first paragraph supplied). The defendants argue that the references in Judge Marshall’s opinion to the testimony of Shavell, Folsom and Baumgardner do not show reliance on the unintroduced evidence and that the district court’s statement that the testimony of the defendants’ three expert witnesses was introduced constitutes harmless error. Unfortunately, our reading of Judge Marshall’s opinion does not support such a conclusion. Judge Marshall, in his opinion, discusses certain evidence that he seems to attribute to a study by the plaintiffs’ witness, Dr. Bradburn. Id. at 10-11. But much of the evidence in question, although ultimately based on Bradburn’s data, is analyzed and interpreted in the defendants’ unintroduced testimony to yield the results upon which Judge Marshall relies. And this expert interpretation (unintroduced in evidence) is not the same as Bradburn’s. For example, the 20% figure upon which the district court relied in estimating the Evergreen’s loss of admissions on a given film from day and date exhibition with the Chicago Ridge, see id. at 11, is derived from Dr. Shavell’s analysis of Dr. Brad- burn’s Table 8. Record 333 at 25, 35, 61 (Shavell testimony). Dr. Bradburn’s own estimate of the lost admissions on one movie played day and date with the Chicago Ridge would be only 7-8%. Although Judge Marshall’s opinion makes no reference to the fact, Shavell’s unintroduced loss estimates for the Evergreen are supported by Professor Folsom’s unintroduced testimony. Record 332 at 15 (Folsom testimony). Dr. Shavell also supplied the analysis underlying the court’s conclusions about “racial tipping,” Record 333 at 36-42 (Sha-vell testimony), and the opinion refers to this testimony as “persuasive.” 1987 Opinion at 11. There appears to be no source in the record for the district court’s observations on this subject other than Shavell’s unintroduced testimony. Moreover, the section of the district court’s opinion that discusses the presumed overlap in geographic areas from which the two theaters draw patrons relies upon various statistics drawn from the unintroduced testimony. Thus, for example, Chicago, Oak Lawn, Burbank, Chicago Ridge and Evergreen Park provide 82.4% of the patrons at the Evergreen while they supply 59.4% of the patrons at the Chicago Ridge. Id. These facts are attributable to Dr. Shavell’s testimony, in which he analyzes a survey conducted by a potential plaintiffs’ witness, who did not testify. Record 333 at 46-47 (Shavell testimony). Further, the district court cites by name and with approval the unintroduced testimony of witnesses Folsom and Baumgardner in support of the conclusion that there is substantial competition between the Evergreen and the Chicago Ridge. 1987 Opinion at 12-13. In addition, only the defendants’ experts Shavell and Baumgardner offered the opinion that the percentages of regular Chicago Ridge patrons who sometimes attended the Evergreen and Evergreen regulars who sometimes attended the Chicago Ridge demonstrated substantial competition. Record 333 at 10 (Shavell); Record 332 at 9-10 (Baumgardner). This unintroduced conclusion was apparently relied upon by Judge Marshall. 1987 Opinion at 10. There does not seem to be any way to escape the conclusion that the district court relied substantially on the defendants’ unintroduced testimony in ruling against the plaintiffs on the merits. Although certainly inadvertent, this procedure was a denial of due process and the case must be remanded for further proceedings. The mere fact that the district court asserted that the “plaintiffs evidence shows the existence of substantial competition between the Evergreen and the Chicago Ridge,” id. at 12 (emphasis in original), is not enough to cure the error of reliance on the defendant’s unintroduced evidence. Whatever may be recited in the opinion, the district court appears in fact to have relied substantially on facts, interpretations and conclusions garnered from uniritroduced testimony. The cases cited by the appel-lees do not support a finding of harmless error here. See, e.g., White v. Vathally, 732 F.2d 1037, 1042 (1st Cir.) (harmless error where unintroduced evidence was “entirely cumulative”), cert. denied, 469 U.S. 933, 105 S.Ct. 331, 83 L.Ed.2d 267 (1984). It may be that Judge Marshall could have relied exclusively on Dr. Brad-burn, but he did not do so. Judge Marshall apparently relied substantially on unintro-duced and unsworn testimony and we cannot regard this as harmless even though the defendants’ case appears to be very strong. III. We might possibly affirm the judgment on the alternative basis that the plaintiffs failed to make adequate demands for the films they claim to have been denied. The district court found as follows: Plaintiffs have also failed to prove that they made an adequate demand for the product. Indeed, the evidence shows that it is plaintiff who has refused to compete rather than defendants who have engaged in an agreement to restrain competition. Plaintiffs’ representatives refused to commit themselves to exhibiting any particular film and refused to bid competitively for any particular film. Plaintiffs wanted the distributor defendants to “serve” the picture to them by making available to them every film distributed by the distributor defendants, whether or not it was licensed at the Evergreen. 1987 Opinion at 13. We think these conclusions of the district court are not merely findings of fact subject to the clearly erroneous rule. They are mixed statements of law and fact involving not only the facts of what the Chicago Ridge did'and said to obtain licenses but what the law would require of it to sustain a claim for illegal denial. We do not agree with the district court that the plaintiffs’ demands and efforts to obtain films were so deficient in themselves as to defeat the claims of unlawful denial. In the first place, competitive bidding was not a frequently used method of obtaining licenses for films. Richard Rosen-feld, testifying on behalf of the Evergreen, admitted that, between January 1, 1981, and July 2, 1982, 93 pictures were licensed by negotiations and only 3 by competitive bidding. Transcript at 948-50 (Jan. 10, 1985). There is considerable evidence that the plaintiffs expressed their interest in securing films through telephone conversations, requests, inquiries, offers and demands for particular pictures. The fact that they did not on occasion offer specific terms for a picture is not adequate ground in the present context for concluding that their demands or requests were legally insufficient. There is evidence in the record that terms were routinely set by the distributors and accepted by the exhibitors. See, e.g., Transcript at 1447-49 (Jan. 16, 1985) (testimony of B. Stein). In any event, demands become unnecessary when it is clear they will not be favorably received. The Evergreen’s policy of requiring clearance over the Chicago Ridge was so well known and so unalterable that any special efforts of the Chicago Ridge to obtain simultaneous runs would have been futile, and the adequacy of demand must be viewed in that context. Transcript at 832-33 (Jan. 9, 1985) (Rosenfeld testimony). The district court found: At the request of M & R, each of the distributor defendants agreed with M & R that the Evergreen would receive exclusive first-run exhibition for any picture licensed to be shown at the Evergreen in advance of any run at Chicago Ridge. Evergreen would receive clearance over Chicago Ridge with respect to films played at the Evergreen. 1987 Opinion at 6-7. These policies and practices were well-known to all concerned and the formality of the Chicago Ridge’s demands or bids for day and date licensing cannot be a decisive issue in light of the futility of the requests. This conclusion is consistent with the general rule that a rigid demand requirement is not appropriate in antitrust cases. See Out Front Prods., Inc. v. Magid, 748 F.2d 166, 169-71 (3d Cir.1984). IV. It is not appropriate for us to attempt to resolve the other interesting substantive issues presented by this case, given the action’s present incomplete posture. Both parties seem, for the most part, to have accepted the “substantial competition” test of United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948), as the appropriate legal framework to be applied here, although plaintiffs also persist with their conspiracy theory even though it adds little to the lack of substantial competition claim. It is indeed true that Paramount Pictures is the last word from the Supreme Court directly addressing the antitrust ramifications of clearances in the distribution and exhibition of motion pictures. However, a lot of water has passed under the bridge since 1948. The defendants suggest the availability of a more general mode of analysis based on less dusty Supreme Court and Seventh Circuit authority. Thus, the defendants argue: Also plaintiffs have not alleged or shown that defendants’ conduct has had an adverse impact on competition generally and the proof is its opposite. The exhibition of different films at the Evergreen and Chicago Ridge promotes inter-brand competition, with the product of different distributors competing for the consumer’s attention and the consequent license fees resulting from admission receipts. Continental T.V., Inc. v. G.T.E. Sylvania, Inc., 433 U.S. 36, 54-55 [97 S.Ct. 2549, 2559-60, 53 L.Ed.2d 568] (1977); Valley Liquors, Inc. v. Renfield, 678 F.2d 742, 745 (7th Cir.1982), later proceeding, 822 F.2d 656, 666 (7th Cir.1987). It [the exhibition of different films at the two theatres] preserves alternative retail outlets for different producer-distributors and for potential additional producers, instead of foreclosing these retail outlets to additional competitive films by requiring all theaters to exhibit the same film simultaneously as plaintiffs demand. It is also apparent that here consumer welfare was benefited because the consumer had a choice of viewing different films at each of the theatres instead of having his choice limited by the simultaneous exhibition of the same film. Distributor Defendants’ Brief at 48; see also Ralph C. Wilson Indus., Inc. v. Chronicle Broadcasting Co., 794 F.2d 1359, 1364, 1367 (9th Cir.1986). Under this approach, according to the defendants, plaintiffs would have to (1) define the relevant market and (2) show that any distributor or exhibitor had such a dominant share of that market that it had the power to control prices. Since there has been no showing that analysis under the rule of Paramount Pictures and under G.T.E. Sylvania and its progeny would reach different results, we think it is inappropriate at this time to attempt to reconcile in the abstract these two threads of antitrust analysis. In theory, G.T.E. Syl-vania might place more demands on the plaintiffs. But that is not certain and the new record generated on remand may provide a better basis for addressing this question than the present one. The judgment is reversed and remanded for a new trial or for other proceedings not inconsistent with this opinion. Circuit Rule 36 shall apply on remand. REVERSED and REMANDED. . A motion picture producer (Group One Films, Inc.) was named as a defendant but was subsequently voluntarily dismissed by the plaintiffs. . The “first run" of a film refers to its exhibition immediately after release, when most films earn the bulk of their revenues. . Dr. Bradburn estimated that "on an annualized basis, if the two theatres should play 50% of available pictures day and date the best estimate of loss of patronage by the Evergreen Theatre would be in the area of 3.5-4%.” Record 328 at 3; see also IV Transcript at 735-37 (Jan. 8, 1985) (Bradburn redirect). . The district court may, of course, on remand reweigh the properly admitted evidence, ignoring the evidence improperly considered in its prior review. In this connection, the plaintiffs in their Response to the Petition of the Evergreen Theatre Corporation and M & R Amusement Corporation for Clarification or in the Alternative for Rehearing, state: Secondly, plaintiffs do not and will not object to another judge reviewing Dr. Bradburn’s testimony on the grounds that the new judge did not "observe the witness’ demeanor” or “have the opportunity to judge” his credibility. (Pet. 2) Plaintiffs agree to be bound by this representation to the court. This court has relied upon this representation in its disposition of the Petition.

Opinion for the Court filed by Circuit Judge ROBINSON. Concurring Statement filed by Circuit Judge STARR. SPOTTSWOOD W. ROBINSON, III, Circuit Judge: This case is yet another chapter in the long and unfortunate history of efforts to control overcrowding and improve conditions in the prison system of the District of Columbia. The instant appeal is from an order of the District Court holding the District in contempt for exceeding the limit set by a consent decree on the number of inmates that could be incarcerated in the Lorton Central facility (Central). We affirm. I.The Background On August 20, 1980, appellees, a class of inmates confined at Central, brought an action challenging as unconstitutional the conditions at the facility. After extensive discovery and negotiations, the parties reached agreement, the terms of which were incorporated into a consent decree, approved and entered by the District Court on April 28, 1982, which prescribed various improvements in the conditions at Central. Of relevance here is Article IX, which imposed a population ceiling for that facility of 1,166 inmates, based on a standard of 60 square feet of sleeping space and 35 square feet of day-room space per prisoner, subject, however, to adjustment in the event that any dormitory space was closed or converted to other uses. The decree reflected the understanding of the parties “that the elements of [the] [ajgreement rest[ed] fundamentally on the number of residents committed to the Central facility,” but also recognized that that number "is a matter over which [the District has] little or no control....” The consent decree established a procedure for monitoring the District’s compliance, which we need only briefly summarize. The District was to provide appellees’ counsel with monthly reports of population levels at Central. If, after reviewing these reports, counsel felt that the District was not abiding by the terms of the decree, they were to notify the District of the breach. The District was given two weeks to respond by either defending its actions or explaining the reason for noncompliance. If the response did not satisfy counsel, the parties were to meet within three weeks and attempt to resolve their differences. Either side was at liberty to apply to the court for assistance if agreement remained unattainable. The decree also supplied a means of bypassing this negotiation process if “counsel for [appellees] deter-min[ed] that there [was] imminent danger to the health or safety of the residents” in which event immediate recourse to the court was permitted. Since issuance of the decree, the District has periodically been out of compliance with its provisions, and counsel for the inmates have made several trips to the District Court to enforce its terms. The instant case was the upshot of one such journey, which occurred after the District in July, 1987, began to exceed the population maximum. At that time, Occoquan, another Lorton facility, was also under a court-imposed population restriction, and the Lorton administrators found it necessary to alleviate overcrowding at Occoquan by transferring some inmates incarcerated there to Central. Almost immediately after receiving notice of the overcrowding resulting at Central, appellees moved for an order adjudging the District in con tempt, and requested a sanction of $250 per day for each dormitory at which the population limit was surpassed. After a hearing on the motion, the court found the District in contempt for failure to observe the population cap and imposed the fine sought by appelles. The present appeal followed. II. The DistRict’s Contentions The District maintains that the contempt adjudication is infirm because it lacks essential factual findings. The District insists that a significant increase in the number of inmates in the prison system has made it impossible to conform to the maximum-population specification, and that this constitutes a complete defense to the contempt charge. The District complains that this defense was rejected without benefit of specific findings on the issue. The District also presses two additional arguments. First, the District asserts that a contempt adjudication was not an appropriate remedy because appellees ignored the negotiation procedure set out in the decree and went straight into court upon notification that Central’s inmate population was excessive. Second, the District asserts that the maximum-population specification was never intended to be an absolute limit, but only a target figure which both parties knew might be impossible to maintain. III. The Terms of the Decree We may readily dispose to the District’s arguments respecting appellees’ alleged circumvention of the decree’s negotiation provisions and the proper interpretation of the maximum-population specification. The decree explicitly conferred upon appel-lees the prerogative to go directly into court if, in their counsel’s estimation, noncompliance posed “imminent danger to the health or safety of [Central] residents.” That, counsel avow, is why litigation was favored over negotiation, and the reasonableness of that choice is not questioned. It is of no consequence that appellees did not expressly invoke this clause at the contempt hearing because the District did not challenge their right to be in court. Contrary to the District’s strained interpretation, it is clear that the maximum-population specification was designed as an absolute ceiling, violation of which would subject the District to a contempt charge. If this was not manifest from the original language of the decree, two subsequent amendments negated any uncertainty. The first prescribed that “[the District] shall reduce the total population of Central to the adjusted rated capacity established [by the decree],” and imposed automatic monetary sanctions for failure to comply within 90 days. The second amendment reemphasized that “the maximum rated capacity of Central as a whole shall not be exceeded.” These unequivocal provisions remove any doubt that the population restriction was meant to be anything other than an unconditional command. IV.Findings of Fact and the Impossibility Defense The District Court unquestionably had power to hold the District of Columbia in civil contempt for violations of the consent decree. Indeed, there is no dispute in this regard. Rather, the District argues that the contempt sanction was inappropriate because the circumstances it faced made compliance with the decree impossible. The District claims that it made every good faith effort to adhere to the numerical restriction, but that a significant increase in the number of inmates in the system prevented it from doing so. The District asserts that this impossibility furnishes a complete defense to the contempt charge. After hearing argument on this point, the District Court orally acknowledged that prison officials had encountered “a very difficult time” in conforming to the decree. But noting the long-term nature of the problem of endemic overcrowding in the District prisons, the court stated: [T]his has all been happening over the years. It hasn’t suddenly occurred overnight. It was the duty of the District of Columbia to prevent its happening and to cope with it. And they haven’t done so. The court then announced that it would hold the District in contempt. A short written memorandum accompanied the contempt order, but did not elaborate further on the District’s contention that compliance was impossible. We have repeatedly stressed the need for findings of fact when a colorable claim of impossibility is presented as a defense to a contempt motion. The District relies on these pronouncements as ground for overturning the contempt order, claiming that it lacks findings sufficient to sustain it. This argument fails for two reasons. First, although rulings on contempt motions fall within the requirements of Civil Procedure Rule 52(a) that district courts “find the facts specifically and state separately [their] conclusions of law,” failure to do so does not destroy the jurisdictional basis for review. As an appellate court, we may review the contempt decision without necessity for remand so long as “ ‘a complete understanding of the issues may be had without the aid of separate findings.’ ” To be sure, the District Court’s oral pronouncements are not a model of clarity and the absence of written findings has made our task more burdensome, but the court’s conviction that the District had not done all within its power to avert over-populations of Central is evident, and the court’s disposition of the contempt motion is amply supported by both the history and the record of this litigation. The District has for years been aware of recurrent overcrowding in its prisons, and has not taken steps adequate to eradicate the problem. The lengthy duration of this litigation and the frequency of inmates’ resorts to the courts suggest a degree of intransigence on the District’s part. Furthermore, the District has failed to build a sorely-needed new prison facility, or even to utilize fully the less burdensome measures available to it. No new halfway house space was added between September, 1986 and December, 1987. Additionally, the District has only recently enacted into permanent law the Prison Overcrowding Emergency Powers Act of 1987, which allows the “Mayor to declare a state of emergency in the prisons whenever the population of the prison system exceeds the rated design capacity for 30 consecutive days,” and then to take specified steps to reduce sentences of designated inmates to alleviate overcrowding. Finally, the District Judge has presided over various proceedings in this case for six years, as well as litigation over other local prison facilities, and is intimately familiar with the District’s apathetic response to the problem. It is clear from her oral statements, viewed against the backdrop of the record as a whole, that she rejected the impossibility defense because in her well-informed estimation the District had not done all it could to comply. We will not disturb that conclusion. Second, findings of fact are necessary only if a colorable claim of impossibility is presented. In the case at bar, the District urges a novel use of the defense. Heretofore, it has been invoked largely in circumstances in which it was literally impossible for a party to accomplish the court-ordered action — for example, where the litigant is financially unable to comply with a court order. The logic underlying the defense is apparent. An adjudication of civil contempt is designed to coerce the contemnor to obey a judicial order. If he is unable to do so because of circumstances beyond his control, any attempt at coercion is pointless because it cannot produce the desired result. The record before us does not support the contention that it is impossible, in the traditional sense of the term, for the District to comply with the population ceiling. The District may well face political difficulties that prompt it to shun acquisition of the additional facilities needed to house the constantly increasing prison population, or dissuade it from taking other action to accommodate the overflow. Conditions such as these, however, do not establish a lack of power to alleviate the overcrowding, even if that means release of or refusal to accept prisoners. Since the contempt order under review may well have the intended effect of forcing the District to comply with the decree, it is not appropriate to countenance the District’s disobedience. In a similar situation, the Second Circuit refused to extend the impossibility defense to prison officials who had failed to abide by a court-ordered population cap. The court pointed out that nothing prevented those officials from declining to accept more inmates until population requirements were met. Thus, the court reasoned, because the contempt order would serve the goal of coercing adherence to the cap, it would be inappropriate to allow prison officials to escape its dictates by pleading impossibility. In concert with the Second Circuit, we hold that the impossibility defense is inapposite to the situation presented here. We do not gainsay the difficulty of the District’s task. We share, however, the District Court’s sentiment, albeit obliquely expressed, that the limits of judicial tolerance have been reached. It is our hope that, confronted by the prospect of heavy fines, the District will at last face up to its responsibilities and proceed to meet the obligations to which it agreed in the decree. The order of the District Court is accordingly Affirmed. . The District maintains a Central Detention facility — better known as the "D.C. jail” — within its territorial boundaries, and a prison complex located in Lorton, Virginia. Three actions, each involving a distinct Lorton unit, have been consolidated in the District Court: Doe v. District of Columbia, Civ. No. 79-1726 (D.D.C.) (Maximum Security facility); Twelve John Does v. District of Columbia, Civ. No. 80-2136 (D.D.C.) (from which this appeal stems) (Central facility); and Inmates of Occoquan v. Barry, Civ. No. 86-2128 (D.D.C.) (three Occoquan facilities). There also have been challenges to conditions at the D.C. jail. Inmates of D.C. Jail v. Jackson, Civ. No. 75-1668 (D.D.C.) and Campbell v. McGruder, Civ. No. 77-1462 (D.D.C.). This court has previ ously ruled on various aspects of these disputes. See Inmates of Occoquan v. Barry, 269 U.S.App.D.C. 210, 844 F.2d 828 (1988) (overturning population ceiling imposed responsively to allegations of Eighth Amendment improprieties at Occoquan facilities); Twelve John Does v. District of Columbia (Does I), 268 U.S.App.D.C. 308, 841 F.2d 1133 (1988) (reversing order reinstating Attorney General as a defendant); Campbell v. McGruder, 188 U.S.App.D.C. 258, 580 F.2d 521 (1978) (holding overcrowding at D.C. jail viola-tive of detainees’ constitutional rights and affirming order to take steps to improve conditions). .Final Settlement and Consent Decree, Twelve John Does v. District of Columbia, Civ. No. 80-2136 (D.D.C. Apr. 28, 1982), Appendix for Appellants (A. App.) 35-93 [hereinafter Consent Decree], . Id. at 54, A. App. 88. . Id.; see also Does I, supra note 1, 268 U.S.App. D.C. at 316-317, 841 F.2d at 1141-1142. . Consent Decree, supra note 2, at 55-56, A. App. 89-90. . Id. at 55-56, 57-58, A. App. 89-90, 91-92. . Id. at 58, A. App. 92. . The population cap set for Occoquan was eventually overturned by this court. Inmates of Occoquan v. Barry, supra note 1. . Plaintiffs’ Motion for Finding of Contempt and Imposition of Sanctions, Twelve John Does v. District of Columbia, Civ. No. 80-2136, A. App. 94. . Twelve John Does v. District of Columbia, No. 80-2136 (D.D.C. July 30, 1987) (order), A. App. 126. . Consent Decree, supra note 2, at 58, A. App. 92. . Consent Decree Amending Final Settlement Agreement and Consent Decree, Twelve John Does v. District of Columbia, Civ. No. 80-2136 (D.D.C. Aug. 18, 1983) at 8-9, Appellees Appendix (Ae. App.) 84-85. . Consent Decree Amending Final Settlement Agreement and Consent Decree of December 17, 1982 and The Amended Decree of August 18, 1983, Twelve John Does v. District of Columbia, Civ. No. 80-2136 (D.D.C. Mar. 4, 1985) at 8, Ae. App. 152. . See 18 U.S.C. § 401(3) (1982); Interdynamics, Inc. v. Firma Wolf, Inc., 653 F.2d 93, 97 (3d Cir.), cert. denied, 454 U.S. 1092, 102 S.Ct. 658, 70 L.Ed.2d 631 (1981); Combs v. Ryan's Coal Co., 785 F.2d 970, 980 (11th Cir.), cert. denied, 479 U.S. 853, 107 S.Ct. 187, 93 L.Ed.2d 120 (1986). . Transcript, Proceedings of July 30, 1987, at 66, A. App. 281. . Id. at 66-67, A. App. 281-282. . Id. at 67, A. App. 282. . See Twelve John Does v. District of Columbia, Civ. No. 80-2136 (D.D.C. July 30, 1987) (order & memorandum), A. App. 121. . Tinsley v. Mitchell, 256 U.S.App.D.C. 225, 227, 804 F.2d 1254, 1256 (1986); SEC v. Ormond Drug & Chem. Co., 238 U.S.App.D.C. 264, 266-267, 739 F.2d 654, 656-657 (1984); WMATA v. Amalgamated Transit Union, 174 U.S.App.D.C. 285, 289, 531 F.2d 617, 621 (1976). . Fed.R.Civ.P. 52(a). . Clark v. Marsh, 214 U.S.App.D.C. 350, 354, 665 F.2d 1168, 1172 (1981). . Id. at 354, 665 F.2d at 1172 (quoting Swanson v. Levy, 509 F.2d 859, 861 (9th Cir.1975)); accord Louie v. United States, 776 F.2d 819, 823 (9th Cir.1985). . See Transcript Proceedings of Dec. 17, 1987, at 12-13, Ae. App. 318-319. . D.C. Code Ann. § 24-902 (1988 Supp.). . See, e.g., Tinsley v. Mitchell, supra note 19; SEC v. Ormond Drug & Chem. Co., supra note 19. . Maggio v. Zeitz, 333 U.S. 56, 69, 68 S.Ct. 401, 408, 92 L.Ed. 476, 487 (1948) (contempt appropriate "only when it appears that obedience is within the power of the party being coerced by the order"). . Badgley v. Santacroce, 800 F.2d 33 (2d Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). . Id. at 37. . Id. . The District's argument that the conditions at Central do not implicate the Eighth Amendment is of no avail. The District voluntarily agreed to the terms of the consent decree in lieu of litigating the constitutional issues raised by appellees’ complaint. The requirements of the decree, not the Eighth Amendment, are the measure of the District's responsibilities. The District cannot unilaterally alter the terms of the decree in its endeavor to erect a defense to the contempt motion. STARR, Circuit Judge, concurring: I concur fully in Judge Robinson’s opinion for the court. Prison litigation continues to befall the District Court with regularity, as revealed by both the daily newspapers and the growing docket of this court. I write only to emphasize one obvious point about this case: the issue here pertains to the District’s non-compliance with the terms of a consent decree. See Maj.Op. at 878 n. 30. This case thus provides no occasion for consideration of issues that might well arise (and indeed have arisen) outside the setting of an agreement by parties to litigation.

PER CURIAM: The government appeals the district court’s dismissal for prosecutorial misconduct of an indictment against Wesley Jacobs and Santokh Singh Takhar. The government contends that (1) no prosecuto-rial misconduct occurred and therefore the district court lacked a legal or factual basis for its dismissal, and (2) if reversed the case should be reassigned to another judge. We agree and we reverse and remand with instructions. FACTS AND PROCEEDINGS The indictments at issue here result from the Food and Drug Administration’s efforts to prevent the use of the drug chlo-ramphenicol in animals that produce food. As part of this effort, in 1984 the FDA sent one of its agents, Robert Anderson, to investigate large purchases of chlorampheni-col made by the animal hospital which Jacobs and Takhar owned and operated. Based on the evidence Anderson discovered, in 1986 the grand jury indicted Jacobs and Takhar for mislabeling and adulterating chloramphenicol in violation of 21 U.S. C. §§ 331(k) and 333(a). In addition, the grand jury charged Jacobs with making false statements in violation of 18 U.S.C. § 1001 because he allegedly lied to Anderson. On February 10, 1987, just an hour before the scheduled start of open court proceedings before Judge Price, appellees served the government with a “Motion to Determine Admissibility of Evidence.” The government objected to the motion’s timeliness because the motion (1) should have been filed by the January 16th pretrial deadline for defense motions, and (2) would have the effect of a suppression motion due to its late filing. During an in-chambers conference held before the beginning of the public proceedings, Judge Price rejected the timeliness objection and deferred ruling on the motion’s substance until the end of the government’s case. At this conference, Judge Price also stated that if he granted the motion, he would also “grant a motion of acquittal.” During Takhar’s counsel's opening statement, the government objected because contrary to Judge Price’s pretrial orders, he discussed the background of the chlo-ramphenicol. In the jury’s presence, Judge Price responded: This is testimony concerning the government’s own inability to determine what they are going to do. I have got to hear this man out. I have got to hear the case. I’m frankly confused as to what the government’s case is. I don’t think you folks know. Please proceed. Later the same day, Jacobs’ counsel, Eric Fogderude, cross-examined Anderson. During this examination, Fogderude handed FDA inspector Anderson a copy of the first page of his notes, and asked if the copy was complete. When Anderson re plied the copy was incomplete, Judge Price ordered government counsel, D. Bruce Pearson, to read through every document personally, after which he berated Pearson: THE COURT: You will report to me tomorrow morning at 9:00 o’clock. Is that understood? MR. PEARSON: Yes, your Honor, I believe— THE COURT: Do you understand what I have told you? MR. PEARSON: Yes. THE COURT: Repeat it. MR. PEARSON: I am to have all the filed checked— THE COURT: You are not to have the files checked. You are to personally go through them and read every document. MR. PEARSON: Your Honor, I have gone through the files myself already that were made available to me from the F.D.A. THE COURT: Counsel, counsel, counsel, did you hear what I said? MR. PEARSON: Yes, I did, your Hon- or. THE COURT: Failure to do so will be punishable by a contempt order; is that understood? MR. PEARSON: Yes, your Honor. THE COURT: You may sit down. On February 11th, during an in-chambers hearing held before the start of open court proceedings, Fogderude admitted that he had made a mistake and that the government had provided a complete copy of Anderson’s notes. Despite Fogderude’s admission, Judge Price continued to complain about government counsel: “Every U.S. Attorney that appears in my court [relies] on somebody else to do [his] work.” After this complaint, Judge Price stated that he would hold the government to its representation of complete discovery production. More important, during this in-chambers hearing, Judge Price told Takhar’s counsel, George McKray, that his client should win. The judge remarked: You have got a cinch in this case. They can’t prove that Takhar did anything, and if you got off that horse that you are riding about for the veterinary profession, you might get an acquittal at the end of the government case. But if you keep screwing around, you are going to get him convicted. (emphasis added). After the in-chambers hearing, government counsel on redirect examination asked Anderson to identify a document. When Anderson stated that the document was incomplete, Judge Price invited and then granted a motion to dismiss “on the basis of misconduct of government counsel.” Then Judge Price left the courtroom. Immediately after the dismissal, Anderson and government counsel discovered that Anderson was mistaken; in fact, the document was complete. The government informed the court’s law clerk of the error within two minutes after Judge Price left the courtroom and asked for the Judge to return. However, the judge replied the trial was over and a motion to reconsider should be filed if the government had anything to say. Later that day, the government filed a motion for reconsideration. On February 25, 1987 Judge Price denied the motion because government counsel should have known during trial “of the truth or falsity of Anderson’s statement,” and because “[t]he defendant’s jeopardy has been attacked.” On March 24, 1987 the government filed a notice of appeal. JURISDICTION This court has jurisdiction under 18 U.S.C. § 3781 over government appeals in criminal cases, except when the double jeopardy clause bars further prosecution. United States v. Schwartz, 785 F.2d 673, 677 (9th Cir.), cert. denied, 479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986). When a defendant moves for a mistrial, double jeopardy attaches only where the prosecutor intended to “goad” the defendant into making a mistrial motion. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 16 (1982). Here, no evidence shows that the prosecutor intended to “goad” the appellees into making a mistrial motion. Instead, the evidence indicates that appellees made the motion to dismiss because Judge Price invited them to do so. Thus, the double jeopardy bar does not apply. For this reason, this court has jurisdiction under 18 U.S.C. § 3731. STANDARD OF REVIEW A district court may dismiss an indictment on any of three grounds: (1) due process, (2) inherent supervisory powers (protecting the integrity of the judicial process), and (3) statutory grounds. However, while we review a due process dismissal de novo, United States v. Simpson, 813 F.2d 1462, 1465 n. 2 (9th Cir.), cert. denied, — U.S. -, 108 S.Ct. 233, 98 L.Ed.2d 192 (1987), we review both an inherent supervisory dismissal and a statutory dismissal for an abuse of discretion. Id.; see United States v. Nat’l Medical Enters., Inc., 792 F.2d 906, 910 (9th Cir.1986). Because of the different standards of review, we must decide as a preliminary matter on what grounds the district court granted the dismissal. We find that the district court grounded its dismissal on its inherent supervisory powers. Apparently, Judge Price dismissed this case on the basis of his perception that the government neglected to comply with his discovery order to produce complete copies of all documents. A dismissal rooted in a failure to obey a discovery order lies within a court’s supervisory powers. See United States v. Gatto, 763 F.2d 1040, 1046 (9th Cir.1985) (noted that this court recognized supervisory power to dismiss for violation of discovery orders in United States v. Roybal, 566 F.2d 1109, 1110-11 (9th Cir.1977)). DISCUSSION A. Dismissal of the Indictment The government argues that the district court erred when it dismissed the indictment for prosecutorial misconduct. We agree. Because the drastic step of dismissing an indictment is a disfavored remedy, United States v. Rogers, 751 F.2d 1074, 1076-77 (9th Cir.1985), a district court may properly dismiss an indictment only if the prosecutorial misconduct (1) was flagrant, United States v. Carrasco, 786 F.2d 1452, 1455 (9th Cir.1986), and (2) caused substantial prejudice to the defendant. Rogers, 751 F.2d at 1077. In cases involving prose-cutorial misconduct which is neither flagrant nor prejudicial, a district judge can still sanction the misconduct, but the sanction chosen must be proportionate to the misconduct. See generally United States v. Cadet, 727 F.2d 1453, 1470 (9th Cir.1984). In short, absent flagrant and prejudicial prosecutorial misconduct, this court will find that the district court’s dismissal of an indictment is an abuse of its discretion. For example, in Gatto, 763 F.2d at 1050, the district court dismissed an indictment because the government failed to abide by the court’s discovery orders. However, this court held that the district judge abused his discretion in dismissing the indictment because it found neither violation of a discovery order pursuant to Fed.R. Crim. P. 16, nor any other violation. Id. at 1050-51. Similarly, in Cadet, the district court dismissed the indictment after the government refused to comply with the court’s discovery order. 727 F.2d at 1454. Again, this court determined the district court abused its discretion in imposing a disproportionate sanction for violation of a partially invalid discovery order. Id. at 1470. Here, when Anderson testified on February 11th that the document was incomplete, Judge Price dismissed the indictment for prosecutorial misconduct because he believed the government had not complied with court orders of complete discovery production. In fact, the government com plied fully with the court’s discovery orders. Thus, the only possible prosecutorial misconduct during the trial occurred when the prosecutor failed to correct Anderson’s mistaken testimony immediately; instead, the prosecutor corrected the testimony after two minutes. This two minute delay neither amounted to a flagrant act of pros-ecutorial misconduct nor resulted in prejudice to the appellees. Since the sanction imposed was disproportionately harsh in relation to the alleged misconduct, the district court abused its discretion in dismissing the indictment and we must reverse. B. Reassignment to Another Judge The government argues that if this court reverses the indictment then this court should exercise its inherent authority to assign this case to a different judge. We agree and remand to the district court with instructions that the case be reassigned to another judge according to the local rules. Although this type of relief is rare, there is no doubt in this circuit as to our authority to order a case reassigned. Brown v. Baden, 815 F.2d 575, 576 (9th Cir.), cert. denied, — U.S. -, 108 S.Ct. 450, 98 L.Ed.2d 390 (1987). Reassignment of a case to another judge depends on three factors: (1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. Cintron v. Union Pac. R.R. Co., 813 F.2d 917, 921 (9th Cir.1987). The first two of these factors are of equal importance, and a finding of either one of them would support a remand to a different judge. United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir.), cert. denied, 479 U.S. 988, 107 S.Ct. 580, 93 L.Ed.2d 583 (1986). Here, while we are confident that Judge Price would put out of his mind his previously expressed views upon remand in light of this opinion (therefore the first factor would not apply), we hold that we must order reassignment to preserve the appearance of justice. Here, the trial judge has (1) dismissed an indictment summarily and erroneously; (2) refused to reassemble the jury when just two minutes later the mistake was discovered; (3) denied the motion for reconsideration after the government had proven no misconduct; (4) allowed the defendants to file an untimely motion to dismiss; (5) criticized the government’s handling of the case in the jury’s presence; and (6) offered strategic advice to one defendant’s counsel on how to win his case. On these facts, the gains made for the appearance of justice by reassignment to another judge will outweigh the duplication of time and effort. REVERSED and REMANDED with instructions that this case be reassigned in accordance with local court rules. . Although the appellees contend this appeal is untimely under Fed.R.App.P. 4(b), we find the government's notice of appeal filed on March 24, 1987 was timely because it was within thirty days of the district court’s February 25, 1987 denial of the timely motion to reconsider. United States v. Shaffer, 789 F.2d 682, 686 n. 3 (9th Cir.1986). . The government also argues that if we reverse this case, we can disqualify Judge Price on the basis of 28 U.S.C. §§ 144, 455. We disagree. These statutory provisions require such virulent personal bias or prejudice against the attorney as to amount to a bias against the party. See United States v. Burt, 765 F.2d 1364, 1368 (9th Cir.1985). Here, we find no bias against the government’s attorney so virulent as to require recusal under these sections. . Subsequent to oral argument, we asked the parties for further briefing on two issues: (1) whether the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980 preempted this court’s authority to reassign a case; and (2) in reassigning a case, what is the appropriate method of reassignment — i.e., should the case go to the Chief Judge of the district for reassignment. On the first issue, we find that the legislative history clearly indicates no intention to preempt the court of appeals' traditional power to reassign. See Report "Constitutional Issues Raised By the Proposed Judicial Conduct and Disability Act of 1979,” 125 Cong.Rec. 30045, 30049 (“abuse of judicial power, bias, or other conditions or conduct of judges are reachable only as they occur in particular cases with respect to litigants who have standing to raise these matters. The bill under consideration, by excepting out these cases, would not alter an appellate court’s supervisory powers_”). On the second issue, we find that we have previously used any of three permissible methods — (1) reassignment through .the chief judge of the district court, see Cord v. Smith, 338 F.2d 516, 526 (9th Cir.1964), mandate clarified, 370 F.2d 418 (9th Cir.1966); (2) reassignment through the clerk of the district court, Brown v. Baden, 815 F.2d 575, 576 (9th Cir.), cert. denied — U.S. -, 108 S.Ct. 450, 98 L.Ed.2d 390 (1987); or (3) reassignment through the district judge, see United States v. Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir.), cert. denied, 479 U.S. 988, 107 S.Ct. 580, 93 L.Ed.2d 583 (1986). STEPHENS, D.J., District Judge, concurring in part and dissenting in part: I concur in part A of the Discussion section of the majority opinion, but I dissent from part B because it is unnecessary and unfair to order reassignment of this case to another judge on remand. DISCUSSION A. The Appearance of Justice Dictates that Judge Price Try this Case I am in complete agreement with my colleagues when they express their confidence that Judge Price would put out of his mind his previously expressed views in light of part A of the majority opinion if we were to remand this case to him. I must part company from my colleagues when they state that they must order reassignment to preserve the appearance of justice. If we are all sure that Judge Price could try the case fairly and impartially, the appearance of justice is best preserved by allowing Judge Price to try the case. This would demonstrate that district judges can and do conform their actions to appellate decisions. B. The Circuit’s Method of Reassignment is Unjust Even if I did agree with the majority that the appearance of justice required that Judge Price not hear this case, I would still point out that the way Ninth Circuit panels order cases reassigned is unfair. Reassignment of this ease in the manner the majority employs is punitive. Even though all three judges on the panel express the belief that upon remand Judge Price is capable of trying this case objectively, the majority nevertheless adopts a contradictory ruling that the appearance of justice warrants reassignment of the case. This conclusion will be disseminated publicly in the Federal Reporter and will have the same effect as “censuring or reprimanding [the] judge ... by means of public announcement.” 28 U.S.C. § 372(c)(6)(B)(vi), one of the sanctions Congress established for the discipline of judges by enacting the Judicial Councils Reform and Judicial conduct and Disability Act of 1980, Pub.L. No. 96-458, 94 Stat. 2035 (1980) [hereinafter “the Act”]. Compare the majority’s exercise of the court’s “inherent authority” in this case with proceedings under the Act. Whenever a Ninth Circuit panel exercises its “inherent authority” and publicly censures a district judge by ordering reassignment, the district judge is given no notice of the charges against him, nor is he given any opportunity to explain his actions. The district judge has no part in preparing the designated record that provides the basis for appellate review. In fact, there is no issue on appeal concerning the conduct of the judge. The charges appear in the briefs of the litigants. Consequently, the record as to the charges against the judge is compiled solely by the disgruntled litigants who have no concern for the interests of the judge or the appearance of justice. Moreover, when the opinion on the merits of the underlying case must be published, the order of reassignment must also be published. In short, the district judge is disciplined without having been accorded any procedural protection. In marked contrast, the procedures Congress set forth under the Act are replete with procedural safeguards, and the process itself remains confidential unless the Judicial Council of the Ninth Circuit determines at the conclusion of the proceedings that some form of public discipline is necessary. Under the Act, when a complaint about a judge is filed, the chief judge of the circuit and the judge whose conduct is the subject of a complaint receive copies. Rule 3(a) of the Rules of the Judicial Council of the Ninth Circuit Governing Complaints of Judicial Misconduct or Disability [hereinafter “Rules”]. The complaint is first reviewed by the chief judge. The chief judge may dismiss the complaint if it is frivolous or if it does not fall within the scope of the Act, or he may conclude the proceedings if corrective action has already been taken. 28 U.S.C. § 372(c)(3). At this stage, Rule 4(b) provides that the chief judge may request the judge whose conduct is the subject of a complaint to file a written response to the complaint, or the chief judge may communicate orally with the judge in question and thereby correct any bona fide problem the complaint raises. If the chief judge does not summarily dispose of the complaint through his initial review, he appoints himself and equal numbers of circuit and district judges of the circuit to a special committee to investigate the facts and allegations of the complaint. 28 U.S.C. § 372(c)(4). Rule 4(e) provides further protection to the judge by providing that a special committee will ordinarily not be appointed until the judge who is the subject of the complaint has been invited to respond and has been given reasonable time to do so. Then the committee conducts an investigation and prepares a report with its findings and recommendations that it submits to the judicial council. The judicial council conducts any additional investigation it considers necessary, and takes such action as is appropriate. 28 U.S.C. § 372(c)(6). An option available to the Council short of public censure or reprimand is to censure or reprimand the judge privately. 28 U.S.C. § 372(c)(6)(v). If an analogous procedure governed the instant case, and if Judge Price chose not to transfer the case voluntarily after consultation with the chief judge of the circuit during the initial phase of the process, the Council could order him to do so at the conclusion of the proceeding. In cases such as the one before us where we have no doubt that the judge who is the subject of the complaint could try the case fairly on remand and where a question exists as to whether transferring the case to preserve the appearance of justice is advisable, it would seem appropriate that the circuit panel refer the case confidentially to the chief judge or the circuit council. Moreover, treatment of district judges in the situation before us through the chief judge and the judicial council would promote comity between the court of appeals and the district courts. After the initial review by the chief judge of the circuit, any decision of a special committee or the council would be a decision by both circuit and district judges, rather than by decision by only two of the thirty-five circuit judges. It is ironic that a district judge can be publicly disciplined in the complete absence of due process as a result of a panel of this court invoking its “inherent authority.” The Ninth Circuit could adopt its own rule providing for reference of this type of complaint to the chief judge for processing in the manner already provided for complaints about judges. The judicial council already has the authority to “make all necessary and appropriate orders for the effective and expeditious administration of justice within the circuit.” 28 U.S.C. § 332(d)(1). Moreover, all judicial officers are required to promptly carry into effect all orders of the judicial council. 28 U.S.C. § 332(d)(2). The council has sufficient authority and adequate tools for an inquiry within the ambit of due process, whereas a panel of the circuit does not. The judicial council is authorized “to hold hearings, to take sworn testimony, and to issue subpoenas and subpoenas duces tecum.” 28 U.S. C. § 332(d)(1). An appellate panel has no authority to make findings of fact. Unless either the Ninth Circuit or Congress acts to change the procedure by which eases such as this one are reassigned to preserve the appearance of justice, district judges will continue to be subject to unjust public discipline as the result of a decision by only two of the thirty-five circuit judges. The resulting unintended strain on the relationship between the court of appeals and the district court should be eliminated. . The Act is intended to “operate in the large to effect the same results that follow from the exercise of an appellate court’s supervisory powers in particular cases.” Report “Constitutional Issues Raised by the Proposed Judicial Conduct and Disability Act of 1979,” 125 Cong.Rec. 30045, 30049 (1979). . While the record in the instant cases is complete enough for us to decide that Judge Price is capable of impartially trying the case on remand, it cannot be considered complete for the purpose of meting our discipline.

WINTER, Circuit Judge: This diversity case, arising out of an acrimonious commercial dispute, presents the question whether a sale of goods six weeks after a breach of contract may properly be used to calculate resale damages under Section 2-706 of the Uniform Commercial Code, where goods originally identified to the broken contract were sold on the day following the breach. Defendants The Belcher Company of New York, Inc. and Belcher New Jersey, Inc. (together “Belch-er”) appeal from a judgment, entered after a jury trial before Judge McLaughlin, awarding plaintiff Apex Oil Company (“Apex”) $432,365.04 in damages for breach of contract and fraud in connection with an uncompleted transaction for heating oil. Belcher claims that the district court improperly allowed Apex to recover resale damages and that Apex failed to prove its fraud claim by clear and convincing evidence. We agree and reverse. BACKGROUND Apex buys, sells, refines and transports petroleum products of various sorts, including No. 2 heating oil, commonly known as home heating oil. Belcher also buys and sells petroleum products, including No. 2 heating oil. In February 1982, both firms were trading futures contracts for No. 2 heating oil on the New York Mercantile Exchange (“Merc”). In particular, both were trading Merc contracts for February 1982 No. 2 heating oil — i.e., contracts for the delivery of that commodity in New York Harbor during that delivery month in accordance with the Merc’s rules. As a result of that trading, Apex was short 315 contracts, and Belcher was long by the same amount. Being “short” one contract for oil means that the trader has contracted to deliver one thousand barrels at some point in the future, and being “long” means just the opposite — that the trader has contracted to purchase that amount of oil. If a contract is not liquidated before the close of trading, the short trader must deliver the oil to a long trader (the exchange matches shorts with longs) in strict compliance with Merc rules or suffer stiff penalties, including disciplinary proceedings and fines. A short trader may, however, meet its obligations by entering into an “exchange for physicals” (“EFP”) transaction with a long trader. An EFP allows a short trader to substitute for the delivery of oil under the terms of a futures contract the delivery of oil at a different place and time. Apex was matched with Belcher by the Merc, and thus became bound to produce 315,000 barrels of No. 2 heating oil meeting Merc specifications in New York Harbor. Those specifications required that oil delivered in New York Harbor have a sulfur content no higher than 0.20%. Apex asked Belcher whether Belcher would take delivery of 190,000 barrels of oil in Boston Harbor in satisfaction of 190 contracts, and Belcher agreed. At trial, the parties did not dispute that, under this EFP, Apex promised it would deliver the No. 2 heating oil for the'same price as that in the original contract — 89.70 cents per gallon — and that the oil would be lifted from the vessel Bordeaux. The parties did dispute, and vigorously so, the requisite maximum sulfur content. At trial, Belcher sought to prove that the oil had to meet the New York standard of 0.20%, while Apex asserted that the oil had to meet only the specifications for Boston Harbor of not more than 0.30% sulfur. The Bordeaux arrived in Boston Harbor on February 9, 1982, and on the next day began discharging its cargo of No. 2 heating oil at Belcher New England, Inc.’s terminal in Revere, Massachusetts. Later in the evening of February 10, after fifty or sixty thousand barrels had been offloaded, an independent petroleum inspector told Belcher that tests showed the oil on board the Bordeaux contained 0.28% sulfur, in excess of the New York Harbor specification. Belcher nevertheless continued to lift oil from the ship until eleven o’clock the next morning, February 11, when 141,535 barrels had been pumped into Belcher’s terminal. After pumping had stopped, a second test indicated that the oil contained 0.22% sulfur — a figure within the accepted range of tolerance for oil containing 0.20% sulfur. (Apex did not learn of the second test until shortly before trial.) Nevertheless, Belcher refused to resume pumping, claiming that the oil did not conform to specifications. After Belcher ordered the Bordeaux to leave its terminal, Apex immediately contacted Cities Service. Apex was scheduled to deliver heating oil to Cities Service later in the month and accordingly asked if it could satisfy that obligation by immediately delivering the oil on the Bordeaux. Cities Service agreed, and that oil was delivered to Cities Service in Boston Harbor on February 12, one day after the oil had been rejected by Belcher. Apex did not give notice to Belcher that the oil had been delivered to Cities Service. Meanwhile, Belcher and Apex continued to quarrel over the portion of the oil delivered by the Bordeaux. Belcher repeatedly informed Apex, orally and by telex, that the oil was unsuitable and would have to be sold at a loss because of its high sulfur content. Belcher also claimed, falsely, that it was incurring various expenses because the oil was unusable. In fact, however, Belcher had already sold the oil in the ordinary course of business. Belcher nevertheless refused to pay Apex the contract price of $5,322,200.27 for the oil it had accepted, and it demanded that Apex produce the remaining 48,000 barrels of oil owing under the contract. On February 17, Apex agreed to tender the 48,000 barrels if Belcher would both make partial payment for the oil actually accepted and agree to negotiate as to the price ultimately to be paid for that oil. Belcher agreed and sent Apex a check for $5,034,997.12, a sum reflecting a discount of five cents per gallon from the contract price. However, the check contained an endorsement stating that “[t]he acceptance and negotiation of this check constitutes full payment and final settlement of all claims” against Belcher. Apex refused the check, and the parties returned to square one. Apex demanded full payment; Belcher demanded that Apex either negotiate the check or remove the discharged oil (which had actually been sold) and replace it with 190,000 barrels of conforming product. Apex chose to take the oil and replace it, and on February 23 told Belcher that the 142,000 barrels of discharged oil would be removed on board the Mersault on February 25. By then, however, Belcher had sold the 142,000 barrels and did not have an equivalent amount of No. 2 oil in its entire Boston terminal. Instead of admitting that it did not have the oil, Belcher told Apex that a dock for the Mersault was unavailable. Belcher also demanded that Apex either remove the oil and pay terminalling and storage fees, or accept payment for the oil at a discount of five cents per gallon. Apex refused to do either. On the next day, Belcher and Apex finally reached a settlement under which Belcher agreed to pay for the oil discharged from the Bordeaux at a discount of 2.5 cents per gallon. The settlement agreement also resolved an unrelated dispute between an Apex subsidiary and a subsidiary of Belcher’s parent firm, The Coastal Corporation. It is this agreement that Apex now claims was procured by fraud. After the settlement, Apex repeatedly contacted Belcher to ascertain when, where and how Belcher would accept delivery of the remaining 48,000 barrels. On March 5, Belcher informed Apex that it considered its obligations under the original contract to have been extinguished, and that it did not “desire to purchase such a volume [the 48,000 barrels] at the offered price.” Apex responded by claiming that the settlement did not extinguish Belcher’s obligation to accept the 48,000 barrels. In addition, Apex stated that unless Belcher accepted the oil by March 20, Apex would identify 48,000 barrels of No. 2 oil to the breached contract and sell the oil to a third party. When Belcher again refused to take the oil, Apex sold 48,000 barrels to Gill & Duffus Company. This oil was sold for delivery in April at a price of 76.25 cents per gallon, 13.45 cents per gallon below the Belcher contract price. On October 7, 1982, Apex brought this suit in the Eastern District, asserting breach of contract and fraud. The breach-of-contract claim in Apex’s amended complaint contended that Belcher had breached the EFP, not in February, but in March, when Belcher had refused to take delivery of the 48,000 barrels still owing under the contract. The amended complaint further alleged that “[a]t the time of the breach of the Contract by Belcher the market price of the product was $.7625 per gallon,” the price brought by the resale to Gill & Duf-fus on March 23. Amended Complaint ¶¶ 25-26. In turn, the fraud claim asserted that Belcher had made various misrepresentations — that the Bordeaux oil was unfit, and unusable by Belcher; and that consequently Belcher was suffering extensive damages and wanted the oil removed— upon which Apex had relied when it had agreed to settle as to the 142,000 barrels lifted from the Bordeaux. Apex asserted that as a result of the alleged fraud it had suffered damages of 2.5 cents per gallon, the discount agreed upon in the settlement. The case went to trial before Judge McLaughlin and a jury between February 3 and February 13, 1986. As it had alleged in its pleadings, Apex asserted that its breach-of-contract claim was based on an alleged breach occurring after February 11,1982, the day Belcher rejected the oil on board the Bordeaux. Judge McLaughlin, however, rejected this theory as a matter of law. His view of the case was that Belcher’s rejection of the Bordeaux oil occurred under one of two circumstances: (i) either the oil conformed to the proper sul fur specification, in which case Belcher breached; or (ii) the oil did not conform, in which case Apex breached. Judge McLaughlin reasoned that, if Belcher breached on February 11, then it could not have breached thereafter. If on the other hand Apex breached, then, Judge McLaughlin reasoned, only under the doctrine of cure, see N.Y.U.C.C. § 2-508 (McKinney 1964), could Belcher be deemed to have breached. Apex, however, waived the cure theory by expressly disavowing it (perhaps because it presumes a breach by Apex). Instead, Apex argued that, regardless of whether the Bordeaux oil had conformed, Belcher’s refusal throughout February and March 1982 to accept delivery of 48,000 barrels of conforming oil, which Belcher was then still demanding, had constituted a breach of contract. Judge McLaughlin rejected this argument, which he viewed as simply “an attempt to reintroduce the cure doctrine.” In a general verdict, the jury awarded Apex $283,752.94 on the breach-of-contract claim, and $148,612.10 on the fraud claim, for a total of $432,365.04. With the addition of prejudgment interest, the judgment came to $588,566.29. Belcher appeals from this verdict. Apex has not taken a cross-appeal from Judge McLaughlin’s dismissal of its post-February 11 breach theories, however. The parties agree, therefore, that as the case comes to us, the verdict concerning the breach can be upheld only on the theory that, if Belcher breached the contract, it did so only on February 11, 1982, and that the oil sold to Gill & Duffus on March 23 was identified to the broken contract. DISCUSSION The Uniform Commercial Code, adopted by New York in 1964, provides various remedies to sellers for default by buyers. An aggrieved seller may, for example, withhold delivery of goods, cancel the contract, recover the unpaid price of accepted goods, or recover damages for nonaccepted or repudiated goods based on their market price. See generally N.Y.U.C.C. § 2-703 (McKinney 1964). In addition, a seller may, as Apex seeks to do, fix its damages by reselling the goods and recovering from the buyer the difference between the resale price and the contract price. Specifically, Section 2-706 of the Code provides in pertinent part: (1) Under the conditions stated in Section 2-703 on seller’s remedies, the seller may resell the goods concerned or the undelivered balance thereof. Where the resale is made in good faith and in a commercially reasonable manner the seller may recover the difference between the resale price and the contract price together with any incidental damages allowed under the provisions of this Article (Section 2-710), but less expenses saved in consequence of the buyer’s breach. (2) Except as otherwise provided in subsection (3) or unless otherwise agreed resale may be at public or private sale including sale by way of one or more contracts to sell or of identification to an existing contract of the seller. Sale may be as a unit or in parcels and at any time and place and on any terms but every aspect of the sale including the method, manner, time, place and terms must be commercially reasonable. The resale must be reasonably identified as referring to the broken contract, but it is not necessary that the goods be in existence or that any or all of them have been identified to the contract before the breach. (3) Where the resale is at private sale the seller must give the buyer reasonable notification of his intention to resell. Id. § 2-706 (emphasis added). Belcher’s principal argument on appeal is that the district court erred as a matter of law in allowing Apex to recover resale damages under Section 2-706. Specifically, Belcher contends that the heating oil Apex sold to Gill & Duffus in late March of 1982 was not identified to the broken contract. According to Belcher, the oil identified to the contract was the oil aboard the Bordeaux — oil which Apex had sold to Cities Service on the day after the breach. In response, Apex argues that, because heating oil is a fungible commodity, the oil sold to Gill & Duffus was “reasonably identified” to the contract even though it was not the same oil that had been on board the Bordeaux. We agree with Apex that, at least with respect to fungible goods, identification for the purposes of a resale transaction does not necessarily require that the resold goods be the exact goods that were rejected or repudiated. Nonetheless, we conclude that as a matter of law the oil sold to Gill & Duffus in March was not reasonably identified to the contract breached on February 11, and that the resale was not commercially reasonable. Resolving the instant dispute requires us to survey various provisions of the Uniform Commercial Code. The first such provision is Section 2-501, which defines “identification” and states in pertinent part: (1) The buyer obtains a special property and an insurable interest in goods by identification of existing goods as goods to which the contract refers even though the goods so identified are non-conforming and he has an option to return or reject them. Such identification can be made at any time and in any manner explicitly agreed to by the parties. In the absence of explicit agreement identification occurs (a) when the contract is made if it is for the sale of goods already existing and identified; (b) if the contract is for the sale of future goods other than those described in paragraph (c) [crops and livestock], when goods are shipped, marked or otherwise designated by the seller as goods to which the contract refers; * * >}£ !fs * * Id. § 2-501 (emphasis added). The Bordeaux oil was unquestionably identified to the contract under Section 2-501(l)(b), and Apex does not assert otherwise. Nevertheless, Apex argues that Section 2-501 “has no application in the context of the Section 2-706 resale remedy,” because Section 2-501 defines identification only for the purpose of establishing the point at which a buyer “obtains a special property and an insurable interest in goods.” N.Y.U.C.C. § 2-501. This argument has a facial plausibility but ignores Section 2-103, which contains various definitions, and an index of other definitions, of terms used throughout Article 2 of the Code. With regard to “[¡Identification,” Section 2-103(2) provides that the “definition[ ] applying to this Article ” is set forth in Section 2-501. Id. § 2-103 (emphasis added). Section 2-501 thus informs us that the Bordeaux oil was identified to the contract. It does not end our inquiry, however, because it does not exclude as a matter of law the possibility that a seller may identify goods to a contract, but then substitute, for the identified goods, identical goods that are then identified to the contract. The Third Circuit recognized such a possibility in Martin Marietta Corp. v. New Jersey National Bank, 612 F.2d 745 (3d Cir.1979). In that case, plaintiff Martin Marietta agreed to buy 50,000 tons of sand from Hollander Sand Associates. Martin Marietta subsequently placed signs reading “Property of Martin Marietta” on piles of sand at Hollander’s plant. Because Hollander did not object to the signs, the court held that identification had occurred. Id. at 749-50. Yet Hollander’s creditor argued that the identification had been negated because Hollander had nevertheless sold some of the identified sand to customers other than Marietta. Id. at 750. The court rejected this argument, relying upon Official Comment 5 to Section 2-501: We feel this argument does not overcome the facts in this case. As already noted: “Undivided shares in an identified fungible bulk ... can be sold. The mere making of a contract with reference to an undivided share in an identified bulk is enough.” UCC § 2-501, comment 5. Although this passage deals with goods that exist when the contract is made, it demonstrates that treating fungibles as did Hollander here is consistent with an intent on the part of Hollander to identify or designate the goods. The crux of the passage is that if the seller removes some of the fungibles and later replaces them, that should not undercut the policy favoring identification, probably because such conduct is quite natural with fungibles and cannot be taken as an intent to negate the buyer’s interest in the goods. In short, sale and replacement of the sand here does not overcome either the facts or the policy favoring identification. 612 F.2d at 750. Thus, Martin Marietta and Official Comment 5 suggest that, at least where fungible goods are concerned, a seller is not irrevocably bound to an identification once made. However, Martin Marietta and Comment 5 were not concerned with resales and thus do not inform us as to what constitutes “reasonable” identification under Section 2-706. The parties nevertheless argue that this issue is resolved by the Code’s various provisions governing sellers’ remedies. In particular, Belcher relies upon Section 2-706’s statement that “the seller may resell the goods concerned,” N.Y.U.C.C. § 2-706(1) (emphasis added), and upon Section 2-704, which states that “[a]n aggrieved seller ... may ... identify to the contract conforming goods not already identified if at the time he learned of the breach they are in his possession or control.” Id. § 2-704(1) (emphasis added). According to Belcher, these statements absolutely foreclose the possibility of reidenti-fication for the purpose of a resale. Apex, on the other hand, points to Section 2-706’s statement that “it is not necessary that the goods be in existence or that any or all of them have been identified to the contract before the breach.” Id. § 2-706(2). According to Apex, this language shows that “[t]he relevant inquiry to be made under Section 2-706 is whether the resale transaction is reasonably identified to the breached contract and not whether the goods resold were originally identified to that contract.” Apex Br. at 25. None of the cited provisions are disposi-tive. First, Section 2-706(l)’s reference to reselling “the goods concerned” is unhelpful because those goods are the goods identified to the contract, but which goods are so identified is the question to be answered in the instant case. Second, as to Section 2-704, the fact that an aggrieved seller may identify goods “not already identified” does not mean that the seller may not identify goods as substitutes for previously identified goods. Rather, Section 2-704 appears to deal simply with the situation described in Section 2-706(2) above, where the goods are not yet in existence or have not yet been identified to the contract. Belcher thus can draw no comfort from either Section 2-704 or Section 2-706(1). Third, at the same time, however, Section 2-706(2)’s reference to nonexistent and nonidentified goods does not mean, as Apex suggests, that the original (pre-breach) identification of goods is wholly irrelevant. Rather, the provision regarding nonexistent and nonidentified goods deals with the special circumstances involving anticipatory repudiation by the buyer. See N.Y.U.C.C. § 2-706 comment 7. Under such circumstances, there can of course be no resale remedy unless the seller is allowed to identify goods to the contract after the breach. That is obviously not the case here. Finding no clear guidance in the language of the Code, we turn to the only decision concerning the identification of fungible goods under Section 2-706, Servbest Foods, Inc. v. Emessee Industries, Inc., 82 Ill.App.3d 662, 37 Ill.Dec. 945, 403 N.E.2d 1 (1980). Servbest involved a contract for the sale of meat. Specifically, plaintiff Servbest and defendant Emessee agreed that Servbest would deliver to Emessee 200,000 pounds of fifty-percent lean navel trimmings, an ingredient used in making canned chili. Delivery was to be effected through the transfer of invoices and warehouse receipts. On the appointed day, Servbest delivered the papers to Emessee and physically designated certain navel trimmings in cold storage as reserved for Emessee. Emessee, however, refused to make payment on the contract. Instead it “redelivered” the meat to Servbest on May 3, more than two months after it had been “delivered,” (presumably by returning the invoices and receipts) with a letter announcing that it considered the contract and invoices cancelled. Id. at 664-65, 37 Ill.Dec. at 948, 403 N.E.2d at 4. Servbest accordingly brought suit for breach of contract in the Circuit Court for Cook County, Illinois. After a discovery wrangle led the circuit court to strike Em-essee’s affirmative defenses, the case proceeded to a bench trial on damages. The trial judge held that the navel trimmings were fungible and allowed Servbest to calculate its damages based “upon the first sales after the May 3, 1974 breach, which totalled 200,000 pounds of navel trimmings.” Id. at 668, 37 Ill.Dec. at 951, 403 N.E.2d at 7. These sales were not, however, from the trimmings identified for Em-essee, but rather the meat with the earliest storage expiration date. Id. at 667, 37 Ill.Dec. at 950, 403 N.E.2d at 6. The Appellate Court of Illinois, First District, affirmed. It rejected Emes-see’s argument — identical to that made by Belcher here — that the goods resold under Section 2-706 must be the very goods that were originally identified to the contract. The court noted that the Code must be construed liberally, not mechanically, and that the purpose of the resale remedy is to put the aggrieved seller in the position he would have occupied but for the breach. Based upon these premises and the fact that navel trimmings are fungible, the court concluded that the trial court’s resale-damage theory was proper: Under Emessee’s approach, a sale of any 200,000 pounds of meat from lot 19700 [the lot containing the identified meat] would constitute a proper resale while identical meat from a different lot would be insufficient for that purpose. We do not agree. From our analysis of the record we find no basis upon which to conclude that the market value of the navel trimmings sold from outside of lot 19700 was any different from the market value of the meat contained in lot 19700. Moreover, the nature of fungible goods suggests no reason why, where a contract involving fungible goods is breached by the buyer, a seller could not recover a deficiency award under section 2-706 based upon a resale of goods other than those identified to the contract inasmuch as such a sale would not affect or alter the price received for the goods in either a private or public sale. Accordingly, we hold that the trial court’s decision to employ the first sales of navel trimmings after the breach totalling 200,-000 [pounds] as a mitigating resale under 2-706 was not erroneous. Id. at 672, 37 Ill.Dec. at 953, 403 N.E.2d at 9. The court also noted that its conclusion was consistent with Section 2-706’s statement that aggrieved sellers may resell goods that were not in existence or identified at the time of the breach. Id. As Apex asks us to do, the Servbest court viewed that statement as “suggestpng] that identification is not crucial to recovery under 2-706.” Id. In Apex’s view, affirmance of its resale-damage award follows a fortiori from Servbest. Belcher argues primarily that Servbest was an “incorrect” and aberrational decision that should not be followed in the name of uniformity. We think,, however, that Servbest was rightly decided, although we do not agree with much of its reasoning, see supra note 2. Nevertheless, our view of the law supports Belcher. We agree with Servbest that fungible goods resold pursuant to Section 2-706 must be goods identified to the contract, but need not always be those originally identified to the contract. In other words, at least where fungible goods are concerned, identification is not always an irrevocable act and does not foreclose the possibility of substitution. Just as it would have made no sense in Martin Marietta to hold that the identified fungibles could not be removed and replaced before breach, here it would make no sense to hold that such replacement (that is, reidentification) can never occur after breach. For example, it serves no purpose of the Code to force an aggrieved seller to segregate goods originally identified to the contract when doing so is more costly than mixing them with other identical goods. To give a concrete example, suppose that Apex had been unable to find someone to take the Bordeaux oil immediately after the oil was rejected by Belcher and that the only storage tank available to Apex in Boston was already half-full of No. 2 heating oil. To mix the Bordeaux oil with the oil in the only available tank and to identify the first 48,000 gallons sold to the contract is the only sensible thing to do. Doing so, of course, bases the damage award on resales of different oil from that previously identified to the contract. Under a rule that prevents any reidentification of goods to a contract, Apex would be forced in the hypothetical to choose between its resale remedy and a costly diversion of the Bordeaux. Yet for the purpose of the resale remedy— which is simply to fix the price of 48,000 barrels of fungible No. 2 oil—resale of any such quantity of conforming oil would do. Thus, Section 2-706 should not be construed as always proscribing the resale of goods other than those originally identified to the broken contract. Nevertheless, as that Section expressly states, “[t]he resale must be reasonably identified as referring to the broken contract,” and “every aspect of the sale including the method, manner, time, place and terms must be commercially reasonable.” N.Y.U.C.C. § 2-706(2) (emphasis added). Moreover, because the purpose of remedies under the Code is to put “the aggrieved party ... in as good a position as if the other party had fully performed,” id. § 1-106(1), the reasonableness of the identification and of the resale must be determined by examining whether the market value of, and the price received for, the resold goods “accurately reflects the market value of the goods which are the subject of the contract.” Servbest, 82 Ill.App.3d at 671, 37 Ill.Dec. at 952, 403 N.E.2d at 8. Perhaps the most obvious example of an unreasonable identification and resale would occur when the resold goods , and the originally identified goods are not fungible. Cf. id. at 672, 37 Ill.Dec. at 953, 403 N.E.2d at 9 (noting that resold meat is “identical in quantity, quality and description” as that in lot originally identified). Another example of an unreasonable identification and resale would be to claim as a resale the sale of goods located where they would have a significantly lower value than the originally identified goods. For example, had Apex purported to identify and resell 48,-000 barrels of No. 2 oil contained in a storage tank in the Virgin Islands, where heating oil is presumably less useful and valuable than in Boston, while simultaneously delivering the same amount to Cities Service in Boston, the identification and resale would be unreasonable. The most pertinent aspect of reasonableness with regard to identification and resale involves timing. As one treatise explains: [T]he object of the resale is simply to determine exactly the seller’s damages. These damages are the difference between the contract price and the market price at the time and place when performance should have been made by the buyer. The object of the resale ... is to determine what the market price in fact was. Unless the resale is made at about the time when performance was due it will be of slight probative value, especially if the goods are of a kind which fluctuate rapidly in value. If no reasonable market existed at this time, no doubt a delay may be proper and a subsequent sale may furnish the best test, though confessedly not a perfectly exact one, of the seller’s damage. 4 R. Anderson, Anderson on the Uniform Commercial Code § 2-706:25 (3d ed. 1983); see also Servbest, 82 Ill.App.3d at 671, 37 Ill.Dec. at 952, 403 N.E.2d at 8. The issue of delay between breach and resale has previously been addressed 'only in the context of determining commercial reasonableness where the goods resold are the goods originally identified to the broken contract. However, the principles announced in that context apply here as well: What is ... a reasonable time [for resale] depends upon the nature of the goods, the condition of the market and other circumstances of the case; its length cannot be measured by any legal yardstick or divided into degrees. Where a seller contemplating resale receives a demand from the buyer for inspection under the section of [sic] preserving evidence of goods in dispute, the time for resale may be appropriately lengthened. N.Y.U.C.C. § 2-706 comment 5; accord Bache & Co. v. International Controls Corp., 339 F.Supp. 341, 351 (S.D.N.Y.), aff'd per curiam, 469 F.2d 696 (2d Cir.1972) (affirming on basis of district court opinion). Here, Apex’s delay of nearly six weeks between the breach on February 11, 1982 and the purported resale on March 23 was clearly unreasonable, even if the transfer to Cities Service had not occurred. Steven Wirkus, of Apex, testified on cross-examination that the market price for No. 2 heating oil on February 12, when the Bordeaux oil was delivered to Cities Service, was “[p]robably somewhere around 88 cents a gallon or 87.” (The EFP contract price, of course, was 89.70 cents per gallon.) Wirkus also testified on redirect examination that the market price fluctuated throughout the next several weeks: Q. Sir, while you couldn’t remember with particularity what the price of oil was on a given day four years ago, is it fair to say that prices went up and down? A. Definitely that’s fair to say. Q. From day-to-day? A. Yes. Q. Towards the end of February prices went down? A. That’s correct. Q. Then in early March it went back up? A. In early March, yes. Q. Then they went back down again towards the middle of March; isn’t that correct? Mr. Gilbert: I object to the form of this, your Honor, on redirect. The Court: Yes. Q. Did they go back down in mid March, Mr. Wirkus? A. My recollection, yes. Q. In late March what happened to the price? A. Market went back up. Moreover, Wirkus testified that, on March 23, in a transaction unrelated to the resale, Apex purchased 25,000 barrels of No. 2 oil for March delivery at 80.50 cents per gallon, and sold an equivalent amount for April delivery at 77.25 cents per gallon. Other sales on March 22 and 23 for April delivery brought similar prices: 100,000 barrels were sold at 76.85 cents, and 25,000 barrels at 76.35 cents. The Gill & Duffus resale, which was also for April delivery, fetched a price of 76.25 cents per gallon— some eleven or twelve cents below the market price on the day of the breach. In view of the long delay and the apparent volatility of the market for No. 2 oil, the purported resale failed to meet the requirements of Section 2-706 as a matter of law. The delay unquestionably prevented the resale from “accurately reflecting] the market value of the goods.” Servbest, 82 Ill.App.3d at 671, 37 Ill.Dec. at 952, 403 N.E.2d at 8. Indeed, in the analogous context of the securities markets (which are arguably not much more liquid or volatile than today’s centralized and computerized commodities markets), we have upheld a district court’s conclusion that thirty days was a maximum time for the commercially-reasonable resale of securities after the breach of a tender offer. Bache & Co. v. International Controls Corp., 339 F.Supp. at 352, aff'd per curiam, 469 F.2d 696. In Bache, moreover, the plaintiff was a securities broker suing on behalf of its customers, and the district court considered “the distribution around the country” of those customers when it set the thirty-day limit on commercially-reasonable resales. Id. In the instant case, of course, the oil was Apex’s, and Apex’s alone. Nor do we find Apex’s delay justified on any other ground. Apex does not assert, for example, that “the time for resale [should] be appropriately lengthened” because Belcher sought an “inspection ... [to] preserv[e] evidence of [the] goods in dispute,” N.Y.U.C.C. § 2-706 comment 5; Belcher of course made no such request, and Apex immediately disposed of the Bordeaux oil in any event. Apex’s only asserted justification, which the district court accepted in denying Belcher’s motion for judgment notwithstanding the verdict, was that the delay was caused by continuing negotiations with Belcher. We find that ruling to be inconsistent with the district court’s view that Belcher’s breach, if any, occurred on February 11. The function of a resale was to put Apex in the position it would have been on that date by determining the value of the oil Belcher refused. The value of the oil at a later date is irrelevant because Apex was in no way obligated by the contract or by the Uniform Commercial Code to reserve 48,000 gallons for Belcher after the February 11 breach. Indeed, that is why Apex’s original theory, rejected by the district court and not before us on this appeal, was that the breach occurred in March. The rule that a “resale should be made as soon as practicable after ... breach,” Bache, 339 F.Supp. at 352, should be stringently applied where, as here, the resold goods are not those originally identified to the contract. In such circumstances, of course, there is a significant risk that the seller, who may perhaps have already disposed of the original goods without suffering any loss, has identified new goods for resale in order to minimize the resale price and thus to maximize damages. That was not the case in Servbest, for example, where the resale consisted of the first sales made after the breach. See 82 Ill.App.3d at 675, 37 Ill.Dec. at 955, 403 N.E.2d at 11. Here, by contrast, the oil originally identified to the contract was sold the day after the February 11, 1982 breach, and no doubt Apex sold ample amounts thereafter in the six weeks before the purported resale. We note that in its complaint and throughout the trial Apex asserted that it was suing on a breach that occurred as late as three days before the resale. This is not surprising given Servbest, the length of Apex’s delay, and the drop in the market price for No. 2 oil. But, as noted, the district court held, in a ruling not appealed from, that the only viable theory available to Apex was that involving a breach on February 11. Because the sale of the oil identified to the contract to Cities Service on the next day fixed the value of the goods refused as a matter of law, the judgment on the breach-of-contract claim must be reversed. We turn finally to Apex’s fraud claim. Under New York law, a plaintiff claiming fraud must prove, by clear and convincing evidence, (1) that the defendant made a misrepresentation, (2) as to a material fact, (3) which was false, (4) and known to be false by the defendant, (5) that the representation was made for the purpose of inducing the other party to rely upon it, (6) that the other party rightfully did so rely, (7) in ignorance of its falsity (8) to his injury. Computerized Radiological Servs. v. Syntex Corp., 786 F.2d 72, 76 (2d Cir.1986) (quoting Brown v. Lockwood, 76 A.D.2d 721, 730, 432 N.Y.S.2d 186, 193 (2d Dep’t 1980)). Belcher claims that the evidence was insufficient to support the jury's finding that Apex, in agreeing to the settlement with Belcher, had relied upon Belch-er’s misrepresentations in ignorance of their falsity and had suffered injury accordingly. In support of the finding of reliance, Apex relies primarily, if not exclusively, upon the testimony of its president, Anthony Novelly. Novelly testified that he had delegated the task of negotiation to in-house counsel, Harold Lessner. Lessner nevertheless kept Novelly abreast of Belch-er’s various demands and representations because it was Novelly, as president, “who had to approve the settlement ultimately.” To this effect, Novelly testified as follows: Q. During your discussion with Mr. Lesner [sic], did he say anything to you concerning whether Belcher had used the oil? A. No, he said the oil was off spec and not useable. Q. He said that is what Belcher had told him? A. Correct. Q. During your conversation with Mr. Lesner [sic], did he tell you anything about whether Belcher was claiming damages, as a result of the delivery? A. Yes, they were. Q. And did you rely on all the matters that were conveyed to you in approving the settlement? A. Yes, I did. According to Apex, this testimony regarding its alleged reliance is “unrebut-ted.” That may be true so far as other witnesses are concerned, but Novelly candidly modified his testimony on cross-examination as follows: Q. At the time you approved the settlement, one of the terms was that Belcher was going to get a discount off the agreed price for the BORDEAUX oil of two and a half cents per gallon, is that correct? A. Yes. Q. Did you believe they were intitled [sic] to a two and a half cent per gallon discount based on the facts you know? Mr. Weiner: Objection. The Court: Overruled. A. Not really. Q. You did not believe that? A. No. Q. Did you believe they were intitled [sic] to any discount? A. I wouldn’t have thought so. Q. You agreed to the settlement for other reasons, did you not? A. I agreed to the settlement to get the thing settled. Q. You wanted to get it behind you, is that correct? A. Yes. Q. You had a number of items— A. Whole bunch of them. Q. You didn’t like to leave all these open items? A. I didn’t want a mess hanging around. Q. You wanted to get everything cleaned up? A. That’s correct. Q. You had another idea — withdrawn. You had another motivation, didn’t you sir? A. Coastal [Belcher’s parent] was a big company, I don’t like to have problems with big companies. I try to settle things and avoid litigation. Q. You want to get all the open items closed, for you to do business with Coastal and its subsidiaries, is that correct? A. That is a good statement, yes. ****** Q. At the time you were discussing the settlement with Mr. Lesner [sic] or anybody else you talked about it with, did you have the belief that the oil delivered to Belcher aboard the BORDEAUX was in fact not useable by Belcher? A. I never had that belief, no. However much this display of refreshing candor ought to be rewarded, we must conclude that, in light of the concessions that Novelly was seeking a compromise of all outstanding disputes and did not believe Belcher’s misrepresentations as to the oil delivered on February 11, a reasonable jury could not find by clear and convincing evidence that Apex believed and relied upon Belcher’s misrepresentations. Reversed. . Whether the jury understood exactly what it was supposed to decide remains uncertain, for nowhere did the charge explain that any breach by Belcher must have occurred on February 11, 1982. Indeed, the charge was entirely silent as to the timing of the alleged breach, and in summation Apex emphasized Belcher’s post-February 11 intransigence to the jury. Belcher asked the district court to “give the jury a charge that if Apex did not deliver conforming product on February 11, 1982, then the verdict on the contract claim should be in favor of Belcher.” After first noting that "[i]t sounds right," the district court nevertheless denied the request without explanation. And in summation shortly thereafter, counsel for Apex noted, over Belcher’s objection: Now, thereafter what happened? Apex continued to tender the additional 48 thousand. That is, they attempted to deliver the additional 48,000. And I am not going to go through all the telexes. They are in evidence and you can look at them. I think they will be helpful to you. But Belcher wouldn’t cooperate. You can’t just pull in with a boat. You need cooperation from the other side. Finally Apex said to Belcher, look, you take the additional 48,000 barrels or we are going to sell it and then we are going to charge you if there is a difference. If we sell it for less you’re going to pay for it. If we sell it for more, no harm, no foul. Belcher now contends that Judge McLaughlin erred in failing both to give the requested instruction and to exclude the foregoing remarks. In light of our disposition of the appeal, however, we need not address this contention. . The Servbest court viewed identification under Section 2-501 and identification under Section 2-706 as different concepts, see 82 Ill.App.3d at 673-74, 37 Ill.Dec. at 954, 403 N.E.2d at 10, a view we reject in the text infra. The Servbest court also rejected Emessee's argument that Section 2-706 "requires the seller to make a contemporaneous identification of the contract of resale to the allegedly broken contract." Id. at 673, 37 Ill.Dec. at 954, 403 N.E.2d at 10. Explained the court: Servbest failed to comply with this requirement, Emessee contends, as illustrated by the fact that it presented four different groups of sales during the course of these proceedings as constituting the mitigating resale of the navel trimmings. Emessee argues that such an approach, if sanctioned by the court, would allow a seller to make several sales after a breach and then pick one of them as complying with section 2-706. We do not agree. Identification of the resale to the broken contract merely requires that the resale consist of goods in conformity to the specifications of the contract. Id. at 673-74, 37 Ill.Dec. at 954, 403 N.E.2d at 10. This ipse dixit, however, defies common sense. See 3 W. Hawkland Uniform Commercial Code Series, § 2-706:03 (1984). . Apex contends that the 48,000 Bordeaux barrels were not "sold" to Cities Service because the oil was exchanged not for cash but instead for oil to be delivered at a subsequent time. However, "[a] ‘sale’ consists in the passing of title from the seller to the buyer for a price,” N.Y.U. C.C. § 2-106, a price being “payable in money or otherwise.’’ Id. § 2-304 (emphasis added).

BLATCHFORD, District Judge. The first four grounds urged, on the part of the claimant, as a reason for granting a new trial in this ease, are, that the court erred “in instructing the jury that they could find a verdict in favor of the United States on the issue made by the information and answer, without any proof, on the part of the United States, tending to show that any taxes had become due, or had been imposed, upon the manufactured tobacco seized on the claimant’s premises,' and without any proof, on the part of the United States, tending to show that the claimant had sold, or removed from his premises for consumption, or was, at the time of the seizure, engaged in selling or removing from his premises for consumption, any of the manufactured tobacco so seized;” and “in instructing the jury, in the absence of any proof that taxes had become imposed on the said manufactured tobacco, and that the claimant had sold or removed, or was engaged in selling or removing, any part of the same, without paying such taxes, that the jury could infer, from previous alleged evasions, or attempts at evasion, of the revenue laws, by the claimant, an intent to sell or remove the said manufactured tobacco without paying the taxes that might become due thereon, and, from such intent, so found, find a forfeiture of the said manufactured tobacco so seized as aforesaid;” and “in instructing the jury, in the absence of any proof that the claimant had sold or removed, or was engaged in selling or removing, any manufactured tobacco on which taxes had been imposed by law, without paying, and without intending to pay, the said taxes, that they could infer, from previous alleged evasions, or attempts at evasion, of the revenue laws, by the claimant, a purpose to sell or remove the manufactured articles which he might thereafter make from the raw materials seized, without paying the taxes that would become due thereon, and, from such purpose, so found, find a forfeiture of the said raw materials;” and “in refusing to give to the jury the instructions nrayed for in the 13th and 14th of the elaim-ant’s prayers for instructions, and in giving to the jury the 1st and 2d of the instructions prayed for by the district attorney.” The 13th and 14th of the claimant’s prayers for instruction were as follows: "(13) That there is no evidence, in this action, that, at the time of the finding or seizure of the property in this action, the claimant had not paid all the taxes due on all the goods, wares, merchandise, articles, or objects, which had been, before that date, manufactured at his factory and sold or removed therefrom. (14) That there is no evidence, in this action, that any goods, wares, merchandise, articles, or objects on which taxes were imposed by the provisions of law, manufactured at the factory of Mr. Lilienthal, were ever sold or removed by him, or by any other person, in fraud of the internal revenue laws, or with design to avoid payment of said taxes.” The prosecution in this suit is founded on that part of the 48th section of the act of June 30, 1864, as amended by the 9th section of the act of July 13, 1866 (14 Stat. Ill), which is in these words: “All goods, wares, merchandise, articles, or objects, on which taxes are imposed by the provisions of law, which shall be found in the possession, or custody, or within the control, of any person or persons, for the purpose of being sold or removed by such person or persons in fraud of the internal revenue laws, or with design to avoid payment of said taxes, may be seized by the collector or deputy collector of the proper district * * * and the same shall be forfeited to the United States; and also all raw materials found in the possession of any person or persons intending to manufacture the same into articles of a kind subject to tax, for the purpose of fraudulently selling such manufactured articles, or with design to evade the payment of said tax; and also all tools, implements, instruments, and personal property whatsoever, in the place or building, or within any yard or enclosure, where such articles, or such raw materials, shall be found, may also be seized by any collector, or deputy collector, as aforesaid, and the same shall be forfeited as aforesaid.” It is claimed that the court put an erroneous construction upon these provisions of the 48th section, in its charge to the jury. The point of the objection to the construction which the court gave to the section is, that the fact, or the corpus delicti, to be proved, under the section, is not a mere state of mind, or intent, on the part of the person in whose possession the goods, &c., or the raw materials, are found, to commit, at some time, the wrongful act, as against the government, specified in the section, but is the doing of a certain act, with a certain intent It is conceded, that if merely such intent is the thing to be proved, the evidence given in this ease as to the former wrongful acts and omissions on the part of the claimant, was not only competent, but was sufficient, if believed by the jury, to establish the intent mentioned in the section and averred in the information. The trial was conducted throughout on the principle, that, to recover, it was only necessary for the government to prove the possession by the claimant, at the time of the seizure, of the manufactured goods and the raw materials, and the finding, in the prescribed situation, of the other personal property proceeded against, and the fact that the manufactured goods were taxable goods, and that the claimant intended to manufacture the raw materials into taxable goods, and that he had the fraudulent intent specified in the section in respect to such taxable goods, manufactured and to be manufactured. It is contended that this view of the statute is erroneous; that the proper construction of so much of the section as precedes the provision in regard to raw materials is, that, when any goods, &c., such as are described, have had taxes imposed on them by the operation of the law. they shall be forfeited if they are sold or removed without the payment of such taxes; that, by the 94th section of the act of June 30. 1804, both as it originally stood (13 Stat. 264), and as amended by the 9th section of the act of July 13, 1866 (14 Stat. 12S), taxes do not become payable on manufactured tobacco, until it is sold, or consumed or used by its manufacturer, or removed for consumption, or for delivery to others than agents of the manufacturer within the United States, and, by the 90th section of the said act of June 30, 1864, as amended by the 9th section of the said act of July 13, 1866 (14 Stat. 125), the tax imposed on the manufacturer of tobacco, snuff and cigars, is held to accrue upon the sale or removal from the place of manufacture, unless removed to a bonded warehouse; that the words, in the 48th section, “found in the possession, or custody, or within the control, of any person or persons, for the purpose of being sold or removed by such person or persons,” are equivalent to the words “found in the act of being sold or removed,” because the tax is imposed in consequence of the sale or removal, and not in consequence of the existence of the purpose to sell or remove; that there must have been a sale or removal, or the goods must be found in the act of being sold or removed, for them to be in the condition prescribed of being goods “on which taxes are imposed by the provisions of law;” that there can be no purpose to sell or remove in fraud of the law, or with design to avoid the payment of taxes, without an overt act of sale or removal done or attempted, because the overt act of sale or removal is what causes the taxes to be imposed, and the taxes the payment of which it is supposed there is a design to avoid, are taxes which have accrued or are accruing by the act of sale or removal; that, as a mere purpose in regard to sale or removal does not impose taxes on the goods, and no taxes are imposed until there is an act of sale or removal, done or attempted, the words, “avoid payment of said taxes,” can only apply to taxes which have become payable; that a purpose to defraud the revenue of something can only exist in respect to something to which the revenue is at the time entitled; that, in respect to so much of the 48th section as relates to raw materials, and to tools, &c., the provisions mean, that, where a case of forfeiture exists, as specified in the preceding part, of the section, in respect to goods on which taxes have become payable, not only may such goods be forfeited, but also all raw materials found in the possession of the same person in whose possession such goods are found, he intending to manufacture such raw materials into articles of a kind subject to tax, for the purpose of fraudulently selling such manufactured articles, or with design to evade the payment of said tax, and also all tools, &e., in the place, &c„ where such articles or such raw materials are found; that the clauses making up the provisions for forfeiture are not to be read disjunctively, but connectedly, the forfeitures being connected with each other and succeeding each other, when manufactured, articles, raw materials, and tools. &c., are seized in the hands of the same person; and that the purpose of the act is to have a statute applicable to all manufacturers whose productions are liable to pay taxes, whereby, whenever any taxes have become due on any of the manufactured articles, and they have become liable to seizure and forfeiture under the 48th section, in the hands of the manufacturer, not only may they be seized, but his raw materials may be seized and forfeited, if his intent is to make them into taxable articles, and to sell or remove such articles without paying the tax on them, and ail tools, &c., found on the same premises, may be seized and forfeited. In support of the views urged on the part of the claimant as to the proper construction of the 48th section, it is alleged, that, if that section makes a mere intent a cause of forfeiture, it is the first time, in the history of such legislation, that a mere intent has been made a cause of forfeiture. It is also urged, that there is no reason to suppose that congress intended to make the possession of property, the mere possession of which generally is innocent, coupled with an intent to do something wrongful with it at some future time, a cause for the forfeiture of such property; and that a statute which should authorize the seizure and forfeiture of such property, on proof merely of an intent to violate the law in dealing with it in a certain manner at a future time, would be an unreasonable seizure, and in violation of the fourth amendment to the constitution of the United States. Not only does the 90th section of the act of 1S04. as amended by the act of 186G, before referred to, provide, that “the tax imposed upon the manufacturer of tobacco, snuff and cigars shall be held to accrue upon the sale or removal from the place of manufacture, unless removed to a bonded warehouse,” but the 01st section of the act of July 20, ISOS (15 Stat. 152, 153), provides, that “upon tobacco and snuff which shall be manufactured and sold, or removed for consumption or use, there shall be collected and assessed the following taxes,” and the 81st section of the last named act (Id. 100), contains the same provision in regard to cigars. So. also, by the 94th section of the act of 1804, as amended by the act of 1860, before referred to, taxes do not become payable on any of the manufactured articles specified in that section, unt’l they are sold, or consumed or used by the manufacturer, or removed for consumption. It is quite apparent, from these provisions, that a completed sale, or a completed removal, of the manufactured article, is a necessary preliminary to the accruing, assessment and payment of the tax upon it. Until such completed sale or completed removal has taken place, the manufacturer is not compellable to pay the tax, and it has not accrued so as to be capable of being assessed and collected. If, thefi, the words “.taxes are imposed,” in the 48th section, require that the taxable article shall have been sold or removed, so as to cause the tax to have accrued and to be payable upon it, and if those words are equivalent to the words “have accrued and become payable,” it is difficult to see how such article can ever be found in the hands of its manufacturer, with the intent to sell or remove it with design to avoid payment of the tax, so as to be subject to forfeiture in his hands, under that section. The section would, under such circumstances, be wholly inapplicable to manufactured articles in the hands of their manufacturer, where the application of the section is most beneficial, and would only apply to such articles after they had gone into the hands of purchasers from him. The meaning of the words “taxes are imposed,” as used in the 48th section, may be deduced from the meaning of the word “imposed,” and of kindred words,- where used in other portions of the internal revenue laws. Thus, the language, before cited, of the 90th section of the act of 1804, as amended by the act of 1800, is, that “the tax imposed” on the manufacturer of tobacco shall “be held to accrue upon the sale or removal from the place of manufacture.” Here, the word “imposed” clearly means “declared to be collectable.” The tax declared to be collectable on manufactured tobacco is to be held to accrue and become assessable and payable, on the sale or removal of such tobacco from the place of manufacture. In analogy to this use of the word “imposed,” it is proper to say, that, where, in the 48th section, the words “articles on which taxes are imposed by the provisions of law” are used, they mean “articles on which taxes are, by the provisions of the law, declared to be collectable, when sucli articles shall be sold or removed.” Again, the provisions of a subsequent part of the 48th section show what the word “imposed” means, in the previous part of that section, and what the words “subject to tax” mean, in the clause in reference to raw materials intended to be manufactured “into articles of a kind subject to tax.” The section, after the forfeiture clauses, proceeds to say: “Any person who shall have in his custody or possession any such goods, wares, merchandise, articles, or objects, subject • to tax, as aforesaid, for the purpose of selling the same, with the design of avoiding payment of the taxes imposed thereon, shall be liable to a penalty of five hundred dollars, or not less than double the amount of taxes fraudulently attempted to be evaded, to be recovered in any court of competent jurisdiction.” If, in this clause, the words “articles subject to tax” are held to mean “articles on which taxes have accrued and become payable, because of a sale or removal,” the clause can have no applicability to a manufacturer of the articles. But, the good sense of the words means “articles on which taxes are declarer! to be collectable,” and, in respect to those, If the purpose exists of selling them with the design of avoiding payment of the taxes “imposed thereon ” that is, payment of the taxes declared to be collectable thereon, the penalty attaches. So, the raw materials are materials. intended to be manufactured into articles of a kind on which taxes are declared to be collectable.. There is every reason to suppose that the word “imposed,” in respect to taxes on articles, in the two places in which it is used in the 4Sth section, and the words “subject to tax,” in respect to articles, in the two places in which those words are used in that section, mean the same thing: and there is no reason to suppose the contrary. If that be so, then the words “subject to tax" cannot mean “on which taxes have accrued and become payable because of sale or removal,” because, in respect to the clause regarding raw materials, the manufactured articles have no existence, so as to be taxable. The fact, that the expression is “articles of a kind subject to tax,” can make no difference, for, the second time the words “subject to tax” are used, the expression is “subject to tax as aforesaid,” and the only time the expression “subject to tax” is previously used in the section is in the form of words “of a kind subject to tax.” In order to maintain the theory of the claimant, that the words “are imposed” mean “have accrued and become payable,” it is also necessary that the further view should be maintained, that the three clauses of forfeiture are to be read connectedly, and not disjunctively. But; it would seem to be a conclusive objection to reading tbe clause in regard to raw materials otherwise than dis-junctively in respect to the first clause, that the clause in regard to raw materials says, “all raw materials found in the possession of any person or persons,” &c., and does not say, “all raw materials found in the possession of such person or persons,” &c., referring to the person or persons in whose possession the articles on which taxes are imposed are found. The words of the statute are, “on which taxes are imposed by the provisions of law.” It is reasonable to suppose that the word “imposed,” in the connection in which it is found in this clause, is used in the same sense in which it is used, in a like connection, in other provisions of the same statute, and in kindred provisions of other revenue laws. On examination, it will be found, that the word “imposed,” in such connection, is not used in the act of June 30, 1864, and in other revenue laws, in the sense contended for by the claimant. The 173d section of the act of June 30, 1864 (13 Stat. 3041, speaks of “the duty imposed by any existing law,” and of no duty having been “imposed” “by any former act,” and of the duty “imposed” “by the terms of this act;” and the same terms are used in the 70th section of the act of July 13, 1866 (14 Stat. 173). The ,170th section of the said act of 1864 (13 Stat. 305) speaks of a “tax or duty” “imposed by law.” The 96th section (Id. 272) speaks of materials “upon which no duties have been imposed by law.” The 97th section (Id. 273) speaks of “duties imposed by law enacted subsequent” to the making of a contract, on articles to be delivered under such contract. The 36th section of the act of March 3, 1805 (Id. 486) speaks of the “duty imposed by any previous act.” Section 10 of the act of July 13, 1866 (14 Stat. 150) provides, that “no manufactured wire shall pay a greater tax than that imposed on number twenty wire gauge.” Section 11 of the act of March 2, 1867 (Id. 470) speaks of the “taxes now imposed by law” on manufactures of iron. The 1st section of the act of March 2, 1S07 (Id. 559) speaks of “the duties now imposed by law” on the articles mentioned in that section; and the 2d section of the same act (Id. 561) speaks of “the duties heretofore imposed by law” on certain articles. The language, before referred to, of the 90th section of the act of June 30,1864, as amended by the 9th section of the act of July 13, 1866 (Id. 125), is very marked, in this respect, where it says, that “the tax imposed upon the manufacturer of tobacco” “shall be held to accrue upon the sale or removal from' the place of manufacture,” clearly showing that, when the tax or duty is spoken of as “imposed” by the statute, that means that it is declared to be collectable when some event specified shall occur, although the tax or duty does not accrue or become payable on the particular article until the occurring of the event. Many similar instances could be referred to, of such use, in revenue laws, of the words “imposed by the provisions of law,” and like words, in respect to taxes and duties. A use of the words “subject to duty or taxation under the provisions of this act,” analogous to the use, in the 48th section, of the words “subject to tax,” may be fouud in the 37th section of the act of June 30, 1864 (13 Stat. 238), where provision is made that revenue oflicers may enter, in the day time, all places where any articles “subject to duty or taxation under the provisions of this act are made, produced, or kept, to examine them, or the accounts required to be kept by their manufacturer respecting them.” Under this provision, most certainly, the officers are not restricted to entering a tobacco manufactory, only when the articles made there have been sold or removed, so that the tax has accrued on them. A reading of the 48th section, giving the usual accepted meaning to the words found therein, seems to me to lead conclusively to the view, that congress intended to forfeit taxable articles, when held, especially by their manufacturer, for the purpose of being sold or removed in fraud of the revenue laws, or with design to avoid the payment of the taxes which would accrue thereon by reason of such sale or removal, and also to forfeit all raw materials when held by a person intending to manufacture them into taxable articles for the purpose of fraudulently selling such articles, or with design to evade the payment of the taxes which would accrue thereon when sold or removed, and also to forfeit all personal property found in the place where any such articles, or any such raw materials, are found; and that possession, with the specified purpose, design or intent, is all that is necessary to work the forfeiture. The provision, in the same section, that the possession of the taxable articles, for the purpose of selling them, witn the design of avoiding payment of the taxes, shall subject the possessor to a penalty of not less than double the amount of taxes fraudulently attempted to be evaded, is in harmony with the provisions in regard to forfeiture. The possession for such purpose renders the possessor liable to a penalty of double the amount of the taxes which, on a sale, would accrue on the articles. Such taxes are fraudulently attempted to be evaded when the articles are held for such purpose. The legislation of congress on the subject shows a uniform design in harmony with this view. The 114th section of the act of July 1, 1862, the first internal revenue act (12 Stat. 487), provided, that “all articles upon which duties are imposed by the provisions of this act, which shall be found in the possession of any person or persons, for the purpose of being sold by such person or persons in fraud thereof, and with the design to avoid payment of said duties, may be seized by any collector or deputy collector who shall have reason to believe that the same are possessed for the purpose aforesaid, and the same shall be forfeited to the United States; * * * and any person who shall have in his possession any such articles, for the purpose of selling the same, with the design of avoiding payment of the duties imposed thereon by this act, shall be liable to a penalty,” &c. The 48th section of the act of June 30, 1804, as originally passed (13 Stat. 240), carried out the same principle, by re-enacting the provisions of the 114th section of the act of 1862, and extending them, by providing for the forfeiture of raw materials intended to be manufactured into articles to be sold in fraud of the internal revenue laws, or with design to evade the payment of duties imposed by the provisions of law, and for the forfeiture of all personal property found in the same place with the articles on which duties are imposed, and intended to be used by the possessor of such raw materials in the fraudulent manufacture of such raw materials. The section was amended by the act of July 13, 1S66, to read as before recited, being made more stringent as respected personal property, so as to cover all personal property found in the same place with either the articles or the raw materials, and without reference to the intended use of such personal property. No direct adjudication is found as to the construction of this section, in respect to the point taken by the claimant. Yet many condemnations have been decreed under it, both in this court and in other courts, where the point was as open and proper to be taken as in this case. But it does not seem to have been raised. There are, however, several cases where the language of the court indicates the view, taken by it of the general scope of the section. In U. S. v. One Still [Case No. 15,954], Mr. Justice Nelson says, that the 4Sth section is very comprehensive, and was so designed, and that the reason for the seizure of the articles on which taxes are imposed by law, and of the raw materials, is, “for the fraudulent intent of the person in the possession or control of them, that is, an intent to defraud the public revenue by evading the tax.” In U. S. v. Thirty-Six Barrels [Id. 16,468], Judge Woodruff says, that the object of the 48th section is “to enable the government to anticipate and prevent the sale or removal, and to proceed to a forfeiture before the overt act of fraud is perpetrated;” that “it is enacted in view of the very great difficulty, if not impracticability, of following distilled liquors, after sale or removal, or of identifying them, if found, and, also, in view of the ease with which they may be passed into the hands of bona fide purchasers;” that “the fraudulent intent or design” of the person in possession of the spirits “is the cause of forfeiture;” that the object of the statute is to “prevent the accomplishment of meditated evasion and fraud;” that “it should be construed, so far as a fair interpretation of its language will permit, in a manner adapted to effect the purposes of its enactment;” that the section “has respect to the intentions, purposes, and designs of the party” in possession, which intentions, purposes, and designs are “the ground of the forfeiture, entirely irrespective of the difficulties which may lie in the way of accomplishing his intention;” and that the terms of the section must not receive “a narrow construction,” “not called for by their fair, natural, and legal meaning,” but must be construed “so as most effectually to accomplish the intention of the legislature in passing it.” The principles laid down by the supreme court of the United States, in its decision in the recent case of U. S. v. 100 Barrels, 14 Wall. [81 U. S.] 44, seem to me to fully sustain the construction I place upon the provisions of the 48th section. There seems to me to be no warrant for saying that there is any evidence to be found, in the 48th section, of any intention to make the provision in regard to raw materials dependent upon, and connected with, the provision in regard to taxable articles, and to make a forfeiture of the raw materials depend upon their being seized in the possession of a person in whose possession for-feitable taxable articles are found. The language manifests a plain intention that all raw materials found in the possession of any person who intends to manufacture them into articles of a kind subject to tax, for the purpose of fraudulently selling such manufactured articles, or with design to evade the payment of taxes thereon, shall be seized and forfeited, without reference to the question whether manufactured articles of a kind subject to tax are or are not found in the possession of the same person. In such ease, all personal property whatsoever, found in the same place, building or inelosure where the raw materials are found, may be seized and forfeited. In the present case, the raw materials were found in the possession of the claimant, and the bill of exceptions states that there was evidence tending to show that he intended to manufacture them into articles of a kind subject to tax by the provisions of the internal revenue law in force at the time, and shows that evidence was given tending to show that the claimant had the purpose of fraudulently selling the manufactured articles to be made out of such raw materials, and designed to evade the payment of the taxes thereon. Such evidence was, in my judgment, sufficient to warrant the verdict condemning the raw materials. If they were properly condemned, then all the taxable manufactured articles, and other items of property, that were seized, were properly condemnable under the description of “all personal property whatsoever,” because they were found in the same place with such raw material. In this view, it is of no importance whether any manu factured articles on which taxes had in fact accrued, were or were not found in the possession of the claimant. Criticism is made on the fact, that the information, after averring the seizure, states that, “prior to said seizure, taxes were imposed, by the provisions of law, upon the said tobacco,” that is, the manufactured tobacco, “and the same, being so subject to the payment of taxes as aforesaid, were found,” &c.; and, it is urged, that this language of the pleader shows that he interpreted the 48th section as 'requiring that taxes should have accrued and become payable on such manufactured tobacco, and that, having alleged this fact, it ought to have been proved, and was not proved. But the averment is not fairly susceptible of this interpretation. It goes on to say that such tobacco was found in a certain possession, for a specified purpose, against this 4Sth section. It refers to the section as the foundation of the forfeiture. As the section does not require that the tax should have accrued or become payable, the words “subject to the payment of taxes as aforesaid,” having reference solely to the expression immediately preceding, that taxes were imposed' on the tobacco by the provisions of law, are equivalent to no more than the expression “subject to tax as aforesaid,” which, as has been shown, is only a synonym for the words “on which taxes are imposed by the provisions of law.” The allegation, that, “prior to said seizure, taxes were imposed by the provisions of law” on the manufactured tobacco seized, is equivalent to no more than the allegation, that, when such tobacco was seized, it was an article of a kind on which, under the law, a tax could accrue without its being further manufactured. Legislation equally stringent with that found in the 48th section, for the purpose of preventing meditated fraud, is to be met with in various parts of the internal revenue laws. The 43d section of the act of July 20, 1868 (15 Stat. 142), provides, that any railroad company, or transportation company, or person, who shall have in possession, with intent to transport, or to cause or procure to be transported, any empty distilled spirits cask having on it a brand or stamp required by law for a cask containing distilled spirits, shall forfeit $300 for each such cask had in possession with such intent. The 72d section of the same act (Id. 156) provides, that any person who shall give away or accept any empty stamped tobacco- or snuff-box, shall be fined $100 and imprisoned for not less than twenty days and not more than one year. The 89th section uf the same act (Id. 162) provides, that any person who shall receive, give away, or have in his possession, any cigar tax stamp removed from any box of cigars, shall be deemed guilty of a felony, and fined not less than $100 nor more than $1,000, and imprisoned not less than six months nor more than three years. As, under the 48th section, the corpus delicti, and the only one, is the possession of the specified property, with the specified fraudulent purpose or design, without the doing of any overt act in respect of it, there is no reason why the general principle, that intent may be proved by proving manifestations at prior times of like fraudulent intent in respect of kindred matters, should not be applied to the proving of the fraudulent purpose or design mentioned in the 48th section. In Wood v. U. S., 16 Pet. [41 U. S.] 342, 361, it is said, that, whenever a fraudulent intention is to be established, collateral facts tending to show such intention are admissible proof. The principle was applied by Judge Wood-ruff in U. S. v. 36 Barrels [Case No. 16,469], and in U. S. v. 18 Barrels [Id. 15,033]. In the present case the seizure took place on the 25th of March, 1868, and the testimony as to the intent of the claimant in respect of the taxable tobacco and the raw materials seized, was entirely testimony in respect to previous acts of omission and commisison in his establishment, in conducting its business, in its relations to the internal revenue laws, which-acts were claimed to have been in violation and fraud of such Jaws, and to have had in them a fraudulent intent on the part of the claimant. Those acts are concisely summed up in the two requests to charge on the part of the government. They consisted of a failure to keep the required account of tobacco and snuff manufactured from August, 1866, to January, 186S; of tne removal for sale, and the removal from the place of manufacture. during that period, of quantities of tobacco and snuff, without any account thereof being kept, as of removals, and without any accurate account of the tobacco so received being kept in the statutory books; of the sale, during that period, of large quantities of manufactured tobacco, without any account of such sales, as sales, being kept in such books; of the sale and removal from the claimant’s premises, during all but the last month of that period, of quantities of purchased manufactured tobacco, without any accurate account of such sales or removals being kept in such books; of the rendering to the assistant assessor, during the whole of that period, of untrue and inaccurate abstracts of such sales and removals; of the manufacture of much more chewing tobacco and fine cut shorts in the claimant’s manufactory, during 1S67, than was declared, on such abstracts, to have been manufactured; of the sale and removal, during 1867, of a large quantity of smoking tobacco, manufactured on said premises, which was not returned for taxation on said abstracts, and of which no account was contained therein or in the statutory books; and of certain acts of the claimant (set forth in the second request to charge on the part of the government, before recited) in respect to the manufacture of “extra long smoking tobacco,” and in respect to returning it for tax ation. during the period before mentioned, evincing not only a purpose of selling and removing such tobacco in fraud of the internal revenue laws, and an intent to evade the payment of taxes thereon, but resulting in the commission of such fraud and the evasion of the payment of a large amount of taxes. In respect to all of these acts, except those relating to the “extra long smoking tobacco,” the* court charged the jury, thast, if they believed such acts were done by the claimant, the burden of proof was on the claimant to satisfy them that the tobacco so manufactured on his premises, and sold or removed without due account, return or entry being made thereof in such books and abstracts, in the manner required by law, was not so sold and removed in fraud of the internal revenue laws and with intent to evade the taxes thereon; and that, if the claimant had not so satisfied the jury of his intent respecting the same, they might infer that his intent in respect of the same was fraudulent, and that his possession of the goods in suit was with the like intent. In regard to the acts relating to the manufacture of the “extra long smoking tobacco” and the returning it for taxation, the court charged the jury, that, if they found that such acts were done by the claimant for the pulpóse of selling and removing such tobacco in fraud of the internal revenue laws and with intent to evade the payment of taxes thereon, they would have a right to infer that the claimant and his agents had the like intent with respect to the property in suit. Elsewhere the court charged the jury, in substance, that, if the acts of the claimant between August, I860, and January, 1SCS, in respect to the “extra long smoking tobacco,” showed an intent to defraud the government in regard to the tax upon such tobacco, and if his acts during the same period in regard to what was called the Orinoco tobacco, such acts being contrary to law. showed an intent to defraud the government, and if his acts in violating the law in regard to the keeping of the statutory books, and the unlawful and irregular character of the inventories and returns he made, showed an intent not to deal honestly with the government, but to violate the law, the jury had the right to infer that a fraudulent intent existed in regard to the goods on hand in his establishment when it was seized. I perceive no error in these instructions. In criminal eases, the law presumes every unlawful act to have been criminally intended until the contrary appears, and throws on the accused the burden of disproving the intent; and the same presumption arises in civil actions, where the act complained of was unlawful. 1 Greenl. Ev. § 34. In Cook v. Moore, 11 Cush. 218, the question was whether, to prove a wilful concealment of property by the defendant with a fraudulent purpose, contrary to the bankruptcy act of 1841, it was competent to show an intent, prior to the passage of that act, to defraud the plaintiff of his debt by a fraudulent concealment and conveyance of property. The court held that it was. They say: “Whenever the intent of a party forms part of the matter in issue, upon the pleadings, evidence may be given of other acts, not in issue, provided they tend to establish the intent of the party in doing the acts in question. The reason for this rule is obvious. >The only mode of showing a present intent is often to be found in proof of a like intent previously entertained. Particular objection is made to the instruction as to the burden of proof, contained in the first prayer on the part of the government. The acts recited therein were unlawful acts, contraiy to the*'statute, and, therefore, presumed to result in defrauding the government. The instruction was, that, if the unlawful sales or removals of the tobacco, from August, 18G6, to January, 1868, were proved, and the unlawful neglects in respect to the not entering such sales and removals in the books, abstracts and returns were proved, then, as the legal presumption therefrom was that such sales and removals took place in fraud of the internal revenue laws, and with intent to evade the taxes on the tobacco, the burden of proof was on the claimant to satisfy the jury that such sales and removals were not in fraud of such laws and with intent to evade such taxes; and that, in view of such legal presumption, if the claimant had not rebutted it, the jury had a right to infer a fraudulent intent in respect to such sales and removals, and also to infer that the claimant’s possession of the goods in suit was with the like intent. In addition to the observations already made, I regard the propriety of this instruction as having been sanctioned by Judge Woodruff in U. S. v. 18 Barrels [Case No. 15,033], where, only slight evidence having been given, in behalf of the government, tending to show that the claimant of distilled spirits had not made true and exact entry and return, it was held that this cast the burden on the claimant, to show that he had complied with the statute. In U. S. v. Brewery Utensils [Id. 14.641], it was held by Judge McCandless, that, from a neglect by a brewer to obey the law, an intent to evade its provisions would be presumed, in the absence of any explanation. See, also, Clements v. Moore. 6 Wall. [73 U. S.] 290; The Luminary, 8 Wheat. [21 U. S.] 407; The Slavers, 2 Wall. [69 U. S.] 350, 366, 375. As to the 13th and 14th of the claimant’s prayers for instructions, if they are understood as raising the question of the proper construction of the 48th section, that has been passed upon. If they are understood, as it appears from the bill of exceptions the court understood them at the trial, as involving propositions of fact, as to the evidence, addressed to the court, and which were solely questions for the jury, there was no error in declining to charge in accordance with them. This disposes of all the questions involved in the first four grounds urged as reasons ior granting a new trial. It is proper to say, tliat the point now raised, as to the construction of the 48th section, was not in fact presented to the mind of the court at the trial, and was not raised at the trial otherwise than as it may seem to be involved in some of the exceptions to the charge, and in some of the exceptions to refusals to charge in accordance with requests on the part of the claimant, and which exceptions present it, if at all, in ambiguous language, capable as well of another interpretation as of an interpretation that they raise this point; and that the point is raised by counsel who took no part in the trial. The fifth ground urged for a new trial Is, that the court erred “in instructing the jury that it was immaterial to any issue in this case, what was the lawful rate of tax payable on the said ‘extra long smoking tobacco,’ embraced in seventeen returns made by the claimant, and in not instructing the jury that the lawful rate of tax payable on the said tobacco was fifteen cents per pound.” It is contended, for the claimant, that this tobacco was made partly of leaf and partly of stems, all chopped up together, not sweetened, and put up and sold as smoking tobacco, the stems having undergone a secret process of dyeing, to assimilate them in color to the leaf; that, ns it was made in part of stems, it was, under the 94th section of the act of June 30, 1804. as amended by the 9th section of the act of July 13, 1800 (14 Stat. 133), subject to a tax of only fifteen cents per pound; and that the claimant violated no law in returning such tobacco for tax at fifteen cents per pound. If the lawful rate of tax on such tobacco from and including August 1, 1806, to and including January 1, 1S08, embracing the period during which the claimant returned it at fifteen cents per pound, was greater that that rate, it follows that there was not, in the instruction, any error prejudicial to the claimant. Under the 94th section of the act of June 30. 1804, as amended by the 1st section of the act of March 3, 1805 (13 Stat. 477), these were the taxes on manufactured tobacco other than snuff, cigars, and chewing tobacco: “On * * * all * * * kinds of manufactured tobacco, not herein otherwise provided for, forty cents per pound. On tobacco twisted by hand, or reduced from leaf into a condition to be consumed, without the use of any machine or instrument, and without being pressed, sweetened, or otherwise prepared, thirty cents per pound. * * * On smoking tobacco of all kinds, and imitations thereof, not otherwise herein provided for, thirty-five cents per pound. On smoking tobacco made exclusively of stems, and so sold, fifteen cents per pound.” Under those provisions, this “extra long smoking tobacco” was subject to a tax of thirty-five cents per pound. The act made the tax only fifteen cents per pound on smoking tobacco made exclusively of stems, made of the inferior part of the tobacco leaf, and having none of the leaf part in it; while on all other manufactured tobacco it imposed taxes of thirty, thirty-five and forty cents per pound. The same distinction is found in the 94th section of the act of June 30, 1804, as originally enacted (Id. 270), where smoking tobacco made exclusively of stems is taxed fifteen cents per pound, and all other manufactured tobacco has taxes imposed on it of twenty-five and thirty-five cents per pound; and in the 75th section of the act of July 1, 1802, as amended by the 1st section of the act of March 3, 1863 (12 Stat. 717), where smoking tobacco prepared with all the stems in, or made exclusively of stems, is taxed five cents per pound, and all other manufactured tobacco fifteen and twenty cents per pound; and in the 75th section of the act of July 1, 18G2. as originally enacted (Id. 403), where smoking tobacco made exclusively of stems is taxed two cents per pound, smoking tobacco prepared with all the stems •in, five cents per pound, and all other manufactured tobacco, ten, fifteen, and twenty cents per pound. Such was the course of legislation on this subject. The 9th section of the act of July 13, 1860 (14 Stat. 133), further amended the 94th section of the act of June 30, 1804, by providing that, on and after the 1st of August, 1800, the following should be the taxes on manufactured tobacco: “On snuff, manufactured of tobacco, or any substitute for tobacco, * * * forty cents per pound. On * * * all * * * kinds of manufactured tobacco, not herein otherwise provided for,- * * * forty cents per pound. On tobacco twisted by hand, or reduced from leaf into a condition to be consumed without the use of any machine or instrument, and without being pressed, sweetened or otherwise prepared, and on fine cut shorts, * * * thirty cents per pound. On fine cut chewing tobacco, whether manufactured with the stems in or not, or however sold, * * * forty cents per pound. On smoking tobacco, sweetened, stemmed or butted, * * * forty cents per pound. On smoking tobacco, of all kinds, not sweetened, nor stemmed, nor butted, including that made of stems, or in part of stems, and imitations thereof, * * * fifteen cents per pound.” In these' provisions, there is the same indication of an intention to tax at a low rate tobacco either made wholly of stems, or having in it all its natural stems, and to tax all other tobacco at a higher rate, the former being taxed at fifteen cents per pound, and all other manufactured tobacco being taxed at thirty and forty cents per pound. This “extra long smoking tobacco,” being manufactured tobacco, was, if not otherwise provided for in the act, taxable at forty cents a pound. So, also, if it was smoking tobacco stemmed or butted, it was taxable at forty cents a pound. It is insisted by the claimant, that, having some stems in it, and not being sweetened, it was taxable at fifteen cents a pound, on and after August 1, 18G6. The bill of exceptions shows that the mode of making this “extra long smoking tobacco” was, to take the entire tobacco leaf, and remove from it from one-half to three-fourths in length of the woody central stem that runs through the leaf from end to end, so as to leave in the leaf at its top not enough stem to be noticéable in the product after cutting, and then to cut up together the residuary leaf with stems previously soaked in a certain dye stuff without being sweetened. Prior to August 20, 1SGG, for several years, the proportion of such residuary leaf to such dyed stem was seven pounds of the former to two pounds of the latter, and, after that date, the proportion of such residuary leaf to such dyed stem was two pounds of the former to one pound of the latter. It having been ascertained, by experiment, that the average proportion, by weight, of the butts or portions of stem extracted from the leaf, in making this tobacco, was one-fourth of the weight of the entire leaf, it was intended, in making this tobacco, after August 20, 180G, to cut up, with a given weight of the residuary leaf, at least as much dyed stems as would equal in weight the average quantity of stems taken out of the leaf. When ready for sale, the stem was not distinguishable from the leaf. In the understanding of tobacco manufacturers, leaf tobacco is “stemmed” when the whole of the central stem has been removed from the leaf; and it is “butted,” when the thick end or lower portion of the stem is drawn out of the leaf, leaving more or less of the upper part of the stem still in the leaf. It was not practicable, in the process actually employed by the claimant, to restore or replace the identical portions of stem extracted from the leaf. All of such tobacco returned by the claimant for August, 1866, after the 20th, and for the sixteen succeeding months, was returned by him as liable to a tax of fifteen cents per pound, under the act of July 18, 1S66, and was classified, in the returns, as “smoking tobacco, not sweetened, stemmed or butted, including that made of stems,” and he paid taxes on it at that rate only. The contention, on the part of the claimant, is, that the statute says that smoking tobacco made in part of stems, that is, smoking tobacco having in it some stems, and not sweetened, shall pay a tax of only fifteen cents per pound; that this tobacco had some stems in it, and, therefore, was made in part of stems, and was not sweetened; and that, consequently, it was liable to a tax of only fifteen cents per pound. It is urged, for the claimant, that it is immaterial, under the statute, whether the identical stems were put back with the residuary leaf, or whether an equal quantity of stems was put back with it, or whether the same proportion was maintained, in the ultimate product, between stem and leaf, that existed in the tobacco as grown; and that, as long as the tobacco is not sweetened, and is smoking tobacco, and is made wholly of stems, or partly of stems and partly of leaf, it is within the fifteen cents a pound clause. An analysis of the provisions of the statute will aid in ascertaining its meaning. The words “on smoking tobacco, sweetened, stemmed or butted, a tax of forty cents per pound,” mean, “on smoking tobacco manufactured from leaf tobacco which has been sweetened, or stemmed, or butted, a tax of forty cents per pound.” The words, “on smoking tobacco, of all kinds, not sweetened, nor stemmed, nor butted, * * * a tax of fifteen cents per pound,” mean, “on smoking tobacco manufactured from leaf tobacco which has not been sweetened, and has not been stemmed, and has not been butted, * * * a tax of fifteen cents per pound.” This last clause embraces, also, smoking tobacco “made of stems, or in part of stems, and imitations thereof.” This “extra 'long smoking tobacco” was made from leaf tobacco which had been butted, stems separately prepared being afterwards added to the residuary leaf. As smoking tobacco manufactured from butted leaves it was within the forty cents a pound clause. If it had had no separate stems added to the residuary leaf, but had been made solely of the residuary leaf left after butting, it would have had in it at least one quarter in length of the central stem left in the leaf after butting, and thus would have been made “in part of stems,” and so been subject to the fifteen cents a pound clause, under the reading of that clause contended for by the claimant, although, being smoking tobacco merely butted, it would clearly have been within the forty cents a pound clause. A construction of the fifteen cents a pound clause, which would put such butted tobacco within that clause, when it is manifest the intention was • that it should be solely in the forty cents a pound clause, cannot be admitted, if both clauses are capable of such a construction as will not allow any one article to fall within both of them. I think that the forty cents a pound clause as to smoking tobacco manifestly includes all smoking tobacco in which sweetened leaf is a constituent, and all in which stemmed leaf is a constituent, and all in which butted leaf is a constituent. In direct contradistinction to this, the fifteen cents a pound clause says that smoking tobacco made of tobacco leaves in their natural state as to stem and leaf, and not at all sweetened, and in which stemmed leaf is not a constituent, and in which butted leaf is not a constituent, shall pay only fifteen cents a pound tax. It will not do to go outside of the plain language of the statute to open wide a door to fraud, by saying that you may butt the leaves, and then restore other butts equal in quantity to the removed butts, and call the product tobacco not butted; or stem the leaves, and then restore other stems equal in quantity to the removed stems, and call the product tobacco not stemmed. The stem is the least valuable part of the tobacco. It is allowed to be cut up in and with and as a part of the leaf as it grew, as smoking tobacco, at the low rate of tax. If it is so cut up. there is sure to be in the product a certain average quantity of stem. If the stem or butt is allowed to be removed, what is left becomes at once more valuable than the whole was, and liable to the forty cents a pound tax; and it cannot for a moment be supposed that congress intended that the putting back a part of the removed stem or butt should reduce the tobacco to the fifteen cents a pound clause, while the manufacturer would be able to impose on the public by selling the product as one of a quality taxable at forty cents a pound. In view of these considerations, and in harmony with them, an, interpretation can be given to the words, “including that made of stems, or in part of stems, and imitations thereof,” entirely consistent with the language,-and not open to the objection of including within the fifteen cents a pound clause smoking tobacco already clearly put into the forty cents a pound clause. The stems being the least valuable part, congress first provided, in the fifteen cents a pound clause, that smoking tobacco made by cutting up the natural leaf, and, therefore, including all the stem which grew in the leaf, should pay only fifteen cents a pound. It then passed to an inferior grade of smoking tobacco, by providing that smoking tobacco made wholly of stems, without any admixture of leaf, should pay only fifteen cents a pound. It then passed to a still lower, grade, by providing that smoking tobacco made, as to part of it, of tobacco stems, and, as to the rest of it, of imitations of tobacco stems, should pay only fifteen cents per pound. If the words “in part of stems” are to be so construed, • as contended by the claimant, as to put into the fifteen cents a pound clause smoking tobacco having but a small quantity of stem in it, and the rest nearly all pure leaf, making a product • nearly equal, perhaps, in quality, to stemmed leaf paying forty cents a pound, we not only have congress opening the way to the government's being defrauded readily of twenty-five cents a pound on large quantities of smoking tobacco, but we have it making an enactment which allows, as said before, smoking tobacco made of butted leaf and having in it some stems to be within both the forty cents a pound clause and the fifteen cents a pound clause. The words “in part of stems, and imitations thereof,” would naturally indicate a lower grade of tobacco than that “made of stems,” whereas, on the interpretation contended for by the claimant, a grade of tobacco nearly up to pure stemmed leaf may be included in the words “in part of stems.” The words “in part of stems, and imitations thereof,” have no other meaning than if they read “of stems in part and imitations thereof,” that is, of stems partly, and, as to the rest of the constituents, of imitations of stems; and no other meaning than if they read “in part of stems, and in part of imitations thereof.” The words are not happily chosen, but it is not possible, in my judgment, to give them a meaning which would allow this “extra long smoking tobacco” to have been subject to any other tax than that of forty cents a pound. Not only is this construction in harmony with the prior legislation of congress in regard to manufactured tobacco, but subsequent legislation confirms these views. The 61st section of the act of July 20, 18GS (15 Stat. 153), imposes a. tax of sixteen cents per pound “on all smoking tobacco exclusively of stems, or of leaf with all the stems in, and so sold, the leaf not having been previously stripped, butted, or rolled, and from which no part of the stems have been separated by sifting, stripping, dressing, or in any other manner, either before, during, or after the process of manufacturing, on all fine cut shorts, the refuse of fine cut chewing tobacco which has passed through a riddle of thirty-six meshes to the square inch, by process of sifting, and on all refuse scraps and sweepings of tobacco;” and on all other manufactured tobacco and snuff a tax of thirty-two cents per pound. The court charged the jury, that it was not necessary to determine what was the proper interpretation of the fifteen cents clause in the act of 1866, or under what head in that act the “extra long smoking tobacco” fell. It also charged the jury, in accordance with the first proposition on the part of the claimant, that, if they should believe that the returns for taxation, of the “extra long smoking tobacco,” between August, 1866, and the date of seizure were made in good faith and with an honest belief, on the part of the claimant and his agents concerned in the preparation of said returns, that said tobacco was liable to the fifteen cents rate of duty, and to no other or higher rate, then, even though said tobacco was, by law, liable to the forty cents rate of duty, the jury could not, for that cause, find a verdict for the government, under section 48. But the court refused to charge, as requested by the claimant, that the “extra long smoking tobacco,” if composed of both stem and leaf, or if made in part of stems, or if it contained a quantity of stem as great as, or greater than, that which grew with the leaf contained in said tobacco, was liable to a tax of only fifteen cents per pound. Although it may have been erroneous to charge the jury, as was done in substance, that it was immaterial to any issue in this case what was the lawful rate of tax on the “extra long smoking tobacco,” yet, as such lawful rate was, in fact, forty cents a pound, the error, if any, was prejudicial only to the government, and not to the claimant, and it was not erroneous to not instruct the jury that the lawful rate of tax payable on such tobacco was fifteen cents per pound. The sixth ground urged for a new trial is, that the court erred “in instructing the jury that it was illegal for the claimant to return for tax the Orinoco tobacco in the bill of exceptions mentioned, under the circumstances therein mentioned,” and “in instructing the jury that they could infer from the transactions in the bill of exceptions described an intent to defraud the revenue thereby.” The facts in regard to this Orinoco tobacco, as set out in' the bill of exceptions, are these: From a period prior to March, 1865, and down to April and May, ISO", the claimant had in his factory, stored in its lofts, 7,000 pounds of smoking tobacco, called “pressed Orinoco tobacco,” manufactured by him, being leaves having all the stems in, and the leaves not having been sweetened or butted or stripped from the stems. In his monthly return for March. 1865, of sales and removals of manufactured tobacco during that month, he returned said 7.000 pounds as sold during that month, and subject to a tax of twenty-five cents per pound, under the act of June 30, 1804, and paid tax on it at that rate. In his book of sales, under date of March 8, 1805, appeared an entry of a sale of 860.000 worth of manufactured tobacco (including the said 7.000 pounds) to Kearney & Waterman, a commission paper house. A bill of the goods was made out to Kearney & Waterman, but the goods were never delivered to them, and were not removed from the factory. The claimant himself testified, that the goods were never intended to be delivered to Kearney & Waterman; that it was understood between him and Kearney & Waterman that the goods were sold and bought back; that this proceeding was for the purpose of returning the said goods as sold, in his monthly return for taxation for March, 1865, in order to avoid the payment of an increased rate of taxation to which said goods would be liable under the act of March 3, 1865, which was to take effect April 1, 1865; that, prior to said transaction with Kearney & Waterman, he consulted with some members of the senate committee on finance, and with several members of the house committee of ways and means, as to whether, in respect of goods on hand when the said act of March 3, 1865, should go into effect, he would have a right to return the same for taxation under the act of June 30, 1864, and was advised by them that he would have such right; - and that he had no purpose to defraud the government, but considered that such a transaction warranted him in returning the goods as sold. The 7,000 pounds of Orinoco tobacco remained in the claimant’s factory until April and May, 1867, when he sent it to California for sale. When it was so removed for sale he did not return it for taxation, and he did not keep any account, in the statutory book, of such removal for sale of such tobacco. If it had been then returned, it would have been liable to a tax of only fifteen cents a pound. Under the 94th section of the act of June 30, 1864 (13 Stat. 270), it was liable to a tax of twenty-five cents per pound, as “smoking tobacco, manufactured with all the stem in, the leaf not having been butted or stripped from the stem.” By the amendment made by the 1st section of the act of March 3, 1865 (Id. 477), to the 94th section of the act of 1864, which amendment was to take effect on and after the 1st of April, 1865. it would have been liable to a tax of thirty-five cents per pound, as being smoking tobacco not made exclusively of stems. This rate of tax on it continued until August 1, 1866, after which date, by the amendment made to the 94th section of the act of 1864, by the 9th section of the act of July 13, 1866 (14 Stat. 133), the tax on it was fifteen cents per pound, as smoking tobacco, not sweetened, nor stemmed, nor butted; and that was the rate of tax on it in April and May, 1867, when it was removed to California for sale. On this state of facts the court charged the jury, that this transaction of the claimant’s was illegal; that it was illegal to return the tobacco for taxation in March, 1865, because it had not been sold or removed for consumption; that, under the 94th section of the act of 1864, under which the tobacco was returned for taxation in March, 1865, the tax of twenty-five cents a pound was leviable, collectable, and payable on the tobacco only when it was sold, or consumed or used by its manufacturer, or removed for consumption or for delivery to others than agents of the manufacturer within the United States or territories thereof; that there was no real sale of the tobacco in March, 1865; and that a removal for consumption, as defined in the 91st section of the act of 1864 (13 Stat. 263), required that there should be a removal of the tobacco from the premises of the manufacturer, in good faith, with a then present intention to have it consumed, as against the will of the manufacturer and owner of it. On the trial it was contended, for the claimant, that, as he had returned this tobacco in March, 1865, and paid a tax on it of twenty-five cents a pound, he was under no obligation to make a return of it afterwards and pay another tax upon it, especially if, at the time it was afterwards sold or removed for consumption, the tax on it was fifteen cents a pound; and’ that it was lawful for the claimant to return this tobacco for taxation in March, 1865, and pay a tax on it then. In support of these views, the 70th section of the act of July 13, 1866 (14 Stat. 173), was referred to, which was in force when this tobacco was removed from the claimant’s factory in April and May, 1867. That section provides, that “all manufactures and productions on which a duty was imposed by either of the acts repealed by this act” (which includes the provisions of the act of June 30, 1864, imposing duties on tobacco, and which were the provisions in force in March, 1865, when this tobacco was returned for taxation, and also includes the provisions of the 9th section of that act, as amended by the act of March 3, 1865, and which latter provisions were in force, taxing tobacco, from April 1, 1865, to August 1, 1866), “which shall be in the possession of the manufacturer or producer, or of his agent or agents, on the day when this act lakes effect,” August 1, 1866, “the duty imposed by any such former act not having been paid, shall be held and deemed to have been manufactured and produced after such date.” The effect of this provision, in respect to this tobacco, was contended by the claimant to be, that, although this tobacco was in his possession, as its manufacturer, on the 1st of August, 1866, yet it could not be deemed to have been manufactured on or after August 1, 1866, because the duty imposed on it by the act of June 30, 1864. had been paid in March, 1865. But the court charged the jury, that, as no tax was leviable, collectable or payable on this tobacco, under the act of 1864, until it was sold or removed for consumption, the case was not one where a duty imposed by that act had been paid, within the meaning of the provision of the 70th section of the act of 1866; that the claimant had no right to return this tobacco for taxation at twenty-five cents a pound, especially when he acknowledged that he did so to get rid of the coming thirty-five cents a pound tax, and when he had an .intent to commit a fraud on the government; and that the policy of the law was manifest, not to permit tax-paid goods, unsold, to be kept in masses on the premises of their manufacturer. In reference to this Orinoco tobacco, the court further charged the jury, as requested by the claimant, that, even if they should find that a fraudulent intent existed in the mind of the claimant at the time of making the return of such tobacco in March, 1865, that fact of itself would not justify them in finding the existence of a fraudulent intention on his part in respect to the property proceeded against, at the time that property was found or seized; that, if they should find that a fraudulent act was committed by the claimant in 1865, in respect to property then in his possession, that alone, unless supported by other evidence, was not sufficient to warrant them in finding the existence of a fraudulent intent on his part in regard to the property found in his possession in 1868, and would not warrant a verdict of condemnation; that, if he paid the twenty-five cents a pound tax on this tobacco in 1865, he became liable to pay no additional tax on it by reason of its shipment to California in 1867; that if, when he shipped it to California, he believed that all the tax due on it to the government had been paid, his failure to return it for taxation on such shipment was no evidence of fraudulent intent on his part; and that, if in March, 1865, when he paid the tax, he believed that such tax was due, he could have had no fraudulent intent, but it must have been the payment of a tax which he honestly believed at the time he had a right to pay, and not the payment of a tax merely because it was going to be raised the next day to thirty-five cents a pound. It is contended, on the part of the claimant, that it was not unlawful for him to return this Orinoco tobacco for taxation in March, 1865, and pay upon it- at that time a tax of twenty-five cents a pound; that the fact of the so-called sale to Kearney & Waterman is an immaterial and irrelevant fact; that the motive which governed the claimant in paying the tax before the 1st of April, 1865, instead of waiting until a future day, is immaterial; that he had a lawful right to pay it, even though he did so for the purpose of avoiding the higher duty that was to go into effect on the 1st of April, 1865; that any person holding property on which a tax will become due on the doing of some act by him, such as a sale or a removal of such property, may himself dispense with the doing of that act, and tender and pay the tax to the government; that the paying of the tax to the government is waiver of the necessity of doing the act on the doing of which the tax would properly accrue; that the act of sale or removal, considered as a prerequisite to the accruing of the tax, is an act not in the interest of the government, but an act in the interest of the tax-payer, and prescribed for his convenience, and, therefore, an act which he may disclaim or waive the doing of. by anticipating the payment of the tax; that no harm can result to the government from an accumulation of tax-paid manufactured articles in the hands of their manufacturer; and that what the claimant did in regard to this Orinoco tobacco has no tendency to show that he intended to commit a fraud on the government. The proposition advanced on the part of the claimant is. that, although the statute provides that a certain tax shall become payable on manufactured tobacco when it shall be sold or removed, and the government cannot enforce the payment of such tax by the manufacturer until the tobacco shall be actually sold or removed, the manufacturer may lawfully pay the tax on it, as sold or removed, although it is not sold or removed. Of course, if he may do so at all, he may do so in view of the coming into operation of a higher tax on the article, and thus secure an advantage over other manufacturers, in respect of tobacco in fact sold or removed after the coming into operation of the higher tax. In this case, the claimant made a false representation to the government. He returned the tobacco as sold when it was not sold. The return was sworn to as true when it was not true; the tax was received on the faith of the representation that the tobacco had been sold; the tax could not accrue until the tobacco had been sold or removed; an increased tax of ten cents a pound was to go into effect the next day; and it is seriously contended that this was a lawful and honest transaction, that the claimant was only waiving and dispensing with a restriction that was for his benefit and convenience, that, if he chose to pay the tax without selling or removing the tobacco, the government has no cause of complaint, and that there was nothing in the transaction showing an intent to defraud the government. No principle that has ever been applied to the interpretation of a revenue statute sanctions this doctrine. There is a mutuality in the provisions for taxation. The government can enforce the tax only under certain circumstances. The non-payment of it is unlawful only when those circumstances exist. E converso, the payment of it is lawful only, when those circumstances exist. Otherwise, the claimant would have had a right to compel the. officers of the government to receive the tax although the tobacco had not been sold or removed. He did not, however, claim any such right at the time. He falsely represented that the tax had in fact accrued because the tobacco had been sold. He paid the money on that false pretence. There was no power in the collector to receive the tax, except as a tax on tobacco sold. If the tobacco had been sold after-wards, at a time when the tax on it was thirty-five cents a pound, the government could not have been prevented from collecting the additional ten cents a pound tax on it, by the fact that the twenty-five cents a pound had been received on it by the collect- or, on the false representation that it had been sold before that amount had been paid on it. The course pursued by the claimant in regard to this Orinoco tobacco was not warranted by any statute in force at the time of the transactions of March, 1SG5. The 70th section of - the act of July 13, 1800 (14 Stat. 173), was enacted long afterwards. This Orinoco tobacco was in the possession of the claimant on the 1st of August, I860, when that act took effect, but the duty imposed on it by former acts had not been paid, within the meaning of such 70th section. It was, therefore, to be deemed to have been manufactured on or after August 1. 18GG. In the special sense in which the word “imposed” is used in the 70th section, in connection with the words “not having been paid,” the tax may properly be said not to have been “imposed” in such special sense, by the 1st of August, 18GG. The provision means, that, where the tax, declared by the former act to be collectable, has been paid when enforceable and payable, the taxable articles in the hands of a manufacturer on the 1st of August, 1866, on which such tax has so been paid, shall not be deemed to have been manufactured on or after the 1st of August, 18GC; but, otherwise, they shall. In this sense, the word “imposed” may properly be regarded as having a different meaning, in the phrase, “the duty imposed by any such former act not having been paid,” from that which it has in the 48th section of .the act of June 30, 1864, where it is used merely in the phrase, “imposed by the provisions of law,” without any reference to the payment of the tax or to the time when it becomes payable. The succeeding provision in the 70th section of the act of 1866, to the effect, that “whenever, by the terms of this act, a duty is imposed upon any articles, goods, wares, or merchandise, manufactured or produced, upon which no duty was imposed by either of said former acts, it shall apply to such as were manufactured or produced, and not removed from the place of manufacture or production, on the day when this act takes effect,” shows the intention of congress in respect to the whole subject. It was, that where manufactured articles were taxable by former laws, and the taxes had accrued and been paid on them, they should not be taxable under the new law; that where they were not taxable by former laws, they should, if taxable by the new law, be so taxable, although manufactured before the new law went into effect, provided they were not removed from the place of their manufacture at the time the new law went into effect; that where accrued taxes had been paid on manufactured articles taxable by the former laws, such articles should not be regarded as manufactured under the new law; and that where manufactured articles not taxable by the former laws had been removed from the place of their manufacture, they should not be regarded as manufactured under the new law. I see, therefore, no error in the instruction to the jury that it was illegal for the claimant to return che Orinoco tobacco for tax, in March, 1865, under the circumstances set forth in the bill of exceptions, and no error in instructing them that they could infer from the transactions in respect to such tobacco an intent to defraud the revenue thereby, especially in view of the fact, that the court, in compliance with the fourth prayer of the claimant, instructed the jury that the existence of a fraudulent intent in the mind of the claimant, at the time of making return of this tobacco, in March, 1865. would not of itself justify them in finding the existence of a fraudulent intent on his part in respect to the property in suit, and that the court, in compliance with the fifth prayer of the claimant, instructed the jury that the commission of a fraudulent act by the claimant in 1SG5, in respect to property then in his possession, was not, alone, unless supported by other evidence, sufficient to warrant them in finding the existence of a fraudulent intent on his part in regard to the property in suit, and that the court, in compliance with the third prayer of the claimant, instructed the jury that fraudulent intent and fraudulent acts long prior to the time of the seizure of the property in suit, would not warrant a verdict of condemnation, unless supported by evidence of fraudulent intent or fraudulent acts at a period nearly coincident with the time of seizure, and that, if, for the ten months next prior to the seizure, the claimant properly made returns and paid taxes upon his manufactures, the jury might fairly infer therefrom a discontinuance of any fraudulent intent which he might have had previously. The seventh ground advanced for a new trial is, that the court erred “in instructing the jury that, because the claimant did not keep in book form a separate account of the tobacco manufactured by him in 1867 and 186S, he committed a violation of law from which the jury could infer an intent to sell the manufactured tobacco seized in this case without paying the taxes that might be due thereon. &e.” It is admitted, by the claimant that the 90th section of the act of June 30, 1804. as amended by the 9th section of the act of July 13. 1800 (14 Stat. 124), provides, that every tobacco manufacturer shall keep in book form an accurate account of the quantity of tobacco he manufactures, and shall return a sworn inventory every year of the quantity of tobacco held or owned by him on the 1st day of January in such year, setting forth the various kinds of articles manufactured by him separately from those purchased by him, and shall return monthly a sworn abstract of his purchases, sales and removals. The section goes on to provide, that, in case of refusal or neglect to return the inventory, or the abstract, or to keep the account, the manufacturer shall forfeit $500, to be recovered, with costs of suit. It is contended, that because this penalty is imposed for a neglect to keep the account in book form of manufactured tobacco, therefore, the fact of such neglect cannot be resorted to as collateral evidence from which to infer an intent to defraud, within the 48th section, in respect to the property in suit; and that, because the neglect to keep such an account is not an offence of the same class or character with the offence sought to be established under the 48th section, it cannot be resorted to as collateral evidence, in regard to an intent respecting the property in suit. The court charged, that the claimant violated the law in not keeping an account of goods manufactured by him, and that the keeping of such account was necessary in order to enable mm truly to make up the annual inventory required to be returned. This neglect in keeping the account, in connection with certain alleged discrepancies between the inventories for 1SC7 and 186S and the monthly returns, and with the transactions in regard to the Orinoco tobacco, and with the accumulation in the hands of the claimant of a large quantity of tax-paid tobacco manufactured by him, which had never been sold or removed, were submitted to the jury as circumstances which, if proved, warranted the inference of an intent throughout, on the part of the claimant, not to deal honestly with the government, but to violate the law, and also the further inference that he had a fraudulent intent in regard to the goods in suit. Under the rule before stated in regard to what is proper evidence on the question of intent, I see no error in these instructions. All the unlawful acts and omissions of the claimant as a manufacturer of tobacco, in the discharge of his duties as such towards the government under the internal revenue laws, were proper evidence to be taken into consideration by the jury, and if they believed, from the evidence, that, by such acts and omissions, he intended to defraud the government, they had a right to infer a like intent in regard to the property in suit. The instructions throughout proceeded upon the express statement to the jury that unlawful acts and omissions were nothing, unless the jury believed that there was in them an intent to defraud. The fact of the imposition of a penalty for the mere neglect to keep the account, without any intent to defraud, cannot have the effect to remove from consideration the intent in a neglect, if such intent was one to defraud; and an intent to defraud in neglecting to keep an account of goods manufactured, is an intent of no different quality, class or character from an intent to defraud in selling or removing manufactured goods without paying the taxes on them. The eighth ground for a new trial is, that the court erred “in instructing the jury that it was illegal for the claimant to return for tax the goods removed from his manufactory to his retail department, before such goods had been actually sold,” The instruction was, that it was unlawful for the claimant to return for tax, on a certain day, a quantity of tobacco manufactured by him and not sold or removed from his premises, and then take it into his retail department on the same premises, and sell it by retail there over his retail counter, without keeping any record of such sales, and without returning any abstract of such sales. It was shown that the claimant had done this. This instruction involves the same question before considered in regard to the rigin. of the claimant to pay taxes at his pleasure on masses of tobacco manufactured by him and not sold or removed; and the further question of his right to sell tobacco manufactured by him, and not before sold or removed, and to omit any record or return of it as sold when it was in fact sold, because he had previously falsely returned it as sold or removed. In this connection, the court instructed the jury that, if they should believe that the. mode of returning for taxation the goods sold over the retail counter, by returning them at the time they were transferred to such retail counter, was adopted for the convenience of the claimant, and used without any fraudulent intent, in the business of the claimant, as a manufacturer, such fact furnished no evidence in support of a verdict of condemnation in this case; that the mere fact that what the claimant did was unlawful amounted to nothing; that if, it being so unlawful, the jury believed there was a fraudulent intent in it, it was to be taken into consideration; and that, if the jury believed there was no fraudulent intent in it, it was not to be taken into consideration. It appears, by the bill of exceptions, that the government gave evidence tending to prove that, during the period from August 1, 18C6, to January 1, 1868, large quantities of manufactured tobacco were sold and removed from his factory by the claimant, without due return thereof for taxation and payment of the taxes thereon, as required by law. In view of this fact, and of the neglect of the claimant to keep or return any account of the sales of the goods so removed to his retail department, as sales therein, and of the untruth of his returns, returning, as sold or removed, goods which were not sold and were not removed from his premises, or, in the sense of the law, from the place, street or number where his manufacturing of them was carried on, and of the opportunities for fraud afforded by the course adopted by him, it was for the jury to say what was the intent of the claimant in adopting such course, as bearing on his intent in reference to the goods in suit [A motion in arrest of judgment was also overruled. Case No. 16.106a. Upon appeal the judgment was affirmed by unreported decisions of the circuit court. See Id. 16.104, 16,104a.J I have reviewed this case at great length because of the large amount of property involved in it, its importance to the parties, and the earnestness with which the grounds urged for a new trial were pressed upon me by the learned counsel for the claimant. But I am unable to see that any error was committed in any of the particulars urged, and, therefore, the motion must be denied. For the 1st and 2d instructions prayed for by the district attorney, and here referred to, see [Case No. 16,105. See, also, Id. 16,106a.]

SUMMARY ORDER Petitioner Shawn Anthony Mascoe seeks review of an April 21, 2008, 2008 WL 2079396, decision of the BIA affirming the November 16, 2007 decision of Immigration Judge Sagerman (“IJ”) denying his motion to reopen his removal proceedings and to rescind a June 24, 2002 in absentia order of removal. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the scope of the issues presented on appeal. We review the BIA’s denial of Mascoe’s motion to reopen his removal proceedings for abuse of discretion. Jie Chen v. Gonzales, 436 F.3d 76, 77 (2d Cir.2006). An abuse of discretion may be found where the BIA acts in an arbitrary or capricious manner, i.e., where its decision provides no rational explanation, inexplicably departs from established policies, lacks any reasoning, or contains only summary or conelusory statements. Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir.2005). Under the Immigration and Nationality Act (the “INA”), an alien who receives proper written notice of his removal hearing but fails to appear, and is found to be removable at that hearing, shall be ordered removed in absentia. 8 U.S.C. § 1229a(b)(5)(A). Once the in absentia removal order is entered, the alien may move to reopen the proceedings and rescind the order on grounds that he “did not receive notice” of the hearing as required by statute. 8 U.S.C. § 1229a(b)(5)(C)(ii). In reviewing such a motion, the BIA applies a rebuttable presumption of receipt where the Notice To Appear (“NTA”) is properly addressed and mailed in accordance with regular office procedures. Silva-Carvalho Lopes v. Gonzales (Lopes I), 468 F.3d 81, 85 (2d Cir.2006); see also Silva-Carvalho Lopes v. Mukasey (Lopes II), 517 F.3d 156, 160 (2d Cir.2008). With respect to the evidence the BIA should consider upon ruling on such a motion, we have held that “an affidavit of non-receipt [by the alien] might be insufficient by itself to rebut the presumption [of receipt], [but that] it does raise a factual issue that the BIA must resolve by taking account of all relevant evidence^] .... including circumstantial evidence, offered to rebut that presumption.” Lopes I, 468 F.3d at 85-86. We conclude that the BIA did not abuse its discretion in dismissing Mascoe’s appeal from the IJ’s decision denying Mascoe’s motion to reopen his removal proceedings. The IJ found that the presumption of receipt attached to the NTA based on the following evidence: the NTA was mailed to Mascoe’s attention at Sing Sing; a hearing notice letter was served upon Mascoe personally by a Sing Sing correctional officer on the morning of the hearing; and in accordance with the facility’s standard procedures, that correctional officer signed and filed a memorandum that morning stating that Mascoe had received notice of his hearing but had refused to sign an acknowledgment of the notice. The IJ weighed Mascoe’s affidavit stating that he had not received the NTA against the officer’s sworn declaration stating that he had followed Sing Sing’s standard procedures in notifying Mascoe of his hearing the morning of June 24, 2002, and that Mascoe had refused to sign the memorandum indicating his receipt of the notice. After doing so, the IJ concluded that Mascoe had not rebutted the presumption of receipt of the NTA and that his in absentia order of removal should not be rescinded. Consequently, the BIA was well within its discretion in dismissing Mascoe’s appeal from this decision. In addition, the BIA did not abuse its discretion in finding that the NTA provided Mascoe with adequate notice of the charges against him and that the IJ permissibly added a somewhat different charge to the NTA. By amending the original NTA to include a charge of removability under 8 U.S.C. § 1227(a)(2)(A)(iii) on grounds of “attempt ... to commit” murder, 8 U.S.C. § 1101(a)(43)(U)—the actual crime of which Mascoe had been convicted—the IJ did not violate the notice regulations of the INA. See 8 C.F.R. § 1003.30. The original NTA, which specified charges of murder and a crime of violence as provided in 8 U.S.C. § 1101(a)(43)(A) & (F), provided Mascoe with adequate notice that, as a result of his involvement in a homicide, he had been convicted of a removable offense. The new notice conveyed exactly that information, only more precisely. Finally, we agree with the BIA’s conclusion that Mascoe waived his right to testify at the November 16, 2007 hearing before the IJ. During the hearing, Mas-coe’s counsel stated that his “client’s principal] testimony is similar to what he would put in the affidavit ... [w]hich is that he never received the notice,” and “I guess I’m prepared to close the record.” Mascoe was bound by his counsel’s tactical decision not to submit additional evidence. See Matter of Gawaran, 20 I. & N. Dec. 938, 942 (B.I.A.1995). We have reviewed Mascoe’s remaining contentions and find them to be without merit. The judgment of the District Court is AFFIRMED.

MEMORANDUM Defendant Daniel Anderson appeals (1) the district court’s denial of his motion to withdraw his guilty pleas, (2) the district court’s failure to set aside the plea agree ment because the government had breached it, and (3) the amount of the district court’s modified restitution order. We affirm. 1. ‘We review de novo whether a defendant has waived his right to appeal by entering into a plea agreement and the validity of such a waiver.” United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir.2005). We will enforce a defendant’s appellate waiver when “(1) the language of the waiver encompasses his right to appeal on the grounds raised, and (2) the waiver is knowingly and voluntarily made.” Id. Here, the district court accurately found that no package deal existed. See United States v. Caro, 997 F.2d 657, 660 (9th Cir.1993) (requiring district courts to make a “more careful examination of voluntariness” during the Rule 11 colloquy “when a plea bargain is conditioned on the cooperation of more than one defendant.”). Accordingly, Anderson knowingly and voluntarily waived his right to appeal, and we cannot review the district court’s denial of Anderson’s motion to withdraw his guilty plea. 2. Anderson’s valid appellate waiver does not preclude review of Anderson’s claim that the prosecution breached the plea agreement. United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir.1996) (noting an exception for “claims involving a breach of the plea agreement”). The government’s act of re-indicting Anderson with the counts it had dismissed according to the plea agreement was not a remedy the agreement allowed for Anderson’s breach. However, it does not require that Anderson’s plea be set aside. The district court’s remedy, requiring the plea to be set aside if the government decides to try Anderson on the remaining counts, was appropriate under the circumstances. 3. Anderson’s valid appellate waiver does not preclude review of the district court’s restitution order. See United States v. Gordon, 393 F.3d 1044, 1050 (9th Cir.2004) (“A restitution order which exceeds its authority under the [Mandatory Victims Restitution Act] is equivalent to an illegal sentence.... [Therefore, the waiver of appeal is inapplicable to [the restitution order].”). The Mandatory Victims Restitution Act “minimally requires that facts [supporting the amount victims lost] be established by a preponderance of the evidence, and the district court may utilize only evidence that possesses sufficient indicia of reliability to support its probable accuracy.” United States v. Waknine, 543 F.3d 546, 557 (9th Cir.2008) (internal quotation marks omitted). The district court did not abuse its discretion in ordering Anderson to pay the restitution specified in its modified order. See United States v. Peterson, 538 F.3d 1064, 1074 (9th Cir.2008). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

McKENNAN, Circuit Judge. By the twenty-third section of the act of congress of March 2, 1799 (1 Stat 644), all masters of vessels, owned in whole or in part in the United States, carrying goods from a foreign port into the United States, are required to have a manifest or manifests of their cargo; and, by the twenty-fourth section of the same act, a forfeiture equal to the value of the goods not included in the manifests, is imposed, “and all such merchandise, not included in the manifest, belonging or eon- signed to tlie master, mate, officers or crew of such ship or vessel, shall be forfeited.” These provisions are applied also to foreign vessels by the twenty-fifth section of the act of July 18, 1S06 [14 Stat 184], and, by the eighth section, the vessel may be holden for the penalty thus imposed. The object of these laws is to protect the public revenue. Hence it is required of the chief officer of the vessel, that he shall keep a manifest of his whole cargo in the form prescribed, to facilitate and assure the collection of the duties imposed upon it; and the observance of this requirement is enforced by a penalty. It is the act or neglect of the master for which the penalty is imposed; for while the goods not on the manifest, belonging or consigned to any of the officers or crew, are forfeited, the master alone is condemned to the payment of a sum in money equal to the value of such goods. The personal forfeiture is the prescribed punishment of his personal delinquency. The unexplained finding of goods on board, not embraced in the manifest, is sufficient primary evidence of his liability to the penalty, but, by the express enactment of the proviso to the twenty-fourth section above referred to, this may be averted by proof, that no part of the cargo had been unship-ped, except as reported by the master, and that the manifest had been lost or mislaid, without fraud or collusion, or that they were defaced by accident or incorrect by mistake. The motive of the omission is thus made the ultimate test of culpability. It is, therefore, a superficial, as well as harsh, interpretation, which applies to the proofs of the master’s faultlessness a standard of literal conformity to the mode of exculpation, which the act indicates, but does not prescribe exclusively, as effectual. If the apparent offence is expurgated, the spirit and object of the law are effectually subserved. An omission then to perform the duty imposed upon the master, which proof of an honest mistake or an unavoidable accident will excuse, will be condemned also by proof, which, in like-manner, relieves him from all suspicion of corrupt or conscious wrong. The respondent here is the master of the ship Stadacona, of Londonderry, Ireland. The night before she sailed from her home port, while the officers of the vessel were on shore, the steward carried on board nineteen bundles of silk, and concealed them in a space between the bread locker and the stairs leading from the cabin to the upper deck. This space was boarded up and covered with tin. In reference to it, the master, in his deposition, says: “This place had never been opened to my knowledge. I never imagined it could be opened, and never paid any attention to it.” When the vessel was searched by the custom house officers at Philadelphia, this place was discovered and broken open, and the silks were found secreted therein. There is no contention as to this state of facts, or as to the fair inference from them, that the shipment and concealment of the goods were the act of the steward alone, without the participation or knowledge of the master. It is not to be gainsayed, under such circumstances, that the master could not make an entry of the concealed goods on the manifest, and that his inability to make it did not result from any fault of his. No personal delinquency is imputable to him. While the smuggled goods then were properly condemned and forfeited, they are not to b§ treated as any part of the cargo, within the meaning of the act of congress, for the non-entry of which upon the manifest a penalty is imposed upon the master. He cannot be subjected to a personal forfeiture, when he has not done, or omitted to do, anything inconsistent with an honest purpose to discharge his duty. The district court rightly so adjudged, and its decree is affirmed.

CRANCH, Chief Judge, delivered the opinion of the court (nem. con.) as follows: The defendant has been convicted upon the second count of this indictment, which is in the following words: “And the jurors aforesaid, upon their oath aforesaid, do further present that the said Ann Royall, being an evil disposed person as aforesaid, and a common scold and disturber of the peace of her honest and quiet neighbors, on the first day of June, in the year of oúr Lord one thousand eight hundred and twenty-nine, as aforesaid, at the county of Washington aforesaid, and on divers other days and times, as well before as after, was and yet is a common scold, and disturber of the peace and happiness of her quiet and honest neighbors residing in the county aforesaid; and that the said Ann Royall, on the first day of June, in the year aforesaid, and on divers other days and times, as well before as afterwards, in the open and public streets in the city of Washington, in the county aforesaid, did annoy and disturb the good people of the United States residing in the county aforesaid, by her open, public, and common scolding, to the common nuisance of the good citizens of the United States residing within the county aforesaid, to the evil example of all others in like cases offending, and against the peace and government of the United States.” The counsel for the defendant has moved the court to arrest the judgment, and to grant a new trial. In support of the motion to arrest the judgment, it is contended that the law for the punishment of common scolds is quite obsolete in England, arid never was in force in this country; that it is a - barbarous and unusual punishment, and therefore is prohibited by the bill of rights annexed to the constitution of Maryland, under whose supposed common law this indictment is • framed; that the punishment of ducking was the appropriate and orily punishment by the common law of England; and that, as that mode of punishment is obsolete there, and never was in use here, the law, which considered scolding as an indictable offence, is obsolete also. That the term “scold” is of uncertain signification; that the offence is not well defined in any adjudged case, or in any elementary writer. Jacob, in his Law Dictionary, says: “Scolds, in a legal sense, are troublesome and angry women, who, by their brawling and wrangling amongst their neighbors, break the public peáce, increase discord, and become a public nuisance to the neighborhood.; They are indictable in the sheriff’s toum, and punished by the cucking-stool.” In ojder to show that such was the only punishment which could be inflicted upon a scold, the counsel for the defendant cited Jacobis Diet. (Tomlin’s Ed.) tit. “Castigatory for;Scolds,” where it is said: “A woman indicted ;for being a common scold, if convicted, shall be sentenced to be placed in a certain engine of correction called the “trebucket,’ *tumbrel,’ ‘tymborella,’ ‘castigatory’ or ‘cucking-stool,’ which, in Saxon, signifies the ‘scolding-stool,* though now it is frequently corrupted into ‘ducking-stool,’ because the residue of the judgment is, that when she is so placed therein, she shall be plunged into the water for her punishment.” And in the case of Reg. v. Poxby, 6 Mod. 11, the reporter says: “Note, the punishment of a scold is ducking” ; and Holt, when the exception was first made, said: “It were better ducking in a Trinity than in a Michaelmas term.” And in the same case, in C Mod. 178, it is said: “She was convicted by the justices of the peace, at their quarter sessions at Maidstone, upon an indictment for being a common scold, and judgment that she should be ducked; whereupon she brought a writ of error, and hereupon the sheriff let her go at large, there being no fine or imprisonment in the judgment.” And again, in the same case, 6 Mod. 213, upon affidavits that she was so ill that, without danger of her life, she could not come up to assign errors, in person, according to the course of the court, “they enlarged the time till next term, to see how she would behave herself in the mean time; for Holt, Chief Justice, said ducking would rather harden than cure her; and if she were once ducked she would scold all the days of her life;” a consequence which the court would hardly have inflicted upon the public, if they could have avoided it by substituting fine and imprisonment for ducking. Prom these authorities the counsel for the defendant concluded that ducking was the only punishment which could ever have been inflicted upon a scold, by the common law. And to show that that punishment was obsolete in England, he cited the following passage from Jacob’s Law Dictionary, tit. “Cas-tigatory”: “Though this punishment is now disused, a former editor of Jacob’s Dictionary (Mr. Morgan) mentions that he remembers to have seen the remains of one” (a ducking stool) “on the estate of a relation of his, in Warwickshire, consisting of a long beam or rafter, moving on a fulcrum, and extending to the centre of a large pond, on which end the stool used to be placed.” The only punishment which could be inflicted being obsolete, the counsel for the defendant contended that the offence was no longer indictable, and therefore the judgment ought to be arrested. But it will be perceived that this argument rests upon the proposition that ducking was the only punishment which could be inflicted for the offence of being a common scold; and that that proposition is supported only by uncertain inferences drawn from a few loose expressions in the books, and chiefly from the word “shall,” and the word “residue,” in the first passage above cited, from Tomlin’s Jacob’s Dictionary, tit. “Castigatory.” That passage, and particularly those words “shall” and “residue,” are copied from 4 Bl. Comm. 16S, where Blaekstone says: “Lastly, a common scold—‘communis rixatrix’—(for our law Latin confines it to the feminine gender,) is a public nuisance to her neighborhood, for which offence she may be indicted (6 Mod. 213); and, if convicted, shall (1 Hawk. 198, 200) be sentenced to be placed in a certain engine, of correction called the ‘trebucket,’ ‘castigatory,’ or ‘cucking-stool,’ which, in the Saxon language, is said to signify the ‘scolding-stool’; because the residue of the judgment is that, when she is so placed therein, she shall be plunged in the water for her punishment. 3 Inst. 219.” The authorities, thus cited by Blaekstone, do not indicate any opinion that ducking is the only punishment, nor even that it is an indispensable part of the punishment. The- argument drawn- from the playful expression of Lord Chief Justice Holt, in 6 Mod. 213, does not warrant so grave a conclusion. They were intended, perhaps, only to excite suprise by their exaggeration; for surprise is sometimes an approximation to wit. Nor can such a conclusion be drawn from the language of Hawkins in the passages cited by Blackstone. 1 Hawk. P. C. 198, 200. The first of those passages is this: “Although it hath been said that an indictment of a common scold by the words ‘communis rixatrix,’ which seem to be precisely necessary in every indictment of this kind, is good, though it conclude ‘ad commune nocumentum dl-versorum,’ instead of ‘omnium,’ &e., perhaps for this reason; because a common scold cannot but be a common nuisance.” The other passage is (1 Hawk. P. C. 200)—“As to the third point, namely, in what manner common nuisances may be punished, it is said that a common scold is punishable by being piit in the ducking-stool; and there is no doubt but that, whoever is convicted of another nuisance may be fined and imprisoned.” And the passage cited from 3 Inst. 219, seems rather to justify a contrary conclusion. Lord Coke is speaking of the different means of punishment; and, after describing the pillory and tumbrel, he says—“ ‘Trebuck-et,’ or ‘castigatory,’ named in the statute of 51 Hen. HI., signifieth a ‘cucking-stool’; and ‘trebucket’ is properly a ‘pitfall,’ or ‘downfall,’ and, in law, signifieth a stool that fall-eth down into a pit of water, for the punishment of the party in it; and ‘chuck,’ or ‘guek,’ in the Saxon tongue signifieth to scold or brawl, (taken from ‘cuekhaw’ or ‘guck-haw,’ a bird, ‘qui odiose jurgat et rixatur,’) and ‘ing,’ in that language, (water); because she was, for her punishment soused in the water; and others fetch it from ‘cuck-quean i pellex.’ ” This citation does not justify an inference that the ducking-stool was an instrument appropriated to the punishment of scolds only. It says, for the punishment of the party; and it refers to the statute of 51 Hen. IH. stat. 6, entitled “Judicium Pillorie; A Statute of the IMllory and Tumbrel, and of the Assize of Bread and Ale,” “A. D. 1266,” by which it is enacted, that “if a baker or a brewer (braciatrix) be convict, because he hath not observed the assize of bread and ale,” “patiatur judicium corporis silicet, pis-tor collistrigium, et braciatrix trebuehetum vel castigationem” (the old translation in the statute-book is—“then he shall suffer punishment of the body; that is, to wit, a baker to the pillory, and a brewer to the (umbrel, or some other correction.”) It is, therefore, clear, that the punishment of the tumbrel or trebucket, which were the same instrument, was not confined to scolds; and that this citation from Lord Coke does not justify an inference that ducking was the only punishment which could be inflicted upon them. If it should be said that such an inference may be drawn from the etymology of the word “cucking-stool,” which he derives iron; a Saxon word signifying to scold, that inference is rebutted by the more probable etymology given by Bum (3 Bum’s Justice, p. 225), who says—“The common people in the northern parts of England, amongst whom the greatest remains of the ancient Saxon are to be found, pronounce it ‘ducking-stool,’ which, perhaps, may have sprung from the Belgic or Teutonic ‘ducken,’ to dive under water; from whence, also, probably we denominate our duck, the ‘water-fowl’- or, rather, it is more agreeable to the analogy and progression of languages to assert, that the substantive, ‘duck,’ is the original, and the verb made from thence; as much as to say, to ‘duck’ is to do as that fowl does.” So that the name of the instrument may have been given to it because it is a plunging instrument, and not because it was used for the punishment of scolds only. The words “tumbrel,” “trebucket,” “castigatory,” “cucking-stool,” and “ducking-stool,” are used synonymously by the old writers, as well as in the old statutes; so that the observations of lord Coke in the following passage, from the page cited by Blackstone (S Inst. 219), is as applicable to the trebucket as to the tumbrel—“Now, for that the judgment to the pillory or tumbrel (as hath appeared before,) doth make the delinquent infamous, and that the rule of law is ‘Judicium de majore poena quam quod legibus statntum est non infamum facit, sed per breve de errore adnullari potest’; and again, ‘Preña gravior ultra legem posita aestimationem conservat’; that the justices of assize, oyer and terminer, jail delivery, and justices of the peace would be well advised, before they give judgment of any person to the pillory or tumbrel, unless they have good warrant for their judgment therein. Pine and imprisonment, for offences finable by the justices aforesaid, is a fair and sure way.” It is said, however, that this last observation of Lord Coke is confined to of-fences finable by the justices; and that to argue, from that passage, that a common scold was finable, is to beg the question; as the sentence admits, by implication, that some offences, punishable by the pillory or tumbrel, might not be finable by the justices. In the next sentence, in the same page, however, Lord Coke enumerates many statutes which authorize punishment by the pillory and tumbrel; in some of which the courts are authorized to inflict that punishment in addition to fine and imprisonment, and in others to inflict that punishment-alone; which will account for Lord Coke’s advice being confined to offences finable by the justices, without admitting that there were .any common-law misdemeanors which could not be punished by fine and imprisonment. Mr Chitty (1 Cr. Law, 710) lays down this general rule, that “every description of misdemeanor, or crime, for which an indictment will lie at common law, not subjecting the offender to a capital penalty, is within the discretion of the judges.” Thus in the case of Rex v. Thomas, Cas. t. Hardw. 279, convicted of keeping a disorderly house, the wife was in prison, but the husband had run away from his bail; affidavits were made that the prisoner was in so weak a condition that a bodily punishment might kill her: “Per Curiam. The ordinary judgment in this cáse is pillory; but, for misdemeanor, the court is not tied down to any particular punishment; and being a married woman has nothing to pay a fine withal, the punishment must be imprisonment.” The judgment was, that she be imprisoned a year, and then to find security for her good behavior for seven years. It may be observed, also, in the Case of Poxby, before cited from 6 Mod. 17S, that she was a married woman, as appears in page 213 of the same book; which may account for the judgment not being fine and imprisonment, as well as ducking. In Bac. Abr. tit. “Nuisance,” D, it is said—“All common nuisances to the public are regularly punishable by fine and imprisonment, at the discretion of the judges; but in some cases corporal punishment may be inflicted, as in the case of a common scold, who is said to be properly punishable by being put into a ducking-stool Also the offence of keeping a disorderly house is punishable, not only with fine and imprisonment, but also with such infamous punishment as to the court, in its discretion, may seem proper.” We think that, by these authorities, it is clear that Sir William Blackstone, in using the word “shall” in the passage cited, is not to be understood as having used it in its peremptory and obligatory sense, and as intimating that the court was bound to inflict the punishment of ducking upon a common scold, under all possible circumstances; and that, in using the word “residue,” it is not to be presumed that he intended to be understood as denying the power of the court to punish any common-law misdemeanor by fine and imprisonment It is true, that the court, in its discretion, might sentence the offender to be ducked only; in which ease, it would be part of the judgment that she should be placed in the stool; and the “residue,” in that case, would be, that she should be plunged in the water. And in this sense only can Blackstone be understood, consistently with the general principles of law and the authorities cited. If a part of the common-law punishment of the offence has become obsolete, the only effect is, that the discretion of the court is so far limited! The offence is not obsolete, and cannot become obsolete so long as a common scold is a common nuisance. All the elementary writers upon criminal law admit, that being a common scold, to the common nuisance of the neighborhood, is an indictable offence at common law The court is therefore of opinion, that although punishment by ducking may have become obsolete, yet that the of-fence still remains a common nuisance, and, as such, is punishable by fine and imprisonment, like any other misdemeanor at common law; and that, therefore, the motion in arrest of judgment must be overruled. The motion for a new trial rests upon two grounds: (1) That a woman cannot be guilty of scolding unless the words were spoken in anger, and with turbulence; and that the court permitted evidence to be given of insulting and provoking language, uttered by the defendant in an insulting and provoking manner, but not in an angry and turbulent manner; and that there were only two or three instances proved of the language being used by the defendant in anger. (2) That the jury was permitted to take out the indictment which contained the two counts which the court had adjudged to be insufficient. without any information to the jury that those two counts were not to be considered by them. 1. As to the first ground of new trial, the court, at the trial, overruled the objection to the evidence, being of opinion that the insulting and provoking language might be given in evidence, although .not spoken in an angry or turbulent manner; which opinion, they still think, is correct, and that its admission is not a sufficient reason for granting a new trial. 2. The second reason is, that the jury took out with them , the indictment containing the two counts which the court had, upon demurrer, adjudged to be insufficient. Those counts were not matter of evidence; nor could they have been so understood by the jury; and they could not be separated from the good count, upon which the issue was joined. The indictment was, as usual, delivered to the jury when they retired, without objection by the defendant, or her counsel; and •all the facts averred in those counts were matters which, if proved, were evidence upon the issue which the jury was sworn to try.. If issue had been joined upon all the three counts, and a general verdict of guilty had been rendered, the judgment could not have been arrested on account of the two bad counts; and yet the jury might have given their verdict, in fact, upon evidence applicable only tr one of the bad counts. It is true that it might be the ground of a motion for a new trial; but, upon that motion, the court, before they would grant a new trial, must be satisfied that the evidence was not sufficient to support the good count. So here, although the jury might have supposed they were trying an issue upon all the counts, and may have given their verdict, because they thought one of the bad counts was supported, if the court is satisfied that the evidence was sufficient to support the good count, the court ought not, in its discretion, to grant a new trial. The court is perfectly satisfied that the evidence in that respect was sufficient, and must, therefore, overrule the motion. The defendant was sentenced to pay a fine of $10, and to give security for her good behavior for one year, and to stand committed until the fine and costs should be paid, and the security given.

Before BETTS, District Judge. The collector lately seized 1,3S2 hogsheads of sugar, claimed by F. Luling & Co., on the ground that they were undervalued. The appraised value of the goods was $23,000. The duties on the same were $15,006. The collector of the port instructed the district attorney in bonding the goods to demand a bond for $43,000, covering both the duties and the appraised value. To this the claimant demurred, and came before the court for its order in the premises. The attorney for the claimants contended the government could demand a bond for $28,000 only, that being the appraised value; that upon withdrawing the goods under the bond, the claimants were bound in any event to pay $15,000 duties, and that if this $15,000 should also be included in the bond, and the bond should be forfeited, that then the $15,000 would be necessarily paid by the claimants the second time, which would be unjust. Upon hearing argument on the other side, the judge said “that this matter had been decided before.” He had previously given his decision that the government could claim for only- the appraised value, and directed the entry of the following order: “On motion of Sidney Webster, Esq., for the claimants, for bonding the merchandise in this suit, and upon hearing said proctor in support of said motion, and upon hearing Ethan Allen, Esq., assistant United States district attorney, in opposition thereto, it is hereby ordered that the merchandise in question be bonded at their appraised value, exclusive of the duties; and if the parties do not agree as to the appraised value, that an appraiser or appraisers will be appointed by this court to determine the value thereof.” The goods were bonded for $28,000, accordingly.

GOODWIN, Circuit Judge: Stephen C. Forde and three of his associates in a bank fraud scheme appeal their respective convictions following a jury trial on various counts of a 72-count indictment. Jon W. Schroeder, Edward Hart, Carol G. Unruh, William L. Fowler, and Robert Hopper were charged with Forde. The indictment charged one count of conspiracy, 18 U.S.C. § 371 (1982); 61 counts of misapplication of bank funds, 18 U.S.C. § 656 (1982), including a check-kiting scheme and 60 misapplied loans; three counts of false entries in bank records, 18 U.S.C. § 1005 (1982); seven counts of mail fraud, 18 U.S. C. § 1341 (1982); and numerous instances of aiding and abetting the commission of these crimes, 18 U.S.C. § 2 (1982). Schroeder and Hart pleaded guilty, and the remaining defendants were tried together. Forde was found guilty of 35 counts of misapplication of bank funds and three counts of making false entries, sentenced to 15 years in custody, and ordered to pay nearly $3 million in restitution. Fowler was found guilty of six counts of misapplication and sentenced to five years, and to make restitution of $175,000; Un-ruh, two counts of misapplication, 30 months, $75,000; and Hopper, one count of misapplication, two years, no restitution. The evidence presented at trial, viewed in the light most favorable to the prosecution, revealed that: In 1981, Forde, a lawyer who controlled the Bank of San Marino (BSM), was financially overextended. In December 1981, he, Schroeder and two associates took control of Pacific Coast Bank (PCB). Between December 1981 and March 1982 Forde engaged in a check-kiting scheme and caused PCB to make numerous questionable loans. Many of the loans were for amounts at or near PCB’s lending limit and were made to persons who would not ordinarily qualify for such loans under prudent banking practices. A substantial portion of the proceeds of these loans benefited Forde and Schroeder. Unruh was a law student. During this period she prepared for the bar examination and managed Forde’s checking accounts. Fowler was an experienced loan broker. Hopper had experience in the banking business. Fowler and Hopper assisted Forde by soliciting individuals to obtain loans at PCB in order to invest in business ventures benefiting Forde and Schroeder. Count one of the indictment charged the defendants with conspiring to commit the charged substantive crimes. This count was later dismissed on the government’s motion. Count two charged Forde and Unruh with kiting checks. Forde had checking accounts at a number of banks, including PCB and BSM. Each of these banks, as a matter of policy, would notify Forde of potential overdrafts and allow him to deposit a check to cover the deficiency. Forde would then write a check on another one of his accounts and deposit it to the deficient account. Because each new check would be credited to the deficient account before it would be charged to its own account, Forde could generate the appearance of a positive net balance in his accounts. Generally, the account on which his covering check was written would be without sufficient funds to pay the covering check. When the drawee bank for the covering check notified Forde of the deficiency, he would deposit an unfunded check from another account in which he had overdraft privileges but insufficient funds to cover the check. As a result of this scheme, Forde made temporary use of substantial amounts of bank funds. Unruh wrote most of these checks. Forde and Unruh were convicted on this count. Counts three to eleven concern loans from PCB to various individuals, including Unruh (count seven), Hopper (count eight), and Fowler (count eleven). The prosecution argues that much of the loan proceeds was diverted to Forde and Ms associates. Forde was convicted on all but count eight. Unruh was convicted on count seven, and Hopper was convicted on count eight. The jury was unable to agree on Fowler’s counts. Counts 12 to 19 address eight loans, each for $75,000. In each case the borrower agreed to re-lend $35,000 to Charter Services Corporation, a shell corporation owned by Forde and Schroeder. Fowler solicited these borrowers and ran the Charter checking account that funneled funds to Forde and Schroeder. Counts 12 and 15 were withdrawn before deliberation. Fowler and Forde were convicted on the other counts in this group. Counts 20 to 28 involve loans used to purchase stock of the Aloha National Bank, which Forde had founded. The loans were designed to help Forde gain control of the bank. The prosecution withdrew counts 21 to 23 and 25 to 26. The jury hung on the other counts. These counts will not be further considered. Counts 29 to 62 concern transactions the parties refer to as “the partnership loans.” Forde planned to raise money by selling some of his real estate. Fowler and Hopper solicited persons with clearly inadequate credit ratings to obtain loans from PCB and use the loan proceeds to become limited partners in one of a number of limited partnerships Forde established, and in which he served as general partner. Forde would then sell to the new partnership at an inflated price property he owned or controlled. All of the counts charged Forde and Unruh, and some of them charged the other defendants. The prosecution withdrew counts 30 to 35, 51, 54 to 55, and 61 to 62. The jury convicted Forde on counts 29, 36-39, 43-50, 52 to 53, and 56 to 60. The jury hung on the remaining charges. Counts 63 to 65 charge Forde with making false entries in PCB’s records. He was convicted on these counts. Counts 66 to 72 charge all four defendants with participating in a scheme to deceive those who had previously invested in their investment schemes by leading them to believe that their investments were sound. Counts 67 and 70 were withdrawn; the jury hung on the remaining counts. Sufficiency of the Evidence of Check-Kiting Forde and Unruh challenge the sufficiency of the evidence to sustain their convictions of violating 18 U.S.C. § 656 (1982) by kiting checks. Section 656 is violated if (1) the defendant was an executive officer of a bank, (2) which was connected in some capacity with the Federal Reserve System, who (3) willfully misapplied the funds of that bank and (4) acted with intent to injure and defraud that bank. See United States v. Christo, 614 F.2d 486, 490 (5th Cir.1980). Like many banks, the Pacific Coast Bank and the Bank of San Marino, both of which Forde controlled, tried to avoid dishonoring checks written by their officers and certain valued depositors. See Christo, 614 F.2d at 493 (noting that the honoring of insider overdrafts is a general practice in the banking industry). If a check written by Forde on his PCB account was presented to that bank for payment at a time when that account did not contain sufficient funds to cover the cheek, the bank would inform Forde or Unruh and allow one of them to deposit a check on its face sufficient to cover the shortfall. Forde argues that he was taking legitimate advantage of an open and accepted policy. If the bank’s practice of honoring insider overdrafts was a service it provided, in the exercise of its business judgment, as an accommodation to its officers and special customers, it was supplemental compensation to the officers. And, Forde argues, even if his extensive use of the “no-bounce” policy exceeded the bank’s consent, and so injured the bank, he did not violate § 656 because he did not intend to harm or defraud the bank. In support of this argument, Forde points out that he did not attempt to conceal his activities from the banks involved. He controlled both banks. The prosecution contends that Forde and Unruh’s pattern of activities was proof of criminal intent. On 39 of the 56 days analyzed, the effective net balance in Forde’s various checking accounts was negative, in an amount averaging $64,000. Forde was thus able to use for his own purposes an average of $64,000 of a bank’s money without having to apply for a loan, provide security, or pay interest. Forde says this is a fringe benefit of owning a bank and therefore its enjoyment is not a felony. Forde relies on Christo, which reversed a conviction for violating § 656 and stated, “[T]he prosecution does not cite, nor is this Court aware of, even one case upholding a conviction for willful misapplication involving unconcealed checking account over-drafting by a bank officer or employee.... [A] case of insider overdrafting has never been held to constitute willful misapplication.” 614 F.2d at 493. In most convictions under § 656 for check-kiting, the defendants either departed from the bank’s normal procedures or attempted to conceal their activities from other bank employees. See, e.g., United States v. Landof 591 F.2d 36 (9th Cir.1978) (cashier’s checks issued based on insufficiently funded checks); Benchwick v. United States, 297 F.2d 330 (9th Cir.1961) (cheeks kept in deferred items account to avoid creating overdrafts). Christo is weak and ambiguous support for Forde’s position. Christo, unlike Forde, was a bank officer taking unconcealed advantage of his bank’s policy of honoring insider overdrafts. But Christo’s conviction was reversed because the judge instructed the jury that a § 656 violation could be predicated on a violation of a civil banking regulation. No such error was committed here. Moreover, Christo was remanded for trial on the theory that the facts “might have been sufficient” to find criminal misapplication. 614 F.2d at 494-95. The court said that willful misapplication with intent to injure and defraud would require case-by-case examination. The prosecution relies on cases showing that the board of directors of a bank does not have the authority to condone such uncontrolled extensions of credit. See United States v. Beran, 546 F.2d 1316, 1321 (8th Cir.1976), cert. denied, 430 U.S. 916, 97 S.Ct. 1330, 51 L.Ed.2d 595 (1977); United States v. Salinas, 654 F.2d 319, 328 & n. 12 (5th Cir.1981), overruled in part on other grounds, United States v. Adamson, 700 F.2d 953, 965 n. 18 (5th Cir.) (en banc), cert. denied, 464 U.S. 833, 104 S.Ct. 116, 78 L.Ed.2d 116 (1983). Cf. United States v. Gregory, 730 F.2d 692, 701-02 (11th Cir.1984) (board consent is particularly suspect when the board was controlled by defendants), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985). However, the prosecution’s cases are also ambiguous. For example, Beran held: The valid consent of the board of directors is a defense to the crime of misapplication of bank funds.... The board, however, has no authority to approve of a crime or fraud on the bank.... Thus, if an intent to defraud through the conversion of bank funds existed, then approval of the board of directors is no longer material to whether there was a misapplication of bank funds. 546 F.2d at 1321. This language is ambiguous because intent to injure or defraud the bank is an essential element of misapplication under section 656. United States v. Arthur, 544 F.2d 730, 736 (4th Cir.1976). Salinas and Gregory follow Beran. The Beran case does not define valid consent. Nor does it define what crimes are beyond the reach of consent. If valid consent were a complete defense to a § 656 violation, the board would have the power to sanitize conduct that otherwise would be a crime. The cases can not be presumed to have created a license to steal. The better reasoning treats board consent as evidentiary. “[The board’s] knowledge, ratification, and consent are not per se defenses to the charge. Instead these are evidentiary matters that may be considered as part of the defense that there was either no willful misapplication or no intent to injure the bank.” United States v. Cauble, 706 F.2d 1322, 1353 (5th Cir.1983) (footnote omitted), cert. denied, 465 U.S. 1005, 104 S.Ct. 996, 79 L.Ed.2d 229 (1984). Cauble also notes “ ‘[rjeview by the board is a particularly dubious basis for exculpating the [defendant] in this case, since the evidence showed that [the defendant] was the moving force behind the board of directors.’ ” Id. at 1354 n. 125, quoting Salinas, 654 F.2d at 328 n. 12. We decline to interpret “valid” consent as merely requiring the observance by those in control of the bank of corporate formalities. Proscriptions of misconduct by bank officers, directors, agents, or employees suggests that § 656 was directed against insiders, who would ordinarily be in a position to observe corporate forms. Defining valid consent to require merely the observance of corporate form would be inconsistent with the purpose of § 656. The parties had the right to argue whether the consent was the result of manipulation or is otherwise invalid. The jury could have decided that the apparent consent of the board might negate the intent element of misapplication. The evidence here also could justify the jury’s conclusion that Forde misapplied bank funds. Forde held a controlling block of stock in the PCB and BSM. This control could justify the conclusion that the respective bank boards were not exercising independent judgment but were acting as tools of Forde. While banks are entitled to spend money on salaries and bonuses, the jury could have found that a disinterested board would not have approved an open-ended authorization to use the bank’s credit for Forde’s personal purposes. Cf. H. Henn & J. Alexander, Laws of Corporations § 245 at 670-71 (3d ed. 1983) (special scrutiny for insider compensation). Under these circumstances, the jury could find that consent by the board was not valid and therefore not a defense. The jury could also find that Forde had no intent to injure the bank. While the jurors had sufficient evidence to conclude that Forde knew that the board was not exercising its independent judgment, there was also some evidence that the board did act independently. A director of Forde’s banks testified that Forde picked Hart as president for bank because Hart was controllable, albeit stupid. The director also testified that at a directors meeting, the independent directors had been shocked by Forde’s overdrafting. Finally, Forde had notice that overdrafts were subject to Regulation 0, 12 C.F.R. pt. 215 (1986), which prohibits bank loans to insiders exceeding $25,000 without special procedures, and that his overdrafts violated the regulation. Under these circumstances, the jury could conclude that despite Forde’s disclosure of his conduct to directors, Forde’s intent was to misapply bank funds and that his interest-free loans were not a part of Forde’s authorized compensation. The kiting count against Forde had an evidentiary basis to go to the jury. Unruh argues that her preoccupation with her studies meant that she could not have had any criminal knowledge or intent. She relies on Snyder v. United States, 448 F.2d 716 (8th Cir.1971). The defendants there relied on a bank president as their financial adviser, and were themselves so naive in financial matters that they did not pay attention to the transactions the president conducted on their behalf. Unruh, by contrast, was a trained if not admitted lawyer. She personally managed Forde’s checking accounts, communicated with a number of banks on a daily basis, and caused checks to be delivered by messenger to cover any shortfalls. It defies common sense to say that she knew nothing of the check-kiting scheme. Unlike in Forde’s case, however, the instructions did not require the government to prove that Unruh had notice that the transactions violated bank rules. The directors testified that she was not present at any of the board meetings. Fowler also was not present. Unlike Forde, Unruh had no specific reason to know of Regulation O. She received no special financial benefit from the check-kiting. She did know that the banks had a policy of covering the overdrafts of some customers and directors and officers, that Forde had fully informed the banks of his actions, and that the directors allowed the practice to continue for some months. She knew of Forde’s apparent wealth. Under these circumstances, an inference that Unruh knew that the board’s consent was invalid would have to be supported by evidence weighed under an ap propriate instruction. The jury may have found Unruh guilty because it was not instructed that the consent of the board and the good-faith belief that the board had consented were defenses to her criminal intent in participating in the scheme. Consequently, Unruh’s conviction on count two must be vacated and remanded for another trial with a proper instruction on the good-faith defense. The Loan to Acquire Land for the Bank Forde and Unruh were convicted under count seven, which charged them with misapplying bank funds by borrowing $75,000 from PCB with the knowledge that a substantial portion of the loan proceeds would be used by Forde for his personal benefit. The Forde group, which controlled PCB, wanted to purchase a parcel of land on Balboa Island, with a view toward opening a “minibank” branch there. Forde did not want the seller to know the identity of the buyer because the seller might then have held out for a higher price. Forde asked Unruh to serve as a nominee buyer, as an accommodation to Forde and the bank. So far, nothing illegal is suggested. The bank’s board of directors knew and approved of this arrangement. In October 1981, Unruh opened the escrow, and Forde deposited $10,000 of his funds. Unruh borrowed $75,000 from PCB in December 1981. From the proceeds of that loan, Unruh transferred $47,000 to Forde, $10,000 to reimburse his initial escrow deposit, and $37,000 later to Forde because he needed it temporarily for other purposes. Forde eventually deposited an equivalent amount in the escrow. Unruh placed the balance of the loan proceeds in the escrow. The entire amount of the loan thus was used to purchase the Balboa Island property, even though portions of the loan had been transferred temporarily to Forde. The Balboa Island purchase was completed, and Unruh’s loan was later repaid to PCB by Forde. The prosecution argues that this transaction was criminal because the purchase of the Balboa Island property was a first step in Forde’s long-range scheme to sell the property at an inflated price to the bank. Unruh took the title as nominee for the bank. While a re-transfer to the bank at a higher price would have been highly unlikely, the government claims that is what Forde eventually attempted. The government’s brief cites no page reference in the 25 volumes of the transcript to support this assertion, so we must treat it as unsupported by evidence. The prosecution also argues that the transaction was criminal because Unruh knowingly allowed Forde temporarily to use a substantial portion of loan proceeds for personal purposes unrelated to the Balboa Island purchase. However, the temporary diversion was not shown to be contrary to the purposes for the loan stated in the loan application. Unlike some other loans, this one provided no apparent kickback to Forde. Forde provided his own credit, and Unruh gave the bank a security interest in the property and obtained no personal benefit by serving as nominee. The prosecution points to the favorable loan arrangements as signs of the illegitimacy of the loan. The loan may have been substandard, but Unruh was a nominee for the bank, and the jury could believe that the loan was a paper transaction for the benefit of the bank. The bank had no interest in charging itself loan fees. The evidence on this count was insufficient to support a conviction of crime. Neither Unruh nor Forde was proven to have misapplied bank money with criminal intent on count seven. Each conviction on count seven is reversed. Hopper’s Aiding and Abetting Conviction Hopper contends that there was insufficient evidence to sustain his conviction for aiding and abetting Forde’s misapplication of the $75,000 loan from PCB to Hopper because that loan also was repaid in full in the following month, with interest, and was made at the instigation of Hart, the bank president, with the consent of the executive loan committee members. Aiding and abetting a misapplication of bank funds occurs when a bank employee misapplies bank funds and the defendant knows of the bank employee’s substantive offense and acts with intent to further it. United States v. Anderson, 709 F.2d 563, 563 (9th Cir.1983). FDIC examiner Johnson testified that because the only document in the bank’s loan file was a disbursement form, there was insufficient information on which to make a credit decision to loan Hopper $75,000. Hopper’s net worth was then only $38,000. There was no promissory note for the loan in the loan file. PCB did not earn a loan fee for Hopper’s loan. Hopper first deposited the loan proceeds into the PCB account. Hopper immediately wrote a check to Hart for the entire $75,000. Hart endorsed it and deposited it into the Charter Services Corporation account. The money then went to Campus Dental Plan, Schroeder, and to various Forde bank accounts. Hopper argues that because the loan was repaid in full with interest, he committed no misapplication. However, misapplication “occurs when funds are distributed under a record which misrepresents the true state of the record with the intent that bank officials, bank examiners, or the FDIC will be deceived.” United States v. Kennedy, 564 F.2d 1329, 1339 (9th Cir.1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). Thus, while repayment is relevant to the intent with which a loan is made, it is not by itself a complete defense. The jury might legitimately consider that the loan was repaid with money Forde gave Hopper on the day after the FDIC began examining PCB. This count differs from Count 7 in that in Count 7 no bank records were falsified. The transfer of funds to Hart permitted the inference that Hopper acted as a sham borrower for Hart, which would be a misapplication of bank funds by a bank employee. There is also sufficient evidence to find that Hopper intended to aid and abet the misapplication. Hopper accepted the loan in his name, but signed the proceeds over to Hart. Hopper’s report, identifying management and operational problems at PCB before its purchase by Forde, cited problems with PCB’s loan procedures, including improper processing and monitoring of loans and deficient loan applications. Hopper was aware of proper loan procedures, but used procedures that did not allow the bank to assess his creditworthiness or explain to the FDIC how the loan would be used, secured, or repaid. See Kennedy, 564 F.2d at 1341; Anderson, 709 F.2d at 564. Forde testified that Schroeder told him that Hart had created an accounting problem for the bank and that a $75,000 loan to Forde and a $50,000 loan to Hart would solve the problem. Forde did not wish to take out a loan, however, and asked Hopper to investigate. Forde testified that he later learned that Hopper had been talked into taking the $75,000 loan. However, the jury was free to disbelieve Forde. Hopper also argues that a bank officer does not misapply bank funds by using a third party to borrow money that is then re-lent to the officer. He relies on United States v. Gens, 493 F.2d 216, 223 (1st Cir.1974), and United States v. Docherty, 468 F.2d 989, 995 (2d Cir.1972). Both cases limit this holding to situations where the borrower is financially able to repay the loan and understands that he is responsible for repayment. Here, evidence suggested that Hopper was not financially able to repay the loan. Moreover, this circuit has explicitly rejected Docherty and Gens on this issue. See Kennedy, 564 F.2d at 1339. We recently ruled in United States v. Stozek, 783 F.2d 891, 893 (9th Cir.1986), cert. denied, 479 U.S. 888, 107 S.Ct. 284, 93 L.Ed.2d 259 (1987), that the requisite intent to injure or defraud a bank “may be inferred from defendant’s reckless disregard.” Applying this principle to our case, the record shows that Hooper, at the very least, acted recklessly. In a preliminary report prepared for the defendant Forde on the condition of the Pacific Bank, Hopper specifically criticized the bank’s practice of loaning large sums of money to individuals with inadequate assets. Hopper’s own net worth would not qualify the loan. Furthermore, in the same report, Hopper went on at length about how the bank’s reputation had been injured by various banking practices. Finally, Hopper argues that the bank’s board of directors or its executive loan committee consented to the use of its funds. However, the jury could have concluded that the board was controlled by the conspirators, that its consent was not given in good faith, and that Hopper knew this. There was ample evidence for a properly instructed jury to convict Hopper. Failure to Instruct on Board Consent The defendants argue that the district court erroneously failed to instruct the jury on the defense of consent by the bank’s board of directors. They rely on Forde’s proposed jury instructions B and C, which were joined in by all the defendants. The pertinent portions follow. In deciding whether any particular loan constitutes a misapplication, you must consider whether the loan was approved by or disclosed to the board of directors or any group to which the board delegated loan authority. Disclosure of pertinent facts concerning a loan to those in control of the bank may indicate that the bank was not deprived of the right to make its own decisions as to how the funds would be used. In determining whether any defendant harbored an intent to defraud with respect to each particular loan, you should consider whether the relevant facts regarding the loan were disclosed to the Board of Directors of the bank or to any group to which the board delegated loan authority. For the reasons stated in the discussion of the sufficiency of the evidence on misapplication of bank funds, Forde was entitled to an instruction correctly stating the law on the effect of valid board consent to the check kiting. The trial judge did not give an instruction on board consent to check kiting. Unruh’s and Forde’s convictions on count seven must be reversed as noted earlier, because of the insufficiency of the evidence. Forde’s conviction for misapplication through kiting checks was based on evidence from which the jury could easily have drawn conflicting inferences. We must remand both Forde’s and Unruh’s count two convictions because of the failure to give the requested instruction. Forde’s convictions for making false entries are obviously unaffected by any error in the misapplication instruction. These convictions are affirmed. For the other counts, the failure to give a requested instruction is reversible error if the defendant’s theory of the case is supported by law and has some foundation in the evidence. See United States v. Makhlouta, 790 F.2d 1400 (9th Cir.1986); United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985). We cannot affirm the conviction even if convinced beyond a reasonable doubt that the error was harmless. “If the sixth amendment right to have a jury decide guilt and innocence means anything ..., it means that the facts essential to conviction must be proven beyond the jury’s reasonable doubt, not beyond ours.” United States v. Voss, 787 F.2d 393, 398 (8th Cir.1986). Forde’s theory of the case on the partnership loans was that Hart and Schroeder were the guilty parties and that they, as members of the executive loan committee, tacitly approved the loans. Forde introduced enough evidence to support his argument to justify a jury instruction on his theory. His convictions for misapplying bank funds in connection with the partnership loans must be remanded. Hopper defended on the ground of consent. Forde testified that Schroeder called him and informed him of an accounting problem at the bank, and asked Forde and Hart to borrow money to resolve the problem. Forde asked Hopper to investigate. Hopper took out the loan. Because Schroeder, Hart, and Forde constituted the executive loan committee, the jury could have acquitted Hopper based on the apparent consent. Hopper’s conviction must be remanded for failure to instruct on consent. Fowler defended on the ground that he was following the legitimate instructions of his codefendants. This made the issue of Fowler’s good-faith critical. His convictions must also be remanded for failure to instruct on his defense of good faith. Intent to Injure or Defraud Hopper also contends that the trial court improperly instructed the jury on intent to injure or defraud. The challenged instruction reads: An intent to injure or defraud a bank exists if a person acts knowingly, and if the natural result of his conduct would be to injure or defraud the bank, even though this may not have been his motive. Two courts have disapproved a substantially identical instruction, although neither court actually held that giving the instruction constituted reversible error. United States v. Arthur, 544 F.2d 730, 736-37 (4th Cir.1976), warned the district court that the instruction was erroneous, but reversed on other grounds. United States v. Cooper, 577 F.2d 1079, 1082-83 (6th Cir.), cert. denied, 439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978), found the instruction misleading, but concluded that in the context of the rest of the instructions and the evidence in that case, it was not so prejudicial as to require reversal. Arthur and Cooper correctly question the instruction. If a jury finds that the natural consequences of a defendant’s conduct are to injure the bank, it should be permitted to infer that he intended those consequences, but the challenged instruction could easily be interpreted by a reasonable juror to compel that inference. See Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). On retrial the instruction should be modified to avoid another round of appeals. Jury Instruction on Reasonable Expectation A person is not guilty of kiting checks if he reasonably expects that funds sufficient to cover the check will be deposited by the time it is presented to the payor bank for payment. Williams v. United States, 278 F.2d 535, 537 (9th Cir.1960). The trial court agreed to give an instruction based on Williams, but amended that instruction by requiring that the covering deposits be “good funds.” Unruh and Forde argue that requiring that the covering funds be “good funds” unfairly prejudiced them. This is nonsense. There was extensive testimony at the trial concerning the check-kiting scheme. Unruh and Forde cite only the prosecutor’s closing argument to support their argument that the requirement of “good funds” precluded the reasonable expectation defense. The prosecutor then characterized the loan proceeds as “good funds”: “When did good funds come into the account? The loans. The loans. Two million dollars’ worth of loans. Those were when the good funds came into the account.” The defendants argue that the prosecutor rescinded that characterization in the next sentence: “That’s, in itself, a misapplication right there_” The prosecutor’s main point is clear. The overwhelming thrust of the testimony was that “good funds” meant “collectible funds,” irrespective of the legality of the activity responsible for those funds. Some witnesses expressly defined “good funds” or “good money” in terms of collectibility. The clear implication from prosecution witness Miller’s explanation of the check-kiting scheme was that once partnership loan proceeds had been deposited in Forde’s accounts in an amount sufficient to cover the checks presented for payment, there was no kiting violation. The amended instruction could not have misled the jury. Motions for Severance by Fowler and Hopper Fowler and Hopper contend that the trial court abused its discretion by denying their pretrial motions for severance. Where the joinder of parties is proper, we review a denial of a motion for severance under Fed.R.Crim.P. 14 only for abuse of discretion. The factors to be weighed in deciding whether to sever include judicial economy and prejudice. United States v. Kennedy, 564 F.2d 1329, 1384 (9th Cir.1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). The defendant must show clear, manifest, or undue prejudice from a joint trial and a violation of a substantive right. United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980). The court’s prejudice inquiry focuses on “whether the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants in light of its volume and limited admissibility.” United States v. Ramirez, 710 F.2d 535, 546 (9th Cir.1983) (quoting United States v. Brady, 579 F.2d 1121, 1128 (9th Cir.1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979)). The best evidence of the jury’s ability to compartmentalize the evidence is its failure to convict all defendants on all counts. See United States v. Kaplan, 554 F.2d 958, 967 (9th Cir.) (per curiam), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). That the jury was unable to agree on a count rather than acquit does not undermine this principle. See Kennedy, 564 F.2d at 1334-35. The verdict here suggests that the jury did not indiscriminately convict, but separated the evidence as to each defendant. Id. While the convictions on counts for which the evidence was insufficient might suggest that the jurors were prejudiced or confused, those convictions can be explained by the factors other than failure to grant separate trials. As the trial judge noted, the lengthy deliberation was at least as consistent with careful and thorough deliberation as with confusion and prejudice. Fowler and Hopper have shown no error in the refusal to sever. Fowler’s Motion To Dismiss As part of the government’s investigation in parallel civil proceedings, Fowler was deposed by the Comptroller of Currency. Fowler asserts that the testimony he gave during this deposition prejudiced his criminal defense, so that the district court should have dismissed his indictment. The prosecution may use evidence obtained in a civil proceeding in a subsequent criminal action unless the defendant shows that to do so would violate his constitutional rights or depart from the proper administration of criminal justice. United States v. Kordel, 397 U.S. 1, 12-13, 90 S.Ct. 763, 769-70, 25 L.Ed.2d 1 (1970). Although Fowler was not accompanied by counsel at the deposition, he appeared and testified on advice of counsel. At the deposition he was advised of his rights to have counsel present, to leave at any time, and to refuse to answer any questions or give any evidence that might incriminate him, and he was warned that his statements could be used against him in a criminal proceeding. The defendant’s failure to invoke the privilege against self-incrimination waives a later claim of privilege. See Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136, 1142, 79 L.Ed.2d 409 (1983). There was no evidence of bad faith on the part of the prosecution in bringing the civil proceeding. The civil investigation culminated in at least one civil suit on behalf of the United States. The deposition took place more than 14 months before Fowler was indicted. The district court did not err in denying Fowler’s motion to dismiss the indictment. See United States v. Jenkins, 785 F.2d 1387, 1392-93 (9th Cir.1986). Admission of Co-Conspirators’ Statements To prove misapplication of bank funds, the prosecution presented the testimony of numerous individuals who borrowed money from PCB to invest in a limited partnership, Aloha National Bank, or partially in Charter Services Corporation and partially in an independent venture. The borrowers testified that Fowler and Hopper had induced them to take advantage of the PCB loan and investment opportunities by stressing Forde’s authority and willingness to approve transactions as well as his guarantee that the borrowers would encounter no financial risk. Over Forde’s objection, the district court admitted the out-of-court statements by Fowler and Hopper as co-conspirators’ statements under Fed.R.Evid. 801(d)(2)(E). These statements were to the effect that Forde was a successful businessman. He was a multimillionaire. He was an attorney. He owned the Pacific Coast Bank; and he was involved with two other banks in Southern California; he had bought an unsuccessful bank and made it very successful. Forde contends that the district court denied his sixth amendment right to confront Fowler and Hopper by admitting these statements. However, it is now established “that the requirements for admission under Rule 801(d)(2)(E) are identical to the requirements of the Confrontation Clause.” Bourjaily v. United States, — U.S. -, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144 (1987); see United States v. Paris, 827 F.2d 395, 400-01 (9th Cir.1987). Therefore, the confrontation clause no longer is deemed to require an independent inquiry into the reliability of the statements of co-conspirators. See Bourjaily, 107 S.Ct. at 2782-83; Paris, at 400. Forde’s confrontation clause claim thus lacks merit. We conclude that the statements were corroborated. While Forde may have wanted to examine Fowler’s and Hopper’s motives, their motives could not have affected the truthfulness of the statements. There was no violation of the confrontation clause. Admission of Bank Examiner’s Testimony Forde argues that the district court abused its discretion by admitting the expert testimony of FDIC bank examiner Bruce Johnson because the testimony amounted to a “republication” of Johnson’s FDIC report, which was barred from admission at trial as hearsay. Forde contends that Johnson’s testimony based on the inadmissible FDIC report violated his confrontation rights. Forde also objects to Johnson’s testimony concerning the creditworthiness of the borrowers, the repayment of loans, and Regulation O, 12 C.F.R. Pt. 215 (1986). A. Relevance The creditworthiness of the borrowers is relevant because a bank officer who, with intent to defraud or injure, makes loans to “financially incapable” individuals is guilty of misapplication of bank funds. See United States v. Blackwood, 735 F.2d 142, 145 (4th Cir.1984); United States v. Gens, 493 F.2d 216, 222 n. 12 (1st Cir.1974). Evidence about repayment was relevant to the initial creditworthiness of the borrowers. See United States v. Duncan, 598 F.2d 839, 858 (4th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). The testimony about Regulation 0, which required board approval for any PCB loan in excess of $25,000 to Forde, see 12 C.F.R. § 215(b)(1) (1986), tended to show Forde’s motive for funneling loans to himself through other borrowers. B. Hearsay and Denial of Confrontation Johnson supervised the 1982 FDIC examination of PCB. He supervised the preparation of a report on the bank, but did not personally review all the loan files discussed in the report. The district court ruled that the FDIC report would be inadmissible under Fed.R.Evid. 803(8)(C), the exception for public records and reports, because the report was prepared in the context of litigation. The prosecution does not contest this ruling. See United States v. Hernandez-Rojas, 617 F.2d 533, 535 (9th Cir.), cert. denied, 449 U.S. 864, 101 S.Ct. 170, 66 L.Ed.2d 81 (1980). However, the district court also ruled that any banking expert, including Johnson, could testify about his examination of PCB files and give his opinion of the creditworthiness of the borrowers. While Johnson was prohibited from bolstering his testimony by referring to findings in his report and could not reiterate the conclusions in the report, he could refer to his notes, including the report. Forde concedes that the files themselves were admissible because they were admitted only for the notice they gave bank officers of the financial conditions of borrowers. Forde also concedes that the expert testimony exception to the hearsay rules, see Fed.R.Evid. 703, allows Johnson to rely on the reports in developing his own opinions. Forde contends that Johnson’s testimony constituted an impermissible “republication” of the report and should therefore be excluded as hearsay and a denial of Forde’s right to confront witnesses. While testifying on how he classified loans, Johnson referred to the report to refresh his recollections, a practice permitted by Fed. R.Evid. 612. Johnson stated, in connection with the prosecution’s attempt to refresh his recollection, that a particular loan “had to have been reviewed by someone or else it would not be in the report.” Because he had no recollection, even after the attempted refreshing of his memory, the admission of the statement would have been error because the report was hearsay. However, the question and answer were stricken the next day. The trial judge committed no error on this point. C. Limits to Johnson’s Expertise We have condemned the practice of attempting to introduce law as evidence. See Cooley v. United States, 501 F.2d 1249, 1253-54 (9th Cir.1974), cert. denied, 419 U.S. 1123, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975); see also Marx & Co. v. Diners’ Club, Inc., 550 F.2d 505, 509-10 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977). The problems of using experts to displace the role of the trial judge are exacerbated here because the case is complex and an expert may receive undue attention from the jury. However, we have reviewed Johnson’s testimony carefully. It correctly explains Regulation O. The trial judge’s decision to let the testimony in, rather than explaining Regulation O in his instructions to the jury, is justified by the aid that it gave the jury in understanding other evidence presented as part of the prosecution’s case. Any error on this point was not prejudicial. Evidence of Fowler’s Lifestyle David Cartwright testified that Fowler loaned Cartwright’s wife a fur coat to attend a dinner, and that Fowler possessed “a wad of bills ... approximately that big in diameter, and all I could see was hundred-dollar bills”. Fowler and Forde contend that the prejudicial effect “substantially outweighed” any probative value, and therefore that it should have been excluded under Fed.R.Evid. 403. Forde also claims that this testimony was irrelevant against him. The prosecution offered the evidence to show Fowler’s use of the facade of wealth, intentionally or not, to induce individuals to borrow from PCB and invest in Forde’s various business ventures. The prosecution argues that the evidence was likewise relevant against Forde on the conspiracy count because Fowler’s conduct was within the scope of the conspiracy. There was sufficient evidence to support the inference that the use of apparent wealth to encourage investment in these enterprises was intentional and within the course of the conspiracy to make the evidence relevant against both Fowler and Forde. Balancing prejudice against relevance is more complex. One juror mentioned the fur coat and the money to a coworker and asserted that “as far as he was concerned [the defendants] were buried.” The district court unseated the juror, and individually questioned the remaining jurors to assure that none of them had discussed the case with anyone, including the excused juror. The fact that a juror excused before the case was submitted may have been prejudiced supports excusing the juror, not retrying the ease. The evidence was cumulative of other evidence of Fowler’s methods. The prosecution needlessly risks leading the court into an abuse of discretion when it offers evidence with minimal probative value that could cause jurors to decide the case on legally irrelevant grounds. On retrial, evidence regarding the fur coat and wads of bills should not be offered unless clearly connected to specific conspiracy counts or particular loan transactions. Admission of Evidence That Unruh Suggested a Battery Susan Adams, Schroeder’s secretary, testified about a conversation in which Forde and Unruh discussed a bank loan by one Tumminello. According to Adams, Forde indicated he wanted Tumminello to pay the interest on the loan to Forde rather than to the FDIC. Unruh then asked Adams if she knew of any way to get Tumminello to “cooperate” and said she “could maybe send Higgins over to rough [Tumminello] up.” The court admitted this evidence to show Forde’s and Unruh’s knowledge of Forde’s interest in the loan. Forde and Unruh argue that the trial court abused its discretion by admitting testimony that Un-ruh suggested a battery and by giving the jury an improper limiting instruction. Relevant evidence of crimes not charged in the indictment is admissible under Fed.R.Evid. 404(b) unless its only relevance is to show criminal disposition. 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). Such evidence may also be excluded under Rule 403. Id. If the trial court admits evidence pursuant to Rule 404(b), it “should ordinarily instruct the jury carefully as to the limited purpose for which the evidence was admitted.” Bradshaw, 690 F.2d at 709. Trial court decisions on limiting instructions are reviewed for an abuse of discretion. See United States v. Multi-Management, Inc., 743 F.2d 1359, 1365 (9th Cir.1984). Prejudice Forde and Unruh argue that the challenged testimony presented a danger of unfair prejudice that substantially outweighed any probative value. The prosecution argues that Unruh’s suggestion tends to show her participation in the continuing conspiracy and awareness that the loans were wrong. We find neither error nor abuse of discretion in letting this testimony go to the jury. When evidence is admitted pursuant to Fed.R.Evid. 404(b), the judge “should ordinarily instruct the jury carefully as to the limited purpose for which the evidence was admitted.” Bradshaw, 690 F.2d at 709. Here the court instructed the jury to consider the evidence as pertaining only to Forde and Unruh and not to the other defendants. While the instruction did not limit the purposes for which the evidence could be used against Forde and Unruh, the instruction did them no harm. During the bench conference the trial judge told counsel what he planned to say to the jury in his limiting instruction, and counsel failed to object to the suggested instruction or request a more specific one. Consequently, the failure to give a proper limiting instruction, viewed in isolation, would not warrant reversal. See Multi-Management, 743 F.2d at 1364; United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir.1978). On retrial, the point is not likely to recur. Aloha National Bank Loans Forde contends that because the district court erroneously failed to dismiss counts 20 to 28 pertaining to the Aloha National Bank (ANB) transactions, the evidence introduced to prove those counts confused the jury and should have been excluded under Fed.R.Evid. 403. These transactions involved loans to purchase ANB stock, a bank Forde was interested in acquiring. The borrowers gave Forde an irrevocable proxy to vote the ANB stock securing the loan. Forde contends that because the bank was fully informed about the nature of the loans, the loans did not violate § 656. Forde was not convicted on counts 20 to 28, but argues that he suffered prejudice from the admission of evidence relating only to those counts. Forde cites the testimony of ANB Chief Executive Officer Grounds; borrower-investors Karcher, Vick, and Von Medlin, and FDIC bank examiners Johnson and Miller. The prosecution argues that the testimony of these witnesses was relevant to issues in the case other than the ANB counts. While some of the testimony of these witnesses related to the partnership loans, the testimony on Aloha National Bank itself was not relevant to the other crimes alleged. The evidence suggested that Fowler and perhaps Forde had defrauded those taking out loans by failing to live up to their commitments to repurchase the stock. We have held that a loan to a solvent party, followed by a re-loan to a bank officer, may violate § 656. See United States v. Kennedy, 564 F.2d 1329, 1339 (9th Cir.1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1526, 55 L.Ed.2d 541 (1978). Two circuits disagree. See United States v. Gens, 493 F.2d 216, 223 (1st Cir.1974); United States v. Docherty, 468 F.2d 989, 995 (2d Cir.1972). Our rationale was that the re-loan might lead the person borrowing from the bank to believe that the bank officer was responsible for repaying the loan, which might in turn reduce the likelihood of repayment. We find no prejudice to Forde in permitting the jury to hear the challenged evidence. Unruh’s Motion for Judgment of Acquittal At the close of the prosecution’s case and again at the close of all the evidence, Un-ruh moved, pursuant to Fed.R.Crim.P. 29, for a judgment of acquittal as to all counts. The trial court denied these motions. Un-ruh argues on appeal that the trial court should have granted these motions as to counts 29 through 62, concerning the partnership loans, and counts 66 through 72, concerning mail fraud. Unruh concedes that there was evidence showing that in the course of managing Forde’s checking accounts she wrote checks disbursing the proceeds of the partnership loans, and checks sent to Dan Berger, the investor named in the mail-fraud counts. Unruh argues that there was no evidence that she was aware of the illegal nature of the partnership loans or of the correspondence with Berger, or that she intended to defraud or injure the bank or to employ the mails to advance a fraudulent scheme. The first question is whether there was evidence from which a reasonable juror could have concluded that Unruh knew these activities were illegal. The prosecution cites no evidence that Unruh knew during the relevant period that the partnership loans mentioned in the indictment were illegal other than the evidence of her intimate daily involvement with Forde in disbursing the proceeds of those loans. Unruh knew she was writing many checks on accounts with insufficient funds, and arguably should have known that this was improper, but her intent in writing those checks is relevant to her participation in the check-kiting scheme, and not to her participation in the misapplication of the partnership loans. Once the partnership loan proceeds entered Forde’s accounts, having come from escrow, Unruh’s acts disbursing those proceeds were presumptively innocent unless Unruh knew that the partnership loans were misapplied funds originating from the PCB. There was evidence, however, that Un-ruh knew that comparable partnership loans originated at San Marino Bank, another bank controlled by Forde. Shirley French, an operations officer at San Marino Bank, testified that on March 9, 1982, Un-ruh asked French to facilitate the signing and delivery of certain cashier’s checks drawn on San Marino Bank. These checks were the proceeds of loans made by San Marino Bank and were payable to Western Mutual Escrow. None of the checks French testified about was the subject of a substantive count in the indictment, but this testimony showed that Unruh knew that partnership loans comparable to those charged in the indictment originated at a bank that Forde controlled. Even assuming that the Adams testimony suggests that Unruh knew there were improper aspects to the Tumminello loan, that conversation occurred in April 1983, more than a year after Unruh wrote the relevant checks, and the Tumminello loan was not a partnership loan. The prosecution cites no evidence that Unruh knew that the correspondence with Berger was illegal. When the jury was discharged, it had failed to reach unanimous agreement on these counts. Therefore, some jurors apparently believed the evidence sufficient to convict Unruh on these counts. Assuming the counts should have been dismissed, we must determine whether a failure to dismiss those counts prejudiced Unruh. Unruh argues that sending the partnership-loan and mail-fraud counts against Unruh to the jury caused confusion and prejudice and invited a conviction based on compromise. However, that the jury convicted Unruh on only two counts and failed to convict her on the 42 counts for which the evidence appears to have been weaker suggests that the jury acted rationally and not out of confusion or prejudice. See United States v. Kaplan, 554 F.2d 958, 967 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). Thus, the error, if any, appears to have been harmless. Presumption of Innocence Instruction Fowler contends that the district court abused its discretion by refusing to grant Fowler’s request that the court give the instruction on the presumption of innocence found at 1 E.J. Devitt and C.E. Blackmar, Federal Jury Practice and Instructions § 11.14 (3d ed. 1977). The instruction actually given, adequately covers the presumption of innocence. The failure to give the precise language requested by Fowler is not error. Conflict of Interest Fowler contends that he was denied his sixth amendment right to effective assistance of counsel because his attorney, failed to inform him until just before trial that he had applied for employment with the United States Attorney. Fowler argues that this conflict of interest adversely affected his attorney’s performance and requests a remand for an evidentiary hearing. Fowler provides no evidence of misconduct. The brief asserts that counsel advised Fowler to plead guilty, and Fowler refused. However, nothing in the record suggests that counsel allowed anything adversely to affect his representation. Counsel cross-examined 16 prosecution witnesses, objected to evidence, and succeeded in having a juror excused for talking to a prosecution witness during a break. Counsel’s decision that Fowler should not testify was a matter of defense strategy. Witnesses testified that Fowler pressured them to take out loans and make investments, pressured them to sign partially blank documents, failed to obtain adequate credit information, and assured them that the investments were risk-free. Cross-examination of Fowler could have emphasized these points. Fowler has not shown that he was victimized by ill-advised strategy produced by counsel’s alleged conflict of interest. The matter is an afterthought thrown into this appeal in the hope that if all else fails, the defendant may make a point by attacking his attorney. Conclusions For the reasons stated, there must be a new trial on count two with respect to Forde and Unruh; on count eight with respect to Hopper; and on the partnership loan counts with respect to Forde and Fowler that were not withdrawn by the government. Counts upon which the jury failed to agree are also remanded. Count seven should be dismissed. The convictions on other counts are affirmed. AFFIRMED in part; REVERSED and REMANDED in part. . Forde and Hopper raise the issue explicitly. In United States v. Wingender, 790 F.2d 802 (9th Cir.1986), we considered a meritorious argument originally made only by a codefendant on a petition for rehearing. No purpose would be served by making Fowler and Unruh file a petition after our decision.

GOODWIN, Chief Judge: Darren Joseph Becker appeals his conviction of one count of making a false statement to a government officer, in violation of 18 U.S.C. § 1001 (1982). He contends that his response to a question posed by a Customs port director during a prearrest, noncustodial interrogation falls within the exculpatory no exception which, in this circuit, is a defense in § 1001 prosecutions. We affirm. On March 1, 1987, Becker, who was accompanied by codefendant Nancy Mae Hoyt, drove a 1963 Dodge station wagon to the port of entry at Tecate, California. The Tecate port director, Edwin D. Sute-hall, was assisting the Customs inspector in the easternmost primary inspection booth. Sutehall motioned to Inspector Reyes Rodriguez to indicate that perhaps the vehicle should be sent for a secondary inspection. Rodriguez asked Becker for a declaration of citizenship. Both occupants stated that they were Americans. Rodriguez then asked the occupants routine questions about articles that they had acquired abroad, and asked for identification. Becker handed a driver’s license to the inspector. Hoyt fumbled around in her purse. When Hoyt did not produce identification, Inspector Rodriguez directed the station wagon to the secondary inspection station, where Sutehall questioned Becker and Hoyt as to their citizenship. They replied that they were United States citizens. Sutehall asked how long they had been in Mexico and learned that they had entered Mexico at Tijuana three hours earlier that afternoon. Sutehall then asked Becker who owned the station wagon. Becker replied that the vehicle was his. Sutehall asked Becker how long he had owned the car. Becker replied that he had owned the car for “a little while.” Sutehall next asked Becker exactly how long, and Becker asked Hoyt how long. After Hoyt replied “a week,” Becker told Sutehall, “a week.” Sutehall asked for the registration and saw that the registration was not in Becker’s name. During this interrogation, Sutehall noted that Becker was very nervous. Based on his conversation with Becker and Becker’s demeanor, Sutehall concluded that the vehicle warranted closer inspection. Sutehall escorted Becker and Hoyt inside the secondary office. Subsequently, a narcotics detector dog indicated that there were drugs in the vehicle. Rodriguez then drove the car to a secondary inspection site. At that time, Rodriguez and other inspectors jacked the vehicle up and examined the underside of the car. Rodriguez inserted a tool between the fender and the lip of the rear compartment in order to view the inside of that area. After prying a three-inch hole, he noticed packages of a substance he believed to be marijuana. Approximately 90 pounds of marijuana were discovered, concealed in the rear wells of the car. Becker was indicted for lying to the Customs inspectors in the course of the border inspection. The evidence at trial showed that the California vehicle registration for the Dodge station wagon was in the name of Salvador Contreras. Contreras had sold the Dodge station wagon to one Condales Robles, who lived in Tijuana. At trial, Becker testified that he was told to tell the Customs inspectors that the car belonged to him. Becker also explained that an old childhood friend had asked him to assist her by driving a car back from Mexico to the United States. He stated that he was unaware that the car contained any contraband. Title 18 U.S.C. § 1001 (1982) provides in pertinent part that: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully ... makes any false, fictitious or fraudulent statements dr representations, ... shall be fined not more than $10,000 or imprisoned not more than five years, or both. Although Becker concedes that his statement to the border agents was false, he nonetheless contends that his statement falls within the “exculpatory no” exception to § 1001. The government argues that a facial analysis of § 1001 precludes Becker’s use of the exculpatory no doctrine as a defense. The government also argues that United States v. Medina de Perez, 799 F.2d 540 (9th Cir.1986), was wrongly decided and that this court should proceed en banc to overrule cases purporting to recognize the exculpatory no exception to § 1001 in this circuit. We need not reach either of these arguments to decide this case. If we followed the government’s suggestion that we adopt a literal reading of § 1001, virtually any false statement, sworn or unsworn, written or oral, would be a felony in this circuit. United States v. Bedore, 455 F.2d 1109, 1110 (9th Cir.1972). We held in Bedore that such a reading would be contrary to the legislative history of § 1001. Id.; see also United States v. Bramblett, 348 U.S. 503, 504-08, 75 S.Ct. 504, 505-08, 99 L.Ed. 594 (1955); United States v. Gilliland, 312 U.S. 86, 93-95, 61 S.Ct. 518, 522-23, 85 L.Ed. 598 (1941). In Medina de Perez, 799 F.2d at 544, we adopted a five-part test: (1) the false statement must be unrelated to a privilege or a claim against the government; (2) the de-clarant must be responding to inquiries initiated by a federal agency or department; (3) a truthful answer would involve self-incrimination; (4) the government agency’s inquiries must not constitute a routine exercise of administrative, as opposed to investigative, responsibility; and (5) the false statement must not impair the basic functions entrusted by law to the agency. See id. at 544 & n. 5. The test is phrased in the conjunctive; therefore, the exculpatory no doctrine is inapplicable if the defendant fails to satisfy any one of the above requirements. See United States v. Olsowy, 836 F.2d 439, 441 (9th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1299, 99 L.Ed.2d 509 (1988); United States v. Carrier, 654 F.2d 559, 561 (9th Cir.1981). Becker failed to satisfy the fourth Medina de Perez requirement. It is difficult to draw a sharp distinction between administrative and investigative responsibilities. United States v. Jarvis, 653 F.Supp. 1396, 1400-02 (S.D.Cal.1987). The term “administrative” has been used in these cases to distinguish situations in which government agents are acting as “police investigators” rather than as “administrators.” In routine administrative inquiries, the exculpatory no defense cannot be properly invoked. Medina de Perez, 799 F.2d at 545. In Medina de Perez, we determined that the investigative questioning prerequisite for invocation of the exculpatory no doctrine was met when government officers, with a suspect in custody, were acting as “ ‘police investigators’ rather than as ‘administrators.’ ” Id. at 545. Thus, the critical question for § 1001 purposes is whether Becker’s interrogation can be characterized as administrative or investigative. In United States v. Goldfine, 538 F.2d 815 (9th Cir.1976), Drug Enforcement Administration agents questioned a pharmacist concerning illegal drug purchases. We held there that the exculpatory no exception was inapplicable, largely because the agents were not conducting a criminal investigation at the time of interrogation, but rather were making an administrative determination concerning the declarant’s qualifications relating to the “privilege” of dispensing drugs, and because the false statement was material. Id. at 820-21; see also Medina de Perez, 799 F.2d at 545. A customs interrogation for administrative purposes accords with our reasoning in Goldfine. The decision to search the automobile may have turned the episode into an investigation, but we need not reach that question. The interrogation by the Customs officer clearly began as an administrative determination of Becker’s status at the border pursuant to 19 U.S.C. § 1433(b) (Supp. IV 1986) (report of vehicle arrival and presentation for inspection) and 19 U.S.C. §§ 1481-1528 (1982) (ascertainment, collection, and recovery of duties). Under § 1433(b), Customs officers ask about vehicle ownership so that the “person in charge of the vehicle [shall] report the arrival; and present the vehicle, and all persons and merchandise (including baggage) on board, for inspection.” Cf. Jarvis, 653 F.Supp. at 1401 (finding that agents acted as police investigators during an interrogation following the lodging of a criminal complaint). Becker’s false statements were made in the administrative context and fail to meet the fourth Medina de Perez requirement. We are not here concerned with statements made after the automobile was searched and the contraband was found. Because Becker’s false statements failed to satisfy all of the Medina de Perez requirements, the charged false statement is not within the exculpatory no exception to § 1001. See Olsowy, 836 F.2d at 441 n. 2; Carrier, 654 F.2d at 561; Jarvis, 653 F.Supp. at 1399. AFFIRMED.

McMILLIAN, Circuit Judge. Appellant/cross-appellee William D. Edwards appeals from a final judgment entered in the District Court for the Eastern District of Missouri entered on a jury verdict in his favor on his claim of racial discrimination under 42 U.S.C. § 1981 against appellee/cross-appellant Jewish Hospital of St. Louis (Jewish Hospital). For reversal, Edwards argues that the trial court erred in (1) disallowing a $5,000 award of back pay, (2) reducing a $50,000 compensatory damages award to $1 in nominal damages, and (3) giving a special interrogatory on the “same decision” defense. On cross-appeal, Jewish Hospital argues that the trial court erred in (1) denying its motion for judgment notwithstanding the verdict (j.n.o.v.) and (2) refusing to reduce the $25,000 punitive damages award. I This case arose from the theft of money deposited by a Jewish Hospital patient in the hospital safe. An investigation of the theft indicated that thirteen Jewish Hospital employees had access to the stolen funds. Edwards was a hospital security guard; he is black. All thirteen employees, including Edwards, were requested to submit to a polygraph examination. One employee refused and was subsequently discharged. Three other employees, including Edwards, failed the test. Edwards was subsequently re-examined twice and failed both times. There was evidence that he was under extreme emotional stress due to family difficulties at the time. The evidence also showed that both before and after the theft at issue there had been other thefts of money — one in October 1979 and another after Edwards’ discharge. Several hospital security officers, including Edwards, were given polygraph examinations on the first occasion, but no one was disciplined. On the occasion after Edwards’ discharge, several white security officers took the polygraph examination and showed deception in their answers, but none was fired. At the time of the theft at issue here, Edwards was not at work when the money was reported missing. In fact, Edwards was on leave from the evening the patient deposited the money until after the money was reported missing. Jewish Hospital fired Edwards for failing the three polygraph examinations. Edwards grieved his discharge through the hospital grievance procedure. The grievance committee resolved Edwards’ grievance on the polygraph issue against Jewish Hospital. Nevertheless, after the grievance committee found in Edwards’ favor, a hospital administrator, who was not a grievance committee member, informed the grievance committee that Edwards had allegedly threatened two subordinates. In response to this report, the grievance committee, contrary to its own procedures and rules, initiated its own charges on the alleged threats. Before a hearing on the threats could be held, it became obvious that even though three people were said to have been present when the threats were made, not one of the three supported the allegations. There was evidence that Edwards’ supervisor told one of these witnesses that he should be for the Hospital and told another witness who appeared to testify at the second hearing to leave. During the hearing on the alleged threats, the grievance committee did not hear testimony from either the persons alleged to have been threatened or the persons alleged to have been present when the threats were made. During the hearing, however, Edwards was loud, irate, angry, and abusive. Because of his behavior before the grievance committee, and the fact that as a security officer he carried a gun, the grievance committee upheld the charges and terminated Edwards for making threats and for conduct unbecoming a security officer. Thereafter, Edwards filed this 42 U.S.C. § 1981 suit against Jewish Hospital alleging that he had been discharged on the basis of his race and seeking damages and back pay. At trial, there was evidence that the language used by the hospital security employees in the work place was robust; conduct among non-medical employees was disruptive and loud, and disturbances were frequent. There was also evidence that cursing, racial name-calling and the telling of derogatory racial jokes were not only engaged in regularly by the hospital security staff but also well known to Jewish Hospital. No one was ever disciplined for any of this misconduct. In answer to two separate special interrogatories submitted to the jury at the conclusion of the trial, the jury found that (1) Jewish Hospital had intentionally discriminated against Edwards on the basis of race when it terminated him in that race was a substantial and motivating factor in its decision to discharge him; and (2) Jewish Hospital would have terminated Edwards even if his race had not been a substantial and motivating factor. The jury awarded Edwards $50,000 in compensatory damages, $5,000 back pay and $25,-000 in punitive damages. On Jewish Hospital’s motion to amend the judgment pursuant to Fed.R.Civ.P. 59(e), the trial court reduced the compensatory damages award to $1 nominal damages, struck the $5,000 back pay award, and affirmed the punitive damages award. Edwards’ motion to reinstate the original judgment and Jewish Hospital’s motion for j.n.o.v. were both denied. This appeal and cross-appeal followed. II We take up Jewish Hospital’s cross-appeal first. Jewish Hospital first argues that the trial court erred in denying its motion for j.n.o.v. Jewish Hospital argues that the jury’s finding that, even in the absence of the intentional discrimination, it would have made the “same decision” exonerated it from all liability to Edwards. The question presented by this argument is whether § 1981 prohibits an employer from intentionally discriminating against a Black employee on the basis of his race by discharging him where a substantial and motivating factor in the discharge is the employee’s race. We hold that it does, even if the employer would have discharged the employee in the absence of intentional racial discrimination. We will not allow an employer to avoid liability for intentional racial discrimination where the discrimination is a substantial and motivating factor in causing injury, even if the discrimination is not a “but for” cause of the employee’s discharge. Rather, evidence that the employer would have discharged the employee in the absence of discrimination is properly considered in determining the appropriate remedy to be afforded the employee. The starting point in our analysis is the legislative history to § 1981. Congress originally enacted § 1981 as part of § 1 of the Civil Rights Act of 1866, pursuant to § 2 of the thirteenth amendment. Interpreting the legislative history of § 1 of the 1866 Act, from which both 42 U.S.C. §§ 1981 and 1982 are derived, the Supreme Court in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437, 88 S.Ct. 2186, 2202, 20 L.Ed.2d 1189 (1968) (emphasis added), concluded that Congress intended to prohibit “all racial discrimination, private and public, in the sale and rental of property.” The Jones Court further concluded that this prohibition was within Congress’ power under § 2 of the thirteenth amendment “rationally to determine what are the badges and incidents of slavery, and ... to translate that determination into effective legislation.” Id. at 440, 88 S.Ct. at 2203. Seven years later the Court unanimously held that “§ 1981 affords a federal remedy against discrimination in private employment on the basis of race.” Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975). The Court has recognized that in enacting the 1866 Act, Congress took aim at discrimination in employment, from whatever source. Discrimination must be eliminated if the “badges and incidents” of slavery are to be fully eradicated, particularly within the context of employment: Racial discrimination in all areas, and particularly in the areas of education and employment, is a devastating and reprehensible policy that must be vigilantly pursued and eliminated from our society: Racial discrimination can be the most virulent of strains that infect a society and the illness in any society so affected can be quantified. Exposure to embarrassment, humiliation, and the denial of basic respect can and do cause psychological and physiological trauma to its victims. The disease must be recognized and vigorously eliminated wherever it occurs. But racial discrimination takes its most malevolent form when it occurs in employment, for prejudice here not only has an immediate economic effect, it has a fulminating integrant that perpetuates the pestilences of degraded housing, unsatisfactory neighborhood amenities, and unequal education. General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 413, 102 S.Ct. 3141, 3161-62, 73 L.Ed.2d 835 (1982) (Marshall, J., dissenting) (quoting Croker v. Boeing Co., 662 F.2d 975, 1002 (3d Cir.1981) (Aldisert, J., dissenting in part)). Nothing in the legislative history to § 1981 or in the decisions of the Supreme Court indicates that the peculiar form of racial employment discrimination which does not constitute the “but for” cause of an adverse employment decision is removed from the purview of the statute. Accordingly, we hold that where an employee demonstrates by a preponderance of the evidence that race was a substantial or motivating factor in his or her discharge, liability under § 1981 is established. The remedy afforded a successful § 1981 plaintiff who would have been discharged even in the absence of racial discrimination, however, is a different matter. An employer may avoid reinstatement or an award of back pay or both by demonstrating by a preponderance of the evidence that the employee would have been discharged even if race had not been a motivating factor in the decision. This rule prevents an employee from being placed in a better position as a result of his race than he would otherwise occupy. Our analysis finds support in the Supreme Court’s treatment of procedural due process and in this circuit’s decisions concerning Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e to 2000e-17. In Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), the Court held that a violation of procedural due process may occur even in the absence of actual injury, although the remedy for the violation must be fashioned to avoid a windfall: Common-law courts traditionally have vindicated deprivations of certain “absolute” rights that are not shown to have caused actual injury through the award of a nominal sum of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights. Because the right to procedural due process is “absolute” in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury. Id. at 266, 98 S.Ct. at 1053-54. (citations omitted). We believe it cannot be seriously disputed that the right to be free from intentional racial employment discrimination is absolute in the same sense. This much is implicit in the one hundred and twenty-two years of American social history since the decision was made to eliminate slavery and the badges and incidents thereof. In Bibbs v. Block, 778 F.2d 1318 (8th Cir.1985) (en banc), this court took an even stronger position with respect to racial employment discrimination under Title VII. In Bibbs, we held that where race is a “discernible” factor in an adverse employment decision, liability under the statute is established. “Every kind of disadvantage resulting from racial prejudice in the employment setting is outlawed. Forcing Bibbs to be considered for promotion in a process in which race plays a discernible part is itself a violation of the law, regardless of the outcome of the process.” Id. at 1322. We further concluded that the employer “may avoid an award of reinstatement or promotion and back pay if it can prove by a preponderance of the evidence that the plaintiff would not have been hired or promoted even in the absence of the proven discrimination.” Id. at 1324 (footnote omitted). See also Fadhl v. City of San Francisco, 741 F.2d 1163, 1166 (9th Cir.1984) (where Title VII plaintiff shows unlawful motive was a significant factor, liability is established; defendant may limit relief by demonstrating decision would have been the same absent discrimination). We need not reach the question of whether the Bibbs “discernible factor” “mixed motive” analysis applies to actions under § 1981. This case does not present a “discernible factor” “mixed-motive” discharge. Here, Edwards’ race was in fact a substantial or motivating reason for his discharge. See Bibbs, 778 F.2d at 1330-32 (Ross, J., dissenting). We will, however, apply the remedial analysis in Bibbs prohibiting an employee from being awarded reinstatement or back pay where the discharge decision would have been the same in the absence of the proven motivating racial discrimination. Jewish Hospital, however, argues that under Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1976) (Mt. Healthy), a verdict must be directed for the employer where the jury finds that even though race was a substantial factor in the discharge decision, the employer would have made the same decision based upon legitimate, non-discriminatory reasons. In Mt. Healthy, a school teacher alleged that the school district had discharged him because he had exercised his first amendment rights. In vacating a judgment for the plaintiff, the Court held that proof that his constitutionally protected activity was a “substantial” or “motivating” factor in the plaintiff’s discharge did not end the inquiry. The Court held that if the school board could establish that it would have made the same decision even in the absence of the protected conduct, there would be no constitutional violation “justifying remedial action.” Id. at 285, 97 S.Ct. at 575. The Court reasoned that reinstatement would be inappropriate because “[t]he constitutional principle at stake is sufficiently vindicated if such employee is placed in no worse position than if he [or she] had not engaged in the [protected] conduct.” Id. at 285-86, 97 S.Ct. at 575. The Court therefore remanded the case to the district court for a determination of whether the school board would have discharged the plaintiff even in the absence of the protected conduct. Although Mt. Healthy clearly held that a plaintiff could not be reinstated where the same discharge decision would have been made, it is not clear that the Court held that this “same decision” defense precluded liability. See Wolly, What Hath Mt. Healthy Wrought?, 41 Ohio St.L.J. 385, 390-94 (1980). In any event, Mt. Healthy did not address the proper analysis for a “same decision” case brought under § 1981. In Hervey v. City of Little Rock, 787 F.2d 1223 (8th Cir.1986) (Hervey), this court recently applied Mt. Healthy to a sex discrimination charge filed under 42 U.S.C. § 1983 and the equal protection clause of the fourteenth amendment. Under these circumstances, the Hervey court held that the Mt. Healthy “same decision” analysis governed: Robinson is therefore limited to proving that the City violated her equal protection rights under the fourteenth amendment in order to recover under § 1983. In this “mixed-motive” situation, she must show that a sexually discriminating purpose was a motivating factor in the City’s promotional decision. If the City then fails to carry the burden of establishing that the same decision would have been made absent the discriminating motive, an equal protection violation is established. Id. at 1233 (citations and footnotes omitted). Implicit in Hervey is the conclusion that for § 1983 purposes the Mt. Healthy analysis goes to liability rather than merely remedy. Jewish Hospital argues that because we have applied the Mt. Healthy analysis to actions brought under the fourteenth amendment and § 1983, we should also apply it to § 1981 cases because of the common fourteenth amendment roots of § 1981 and § 1983. In General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 389-90, 102 S.Ct. 3141, 3149, 73 L.Ed.2d 835 (1982), relied upon by Jewish Hospital, the Court noted that the origin of § 1981 can be traced to both the Civil Rights Act of 1866 and the Enforcement Act of 1870. Both of these laws, in turn, were legislative cousins of the Fourteenth Amendment.... In light of the close connection between these Acts and the Amendment, it would be incongruous to construe the principal object of their successors, § 1981, in a manner markedly different from that of the Amendment itself. Jewish Hospital argues that because cases involving § 1981’s “legislative cousins,” the fourteenth amendment and § 1983, are controlled by the Mt. Healthy “same decision” formulation, we should follow the same analysis in § 1981 cases. We disagree. General Building decided that § 1981, like the fourteenth amendment, can be violated only by intentional discrimination. It also eliminated from § 1981’s sphere of liability those cases that have a disparate impact upon racial minorities unless that impact can be traced to discriminatory purpose. But the question whether intentional racial employment discrimination is actionable under § 1981 where the discrimination is not the “but for” cause of discharge is quite different from the issue presented in General Building. Here, the jury specifically found that Edwards was the victim of intentional discrimination; the problem addressed in General Building is not present in this case. What is presented here is whether the Mt. Healthy analysis used in § 1983 cases should be applied to § 1981 claims. Based on the legislative history and purposes of § 1981 set forth above, we have concluded that it should not. The Mt. Healthy “same decision” analysis rests on the assumption that the only goal is to compensate victims of civil rights violations. Regardless of the validity of this assumption when applied to the array of civil rights violations cognizable under § 1983, we believe the assumption should not apply to § 1981 cases in which an employer has been found to have intentionally discriminated on the basis of race. The deterrent purposes which also underlie § 1981 would be thwarted in many cases if an employer were able to avoid liability completely by showing that his intentional racial discrimination happened in this particular instance to be “harmless.” The Mt. Healthy “same decision” analysis is quite unlikely to provide the “spur or catalyst which causes employers ... to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges” of their racially discriminatory practices. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417-18, 95 S.Ct. 2862, 2371-72, 45 L.Ed.2d 280 (1975) (quoting United States v. N.L. Industries, Inc., 479 F.2d 354, 379 (8th Cir.1973)). The legislative history behind § 1981 and the national policy of blotting out all vestiges of racial discrimination, especially in employment, as evidenced by both § 1981 and Title VII, compel us to reject Jewish Hospital’s argument to apply the Mt. Healthy analysis to § 1981 employment discrimination cases. The trial court properly denied Jewish Hospital’s motion for j.n.o.v. Jewish Hospital next argues that the trial court erred in denying its motion to reduce the punitive damages award to reflect the reduction in actual damages from $50,000 to $1 nominal damages. We note that Jewish Hospital does not attack the legal basis for the allowance of punitive damages. Jewish Hospital’s argument is that the amount of punitive damages awarded must bear a reasonable relationship to the amount of compensatory damages awarded. While we do not disagree with this observation and have so held on many occasions, see, e.g., Hollins v. Powell, 773 F.2d 191, 198 (8th Cir.1985) (punitive damages award must bear a reasonable relationship to injury); Ogilvie v. Fotomat Corp., 641 F.2d 581, 586 (8th Cir.1981) (“irrational” award reduced because no rational relationship between award and injury shown), such a general statement has no application to an award of nominal damages. To apply the proportionality rule to a nominal damages award would invalidate most punitive damages awards because only very low punitive damages awards could be said to bear a reasonable relationship to the amount of a nominal damages award. Consequently, in those cases where the trial court has awarded nominal damages and punitive damages, we rely and give great deference to the trial court’s discretion as to the amount of the punitive damages award it has permitted to stand. We will only reverse or modify those allowances where it has been demonstrated that the court has abused its discretion. On the basis of the record and the jury’s finding of intentional discrimination, we hold that the trial court did not abuse its discretion in denying the motion to reduce the punitive damages award. Ill Next we consider Edwards’ allegations of error. First, we find no merit to Edwards’ argument that the trial court erred in striking the $5,000 back pay award. Here, the jury found that even in the absence of intentional discrimination, Jewish Hospital would have discharged Edwards anyway. Under these circumstances, backpay would be a windfall to Edwards, even though he was the victim of intentional racial discrimination. We similarly find no merit in Edwards’ argument that the trial court erred in reducing the $50,000 compensatory damages award to $1. While compensatory damages are recoverable under § 1981, the damages recovered must be directly caused by the defendant’s wrongful act. Here, Edwards alleged that his discharge caused him mental distress and suffering as the basis for his compensatory damages. Jewish Hospital’s discrimination, however, was not the legal cause of Edwards’ discharge because he would have been discharged anyway. As a result, Edwards’ mental distress cannot be traced to Jewish Hospital's wrongful act, and the trial court properly reduced the compensatory damages award to $1.00 nominal damages. Third, we find no merit in Edwards’ argument that the trial court erred in submitting special interrogatory No. 3, the “same decision” test, because it was not supported by substantial evidence. Edwards has failed to preserve this allegation of error for review. Our search of the record finds no motion for j.n.o.v. pursuant to Fed.R.Civ.P. 50(b). Quaker City Gear Works, Inc. v. Skil Corp., 747 F.2d 1446, 1453 (Fed.Cir.1984) (party should have filed a Rule 50(b) motion for j.n.o.v. since it wished to challenge sufficiency of evidence supporting particular findings of the jury), cert. denied, 471 U.S. 1136, 105 S.Ct. 2676, 86 L.Ed.2d 694 (1985). Edwards final argument that special interrogatory No. 3 was misinterpreted by the jury also is not preserved for review. See Fed.R.Civ.P. 51 (party must object and give grounds before jury retires). Edwards neither objected to nor assigned any reasons as to the invalidity of interrogatory No. 3; hence, these objections are waived. Accordingly, the judgment of the district court is affirmed. . The Honorable David D. Noce, United States Magistrate for the Eastern District of Missouri. This case was tried by a magistrate by the consent of the parties pursuant to 28 U.S.C. § 636(c)(3). . Congress reenacted § 1 of the 1866 Act in the Enforcement Act of 1870, ch. 114, 16 Stat. 140. Section 1 was codified in §§ 1977 and 1978 of the Revised Statutes of 1874, which are now codified in 42 U.S.C. §§ 1981 and 1982 (1976). See Runyon v. McCrary, 427 U.S. 160, 168 n. 8, 96 S.Ct. 2586, 2593-94 n. 8, 49 L.Ed.2d 415 (1976). . Indeed this may be the result in a great number of cases. One commentator has noted that [d]espite the fact that the Mt. Healthy standard places the burden of establishing the “harmless" nature of the discrimination on the employer, the plaintiff in many meritorious cases is likely to face the very difficult task of refuting the defendant’s showing. It has been observed that “plausible justification [for adverse personnel action] can frequently be advanced whether or not it actually played any part in the formulation of the decision under contest," and that employers “who receive adequate legal advice and know how to create a personnel file ... will find rare the occasions on which they are found liable.” Brodin, The Standard of Causation in the Mixed-Motive Title VII Action: A Social Policy Perspective, 82 Colum.L.Rev. 292, 321 (1982) (quoting Christensen & Svanoe, Motive & Intent in the Commission of Unfair Labor Practices: The Supreme Court & the Fictive Formality, 77 Yale L.J. 1269,' 1322 (1968), and Tushnet, Truth, Justice, & the American Way: An Interpretation of Public Law Scholarship in the Seventies, 57 Tex.L.Rev. 1307, 1355 (1979)).

MEMORANDUM OPINION MICHAEL, District Judge. This action arose out of the arrest of the plaintiff, Roman A. Grochowski, by the defendant, Thomas S. DeWitt-Rickards. On August 25, 1987, Rickards arrested Gro-chowski for driving under the influence of alcohol, in violation of § 18.2-266 of the Code of Virginia. Rickards conducted field sobriety tests at the scene of the arrest and, under the authority of Va.Code § 18.2-268, transported Grochowski to the University of Virginia Police Department to administer a breathalyzer test. The resulting blood/alcohol content reading was .11, and subsequently a magistrate issued an arrest warrant. After the General District Court for the City of Charlottesville convicted Grochow-ski of driving under the influence of alcohol, he appealed to the Circuit Court for the City of Charlottesville for a trial de novo. Prior to the trial, Grochowski moved to suppress the results of the breathalyzer test on the basis that his right to refuse the test was abridged and that the test was tainted and forcibly coerced. In deciding the motion, the circuit court judge had before him the testimony introduced in the general district court trial. He ruled that, as a matter of law, Grochowski had not refused to take the test and thus the results were not inadmissible on that ground. The jury in the circuit court convicted Grochowski of driving under the influence of alcohol. He then petitioned the Virginia Court of Appeals, which denied his petition. That court also denied Grochowski’s petition for rehearing. Although Grochowski filed a notice of appeal to the Supreme Court of Virginia, he did not actually file an appeal. Grochowski is now before this court and claims that Rickards violated his fourth, fifth, and fourteenth amendment rights during the course of the arrest. Grochow-ski also charges Rickards with violating 42 U.S.C. § 1983, alleging that he unconstitutionally applied the state statutory scheme for DUI offenses. Rickards has moved to dismiss this action, asserting a lack of subject matter jurisdiction over plaintiffs claims and the plaintiff’s failure to state a claim upon which the court' can grant relief, under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), respectively. Both parties submitted briefs and presented oral argument on June 19, 1990. Having considered documents outside the pleadings, the court treats this motion as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. The court first notes that if Gro-chowski is asking for a review of his state court criminal proceedings, this court clearly has no jurisdiction. A federal court cannot sit in appellate review of a final state court judgment. Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 150, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 477, 483 n. 16, 103 S.Ct. 1303, 1312, 1315 n. 16, 75 L.Ed.2d 206 (1983). The plaintiff asserts that he is raising federal constitutional claims against the defendant and that he does not ask this court to review or set aside the conviction. A claim under 42 U.S.C. § 1983 which challenges the legality of police conduct does not necessarily involve reviewing the validity of a criminal conviction. Haring v. Prosise, 462 U.S. 306, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983). To the extent that the plaintiff’s § 1983 claim does not call into question the validity of his state court conviction, the Rooker-Feldman doctrine does not prevent this court from having subject matter jurisdiction over his claims. The court does note, however, that it cannot appropriately award the injunctive relief which Grochow-ski seeks. If this court enjoined the enforcement of the sentence imposed by the state court, it would essentially rule that the conviction was improper, and Feldman prohibits such action. Although this court does have proper jurisdiction over the plaintiff’s claims, it must next examine whether Grochowski has stated a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). The defendant asserts that Grochowski’s claims are not sufficient because they are collaterally estopped by the state courts’ proceedings. Grochowski replies that he is raising federal constitutional claims and his § 1983 claim for the first time in this court. The rules governing collateral es-toppel in 42 U.S.C. § 1983 actions are clear. A state court judgment will preclude litigation of federal issues which the litigant could have raised in the state proceeding but did not if the state courts would give preclusive effect to the state court determination. Migra v. Warren City School District, 465 U.S. 75, 84-85, 104 S.Ct. 892, 897-898, 79 L.Ed.2d 56 (1984). The Virginia Supreme Court defines collateral estop-pel to preclude issues “previously litigated and essential to a valid and final judgment in the first case.” Lake Monticello Service Co. v. Board of Supervisors of Fluvanna County, 233 Va. 111, 114, 353 S.E.2d 767, 769 (1987) (citations omitted). In a § 1983 context, the United States Supreme Court has interpreted Virginia law as giving preclusive effect to a state court conviction only if the constitutional issue was actually litigated and necessarily determined in the state proceeding. Haring, 462 U.S. at 315, 103 S.Ct. at 2374. The Supreme Court noted in Haring, however, that if a motion to suppress evidence on constitutional grounds was considered at the state level, a state court determination on that issue could have preclusive effect. Id. at 311 n. 2, 103 S.Ct. at 2372 n. 2. In order to determine whether Gro-chowski’s criminal conviction in the state courts collaterally estops him from bringing a § 1983 claim in federal court, the court must consider what issues of law and fact the state courts actually litigated or necessarily determined. To the extent that the state courts decided issues of fact or law which are related to Grochowski’s federal claims, the doctrine of collateral estop-pel would threaten his cause of action. The criminal conviction is dispositive of two factual issues, necessarily determined by the jury in its guilty verdict, which this court cannot ignore: that Grochowski was legally intoxicated and that he was driving an automobile. Neither of these issues of fact bar the plaintiff’s claim that the defendant violated his constitutional rights. The state courts also considered and determined an issue of law which does relate to Grochowski’s present claims. By making a motion to suppress the breathalyzer test, the plaintiff raised the issue of the test’s validity. Grochowski’s assertion was that the officers did not administer the test in accordance with Va.Code § 18.2-268. When ruling on the motion, the circuit court judge had before him the transcript of the general district court proceeding, including the testimony of Grochowski and the officers involved in the arrest and administration of the test. Based on the officers’ testimony denying that Grochowski had refused to take the test, the circuit court concluded, as a matter of law, that Grochowski “never refused to take the test.” Commonwealth v. Grochowski, No. 88-26 (16th Cir.Ct.V.A.) (Letter opinion of Judge Herbert A. Pickford). Consequently, the test results were not inadmissible on the grounds that the test was invalid. That Grochowski did not refuse the test is a legal issue which was essential to the circuit court’s ruling on the motion to suppress. The plaintiff claims that the circuit court denied the motion to suppress before it heard the officers’ testimony corroborating his denial to take the breathalyzer test. For example, he points to the fact that during the circuit court trial the officers said Grochowski would not blow into the machine and that they had to hold him still while he took the test. The court does not find that the denial of the motion, and the legal conclusions implicit therein, are any less valid given the testimony during the second trial. Although the officers’ testimony might have been somewhat different in the circuit court, no substantial differences exist. In addition, the plaintiff’s motion to suppress included his assertions that he had refused the test, the test was forcibly coerced and tainted, and his right to refuse the test was abridged. This court finds no significant difference between the information before the circuit court on the motion to suppress and the subsequent testimony at the trial. Even if a consequential disparity existed, and the denial of the suppression motion was improper, the Virginia Court of Appeals certainly had all the evidence before it in Grochowski’s petition for appeal. In denying the petition, the appellate court stated that “The trial court did not err in finding that the appellant had not refused to take the breathalyzer test.” Order of the Court of Appeals of Virginia, May 26, 1989. This court cannot ignore the state court’s definitive ruling that Grochowski voluntarily took the breath test. The improper administration of the test is at the heart of the plaintiff’s claims in federal court. Because this court must give credence to the state court’s conclu sion that Grochowski voluntarily took the test, the issue of force in the administration of the test is precluded. In addition, the fact that the test was voluntary negates the claim that Rickards ignored Grochowski’s constitutional rights while administering the test. The plaintiff did not specifically raise fourth, fifth, or fourteenth amendment claims in the state court proceedings. However, his present claims that Rickards violated his rights against self-incrimination and substantive due process hinge upon the administration of the breath test. Although he correctly admits that blood alcohol level tests do not jeopardize a person’s fifth amendment rights, Grochowski maintains that his case falls into a possible exception the United States Supreme Court left open in Schmerber and mentioned again in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Specifically, he claims that his case implicates due process concerns because Rick-ards used inappropriate force during the administration of a breath test, thus raising a question of whether the fifth amendment right applies. Once again, the state court’s ruling that the officers did not force Grochowski to take the test collaterally estops this court from determining that Rickards used excessive force in administering the test. The court draws the same conclusion about the plaintiff’s fourth and fourteenth amendment due process claims. Under the applicable state statute, the defendant has a right to refuse the breath test and opt instead for a blood test. Va.Code § 18.2-268(C). In his motion to suppress in the state court proceedings, Grochowski argued that his refusal to take the test made the certificate inadmissible and that his right to refuse the test must be enforced. He also argued that the test was tainted. By allowing the results of the test to be admitted into evidence, the state court necessarily determined that the officers complied with the state statutory scheme governing blood alcohol tests. Grochowski cannot relitigate the protection of his due process rights in federal court. In a final attempt to circumvent the application of collateral estoppel, Grochowski refers to the Supreme Court’s statement in Allen that if the state court demonstrated inability or unwillingness to protect federal rights in a § 1983 action, a state court conclusion will not be given preclusive effect. Allen v. McCurry, 449 U.S. 90, 101, 101 S.Ct. 411, 418, 66 L.Ed.2d 308 (1980). The ninth circuit decision with which the plaintiff compares his own case, Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir.1985), indeed allowed the federal court to hear constitutional arguments which the state courts failed to entertain. That case is easily distinguished, however, because the federal district court was asked “to make findings about constitutional claims which themselves were never decided by a state court, intertwined or otherwise.” Id. at 1473. As discussed, the constitutional claims Grochowski raises have been essentially decided in the state court proceedings. Finally, this court finds plaintiff’s contention that the Virginia state courts “demonstrated an inability to protect any constitutional rights obviously seeing no rise of the issue of a constitutional level” without merit. See Plaintiff’s Brief in Opposition to Defendant’s Thomas S. DeWitt-Rickards’ Motion to Dismiss at 11. Both the motion to suppress and petition for appeal raised issues of due process and the defendant’s use of excessive force. Al though Grochowski did not label his objections “constitutional,” the circuit court and the Virginia Court of Appeals, on sufficient evidence, concluded that Grochowski’s rights had not been violated. The days of suspicion and distrust of a state court’s capability to protect federal rights are long gone. This court has no reason to believe that the Virginia judicial system did not fairly and competently adjudicate the relevant issues in this case. Accordingly, the court finds that the state court criminal proceedings bar a hearing of Grochowski’s claims. Rickards’ motion for summary judgment is therefore granted. . The transcript from the general district court included the officers' statements that Grochow-ski never refused the test, a position they reasserted in the circuit court, and that Grochowski was uncooperative while taking the test, again consistent with their statements in the circuit court that he would not blow into the breathalyzer machine. . As Grochowski's counsel admitted at oral argument, the underlying basis for the plaintiffs constitutional and § 1983 claims is that his rights were ignored given the undue violence Rickards used at the police station in forcing him to take the test. . See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (State-compelled blood alcohol test does not infringe upon the right against self-incrimination). . In Neville, the Court noted "Schmerber did caution that due process concerns could be involved if the police initiated physical violence while administering the test, refused to respect a reasonable request to undergo a different form of testing, or responded to resistance with inappropriate force.” Neville, 459 U.S. 553, 559 n. 9, 103 S.Ct. 916, 920 n. 9 (citing Schmerber, 384 U.S. at 760, n. 4, 86 S.Ct. at 1830, n. 4). .For example, in his petition for appeal, Gro-chowski claimed that “The police involved ... abridged [the accused’s rights]”, Petition For Appeal at 18, Grochowski v. Commonwealth, No. 1037-88-2 (Va.Ct.App.1989); that he "was forced and compelled to give as ‘evidence’ against himself a breath test ...” id. at 20; and that he "requested to be advised of his rights and to take a blood test. These were not afforded him and are substantive rights.... It is submitted a substantive right was violated as a matter of law.” Id. at 36. . See Allen v. McCurry, 449 U.S. 90, 105, 101 S.Ct. 411, 420, 66 L.Ed.2d 308 (1980) (citing Stone v. Powell, 428 U.S. 465, 493-94 n. 35, 96 S.Ct. 3037, 3051-52 n. 35, 49 L.Ed.2d 1067 (1976)).

MEMORANDUM AND ORDER SAPFELS, District Judge. This matter is before the court on defendants’ motion for summary judgment on each of plaintiffs claims. This case arises out of plaintiffs experiences with the baseball program while attending defendant Neosho County Community College (“NCCC”) and with defendant Steve Murry (“Murry”), coach of the NCCC baseball program. Plaintiff asserts claims of deprivation of liberty and property rights without due process of law in violation of the Fourteenth Amendment pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiff also asserts state pendent claims of fraud by silence, intentional misrepresentation, breach of contract, assault, and battery. The following facts have been established for the purpose of the pending motion. 1.NCCC is a two-year community college located in Chanute, Kansas, and is a governmental subdivision of the state of Kansas. 2. NCCC offers the sport of baseball as one of its athletic programs. Defendant Murry has been the head baseball coach and a recruiter of NCCC since 1986. 3. In the fall of 1987, Murry, in his capacity as head baseball coach and recruiter, sent Mike Lesser a letter dated November 19, 1987, inquiring whether Lesser would be interested in going to school and playing baseball at NCCC. 4. On February 3, 1988, Murry again wrote to plaintiff and inquired about plaintiffs interest in visiting the NCCC campus. In the correspondence sent to plaintiff, Murry enclosed a questionnaire, a school brochure, and a flyer on the NCCC “Panther” Baseball program, which was written and edited by Murry. 5. The Panther baseball brochure made the following statements: (a) “The Neo-Kan dormitory has co-ed living quarters_ You and your roommate will enjoy wall-to-wall carpeted rooms with individual study coves.”; (b) “The philosophy here is simple — my knowledge and your ability and hard work equal success in baseball, the classroom and in growing up. If you work for me, I will work for you.”; (c) “[The baseball coaching staff does] work hard and long to improve every phase of your game.”; and (d) “[The baseball coaching staff does] not recruit great athletics and just turn them loose.” 6. In the spring of 1988, plaintiff made a visit to the NCCC campus. During this visit, plaintiff participated in a tryout where he threw between 10-50 pitches while being observed by Murry. Plaintiff was being recruited as pitcher and also tried out as an outfielder. 7. At the conclusion of the tryout, Mur-ry offered plaintiff the opportunity to sign a Kansas Jayhawk Community College Conference (“KJCCC”) letter of intent to attend NCCC. 8. The member institutions of the KJCCC are also members of the National Junior College Athletic Association (“NJCAA”.) 9. During plaintiffs first visit to NCCC, Murry advised plaintiff that the baseball team had a haircut policy and that plaintiff would need to get a haircut to participate in the baseball program. Also, plaintiff was advised that he would not be able to wear an earring while a member of the baseball team. 10. Murry never informed plaintiff pri- or to signing the letter of intent to attend and play baseball at NCCC that plaintiff could be eliminated from the program, or “cut,” or that there would be cuts from the baseball team. 11. Murry cut players from the baseball team during the 1986-87 and 1987-88 seasons. Murry was aware that if Lesser was cut from the baseball team after attending classes at NCCC, plaintiff would be precluded from playing baseball at other NJCCC, NAIA or NCAA schools during the academic year. 12. Murry did not inform plaintiff prior to his signing the letter of intent of the baseball team’s written and unwritten rules and monetary fine system to enforce the rules. 13. Before signing the letter of intent, plaintiff advised Murry that he would have to talk the matter over with his parents. 14. Plaintiff and his parents traveled to Chanute, Kansas, on or about April 29, 1988, so that plaintiff’s parents could have an opportunity to see the campus. During this visit, Murry told plaintiff’s parents that plaintiff would have to get a haircut in order to play ball at NCCC. 15. On April 29, 1988, plaintiff signed the KJCCC letter of intent to attend NCCC. Plaintiff’s mother also signed the letter of intent. Under the terms of the letter of intent, NCCC agreed to award plaintiff a scholarship to cover the expenses of books and tuition for the spring semester and of books for the fall semester, if plaintiff met the admission requirements of NCCC. The letter of intent did not promise that plaintiff would be allowed to play baseball for NCCC or guarantee him a spot on the baseball team. 16. On August 16, 1988, plaintiff arrived in Chanute, Kansas, to begin attending NCCC. Prior to arriving at Chanute, plaintiff got a haircut. Upon his arrival, plaintiff checked in with Paul Marquez, a coach for the baseball team, to receive his room assignment in the school’s dormitory. 17. Due to an overflow in the dormitory, the staff had to convert the central lobbies of each floor plus the recreation room into dormitory rooms. Plaintiff was assigned to the recreation room along with three other students, two of whom were baseball players. Although plaintiff and his mother were not happy with the situation, plaintiff did not complain because he did not want to “make waves.” Therefore, plaintiff did not request reassignment to a different room. 18. Shortly after plaintiff’s arrival at NCCC, other members of the baseball team told plaintiff he would need to cut his hair shorter in order to play on the team. Therefore, plaintiff consented to and received a crewcut style haircut from Dan Biby, a student assistant for the baseball team. Plaintiff got this haircut because he thought his hair was not short enough to comply with the team rules. This haircut was not at the direction of Coach Murry. 19. Plaintiff attended the first baseball meeting which was conducted by Murry. At this meeting, Murry passed out a written list of team rules. Murry indicated that these rules had been used in previous years by the team. In his deposition, Mur-ry stated that the purpose of the team rules was to instill discipline and teach responsibility. Also, Murry indicated that some of the rules regarding player appearance were his personal preference as to the “team look.” Murry also stated that there were certain unwritten rules and that he made up some rules as needed. 20. Also at the first meeting, Murry advised the players that in previous years the team had agreed to a one dollar fine or penalty for each violation of the team rules. The players voiced no objection to the continuation of the fine system. At this time, Murry did not disclose the unwritten rules. 21. The fine money which was collected from the players for violating the rules was used to purchase equipment and items needed by the baseball team. The funds were deposited into a baseball team account in which Murry also deposited personal funds. Murry did not monitor the withdrawals from the team account. 22. Players were also advised that if they desired to contest the imposition of a fine, they would have to appeal the matter to the “kangaroo court.” The “kangaroo court” was comprised of other members of the baseball team who apparently were chosen by Murry if an appeal of a fine was desired. If a player lost his appeal to the “kangaroo court,” the rules stated that the fine would be doubled. 23. Also at the first meeting, Murry advised the players that due to the number of individuals on the team he would be making cuts to trim the roster. The cuts were to occur after four practices. 24. The first day of classes at NCCC was August 18, 1988. 25. Plaintiff participated in four practices while at NCCC. During these practices, plaintiff was assessed $4 in fines for violating four of the team rules. Plaintiff allegedly violated the written rule of not having a close shave. Plaintiff contends that he vocally contested the imposition of the fine for this violation. Also, plaintiff was fined for violating three unwritten rules: wearing a wrist bracelet, being in the wrong place at the wrong time, and not wearing a “cup.” 26. Plaintiff paid the fines and did not attempt to appeal their imposition to the “kangaroo court.” Plaintiff maintains that he did not know who comprised the court or to whom to appeal. Also, plaintiff states that he was under the impression that one could not successfully appeal fines to the “kangaroo court." 27. Dave Peter (Peter), an assistant coach for the baseball team, was in charge of evaluating the pitchers. In watching plaintiffs pitches, Peter was not impressed with plaintiffs speed or control. Peter gave plaintiff no personal instruction with regard to technique at any time. During the fourth practice, plaintiff threw approximately 50 pitches. During this time, Peter summoned Murry to watch plaintiff pitch. Murry concluded that plaintiff did not have a sufficient fast ball to help the team and did not have good control on his pitches. Peter recommended to Murry that plaintiff be one of the individuals cut from the team. 28. During one of the four practices, Murry initiated a “cup check.” A cup is an athletic supporter reinforced usually with plastic to provide protection to the wearer’s genitals. It was an unwritten rule that all NCCC baseball players were required to wear cups. Murry conducted the cup check to determine if each player was wearing a cup. 29. On the occasion in issue, Murry yelled “cup check” and second-year players began forming a line. Plaintiff fell in line with the rest of the players. Murry went down the line and tapped or hit the players in the genital area with a bat to determine if each player was wearing a cup. Plaintiff asked another player what was going on and the other player advised him that the coach was doing a cup check and if he was not wearing one, he should tell the coach and he would not be touched. As Murry approached plaintiff with the bat, plaintiff stepped back and said “I’ll take the fine.” Plaintiff states that his decision to step back was based on his fear that Murry was going to strike him in the genital area and his fear of pain. Murry assessed plaintiff a fine and did not strike plaintiff with the bat. 30. Plaintiff was one of the individuals that Murry cut from the baseball team on August 22, 1988. 31. Murry contacted Highland Community College (“HCC”) in an effort to assist Mike Mitchell, another player that had been cut, in getting placed at HCC to play baseball. During the conversation, Murry also mentioned that plaintiff might be interested in attending HCC to play baseball. HCC is not a member of the KJCCC. Plaintiff did not go to HCC. 32. If plaintiff had not been cut from the NCCC baseball team, he would have received personal coaching attention and would have been advised with regard to improvements to his pitching technique. 33. While at NCCC, plaintiff did not have an opportunity to demonstrate his athletic skills to any collegiate or professional scouts. 34. At the time defendant Murry cut plaintiff from the team, plaintiff had begun attending classes at NCCC. 35. On August 22, 1988, plaintiff withdrew from NCCC. NCCC never attempted to withdraw plaintiffs scholarship for failure to make the baseball team. 36. On August 29, 1988, plaintiff enrolled at Iowa Western Community College (“Iowa Western”) in Clarinda, Iowa: While at Iowa Western, plaintiff participated in the college’s fall baseball program, but did not receive a scholarship. He pitched in approximately 12-15 games for Iowa Western and played shortstop in several games. Plaintiff completed 12 hours of class work at Iowa Western and compiled a 3.0 grade point average in the fall 1988 semester. 37. Plaintiff did not return to Iowa Western for the spring 1989 semester because he thought he was ineligible to play baseball for Iowa Western in the spring since he had not been released from his NCCC/KJCCC letter of intent. No representative of Iowa Western had advised plaintiff that he was ineligible because he had not been released from his letter of intent. Iowa Western is a member of the NJCAA but not the KJCCC. There is no rule or regulation of the NJCAA and KJCCC which requires Iowa Western to honor the NCCC letter of intent. 38. Plaintiff requested that NCCC release him from his letter of intent. On October 12, 1988, Ray Hames, athletic director of NCCC sent a letter to Bernie Lee, commissioner of the KJCCC, requesting an exception to the conference rule so that plaintiff could be released from his letter of intent and attend another conference. The commissioner ruled that there was no provision in the KJCCC bylaws which would allow a release of the letter of intent, and therefore, the request was denied. Commissioner Lee, however, did advise NCCC to look to the bylaws for procedures to appeal his decision, but NCCC did not prosecute an appeal. Plaintiff was never informed of the decision or the right to appeal. 39. NCCC did not release plaintiff from his letter of intent, although plaintiff had requested he be released. Also, NCCC did not lodge a written appeal of the KJCCC commissioner’s, decision denying the release of plaintiff’s letter of intent. 40. In the spring semester of 1989, plaintiff enrolled at Emporia State University (“Emporia”) and attended classes for three weeks before withdrawing. In the fall-semester of 1989, plaintiff enrolled as a full-time student at Washburn University (“Washburn”) and is presently attending Washburn. 41. Plaintiff inquired about Washburn’s baseball program and playing for Wash-burn, but was advised by Steve Anson, coach of the baseball team, that plaintiff would not be eligible to play on the team until he completed 24 hours of class work at Washburn, since plaintiff had attended classes at Emporia in the spring of 1989. 42. At his deposition, plaintiff was asked whether knowledge of possible cuts prior to signing the letter of intent with NCCC would have made a difference in whether or not he would have signed the letter of intent. Plaintiff responded, “I don’t know.” 43. Also at his deposition, plaintiff was asked whether knowledge of the existence of a monetary fine system for violating team rules prior to his‘ signing the letter of intent would have changed his decision to attend NCCC. Plaintiff responded, “I don’t know.” 44. On January 6, 1989, plaintiff filed this action alleging deprivation of certain constitutional rights and certain state tort and contract claims against defendants regarding his involvement in the baseball program at NCCC. I. SECTION 1983 CLAIMS OF DEPRIVATION OF CONSTITUTIONAL RIGHTS. Plaintiff brings two claims under the Civil Rights Act of 1871, 42 U.S.C. § 1983, claiming that he was deprived of a liberty interest and property interest without due process of law in violation of the Fourteenth Amendment of the United States Constitution. Initially, defendants argue that plaintiff lacks standing to assert these constitutional claims. The United States Supreme Court has set forth the general standards of required standing before a person can assert claims of constitutional deprivation. Plaintiff must allege that he has suffered some injury in fact, that the interests sought to be protected are arguably within the zone of interest to be protected by the constitutional guarantee in question, and that there is a fairly traceable causal connection between the alleged deprivation or injury and the challenged conduct of defendants. Association of Data Processing Serv. Org. v. Camp, 397 U.S. 150, 152, 153, 90 S.Ct. 827, 829, 829-30, 25 L.Ed.2d 184 (1970); Duke Power Co. v. Carolina Env’l. Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed.2d 595 (1978); and Citizens Concerned for Separation of Church and State v. City and County of Denver, 628 F.2d 1289, 1295 (10th Cir.1980), cert. denied 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 975 (1981). Also as an initial matter, defendants contend that since plaintiff acquiesced to and did not voice an objection to the team rules, he has waived any claims of deprivation of constitutional rights arising out of the team rules. First, with regard to the claim of deprivation of liberty interest, the court does not need to address the issue of plaintiffs standing to assert this claim since the court will dispose of his liberty interest claim on the merits for reasons set forth below. Next, with regard to plaintiffs claim of deprivation of property without due process, the court finds that plaintiff has standing to assert this claim. Plaintiff has alleged injury, in fact, in the form of economic loss since he claims he was deprived of his money. This alleged deprivation is fairly traceable to defendants’ conduct in their administration of the fine system. The property interest sought to be protected by plaintiff is clearly within the zone of interest intended to be protected by the Fourteenth Amendment to the United States Constitution. Therefore, plaintiff has made the requisite showing of standing to assert his deprivation of property claim. Finally, the court finds that although plaintiff, along with the other players, may have voluntarily agreed to abide by the fine system, plaintiff has presented sufficient facts to prevent the court from granting summary judgment on the property claim based on his alleged acquiescence to the fine system. Plaintiff has presented evidence that raises a conflict over whether the team actually voted on the use of the fine system. Moreover, the fact that a majority of the players may have voted for the system does not preclude any claims based on abridgement of constitutional rights. See Grossberg v. Deusebio, 380 F.Supp. 285, 288 (E.D.Va.1974) (“No vote of a majority of those participating can absolve conduct therein which abridges constitutional rights.”); Dawson v. Hillsborough County, 322 F.Supp. 286, 300 (M.D.Fla.), aff'd 445 F.2d 308 (5th Cir.1971). In addition, plaintiff has presented evidence raising issues about whether any alleged waiver of rights was made knowingly and voluntarily. Before a party can effectively waive any constitutional right, the waiver must be made knowingly and voluntarily. See Ohio Bell Tel. Co. v. Public Utilities Comm’n, 301 U.S. 292, 307, 57 S.Ct. 724, 731, 81 L.Ed. 1093 (1937); D.H. Overmyer v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972). In the present case, plaintiff has presented evidence that the fine system was not fully explained to the players and that the unwritten rules were not explained. The court finds that defendants have not shown plaintiff knowingly and voluntarily waived his claim of deprivation of property without due process. A. Deprivation of Liberty Interest Claims. Plaintiff contends that by imposing rules limiting hair length, prohibiting facial hair, and restricting dress and appearance of the members of the NCCC baseball team, defendants violated plaintiffs constitutional right to determine his personal appearance and thus, deprived plaintiff of a liberty interest protected by the fourteenth amendment. Pretrial Order at 5. In the present motion, defendants argue that plaintiff has no liberty interest in his personal appearance or hair style, and alternatively, argue that a rational basis existed for the grooming and personal appearance rules. The issue of whether individuals have a constitutionally protected liberty interest in their personal appearance and grooming has been the subject of some controversy since the Supreme Court’s decision in Kelly v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976). Kelly involved a challenge to a regulation establishing hair grooming standards for a county’s police force. In Kelly, the Court assumed without deciding that the citizenry at large has some sort of liberty interest under the Fourteenth Amendment in matters of personal appearance. Kelly, 425 U.S. at 244, 96 S.Ct. at 1444. Nevertheless, the Court upheld the grooming standard, finding that the challenged regulation was not arbitrary and was sufficiently related to rational justifications. Id. Since the Kelly decision, courts have assumed that there is a liberty interest in personal appearance without conclusively deciding the issue. Cf Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir.1987) (assuming a liberty interest in one’s right to smoke when off work); Miller v. U.S.D. No. 457, et al., No. 84-4203-R, slip op. at 5-6 (D.Kan., May 25, 1988) (discussing liberty interest in hair style.) The cases cited by defendant finding no liberty interest or finding a school’s personal appearance regulations rationally related to legitimate interest, such as instilling discipline, are all cases involving high school rules on the appearance of high school students. This court, however, finds that because plaintiff in the present case is an adult college student, his case is not controlled by these cases involving high school regulations of personal appearance. Case law indicates that liberty interests of adult college students are provided more protection than those of high school students. See Lansdale v. Tyler Jr. College, 470 F.2d 659, 663 (5th Cir.1972), cert. denied 411 U.S. 986, 93 S.Ct. 2268, 36 L.Ed.2d 964 (1973); Hander v. San Jacinto Jr. College, 519 F.2d 273, 276 (5th Cir.1975.) Although college students may have a generally recognized liberty interest in the control of their personal appearance, this court finds that no such interest is advanced under the particular facts this case. Unlike the Lansdale case, which involved a challenge to personal appearance regulations imposed on the entire student body of a college, the rules challenged in the present case were applied only to those students choosing to participate in the baseball program at NCCC. It is well established that participation in intercollegiate athletics is a privilege and not a right. See Colorado Seminary (Univ. of Denver) v. NCAA, 570 F.2d 320, 321 (10th Cir.1978) (“the interest of the student athletes in participating in intercollegiate sports [is] not constitutionally protected,_”); Parrish v. NCAA, 506 F.2d 1028 (5th Cir.1975.) In Parrish, the Fifth Circuit stated that “[t]he privilege of participating in interscholastic athletics must be deemed to fall ... outside the protection of due process.” Parrish, 506 F.2d at 1034. Further, it has been properly declared that: [ejngaging in these activities is a privilege which may be claimed only in accordance with the standards set up for participation. NCAA v. Gillard, 352 So.2d 1072, 1081 (Miss.1977) (quoting Scott v. Kilpatrick, 286 Ala. 129, 237 So.2d 652 (1970)). The individual schools are in a better position to promulgate rules governing participation in their athletic programs than anyone else. Gillard, 352 So.2d at 1081. This court finds that plaintiff has no fourteenth amendment due process right to participate in defendant NCCC’s baseball program. We further find that plaintiff cannot claim a deprivation of liberty based on rules regulating those who choose to participate in this sport. The challenged rule applied only to those students wishing to participate in the baseball program. Compliance with the rules was not a requisite for attending the college, and' was not applied to all students at the college. Therefore, defendants are entitled to summary judgment on plaintiffs due process claims of deprivation of liberty interest. B. Plaintiff’s Claim of Deprivation of Property Without Due Process. Plaintiffs deprivation of property claim arises from the fines imposed on him for alleged violations of baseball team rules. Plaintiff was assessed the total of $4 in fines for the alleged violations. Plaintiff claims that the imposition of the fines denied him of his constitutional right to due process. Pretrial Order at 6-7. First, defendants argue that plaintiff cannot show any prejudice from the alleged deprivation of due process. In support of this contention, defendants argue that the fine system was agreed to by the players and that plaintiff did not object to the fines imposed. Defendants cite Boster v. Philpot, 645 F.Supp. 798, 804 (D.Kan.1986) as support. Boster involved the suspension of high school students after their involvement in vandalism to school property. The plaintiffs in Boster admitted their involvement in the vandalism. In Boster, Judge Kelly of this district found that any denial of due process to the plaintiff in that case did not result in substantial prejudice to the plaintiff since plaintiff had admitted his guilt. Unlike the situation in Boster, plaintiff Lesser has stated that he did not admit to the violations of the team rules for which he was fined. Moreover, plaintiff contends that he directly contested the fine imposed for not having a close shave. The crucial fact for the court in Boster was that the plaintiffs in that case admitted their involvement in the school vandalism. Thus, the court found that even if they were deprived due process before being suspended from school, any such deprivation did not result in substantial prejudice to the plaintiffs since they admitted their guilt and involvement in the vandalism. Boster, 645 F.Supp. at 805. This court finds that since plaintiff' Lesser has not admitted either the alleged violations or that he knowingly violated any rules, plaintiff has presented sufficient evidence that the alleged denial of due process resulted in prejudice to him to avoid summary judgment on this ground. Next, defendants argue that sufficient appeals procedures were available to plaintiff and that by failing to avail himself of these procedures, plaintiff waived his right to due process. Defendants argue that plaintiff was aware of the “kangaroo court,” but chose not to appeal the imposition of fines. Also, defendants argue that the student catalog set forth a student grievance process which was available to plaintiff. It is undisputed that plaintiff did not pursue his disputes regarding the imposed fines either to the “kangaroo court” or through the grievance procedure set forth in the school catalog. Plaintiff has presented evidence that the members of the “kangaroo court” would apparently be selected by defendant Murry if a fine were appealed to that body. Also, there is evidence that no one knew who would comprise the “court” or to whom to appeal and that plaintiff was under the impression that an appeal to the “kangaroo court” would be futile. Finally, plaintiff contends that he was never made aware of the student grievance process or that it was available to him to appeal the fine. The court finds that plaintiff has presented evidence that the players were informed that the “kangaroo court” was their only avenue to appeal a fine. The court finds that plaintiff has presented sufficient evidence to withstand summary judgment on his due process property claims. II. STATE PENDENT CLAIMS. A. Fraud by Concealment Claim. Plaintiff contends that during his recruitment by defendants, defendants failed to inform him that he could be possibly cut from the baseball team, that he would be required to wear a military style haircut to be a member of the team, and that a system of monetary fines existed to enforce the team’s written and unwritten rules. Plaintiff argues that he signed the letter of intent to play baseball at NCCC without ever having been apprised of these alleged material facts. Pretrial Order at 3. To establish fraud by silence, the plaintiff must show by clear and convincing evidence the following elements: (1) that defendant had knowledge of material facts which plaintiff did not have and which plaintiff could not have discovered by the exercise of reasonable diligence; (2) that defendant was under an obligation to communicate the material facts to the plaintiff; (3) that defendant intentionally failed to communicate to plaintiff the material facts; (4) that plaintiff justifiably relied on defendant to communicate the material facts to plaintiff; and (5) that plaintiff sustained damages as a result of defendant’s failure to communicate the material facts to the plaintiff. See Dushane v. Union Nat’l Bank, 223 Kan. 755, 576 P.2d 674 (1978). A fact is material if it is one that a reasonable person would attach importance to in determining his choice of action. Timi v. Prescott State Bank, 220 Kan. 377, 389, 553 P.2d 315, 325 (1976). In the present motion, defendants argue that the matters on which plaintiff bases his fraud by silence claim were disclosed to plaintiff and that they were not material facts as a matter of law. First, the court finds that plaintiff has failed to show evidence that would support a claim of fraud by silence regarding the haircut policy. The court finds that on at least two occasions prior to signing the letter of intent, plaintiff was informed by defendant Murry that the baseball team did have a haircut policy and that he would have to have a haircut before playing on the team. After arriving as a student at NCCC, plaintiff was never told by defendant Murry that he would have to obtain a “military style” haircut. Plaintiff obtained that impression from other sources. Secondly, the court finds that plaintiff has failed to assert a claim of fraud by silence based on the fact that the possibility of being cut from the baseball team was not disclosed to him before signing the letter of intent. Plaintiff states that he read the letter of intent before signing the document. The letter of intent unambiguously put plaintiff on notice of the possibility of being cut from the team. The letter states in relevant part: Both my parents/guardian and I understand that my failure to meet the admission requirements of the above-named institution, but not my failure to make the team, will render this agreement null and void. (Emphasis added.) Therefore, the court finds that plaintiff cannot present evidence that defendants willfully or intentionally failed to disclose the fact that plaintiff could possibly be cut from the baseball team after signing the letter of intent. Lastly, in regard to the claims of fraud by silence, defendants argue that the claim based on the failure to disclose the fact that monetary fines would be levied for violation of written and unwritten team rules is not a material fact since it would not have affected plaintiff’s course of conduct in signing the letter of intent to play at NCCC. At his deposition, plaintiff testified that he did not know whether prior knowledge of the monetary fine system would have affected his decision to attend NCCC. Defendants contend that since plaintiff cannot establish as a fact that if the fine system had been known, he would have changed or altered his decision, the fact of the existence of the fine system was not material. The court finds that plaintiff has failed to present evidence that would show that the existence of a monetary fine system for violation of team rules was a material fact in plaintiffs decision to attend and play baseball at NCCC. It has been stated that the failure to disclose facts which do not substantially affect the transaction are immaterial. 37 C.J.S. Fraud, § 18, at 253 (1943). There is no showing that prior knowledge of the existence of a fine system would have affected plaintiffs course of action in deciding to sign the letter of intent. For all the foregoing reasons, the court will grant defendants’ motion for summary judgment on plaintiffs claims of fraud by concealment or silence. B. Fraudulent Misrepresentation Claims. Plaintiff also asserts a claim that defendant Murry made certain fraudulent misrepresentations. The alleged misrepresentations on which plaintiff bases this claim are: (1) that plaintiff would receive maximum exposure to major college and professional scouts while attending NCCC; (2) that NCCC would not recruit athletes and just turn them loose; (3) that NCCC’s coaching staff would work long and hard to improve plaintiff’s game; (4) that plaintiff would live in a two-person room at the dormitory; and (5) that NCCC’s coaching staff would give plaintiff individual attention in developing his athletic ability. Pretrial Order at 4. These statements by defendant Murry to plaintiff were made in letter correspondence from Murry to plaintiff and in the brochure on the NCCC Panther Baseball program which was prepared by defendant Murry and sent to plaintiff. To recover on a claim of fraudulent misrepresentation under Kansas law, plaintiff must show that defendant made a representation or statement of material fact which was untrue and known to be untrue or recklessly made with disregard of its truth or falsity, on which plaintiff reasonably relied to his detriment. See Goff v. American Sav. Assoc., 1 Kan. App.2d 75, 78, 561 P.2d 897, 901 (1977). A fact is material if it is one to which a reasonable person would attach importance in determining his choice of action in the involved transaction. See Timi v. Prescott State Bank, 220 Kan. 377, 389, 553 P.2d 315, 325 (1976). Also, reliance on the statements must be reasonable and justified. See Tetuan v. A.H. Robins Co., 241 Kan. 441, 467, 738 P.2d 1210, 1228 (1987) (citing Hutchison Travel Agency v. McGregor, 10 Kan.App.2d 461, 701 P.2d 977 (1985)). The court finds that plaintiff has presented sufficient evidence to create a triable issue concerning whether the challenged statements constitute fraudulent misrepresentations. Plaintiff has presented evidence that in previous years defendant Murry cut players he had recruited. Also, there is evidence that Murry knew that plaintiff might be cut from the baseball team when he made the allegedly fraudulent statements. Because plaintiff was cut from the team, plaintiff has shown that the did not receive exposure to college and professional scouts while at NCCC. There is evidence that he did not receive personal coaching attention from NCCC’s coaching staff. Also, plaintiff presents evidence that he was not provided with a two-person dormitory room but instead had to share a converted recreation room with three other individuals. The court further finds that questions regarding whether defendant Murry intentionally deceived plaintiff or made these statements in reckless disregard to their truth or falsity; whether plaintiff justifiably relied on these statements; and whether plaintiff was damaged by any reliance on these statements are issues best left for the jury to decide in light of the circumstances of this case. Therefore, the court will deny defendants’ motion for summary judgment on plaintiff’s fraudulent misrepresentation claim. C. Breach of Contract Claim. In his fifth cause of action, plaintiff seeks recovery based on defendants’ alleged breach of contract. Plaintiff contends that the letter of intent he executed with defendant NCCC formed a contract, which provided that he would attend NCCC and play on the NCCC baseball team and in return he would receive a scholarship pay ing tuition, fees and books. Plaintiff maintains that his elimination from the baseball team was a material breach of that contract. Plaintiff further alleges that defendants failed to satisfy their duty of good faith under the contract by not prosecuting an appeal from the KJCCC commissioner’s decision refusing to release plaintiff from his letter of intent. Pretrial Order at 5-6. In their summary judgment motion, defendants argue that based on Hyshaw v. Washburn Univ., 690 F.Supp. 940 (D.Kan.1987), plaintiffs breach of contract claim must fail. Defendants argue that the letter of intent in no way promised plaintiff that he would be allowed to play baseball, but instead only promised him a scholarship. There is no dispute that defendants did provide plaintiff a scholarship. The law of Kansas is well established that clear and unambiguous language in a written contract is controlling. Fast v. Kahan, 206 Kan. 682, 684, 481 P.2d 958, 961 (1971). This judge reviewed a very similar contract claim in the Hyshaw ease. In Hyshaw, this court found that the letter of intent in that case only promised that the players would receive a scholarship and did not promise a position on the Washburn football team. Hyshaw, 690 F.Supp. at 946-47. The written letter of intent in the present case is quite similar to the one in Hyshaw. The clear and unambiguous language of the present letter of intent only promised plaintiff that he would be awarded financial aid at NCCC to the extent of books and tuition for the spring semester and books for the fall semester. The letter of intent in no way promised plaintiff a position on the baseball team. The evidence presented shows that defendants met their obligations as set out in the letter of intent. Therefore, defendants’ motion for summary judgment on plaintiff’s breach of contract claim will be granted. D. Plaintiff’s Claim for Battery. Plaintiff’s battery claim is based on his contention that he was forced to submit, under duress, to having a military style haircut. See Pretrial Order at 4-5. As a result of the haircut, plaintiff claims he suffered humiliation and emotional distress. Battery is an unprivileged or unlawful touching or striking by one intending to cause a harmful or offensive contact or to create an imminent apprehension of such contact. Restatement (Second) of Torts § 13 (1965); 6 Am.Jur.2d Assault and Battery § 5, at 18 (1963). However, an individual may waive any right to complain of the conduct underlying a battery by consenting to that conduct. See Charley v. Cameron, 215 Kan. 750, 528 P.2d 1205, 1210-11 (1974). Any such consent, however, must be made knowingly and voluntarily. 6 Am.Jur.2d Assault and Battery § 155, at 130-31 (1963). The court finds, that plaintiff consented to the haircut given by Dan Biby, a student assistant of the team. Plaintiff has failed to present sufficient evidence to raise a triable issue regarding his allegations that he submitted to the haircut under duress or without voluntarily consenting. There is no evidence that the haircut was given at the direction of defendant Murry or that Murry played any role in the haircut incident. Therefore, plaintiff’s battery claim will be dismissed. E. Plaintiff’s Assault Claim. Plaintiff’s assault claim is based on the “cup check” incident that occurred during one of the four practices that he participated in while attending NCCC. Plaintiff contends that defendant Murry’s administration of vhe “cup check” placed him in fear and apprehension of bodily harm. An assault is an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary. Gomez v. Hug, 7 Kan.App.2d 603, 606, 645 P.2d 916, 919 (1982). In their motion for summary judgment on this claim, defendants argue that since plaintiff was told by another player that by telling Murry that he was not wearing a cup and he would not be struck, plaintiff could not have been placed in apprehension of bodily harm. Plaintiff testified that he did experience fear and apprehension of bodily harm and believed that Murry might strike him in the genital area during the “cup check.” Plaintiff never felt secure that defendant Murry would not strike him in the genital area with the bat. The court finds that the issue of whether plaintiff was placed in immediate apprehension of bodily harm is a question of fact to be determined by the jury. See Gomez, 7 Kan.App.2d at 607, 645 P.2d at 919. Therefore, the court will deny defendants’ motion for summary judgment on this claim. F. Kansas Tort Claims Act Issue. Finally, defendants move for summary judgment on plaintiffs fraudulent misrepresentation claims arguing that defendants’ conduct in recruiting, disciplining and cutting plaintiff from the team were discretionary functions, and thus, pursuant to the Kansas Tort Claims Act are not actionable claims against the defendants. In response, plaintiff argues statutory tort claims immunity is not available because defendants breached a legal duty to him by making fraudulent misrepresentations, and thus, the discretionary function immunity to tort claims is not applicable. K.S.A. 75-6104 states that: a governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from: ... (e) any claim based upon the exercise of performance or the failure to exercise or perform a discretionary function or duty on the party of the governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved. The question before this court is whether plaintiff's claims that defendants engaged in fraudulent misrepresentations can be characterized as performance or exercise of a discretionary function. After conducting its own research on this matter, the court has found no Kansas case law which has dealt with this issue. However, this court has found a decision by the Supreme Court of Oregon which dealt with this very issue in a very similar case. In Dizick v. Umpqua Community College, 287 Or. 303, 599 P.2d 444 (1979), the Oregon Supreme Court found that the discretionary function immunity from tort claims was not available to the government entity or its employee. Much like the Kansas Tort Claims Act, the Oregon Tort Claims Act provides that public bodies and their officers and employees are immune from tort claims based on the performance or the failure to exercise or perform a discretionary function. Or.Rev.Stat. § 30.265(3)(c). The plaintiff in Dizick, a student of defendant community college, asserted that the college misrepresented the courses and training that would be available to him if he decided to attend the college. The defendant college argued that the method of instruction, course content, recruiting, and counseling of students were all discretionary functions, and thus, it should be immune from liability on the student’s claim. The Oregon Supreme Court held that the representatives of the community college were not exercising a discretionary function in falsely representing to the student that he would receive certain training and that certain equipment would be available for his use in obtaining the training. Id. at 308-310, 599 P.2d at 447. Therefore, the discretionary function immunity was not available to the defendant college. This court agrees with the reasoning of the Oregon Supreme Court decision that fraudulent conduct, if proved, is not an exercise of discretion and does not involve policy making judgments. Furthermore, this court believes that a similar decision would be reached by the Kansas Supreme Court in interpreting the Kansas Tort Claims Act. Thus, the court rejects defendant’s argument that the discretionary function exception to the Kansas Tort Claims Act applies to plaintiff’s fraudulent misrepresentation claims. IT IS BY THIS COURT THEREFORE ORDERED that defendants’ motion for summary is granted in part and denied in part. Defendants’ motion for summary judgment on plaintiff’s claims of deprivation of liberty interest in violation of due process, fraud by silence, battery, and breach of contract is granted. Defendants’ motion for summary judgment on plaintiffs claims of deprivation of property in violation of due process, fraudulent misrepresentation, and assault is denied. . In Lansdale, plaintiff was not permitted to register to attend the Texas junior college because his hair length did not conform to the requirements of the college’s "Dress Code,” which regulated the appearance of all students attending the college.

MEMORANDUM JOHN GARRETT PENN, District Judge. This matter is before the Court on coun-terclaimant Stena Finance B.V.’s (“Stena Finance”) motion for a preliminary injunction. The Court heard arguments on the motion on May 3, 1989. The case initially came before the Court on Stena Finance’s motion for a temporary restraining order. The Court denied that motion. See, Order and Memorandum, filed April 11, 1989. The Court granted Stena Finance’s request for expedited discovery and briefing schedule for a preliminary injunction. See, Order filed April 13, 1989. The parties introduced numerous documents, affidavits and depositions in support of their respective positions. I. As set forth in the Sea Containers’ complaint, the principal parties in this case are as follows: Sea Containers is a company organized and existing under the Companies (Incorporation by Registration) Act, 1970 of Bermuda. Its principal executive offices are located at Forty-one Cedar Avenue, P.O. Box HM 1179, Hamilton 5, Bermuda. Sea Containers is principally engaged in two main activities, both allied to ocean transportation: (i) marine container, containership, container crane and container chassis leasing and sales and (ii) ferry and port operations, primarily in the United Kingdom. As of October 31, 1988, Sea Containers had 11,780,330 shares of common stock outstanding including the shares owned by subsidiaries of Sea Containers (the “Outstanding Shares”). Those Outstanding Shares are listed on the New York, Pacific and London Stock Exchanges and are traded there and on other exchanges on an unlisted basis including the Amsterdam Stock Exchange, and are registered pursuant to Section 12 of the Exchange Act, 15 U.S.C. § 781. Stena Finance B.V. is a corporation organized and existing under the laws of the Netherlands. Its principal offices are located at World Trade Center, Tower B, Floor 3, Strawomslyaan 321, 1077 XX, Amsterdam. Stena Finance is principally engaged in international financial and investment management. All of the outstanding capital stock of Stena Finance is held by Finance Parent. On March 22, 1989, Sea Containers filed this action against Stena Finance alleging that Stena Finance’s Schedule 13D was false and misleading and omitted material facts with respect to Stena Finance’s intentions and plans. On March 29, Stena Finance filed its answer to the complaint and asserted counterclaims against Sea Containers, Mr. Sherwood and certain of Sea Containers’ subsidiaries, alleging various violations of Bermuda law and U.S. securities law. Stena Finance moved to amend and supplement its counterclaim, adding, among other things, a claim that two of Sea Containers’ subsidiaries, Sea House and Marine Container, were engaged in an illegal tender offer. Stena Finance seeks a preliminary injunction requiring Sea Containers to amend their Schedule 13D, and enjoining them from acquiring or attempting to acquire or otherwise effecting any transaction in any shares of Sea Containers stock until 30 days after Sea Containers’ amended filing. With respect to the relief it seeks, Stena Finance states: Stena’s initial Temporary Restraining Order application was premised on a claim that Sea Containers was conducting an illegal tender offer which was facilitated by the coercive impact of defendants’ false Schedule 13D filing. The discovery thus far does not warrant Stena to seek now a preliminary injunction premised on the tender offer claim. The harm which Stena sought to avert arising from the coercive nature of the Schedule 13D, can be alleviated now by awarding relief requiring that a truthful Schedule 13D be filed. Stena Finance B.V.’s Memorandum In Support of its Motion for a Preliminary Injunction (“Stena Finance’s Memorandum) at 3-4, fn. II. In order to be entitled to injunctive relief, a movant must demonstrate (1) that it has a strong likelihood of success on the merits, (2) that it will suffer irreparable injury if injunctive relief is denied, (3) that other interested parties will not suffer substantial harm if injunctive relief is granted, and (4) that the public interest favors the granting of injunctive relief or, at least, that the granting of injunctive relief is not adverse to the public interest. See Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.Cir.1977). In addition, “[t]he necessary ‘level’ or ‘degree’ of possibility of success will vary according to the court’s assessment of the other factors.” Id. In suits alleging violations of the disclosure requirements of section 13(d), an injunction may not issue in the absence of a showing of irreparable injury. Financial General Bankshares, Inc. v. Lance, Fed. Sec.L.Rep. (CCH) par. 96, 403 at 93, 424, 1978 WL 1082 (D.D.C.1978), citing Rondeau v. Mosinee Paper Co., 422 U.S. 49, 95 S.Ct. 2069, 45 L.Ed.2d 12 (1975). Section 13(d) requires that “any person who, after acquiring directly or indirectly the beneficial ownership of any equity security of a class which is registered pursuant to section 781 of this title, ... is directly or indirectly the beneficial owner of more than 5 percent of such class shall, within ten days after acquisition”, file certain information with the Commission. See, 15 U.S.C. § 78m(d)(l). The 13(d) statement must set forth: (a) the background of such person, (b) the source of the funds used for the acquisition, (c) the purpose of the acquisition, (d) the number of shares owned, and (e) any relevant contracts, arrangements or understandings. Id. The purpose of 13(d) is to “alert the market place to every large, rapid aggregation or accumulation of securities, regardless of technique employed, which might represent a potential shift in corporate control.” GAF Corp. v. Milstein, 453 F. 709, 717 (2d. Cir.1971), SEC v. Savoy Industries, 587 F.2d 1149, 1167 (D.C.Cir.1978). The Court’s role is to assure that public shareholders who are confronted by a cash tender offer for their stock, or when there are shifts in corporate control, will not be required to respond without adequate information regarding the qualifications and intentions of the offering party. See, Ron-deau v. Mosinee Paper Corporation, supra. The Court recognizes that in a contest for corporate control, each side continues to develop means to gain an advantage. The Second Circuit noted: Contests for corporate control have become ever more frequent phenomena on the American business scene. Waged with the intensity of military campaigns and the weaponry of seemingly bottomless bankrolls, these battles determine the destinies of large and small corporations alike. Elaborate strategies and ingenious tactics have been developed both to facilitate takeover attempts and to defend against them. Skirmishes are fought in company boardrooms, in shareholders’ meetings, and, with increasing regularity, in the courts. Norlin Corp. v. Rooney, Pace Inc., 744 F.2d 255, 258 (1984). III. The parties in this case invite the Court to become a referee in their fight for corpo rate control; however, the Court is obliged to limit its role to whether there has been proper disclosure pursuant to § 13(d). The issues raised in the motion for preliminary injunction present the Court with the following questions: (1) whether Sea Containers provided adequate disclosure regarding whether under Bermuda law its subsidiaries can legally purchase shares of their parent and, if so, whether such shares remain outstanding with full voting rights, (2) whether James Sherwood, Sea Containers House Ltd., Marine Container Insurance Co. Ltd. and Strider 8 Ltd. formed a group pursuant to § 13(d)(3), (3) whether Mr. Sherwood and Sea Containers’ subsidiaries provided adequate disclosure regarding their purpose for buying Sea Containers’ stocks, and (4) whether Sea Containers, pursuant to Bermuda law, provided unlawful financial assistance to its subsidiaries in the purchase of Sea Containers’ stock. A. Stena Finance contends that Sea Containers’ Schedule 13D and amendments thereto are false and misleading for failing to accurately disclose the number of outstanding shares beneficially owned and able to be voted by the subsidiaries. Stena Finance’s Memorandum at 36-42. Stena Finance states: If the shares in the subsidiaries’ hands are upheld as outstanding and able to be voted under Bermuda law, then the subsidiaries, together with management, will beneficially own a 32% block of the outstanding stock — a substantial “control” block which could impede any takeover attempt. If, however, the subsidiaries’ 20% block of shares is held to be can-celled as Stena Finance contends it should be, then Sea Containers management will own only 10% of the outstanding stock and the subsidiaries will own nothing. Id. at 40. The parties have submitted affidavits of their experts regarding Bermuda law; which present conflicting views. The parties agree that “what Sea Containers has no power to do as principal, it has no power to do whether it acts directly as principal or indirectly through the medium of an agent.” Stena Finance’s Reply Memorandum at 1, Lightman’s Reply Declaration par. 7. Stena Finance’s expert, Thomas Curry, submits: If a Bermudian Court were to find, as it has been alleged, that as part of the scheme pleaded in Stena’s Counterclaims Sea Containers Limited directed and caused its subsidiaries to purchase Sea Containers shares in order to circumvent Section 42(A)(6) of the Bermuda Companies Amendment Act 1982 the Court would see through the transaction, treat it as a purchase of shares by Sea Containers Limited and enter judgment can-celling the shares acquired by the subsidiaries. Curry’s Declaration at par. 5. The Bermuda Companies Act holds with respect to a parent company’s purchase of its own shares that: Shares purchased under this section shall be treated as cancelled and the amount of the company’s issued capital shall be diminished by the nominal value of those shares accordingly; but the purchase of shares under this section shall not be taken as reducing the amount of the company’s authorized share capital. § 42A(6) of the Bermuda Companies Act, 1981 (as amended). In order to accept Ste-na Finance’s view that Sea Containers’ disclosure was improper, the Court must first find that the subsidiaries acted as an agent of Sea Containers or that the subsidiaries cannot purchase their parent’s stock. Sea Containers’ expert, Gavin Lightman, contends that a holding company and its subsidiary are separate legal entities and the subsidiary is free to purchase stock from the parent company. Lightman’s Reply Declaration at par. 3, 12. Stena Finance’s expert has not established, pursuant to Bermuda law, that a subsidiary cannot purchase stock from the parent company. Further, Stena Finance has failed to establish that Sea Containers’ subsidiaries were acting as an agent of the parent company. Upon review of the deposition of James Sherwood, Sea Containers’ president, the documents relied on during the deposition, and the entire record, it is clear that Mr. Sherwood encouraged the company’s subsidiaries to purchase the parent’s stock; however, the subsidiaries’ boards have their own duty of care and loyalty and were free to decline the recommendation. Though the Court may question Sea Containers’ control over the subsidiaries, the Court finds that Stena Finance has failed to establish that Sea Containers’ subsidiaries were acting as an agent of the parent company. Further, upon review of the experts’ affidavits and the Bermuda law, it appears that Sea Containers has not misstated Bermuda law. Notwithstanding this Court’s interpretation of Bermuda law, Sea Containers’ Schedule 13D filings includes the opposing view represented by Stena Finance. Sea Containers’ Memorandum In Support of Motion to Dismiss, Exhibit D and E. The Court finds in view of the purpose of 13D to provide adequate disclosure to the public, Sea Containers has complied with the securities law with respect to the subsidiaries’ ability to vote their stock. B. Stena Finance seeks to have the Court require Sea Containers to amend its 13D filing to indicate that Mr. Sherwood, Sea Containers House Ltd., Marine Container Insurance Co. Ltd. and Strider 8 Ltd. formed a group pursuant to § 13(d)(3). The purpose of this section is to prevent easy avoidance of section 13(d)’s disclosure requirements by a group of investors acting together in their acquisition or holding of securities. See, Financial General Bankshares, Inc. v. Lance, supra, citing H. Rep. No. 1711, 90th Cong., 2d Sess. 8-9, reprinted in 1968 U.S.Code Cong. & Ad. News 2811, 2818. The Court finds on the present record that Sea Containers’ joint filings is in accordance with 13(d)(1) and that 13(d)(3) is not triggered in this case. There is adequate disclosure to the public regarding the recent purchase of Sea Containers’ stock. C. Stena Finance further argues that the Schedule 13D and its amendments affirmatively misrepresent the purpose behind the subsidiaries’ purchase of Sea Containers shares. Stena Finance’s Memorandum at 42-46. Stena Finance argues that “the counterclaim defendants have formed a ‘group’ and have conducted their stock buy-back scheme to prevent any third party from acquiring control of the company.” Id. at 42. The Court does recognize that the flurry of activity that occurred after March 13, 1989, when Stena Finance filed its 13D, does suggest that Sea Containers has implemented takeover defenses. As noted earlier, the Court is only concerned with the adequate information available to the public shareholders pursuant to securities law. Stena Finance’s counterclaim alleging that Sea Containers has implemented illegal takeover defenses is available to the public. See, Sea Containers’ Memorandum In Support of Motion to Dismiss, Exhibit D and E. The Court finds that Sea Containers’ statement of the purpose of the purchase of shares; with the accompanying exhibits to the 13D filings, conforms with the intent of securities disclosure law. D. Lastly, Stena Finance argues that the schedule 13D and its amendments contain false and misleading statements regarding the source of funds for the subsidiaries’ stock purchases. Stena Finance’s Memorandum at 47-49. The Court finds that Stena Finance has failed to establish that the Schedule 13D is false and misleading. Sea Containers submits that prior to the purchase it repaid demand obligations to Sea Containers House and Marine Container Insurance; the repayment provided some of the funds for the purchase. Upon review of the balance sheets of Sea Containers House and Marine Container Insurance, the Court notes that there are amounts due listed. See, Paul Friedman’s Amended Declaration, Exhibit 16 and 17. Based on the record available to the Court, the Court finds that Stena Finance has failed to establish that the Schedule 13D is false and misleading. IV. In a request for a preliminary injunction, the burden is on the moving party to demonstrate that it has a strong likelihood of success on the merits. The Court finds that Stena Finance has not met its burden that it has a strong likelihood of success on the merits. If the Court were to grant a preliminary injunction, it would have a substantial impact on the corporate market. In a contest for corporate control, the Court must limit its role. Though, upon review of the record, the Court may question the actions taken by both parties in the contest for control of the company, the Court finds that Stena Finance has not made out a case for a preliminary injunction. For the reasons discussed above, the Court concludes that Stena Finance’s motion for a preliminary injunction should be denied. . The named defendants in Sea Containers' complaint include Stena AB, AB Stena Finans, Stena Finance B.V., Dan Sten Olsson and Sten Allan Olsson. . Stena Finance’s counterclaim is against Sea Containers and some of its subsidiaries; hereinafter reference to Sea Containers includes all counterclaim defendants.

ORDER NOWLIN, District Judge. Before the Court is Defendant’s Motion to Dismiss for failure to state a claim upon which relief can be granted. Plaintiff’s cause of action is based on a disappointing grade he received in a physics class while he was enrolled at the University of Texas. In this class, Plaintiff was assigned a grade of “C.” Plaintiff challenges the grade pursuant to 20 U.S.C. § 1232q(a)(2), otherwise known as the Family Educational Rights and Privacy Act 1974 (“FERPA”). Section 1232g(a)(2) provides that no federal funds shall be made available to any educational agency or institution unless parents of students who have been in attendance at such institution are provided an opportunity for a hearing for the purpose of insuring that the content of the student’s education records are not inaccurate, misleading, or otherwise in violation of the privacy rights of the student. Plaintiff seeks to have this Court require that Defendants show how the grade of “C” was assigned or alternatively, to strike the grade and any reference to the class PHY 369 from Plaintiffs records and refund Plaintiffs tuition for that class. Neither FERPA nor school policy provide a means by which a student may obtain information on how a particular grade was assigned. At most, a student is only entitled to know whether or not the assigned grade was recorded accurately in the student’s records. Moreover, the Fifth Circuit has held that there is no private cause of action under FERPA. See Tarka v. Franklin, 891 F.2d 102 (5th Cir.1989); Klein Independent School District v. Mattox, 830 F.2d 576, 579 (5th Cir.1987), cert. denied, 485 U.S. 1008, 108 S.Ct. 1473, 99 L.Ed.2d 702 (1988). Therefore, the Plaintiff has failed to state a claim upon which relief may be granted. ACCORDINGLY, IT IS ORDERED that Defendants’ Motion to Dismiss is GRANTED. Plaintiff’s complaint is HEREBY DISMISSED for failure to state a claim upon which relief may be granted.

PER CURIAM: Paul James Koumjian, Texas prisoner # 1039181, seeks a certificate of appeala-bility (COA) to appeal the district court’s dismissal of his 28 U.S.C. § 2254 petition as an unauthorized successive § 2254 petition. The district court’s ruling relied upon its time-bar dismissal of Koumjian’s prior federal habeas petition filed in 2005. The appeal from that dismissal, however, remains pending in this court. See Koum-jian v. Quarterman, No. 06-51492. Accordingly, Koumjian has shown “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Woollard v. United States, 416 F.2d 50, 51 (5th Cir.1968). Koumjian’s motion for a COA is GRANTED, the judgment of the district court is VACATED, and this case is REMANDED for proceedings consistent with this ruling. Koumjian’s motion for the appointment of counsel is DENIED. Pursuant to 5th Cm. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cm. R. 47.5.4.

PER CURIAM: Corey Brown appeals the district court’s order denying his 18' U.S.C. § 3582(c)(2) (2006) motion. We have reviewed the record and find no reversible error. Accordingly, we deny Brown’s motion for appointment of counsel and affirm for the reasons stated by the district court. United States v. Brown, No. 4:00-cr-00005-H-1 (E.D.N.C. filed Jan. 22, 2009; entered Jan. 23, 2009). See United States v. Dunphy, 551 F.3d 247 (4th Cir.2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.

PER CURIAM: Walter Lee Hall, Jr., has filed this interlocutory appeal challenging the district court’s orders entering a prehminary injunction against him and denying his motion to vacate the preliminary injunction order. He also moves for leave to proceed in forma pauperis (IFP) on appeal and for the preparation of a transcript at government expense. The Appellees have filed a motion to dismiss the interlocutory appeal arguing that the district court’s entry of a final judgment establishing a permanent injunction rendered this interlocutory appeal moot. An appeal from the grant of a preliminary injunction generally becomes moot when the trial court enters a permanent injunction because the order for the preliminary injunction merges into the permanent injunction. Grupo Mexicano de Desarrollo, S.A v. Alliance Bond Fund, Inc., 527 U.S. 308, 314, 119 S.Ct. 1961, 144 L.Ed.2d 319 (1999). Hall’s arguments on appeal challenge the jurisdiction of the district court over the case and the validity of the preliminary injunction. Hall “will be able to obtain as broad a review on the merits of the order granting the permanent injunction as [he] could have obtained on appeal from the order granting the preliminary injunction.” Louisiana World Exposition, Inc. v. Logue, 746 F.2d 1033, 1038 (5th Cir.1984). Accordingly, Hall’s appeal from the order granting the preliminary injunction is moot. See id. Hall argues that the case should not be dismissed because the district court lacked jurisdiction to enter the permanent injunction once he filed his notice of interlocutory appeal. This argument is without merit. See Ry. Labor Executives’ Ass’n v. City of Galveston, 898 F.2d 481, 481 (5th Cir.1990). The Appellees motion to dismiss the appeal is GRANTED and the appeal is DISMISSED as moot. Hall’s motions are DENIED as moot. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

MEMORANDUM OPINION LATCHUM, Senior District Judge. I. BACKGROUND This is a declaratory judgment action requesting a declaration that the defendant insurer has a duty to defend and pay damages upon any finding of liability in plaintiffs favor in Thornton v. Glenn, C.A. No. 88-197. The plaintiff, Eileen Thornton (“Thornton”) and the defendant, St. Paul Property and Casualty Insurance Company (“St. Paul”), have stipulated to the following facts. Docket Item (“D.I.”) 13. During the relevant time period, the University of Delaware employed Thornton as a Public Safety Officer. University of Delaware Public Safety Officers are empowered to make arrests for violations of City of Newark and Delaware State law. On October 18, 1986, Thornton was on duty when she encountered Michael Glenn (“Glenn”) with a group of friends outside Harrington Hall B on the University of Delaware Campus. Glenn, along with other members of the group, had open containers of beer in their hands. There was a partial case of beer nearby. When Thornton told the group that she was going to arrest them, most of the group fled, leaving Glenn and one other behind. Glenn then attempted to flee, but as he did so, Thornton grabbed him by his windbreaker jacket and button-down shirt. During the encounter, Thornton was injured, although neither Glenn nor Thornton was aware of the injury until after Glenn was arrested. The parties agree that “Glenn’s only purpose was to flee from Thornton and avoid arrest,” and that “Glenn had no subjective intent to cause injury to Thornton.” D.I. 13, Stipulations of Fact 20 & 21. At the time of the incident, Glenn had a personal liability catastrophe insurance policy with St. Paul. The issue presented by Thornton’s motion for summary judgment is whether the St. Paul policy provides liability coverage to Glenn for Thornton’s injuries. Glenn’s policy provides two types of coverage, excess coverage and “gap-filling” primary coverage. The terms of excess coverage are provided in two clauses of the policy. The first relevant excess coverage clause is entitled “Extra Insurance on Top of Your Other Policies.” D.I. 12A at A-3. The second relevant excess coverage clause is called “Your Extra Personal Liability Insurance” Id. at A-7. The primary coverage is outlined in a section called “Broader Coverage Than Your Other Policies.” Id. at A3. These provisions are addressed at length below. St. Paul stipulated that Glenn’s underlying homeowner’s insurer, Fireman’s Fund Insurance Company (“Fireman’s Fund”), has paid its full policy limit, implicating St. Paul’s excess policy. See D.I. 13 at ¶ 9; D.I. 15 at 1. Jurisdiction is predicated on 28 U.S.C. § 1332. II. DISCUSSION Thornton moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(e). When the parties stipulate to the relevant facts, the Court’s function is to determine whether the moving party is entitled to summary judgment as a matter of law. See Counties Contracting and Construction Co. v. Constitution Life Insurance Co., 855 F.2d 1054, 1057 (3d Cir.1988); Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 416 (3d Cir.1988). St. Paul argues that the intentional tort exclusion in the primary coverage section of its policy with Glenn precludes Thornton’s claims. Further, St. Paul contends that Glenn’s policy is not a “following form policy,” and, therefore, does not cover all liabilities covered by Glenn’s underlying Fireman’s Fund homeowner’s insurance policy. D.I. 15 at 11. As discussed below, the Court need not address this second contention because it finds the St. Paul policy clear on its face. St. Paul simply misreads the insurance contract in both of its contentions mainly because it fails to distinguish the terms of primary coverage from the terms of excess coverage. The intentional tort exclusion states that the insured is not covered for liability arising out of the expected or intended results of the insured’s own actions. See D.I. 12A at A-4. In Glenn’s policy, however, this clause is only included in the “gap-filling” primary coverage section called “Broader Coverage Than Your Other Policies.” This “Broader Coverage” section states: Now let’s turn to the basic conditions of the second type of extra protection when you’re not covered by another policy. This may happen because of gaps in your coverage or because a claim against you is so unusual that it isn’t covered by standard policies. To give you this type of extra protection, we give you broader coverage than you’re likely to have in any of your other policies. Our definitions of accident or incident, property damage and personal injury are unusually broad. What do we mean by an accident or incident? Anything that causes property damage, personal injury or death without your expecting or intending it. If you could’ve expected the result, you’re not covered except for assault and battery committed to save life or property. Id. at A-3 to 4. The primary prerequisite for making a claim under this “Broader Coverage” section is for the insured to show that he or she is “not covered by another policy.” Id. at A-3. By its own terms, the primary insurance, called “Broader Coverage,” only applies when the insured is not covered by another policy. In fact, Glenn was covered by his underlying insurer for liability arising out of his encounter with Thornton. There is no intentional tort exclusion in any other section of the policy. Consequently, the entire primary coverage “Broader Coverage” section, and the intentional tort exclusion in particular, do not apply. See Hallowell v. State Farm Mutual Automobile Insurance Co., 443 A.2d 925, 926 (Del.1982) (holding that policy language should be given its unambiguous meaning). Where the insured is covered by another policy, the excess coverage clauses of St. Paul’s policy come into play. “Extra Insurance on Top of Your Other Policies” provides coverage as follows: If a liability covered by this policy is also covered by one or more of your other insurance policies, we’ll pay only the outstanding balance after all your other insurance and that of all those insured for the same accident is used up. We’ll do this up to the limit of this policy. D.I. 12A at A-3. An insured must meet three requirements in order to qualify for excess coverage under this provision. First, the liability must be covered by the policy. Second, there must be underlying primary insurance. Third, the underlying insurance must be exhausted. Here, Glenn was covered by the Fireman’s Fund underlying primary policy, and the parties have stipulated that the limits of that policy have been paid in full (“used up”). The only question remaining is whether Thornton’s claim is a liability covered by the St. Paul policy. The “details” and liabilities covered by St. Paul’s policy are given in the second half of the policy. See D.1.12A at A-5 (“In the following sections we’ll show you how this policy covers your auto, homeowners and other liability.”). The relevant section called “Your Extra Personal Liability Insurance” states: If an accident is covered by the liability section of your homeowners or comprehensive personal liability insurance, we’ll make up the difference between what’s payable under that policy and the sum total of what you legally have to pay, up to the liability limit shown on the attached declarations page. Id. at A-7. Neither party has argued, contended or produced any factual basis that the incident which occurred between Thornton and Glenn was not “an accident covered by the liability section of your [Glenn’s] homeowners or comprehensive personal liability insurance.” Indeed, the strongest and clearest inference is that it was covered by the underlying Fireman’s Fund homeowners insurance policy because, as stipulated by the parties, that company has paid the full limits under that policy. See D.I. 13 at ¶ 9. The Court cannot assume, or even imagine, that Fireman’s Fund would have paid $100,000 unless its liability was covered by its policy. (Id.) Consequently, the encounter between Thornton and Glenn is covered by Glenn’s excess policy with St. Paul, and St. Paul is, therefore, bound to provide a defense, and pay any damages Glenn is found liable for, in Thornton v. Glenn, C.A. No. 88-197, up to the limit of the St. Paul policy. III. CONCLUSION Thornton’s claim is not barred by the intentional tort exclusion in Glenn’s policy with St. Paul. Further, all policy requirements for excess insurance coverage have been met. Accordingly, Thornton's motion for summary judgment will be granted. An appropriate order follows. ORDER For the reasons set forth in this court’s Memorandum Opinion entered in this action on this date, it is ORDERED that a declaratory judgment be and is entered in plaintiff Eileen Thornton’s favor and against defendant St. Paul Property & Casualty Insurance Company declaring that defendant has a duty to defend Thornton v. Glenn, C.A. No. 88-197, and pay damages upon any finding of liability in plaintiff’s favor in that action, up to St. Paul’s policy limits. . St. Paul does not contest Thornton's "standing” to bring this action. D.I. 15 at 1. Accordingly, the issue of whether an injured party may bring a direct action against an alleged tort-feasor's insurer under Delaware law is not an issue in this case. . That this exclusion is only included in the primary insurance sections of the policy and not in the excess insurance sections is not surprising. Where an insurer is providing excess coverage, the risk is controlled hy the exclusions in the underlying primary policy. Because St. Paul provides primary coverage in its "Broader Coverage" section, it must include its own exclusions to limit its risk for that coverage.

MEMORANDUM OF DECISION URBOM, District Judge. On July 15, 1985, the plaintiff, Danny M. Williams sustained a severe head injury in a motorcycle accident. His wife, Donna Williams, made application for disability benefits on July 28, 1985. (Tr. p. 39-42). In a letter dated August 26, 1985, Dr. Benjamin R. Gelber reported that Williams should be considered completely disabled and unable to manage his own affairs. The length of his disability was indeterminate, but was expected to last at least one year and probably longer. (Tr. p. 165). Disability benefits were awarded on September 4, 1985. Approximately one year later the named payee was changed (to Williams’ mother) because a divorce action had been filed. (Tr. p. 43-47). Benefits were discontinued as of March 1988, based on the hearing officer’s determination that Williams was no longer disabled. (Tr. p. 75-87). Williams requested a hearing before an administrative law judge (AU), which was held on November 16, 1988. On January 4, 1989, the AU found that Williams’ entitlement to disability and to disability insurance benefits under 216(i) and 223(a) of the Social Security Act, as amended, had ended. This decision was based on the finding that Williams’ disability had ceased in January 1988, when he first demonstrated his ability to engage in substantial gainful activity. (Tr. p. 8-12). The Appeals Council of the Social Security Administration denied Williams’ request for review, (Tr. p. 4-5), thus the decision of the ALJ stands as the final decision of the Secretary. DISCUSSION The standard of review for termination of disability benefits is found in 42 U.S.C. § 423(f), which provides in applicable part that: A recipient of benefits under this sub-chapter or subchapter XVIII of this chapter based on the disability of any individual may be determined not to be entitled to such benefits on the basis of a finding that the physical or mental impairment on the basis of which such benefits are provided has ceased, does not exist, or is not disabling only if such finding is supported by— (1) substantial evidence which demonstrates that— (A) there has been any medical improvement in the individual’s impairment or combination of impairments (other than medical improvement which is not related to the individual’s ability to work), and (B)(i) the individual is now able to engage in substantial gainful activity[.] There is substantial evidence that Williams’ medical status has improved since the time of the initial disability determination. At the time the disability benefits were awarded, Williams was comatose and recovering from a closed head injury. (Tr. p. 79, 82). After spending a month in the hospital, Williams was transferred to the Madonna Professional Care Center in Lincoln, where he remained until his release in December 1986. (Tr. p. 79, 199). On October 1, 1987, Williams was examined by Dr. R.C. Sposato, a Lincoln neurologist. Dr. Sposato reported that Williams was alert, oriented, fluent and was able to be understood. He scored 29 points out of a possible 30 on a cognitive capacity screening examination. (Tr. p. 177). An examination was also performed on November 12, 1987, by Dr. William R. Stone, Jr., a clinic psychologist. Dr. Stone reported that Williams was oriented for time, place and person. His speech was relevant and coherent, and he was able to carry on a rational goal-directed conversation. Williams indicated having difficulties with remembering a sequence of tasks and presented a notebook he used for that purpose. Later in the interview he was able to recall earlier portions of the interview in a general way but had difficulty going into great detail. His cognitive functioning was estimated to be in the low average range. Williams indicated that he lived by himself, was able to take care of his own household tasks (including cooking and housekeeping), that he had no difficulties with sleep or appetite, and that he enjoyed building models and reading horror books. (Tr. p. 179). He arrived unaccompanied for the examination. (Tr. p. 178). Dr. Stone stated that in view of Williams mild memory impairment, a probable mild decrement in cognitive functioning, and changes in his personality, a diagnosis of organic mental syndrome was appropriate. (Tr. p. 181). The next question is whether the AU’s finding that Williams is able to engage in substantial gainful activity is supported in the record by substantial evidence. I find that it is. 20 C.F.R. § 404.1572(a) and (b) provide that: Substantial gainful activity is work activity that is both substantial and gainful: (a) Substantial work activity. Substantial work activity is work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility that when you worked before. (b) Gainful work activity. Gainful work activity is work activity that you do for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized. The record shows that Williams became employed at Goodwill Industries in October 1987 at a pay rate of $3.35 per hour. He worked four hours per day for a total of 20 hours per week. (Tr. p. 29). His job involved janitorial tasks at the Federal Building, which consisted mostly of mopping, sweeping, dusting and taking out the trash. (Tr. p. 28, 201, 215). He was unable to run the buffing machine because he had problems with his balance. (Tr. p. 28). Goodwill provided him with a blackboard that listed his daily assignments. Williams checked off each task on the blackboard as he completed it. He also carried his notebook with him. Goodwill Industries felt his strength was sufficient but that the main problem was his balance and memory. (Tr. p. 201). His average monthly earnings from January 1988 to October 1988 was $369.00. (Tr. p. 212). The regulations at 20 C.F.R. § 404.1574(b) provide that: (2) Earnings that will ordinarily show that you have engaged in substantial gainful activity. We will consider that your earnings from your work activities as an employee show that you have engaged in substantial gainful activity if— (vi) Your earnings averaged more than $300 a month in calendar years after 1979. (4) If you work in a sheltered workshop. If you are working in a sheltered workshop or a comparable facility especially set up for severely impaired persons, your earnings and activities will ordinarily establish that you have not done substantial gainful activity if— ... (vi) Your average earnings are not greater than $300 a month in calendar years after 1979. Because the evidence shows, and Williams does not dispute, that he was earning in excess of $300 per month during the period in issue, substantial evidence supports the Secretary’s decision that the plaintiff was engaging in substantial gainful activity. Williams testified at the November 16, 1988, hearing that he was unable to work more than four hours per day because he became unstable on his feet after that period of time. He described himself as tipping over or falling over, and that his feet get “confused”. (Tr. p. 29). The problem was mainly with his right leg, and a leg brace had been ordered. (Tr. p. 30). The ALJ found that Williams’ testimony that he could not work more than 20 hours per week was not credible. (Tr. p. 11). A review of the record shows substantial evidence that Williams did in fact have difficulties with his right leg. However, the record does not contain evidence that these difficulties translated into an inability to work for more than 20 hours per week. Williams employment at Goodwill was limited to 20 hours per week because Goodwill was unable to provide him with any more hours. (Tr. p. 204). There is no evidence that he was limited to 20 hours per week because of any medical condition. Michael McKeeman, a medical vocational rehabilitation specialist, interviewed Williams on August 15, 1988. At that time Williams was earning $4.40 per hour at Goodwill Industries and was working 20 hours per week. Williams had difficulty moving about his apartment and it was clear that he could fall down occasionally. It was necessary for him to walk on tiptoes on one leg, which set him off balance during his stride. McKeeman’s conclusion was that Williams’ ability to hold a permanent job would be limited by the availability of routine repetitive tasks, a supportive environment that would provide repeated demonstrations and verbal instruction. Williams should not be placed in a situation where deductive reasoning, organization or novel planning is needed on a day-to-day basis. Williams possesses the ability to learn novel tasks over time as long as the proper environment is provided. He is able to identify errors but only after the action has been performed. Costly, imprudent or dangerous errors must be prevented by someone else. He can learn inductive reasoning or rote learning. (Tr. p. 203). McKeeman visited with Harriet Glover, the case manager, and Ron Spies, Williams’ immediate supervisor at Goodwill. They said Williams was working at 77% of a full-work capacity and they believed he was competitively employable in addition to Goodwill. Vocation rehabilitation had closed their file on Williams as rehabilitated. (Tr. p. 200). When reviewing agency decisions concerning disability benefits, questions of fact, including the credibility of a claimant’s subjective testimony, are primarily for the Secretary to decide, not the courts. To engage in fact-finding in a Social Security case is not within the province of a federal court. Benskin v. Bowen, 830 F.2d 878, 882-83 (8th Cir.1987). The Secretary’s decision must be affirmed if it is supported by substantial evidence. 42 U.S.C. § 405(g); Clark v. Heckler, 733 F.2d 65 (1984). “Substantial evidence is ‘something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.’ ” Metcalf v. Heckler, 800 F.2d 793, 794 (8th Cir.1986), quoting Consolo v. Federal Maritime Commission, 383 U.S. 607, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate support for a conclusion.” Clark v. Heckler, 733 F.2d at 68. I find that the decision of the AU is supported by substantial evidence. JUDGMENT IT IS THEREFORE ORDERED that the decision of the Secretary is affirmed.

BOUDIN, Circuit Judge. In 1986, Tilcon Capaldi, Inc. (“Tilcon”), a Rhode Island general contractor, sued to enforce a mechanics’ lien against Commercial Associates (“CA”), a Massachusetts partnership for whom Tilcon had done site work required for construction of a shopping center. After extended and ramifying litigation in both state and federal court, Tilcon obtained a judgment in 1992 in the federal district court in Rhode Island for over $1 million in contract damages and ever mounting interest. The judgment identified both CA and its general partners as liable, without specifying whether the parties were jointly or severally liable or whether they were liable in their individual or partnership capacity. Eventually, Tilcon registered the judgment with the federal district court in Massachusetts. 28 U.S.C. § 1963 (1994 & Supp. II 1996). In April 1997, that court issued a writ of execution, mounting interest bringing the sum due to almost $1.8 million. Unlike the Rhode Island district court judgment, this initial Massachusetts judgment specified that CA and the general partners were jointly and severally liable for the judgment. Once again, the judgment did not state the capacity in which the partners were liable. Jerald Feldman was one of CA’s general partners named in the judgment. In May 1997, Tilcon brought the present action in federal district court in Massachusetts to reach and apply assets of Jerald Feldman to satisfy the judgment. Mass. Gen. Laws ch. 214, § 3(6)-(7) (1998). Of importance for this appeal, Tilcon sought to reach and apply — among other Feldman assets — Feldman’s interests in three nominee trusts apparently created by Feldman and co-beneficiaries: his 16.88% beneficial interest in Kelstoek Realty Trust (“Kelstoek”), his 18.75% beneficial interest in Marlborough Realty Trust (“Marlborough”), and his 25% interest in Commercial Properties Trust (“Corn-props”). A bench trial was held in this reach and apply action. Feldman did not dispute that he held interests in the three trusts, but he claimed that his interests could not be reached because joint venture agreements, entered into after the trusts were formed, made the interests unassignable. In addition, Feldman argued that under principles of partnership law, he was not liable for the judgment or, in the alternative, that he was only liable for his aliquot share of the judgment. In a decision rendered on January 5, 2000, the district judge agreed with Feld-man that his interests could not be reached by Tilcon because the joint venture agreements made Feldman’s interests unassignable. The court also found that because Tilcon’s judgment against Feld-man rested on a contract claim, he was only jointly liable and was therefore liable only for his aliquot share. Finally, the court concluded that Tilcon’s earlier settlements with two of CA’s other general partners had not released Feldman from any liability, and that Tilcon could recover from Feldman’s assets (apart from the trust interests) despite Feldman’s claim that Tilcon had not exhausted all efforts to satisfy the judgment from CA’s partnership assets. Both parties now appeal from the district court’s judgment. Tilcon seeks to reach Feldman’s trust interests and to hold him liable for the full judgment; Feldman disclaims any liability because of Tilcon’s releases to other partners and alleged failure to exhaust partnership assets. We address these contentions in turn, applying de novo review to rulings of law. United States v. Howard (In re Howard), 996 F.2d 1320, 1327 (1st Cir.1993). 1. The most difficult issue is whether Feldman’s interests in the trusts, now themselves embedded in joint ventures, can be reached and applied to satisfy the judgment against him. The basic tenets of Massachusetts law are clear. A creditor may “reach and apply” a debtor’s interest in intangible property that cannot otherwise be executed against in an action at law, Mass. Gen. Laws ch. 214, § 3(6), including a debtor’s beneficial interest in trusts, New Eng. Merchs. Nat’l Bank of Boston v. Hoss, 356 Mass. 331, 249 N.E.2d 635, 638 (1969). However, self-settled trusts aside, a creditor may not reach and apply a debtor’s interest if the trust includes a spendthrift clause by which the creator of the trust (the settlor) forbids creditor attachments. Hale v. Bowler, 215 Mass. 354, 102 N.E. 415, 416 (1913). However, special rules apply when a settlor creates a trust for his own benefit and also attempts to immunize the trust from creditor claims. In such cases, Massachusetts has adopted the Restatement rule: Where a person creates for his own benefit a trust for support or a discretionary trust, his ... creditors can reach the maximum amount which the trustee under the terms of the trust could pay to him or apply for his benefit. Ware v. Gulda, 331 Mass. 68, 117 N.E.2d 137, 138 (1954) (internal quotation marks omitted); accord Restatement (Second) of Trusts § 156(2) (1959) [hereinafter Restatement], Thus, even if the trustee chooses not to make any payments to the beneficiary, a creditor may still reach the maximum amount the trustee could pay. 2A Scott & Fratcher, The Law of Trusts § 156.2, at 178 (1987) (summarizing the holding in Ware). This rule keeps a debtor from protecting his “property in such a way that he can still enjoy it but can prevent his creditors from reaching it.” 2A Scott & Fratcher, supra, § 156, at 167. It is not necessary to the rule adopted by Ware that the transferor intend to defraud his creditors. Restatement § 156(2) cmt. a. The Ware rule also applies even if the trust includes an explicit spendthrift provision. State St. Bank & Trust Co. v. Reiser, 7 Mass.App.Ct. 633, 389 N.E.2d 768, 770 (1979) (citing cases); accord Restatement § 156(1). It has special force in the case of nominee trusts, where the beneficiary can control the trustee’s actions, cf. Sylvia v. Johnson, 44 Mass.App.Ct. 483, 691 N.E.2d 608, 610 (1998), but it applies even where the trustee has sole discretion, Ware, 117 N.E.2d at 138. If we were only looking at Feldman’s interests in the three trusts before they became subject to the joint venture agreements, Tilcon would have a straightforward claim to reach and apply Feldman’s interest in the self-settled trusts. In each case, Feldman had a beneficial interest and, as Ware teaches, a spendthrift limitation would not be effective to block Tilcon’s claim. However, the Comprops beneficiaries entered into a joint venture agreement in January 1989, and the Kelstock and Marlborough trust beneficiaries did so in August 1994. Hence, by the time Tilcon attempted to reach and apply Feldman’s interests in the trusts in 1997, they were subject to a new set of restrictions on transfers. The Kelstock, Marlborough, and relevant Comprops joint venture agreements provide that the joint venturers “may not sell, transfer, convey, mortgage, encumber or otherwise dispose of all or any part of ... their Interest or rights in the Venture,” except by transfer to other original venturers or their family members, and except in response to a bona fide written offer to which the other venturers agree after exercising rights of first refusal. In addition, each agreement contains a spendthrift provision which purports to protect all the income and corpus of the venture from attachment by creditors. Both sides have assumed that Feldman’s joint venture interest subsumes his trust interest. In the decision now before us, the district judge relied on the anti-assignment clauses in the joint venture agreements to debar Tilcon from reaching Feldman’s trust interests. Of course, Feldman was not seeking to assign either his trust or joint venture interests. But based on his reading of Massachusetts case law, the district judge held — as a general rule— that the reach and apply statute in Massachusetts applies only to interests that are capable of being assigned. The district court ruled that the anti-assignment clauses took away this capability and therefore blocked Tilcon. We disagree. The reach and apply statute in Massachusetts is very broadly written and contains no express reservation for cases in which an anti-assignment clause exists. Mass. Gen. Laws ch. 214, § 3(6); see also H.G. Kilbourne Co. v. Standard Stamp Affixer Co., 216 Mass. 118, 103 N.E. 469, 469-70 (Mass.1913). Indeed, the statute extends explicitly to a defendant’s interest in partnership property where one would expect that there would commonly be contractual limits on assignment. Mass. Gen. Laws ch. 214, § 3(6). It is hard to see why the Massachusetts Supreme Judicial Court, which decided Ware, would not read the statute to override self-imposed anti-assignment clauses as readily as self-imposed clauses barring creditor attachment. Indeed, Ware itself involved a trust in which both clauses were present. 117 N.E.2d at 138. The district court’s contrary view rests primarily on one Massachusetts decision stating that certain personal tort causes of action were unassignable and could not be reached under the reach and apply statute. Bethlehem Fabricators, Inc. v. H.D. Watts Co., 286 Mass. 556, 190 N.E. 828, 833 (1934). But such claims are unassignable for policy reasons that do not apply here. See id. at 568, 190 N.E. 828. We do not read Bethlehem, or another case where state law barred a transfer of an interest without legislative consent, Hurley v. Boston R.R. Holding Co., 315 Mass. 591, 54 N.E.2d 183, 198-99 (1944), as making a self-imposed anti-assignment clause a bar to the reach and apply statute. To us, Ware is presumptively the proper analogy unless the joint venture situation can be meaningfully distinguished from Ware’s treatment of trusts. The best argument for a distinction is that the spendthrift clause in a self-settled trust is often just a self-indulgence at the expense of creditors. By contrast, in a joint business, it is solvent partners (not just the scapegrace debtor) who will be affected if a new and unwelcome “partner” supplants the debtor. It would be possible for this reason to treat Ware as limited to trusts and to treat anti-assignment clauses in joint ventures as blocking the reach and apply statute — albeit not because of any general rule in Bethlehem. However, the reach and apply statute itself provides that a partner’s interest in partnership property may be reached and applied to satisfy a business debt, and the reach and apply statute is subject to equitable limitations. Perhaps on specific facts allowing a joint venture interest to be seized outright by the creditor would seriously disrupt the business; if so, conceivably limitations might be imposed on the remedy (e.g., by providing that the creditor could receive profits but not participate in management). But the mere potential for such problems in some cases, for which tailored solutions are usually possible, is no reason to bar the reach and apply statute from the start. In the present case, Feldman has apparently made no effort to show any specific disruption from the seizure of his interests nor, perhaps more pertinently, have his co-venturers sought to do so. We think that this failure even to allege such facts forfeits any such argument; but we leave it open to the district judge on remand (if he wishes) to consider limitations, assuming that he is persuaded that serious problems are presented for the other joint ventur-ers. Otherwise, the reach and apply statute applies with full force to Feldman’s trust and joint venture interests. Accord Schiller v. Schiller, 625 So.2d 856, 860 (Fla.App.1993); Jones v. Palermo, 105 Misc.2d 405, 432 N.Y.S.2d 288, 290 (N.Y.1980). 2. Tilcon’s second claim on appeal is that the district court erred in determining that Feldman was only “jointly” liable for the judgment and not “jointly and severally” liable. The district judge’s determination, says Tilcon, improperly makes Feld-man only responsible for his “aliquot share of the judgment” instead of the entire amount. The district judge did indeed say that Feldman was only liable for his “aliquot share.” Apparently the parties and the district judge use the term “aliquot,” often used to denote a fractional interest, to indicate that Feldman is currently held responsible only for a share of the judgment proportional to his share in the CA partnership. In attacking the district judge’s ruling, Tilcon argues that the Rhode Island federal court judgment, before being registered in Massachusetts, did not say that Feld-man or any other defendant was liable for less than the full amount (some courts presume that an unadorned judgment is joint and several, Angona v. County of Nassau, 129 A.D.2d 543, 543-44, 514 N.Y.S.2d 36 (N.Y.App.Div.1987)); that the district judge should not have looked beyond the bare language of the original judgment; that, in any case, Feldman failed to offer evidence that the underlying liability was only for a breach of contract (which is ordinarily joint only); and that it was up to Feldman to get the judgment clarified in Rhode Island but he failed to do so. Probably Feldman’s liability under the Rhode Island federal judgment is only joint, but Tilcon is mistaken in thinking that this makes Feldman responsible only for a portion of the judgment, aliquot or otherwise. This is so even if we agree, as we would be likely to do if it mattered, that the judgment should be read or reformed to make it explicit that liability of the CA partners is joint only. But why this is so takes a bit of explaining, the point being rarely discussed in any detail in either recent case law or modern treatise. At common law, the phrase “joint and several” refers to the liability of multiple wrongdoers (typically, for torts). It means that damages are a single sum specified in the judgment, that each wrongdoer is liable for the full amount, but the wronged party cannot collect under the judgment more than the single sum. Restatement (Third) of Torts § 20 & cmt. b (Proposed Final Draft (Revised) 1999). Joint liability (typically, for breach of contract) does not differ in these respects, contrary to Tilcon’s assumption; each party jointly liable for a judgment for breach of contract is liable for the full amount. 2 Bromberg & Ribstein, Bromberg & Ribstein on Partnership § 5.10(b), at 5:91-92 (2000); 12 Richard A. Lord, Williston on Contracts § 36:1, at 610 (4th ed. 1999) [hereinafter Williston]. The difference in the two types of liability is in certain other details, large ly vestiges of common law procedure, which still bite where they have not been abolished. Importantly, the common law rule was that all those jointly liable had to be sued together or the suit would be dismissed, and that a settlement with one of those liable discharged all of the others. 2 Bromberg & Ribstein, supra, §§ 5.08(b), 5.10(b)-(c). Further, in the case of partners jointly (but not severally) liable for a wrong done by the partnership, there is a requirement that partnership assets be sought first. Id. § 5.08(d). Finally, there is sometimes an interplay between these two categories of liability and issues of contribution, Restatement (Third) of Torts § 23 reporters’ note, cmt. a. However, the relationship is complicated, the cases are not uniform, and contribution rules have increasingly been affected by statute, e.g., Mass. Gen. Laws ch. 231B, § 1 (1998). In any case, issues of contribution are distinct from questions of what a plaintiff may collect from any individual defendant. In short, even if the judgment is joint only, Tilcon can — subject to defenses yet to be discussed — collect the full amount of the judgment from Feldman (to the extent it has not already been paid by others). So far as the district court’s reference to aliquot liability in this case indicates otherwise, the district court judgment must be modified. On the issue of full versus partial liability, the question whether the judgment is joint only turns out to be irrelevant. As will shortly be apparent, it also turns out to be irrelevant to two defenses offered by Feldman (discharge by settlement with another partner and failure to exhaust partnership assets) even though ordinarily at common law jointness is important in passing upon such defenses. Because the outcome of this case is unaffected by whether liability is joint or joint and several, we need not pursue the multi-faceted problems — including interesting choice of law issues not addressed by the parties — involved in deciding whether the underlying Rhode Island federal judgment was for joint liability only. However, it is worth noting that the original Rhode Island federal judgment grounds liability specifically on breach of contract; both in Massachusetts and Rhode Island, the derivative liability of partners for breach of contract by the partnership is joint only. See Mass. Gen. Laws ch. 108A, § 15(1) (1998); R.I. Gen. Laws § 7-12-26(a) (1999); see also 2 Bromberg & Ribstein, supra, § 5.08(b). 3. By cross appeal, Feldman urges two defenses to preclude all personal liability, at least at this time. He says that when Tilcon signed settlement agreements with two other CA partners, this discharged his liability entirely. Separately, he claims that if he is liable at all, Tilcon is not entitled to collect against him until it shows that it has exhausted the partnership assets. Both arguments assume that Feldman’s liability is joint only — otherwise the objections would not apply — and we will assume jointness arguendo. Starting with the discharge defense, Tilcon admits that it made partial settlements with two other CA partners, but points out that each settlement agreement purported to reserve its rights against other partners like Feldman. At common law, the discharge of one person jointly liable, by settlement or otherwise, discharged the others. 12 Williston, supra, § 36:18, at 684-85. As to partnership obligations, Rhode Island has rejected this so-called “unity of discharge” rule by statute. R.I. Gen. Laws § 7-12-9. Nevertheless, the district court thought that Massachusetts law governed — CA is a Massachusetts partnership — and Tilcon makes no effort to show that this choice of law decision was mistaken. Feldman says that Massachusetts has never explicitly abrogated the unity of discharge rule for partnerships. However, as the district court noted, Massachusetts has abrogated the rule for joint tortfeasors, Mass. Gen. Laws ch. 231B, § 4(a) (1998); Selby v. Kuhns, 345 Mass. 600, 188 N.E.2d 861, 865-66 (1963), and also for co-obligors when, as here, there is an express reservation of rights or other sufficient evidence of intent not to release co-obligors, Hale v. Spaulding, 145 Mass. 482, 14 N.E. 534, 534-35 (1888). The district judge held that Massachusetts courts would take the same view as to partnerships. Although the Massachusetts Supreme Judicial Court has been silent on this issue, indications are that it would treat partnerships like other co-obligors in this respect. Cf. Selby, 188 N.E.2d at 865-66 (unity of discharge doctrine generally discredited). At least one Massachusetts appellate court has specifically suggested as much. E. Elec. Co. v. Taylor Woodrow Blitman Constr. Corp., 11 Mass.App.Ct. 192, 414 N.E.2d 1023, 1028-30, rev. denied, 383 Mass. 890, 441 N.E.2d 1042 (1981). Moreover, a First Circuit panel has previously concluded that Massachusetts’ rejection of the unity of discharge rule is not narrowly confined. Hermes Automation Tech., Inc. v. Hyundai Elecs. Indus. Co., 915 F.2d 739, 745-46 (1st Cir.1990). Against all this authority, Feldman’s vague argument that partners should be treated differently (and that Massachusetts would diverge from the modern trend) is insufficient to carry the day. Feldman’s exhaustion defense is also unpersuasive. Here, choice of law does not appear to matter. Rhode Island follows the general rule that where a partner’s liability is joint only and also derivative (ie., imposed only because the defendant is a partner), the partnership assets must be sought and exhausted, or shown to be unavailable, before the private assets of an innocent partner can be seized. See Nat’l Exch. Bank v. Galvin, 20 R.I. 159, 37 A. 811, 811 (1897). Massachusetts does not appear to have a case in point but we are told that exhaustion in such a case is the “virtually unanimous rule,” 2 Bromberg & Ribstein, supra, § 5.08(e), at 5:68, and Tilcon cites no authority to show an exception applies. Instead, Tilcon mainly argues that it has an “individual judgment” against Feldman and there is nothing in the judgment to show that Feldman’s liability is derivative. Although the district court relied tersely on this argument, we would be surprised if the opaque language of the judgment were conclusive, cf. E.I. Du Pont de Nemours & Co. v. Cullen, 791 F.2d 5, 7 (1st Cir.1986) (Breyer, J.) (looking beyond a state court judgment to the underlying complaint). And Tilcon offers no serious argument that Feldman was held liable except derivatively or that he waived the exhaustion defense (as partners sometimes do in loan documents). On the other hand, we agree with the district court that Feldman is playing games with this issue. The district court pointed out that there is no “hint anywhere in the record that [CA] is a viable entity” and that the witness who Tilcon has said could have nailed down CA’s in solvency “was excused at [Feldman’s] request.” We are thus faced with a situation in which Tileon has long held an unsatisfied judgment against CA and Tileon has not only alleged but also said how it could prove CA’s insolvency. In response, even on this appeal, Feld-man has merely said that Tileon failed to prove lack of partnership assets; there is no representation that such assets exist. In this situation, in which insolvency is suggested by circumstance and apparently uncontested, Feldman’s objection based on failure to exhaust is not well taken. Cf. Eversley v. MBank Dallas, 843 F.2d 172, 174 (5th Cir.1988) (district court entitled to rely on the undisputed factual allegations of a party moving for summary judgment). To conclude, we hold that Feldman is liable for the entire amount of the judgment as executed by the district' court of Massachusetts and that his interests in the Kelstock Realty Trust, Marlborough Realty Trust, and Commercial Properties Trust are able to be reached and applied, subject to such equitable limitations as the district court may think necessary. To this extent, the district court’s judgment is vacated and remanded for further proceedings consistent with this opinion; in all other respects, the judgment is affirmed. Costs on both appeals are awarded to Tileon. It is so ordered. Appendix Judgment of the U.S. District Court for the District of Rhode Island, Oct. 7, 1992 (excerpt) 3) Judgment for Tileon Gammino on Count I of its counterclaim against Commercial Associates, Anthony J. DelVicar-io, Stephen J. Watchmaker, Neil Zais, Gerald Feldman and Thomas Prender-gast for breach of contract in the amount of $268,903.23 plus interest from October 31,1985, plus additional interest on the $1,200,000.00 recovered in the mechanics’ lien proceeding from October 31, 1985 to January 24, 1991, plus costs. Execution of Judgment in the U.S. District Court of the District of Massachusetts, Apr. 4,1997 (excerpt) Plaintiff Tileon Gammino, Inc. has recovered judgment, jointly and severally, against defendants’ Commercial Associates, Anthony J. DelVicario, Stephen J. Watchmaker, Neil Zais, Gerald Feldman and Thomas Prendergast in the United States District Court for Massachusetts in the following amounts: 1. $268,903.23, together with prejudgment and post-judgment interest of $366,725.25 as of March 14, 1997, for a total of $635,628.48. 2. $756,000, together with pre-judgment and post-judgment interest of $401,943.60 as of March 14, 1997, for a total of $1,157,943.60. Total combined judgment with interest as of March 14, 1997, $1,793,572. Final Judgment of the U.S. District Court for the District of Massachusetts, Jan. 28, 2000 (excerpt) 1. The execution issued by this Court on April 4, 1997, in the case entitled Commercial Associates, et al. v. Tileon Gammino, Inc., Civil Action No. 96-10864 MBD, shall be reformed by striking the words “and severally” as they appear after the word “jointly” in the third paragraph of page one; 2. Jerald R. Feldman is jointly (but not severally) liable for the judgment issued in the United States District Court for the District of Rhode Island in favor of Tileon Gammino, Inc. on or about October 7, 1992, in the case entitled Commercial Associates, et al. v. Tilcon Gammino, Inc., Civil Action No. 86-748T.... . Reported decisions in this saga include Commercial Associates v. Tilcon Gammino, Inc., 998 F.2d 1092 (1st Cir.1993), Commercial Associates v. Tilcon Gammino, Inc., 801 F.Supp. 939 (D.R.I.1992), and Tilcon Gammino, Inc. v. Commercial Associates, 570 A.2d 1102 (R.I.1990). . Initially a joint venture, Comprops was restructured during this case as a limited partnership on the understanding that the restructuring would not prejudice Tilcon’s right of recovery. Thus, for present purposes, it is convenient to treat it as if the joint venture were still in force. . Also not in dispute is that Massachusetts law applies to this aspect of the case. Fed.R.Civ.P. 69(a) (“The procedure on execution .. shall be in accordance with the practice and procedure of the state in which the district court is held ....”); see also Aetna Cos. & Sur. Co. v. Markarian, 114 F.3d 346, 349-50 (1st Cir.1997). . Strictly speaking, the joint venture agreements purported to prevent Feldman from assigning his interest in the joint venture — not his trust interest. However, the district judge and the parties have not distinguished the two but have instead treated the anti-assignment clause as if it applied to the trust interest as well as the joint venture interest. . The statute explicitly provides limitations to avoid disrupting partnership business, Mass. Gen. Laws ch. 214, § 3(6), and a court's broader equitable powers apply, allowing additional limitations on applications of the statute, see Bressler v. Averbuck, 322 Mass. 139, 76 N.E.2d 146, 148 (1947); Shapiro, Perlin & Connors, Massachusetts Collection Law § 11:23 (2d ed.1992). . What matters is the Rhode Island federal judgment. The clerk in the Massachusetts district court added, at Tilcon's behest, the words "jointly and severally” when the judgment was registered, but the district judge in this case deemed this irrelevant and Tilcon properly does not dispute in principle the "reformation” of the initial Massachusetts judgment. The pertinent language from the Rhode Island federal judgment, that judgment as registered by Tilcon in the Massachusetts district court, and the final Massachusetts federal judgment are included as an appendix to this opinion. . Just to round out the trilogy of types of liability, liability is termed "several” when different individuals are separately liable for what may be different amounts (e.g., where a tortfeasor is liable for the amount of damages in direct proportion to his percentage of fault, Restatement (Third) of Torts § 21, or where parties to a contract are each "bound separately for the performance which he or she promises," Williston, supra, § 36:1, at 611).

PER CURIAM: Jose Saloman Arreola-Amaya (Arreola) appeals the sentence imposed following his guilty-plea conviction of illegal reentry of a previously deported alien subsequent to an aggravated felony conviction. Arreola argues, citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), that the district court erred in sentencing him because the court believed that the federal sentencing guidelines were mandatory, rather than advisory. He also contends that the “felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional and that Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), should be overruled. We review for plain error. See United States v. Mares, 402 F.3d 511, 520-21 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 43, — L.Ed.2d-(2005). With respect to the district court’s mandatory application of the sentencing guidelines, Arreola concedes that he cannot demonstrate that the district court would have imposed a different sentence had it considered the guidelines to be advisory. Accordingly, he has not established plain error in his sentence. See Mares, 402 F.3d at 522. Although the decision in AlmendarezTorres has been called into question, see Shepard v. United States, — U.S. -, -, 125 S.Ct. 1254,1264,161 L.Ed.2d 205 (2005) (Thomas, J., concurring), the Supreme Court has not overruled it. Accordingly, Arreola’s argument that Almendarez-Torres should be overruled and that 8 U.S.C. § 1326(b) be declared unconstitutional is foreclosed. See United States v. Rivera, 265 F.3d 310, 312 (5th Cir.2001). AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

OPINION OF THE COURT PER CURIAM: During the Nazi era, plaintiffs’ relatives were forced to sell their shares in a family business in Germany. After the war, they sought restitution but allegedly settled their claim for a fraction of its value due to fraud perpetrated partly in New York by an agent of defendants’ corporate predecessors. The District Court dismissed the complaint for lack of personal jurisdiction, concluding that New York’s long-arm statute does not reach defendants based merely on the fraud, and that asserting jurisdiction violates due process. Plaintiffs appealed, raising these and other issues. We affirm. I. Plaintiffs Barbara Principe and Martin Wortham are a daughter and a grandson, respectively, of Gimther Wortham, who was the son of Franz and Káthe Wertheim. Before 1935, Franz and Káthe owned 32 percent of the capital stock in Wertheim AG für Handelsbeteiligungen, subsequently known as AWAG Allgemeine Warenh andels-Gesellshaft AG (“AWAG”). AWAG was a holding company that operated department stores in Berlin and owned another real estate holding company. Between 1934 and 1939, the German government forced the Wertheims to sell their holdings in AWAG to a consortium of non-Jewish AWAG directors led by Dr. Arthur Lindgens. Günther and his brother Fritz (“the brothers”) fled Germany in 1939 and later settled in the United States. In 1950, the brothers filed a claim with the Restitution Authority in West Berlin, seeking return of the AWAG shares that had been forcibly sold to the Lindgens group. In 1951, however, Lindgens orchestrated the sale of AWAG to a subsidiary of Hertie Waren-und Kaufhaus GmbH (“Hertie”), and in the process allegedly defrauded the brothers. In August of that year, Lind-gens negotiated an agreement in New York under which AWAG shareholders sold 50.7% control of AWAG to Hertie. A few days later, Lindgens negotiated a settlement of the restitution claim with the brothers’ attorney in New York. Lindgens did not tell the brothers about the pending sale, but instead indicated that AWAG was in financial straits. The brothers agreed to settle for only four percent of the claim’s value. In October, Lindgens negotiated the formal sale on AWAG’s behalf, executing a second sales agreement that incorporated the August sales agreement by reference. Neither agreement was publicly recorded at that time. In November, Lindgens filed the brothers’ settlement in West Berlin and paid the settlement from an account at Hertie’s bank. In 1960 AWAG transferred all of its assets, liabilities, and operations to defendant Warenhaus Wertheim GmbH CWW”). AWAG dissolved and Hertie became a WW shareholder. In 1983, WW transferred most of its assets to Hertie, and today WW has no day-to-day operations and only two real estate holdings. In 1994, the company that would later become defendant KarstadtQuelle AG (“Karstadt”) acquired 100 percent of Hertie’s stock, and in 1999 it acquired all of Hertie’s assets and liabilities, whereupon Hertie ceased to exist. Karstadt then transferred all of Hertie’s business operations and liabilities to a subsidiary. Karstadt now operates only as a holding company. Plaintiffs filed this case in the Southern District of New York in March 2001, seeking, inter alia, damages related to Ling-dens’ alleged fraud. Defendants filed a motion to dismiss for lack of personal jurisdiction, and the parties conducted limited discovery. The Judicial Panel on Multidistrict Litigation transferred the case to the District of New Jersey for pretrial proceedings. (JA 4 — 5.) The Federal Republic of Germany submitted a letter in support of dismissal, which plaintiffs moved to strike. Plaintiffs also asked the District Court to suggest that the MDL Panel remand the case to the Southern District of New York. The District Court denied the motion to strike and denied without prejudice the motion for suggestion of remand. (JA 6 — 7.) In September 2003, the District Court informed counsel that his two incoming law clerks had former and future employment ties to defendants’ two law firms. Plaintiffs soon filed a motion for the judge to recuse himself. In November 2003, after a hearing, the District Court denied the motion to recuse because both law clerks were walled-off from the case. (JA 8 — 33.) The District Court subsequently dismissed the case for lack of personal jurisdiction. (JA 34 — 104.) The Court determined that no general jurisdiction exists over defendants because they do not do business in New York, and that no specific jurisdiction exists under New York’s long-arm statute, N.Y. Civ. Prac. L. & R § 302(a)(2) (McKinney 1990), which authorizes jurisdiction over those who commit a tort in New York. Finally, the Court concluded that even if § 302(a)(2) reaches defendants, asserting jurisdiction is not reasonable under the Due Process Clause of the Fourteenth Amendment. (JA 85— 103.) II. Long-arm jurisdiction exists over WW but not over Karstadt. A. Personal jurisdiction exists over a defendant if the state in which the court sits authorizes jurisdiction, Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 96 (3d Cir.2004) (citing Fed.R.Civ.P. 4(e)), and if the Due Process Clause of the Fourteenth Amendment permits the exercise of jurisdiction, Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Regarding statutory jurisdiction, plaintiffs challenge only the District Court’s decision that jurisdiction does not exist under § 302(a)(2), which extends personal jurisdiction over any non-domiciliary of New York who “commits a tortious act within the state....” Plaintiffs do not allege that defendants committed such a tort. They claim that defendants are corporate successors of Hertie and AWAG, who participated in Lindgens’ alleged fraud. The method by which corporations combine can render a “successor in interest” to a prior corporation subject to personal jurisdiction under § 302 based on the predecessor’s actions. See Colson Servs. Corp. v. Bank of Baltimore, 712 F.Supp. 28, 30 (S.D.N.Y.1989). We refer to this concept as “successor jurisdiction.” A merger of corporations generally implicates successor jurisdiction, whereas a mere acquisition of assets does not. Viacom Intern., Inc. v. Melvin Simon Productions, Inc., 774 F.Supp. 858, 864 (S.D.N.Y.1991). Similarly, a de facto merger triggers successor jurisdiction. See J.L.B. Equities, Inc. v. Ocwen Fin. Corp., 131 F.Supp.2d 544, 551 n. 2 (S.D.N.Y.2001). In Schenin v. Micro Copper Corp., 272 F.Supp. 523 (S.D.N.Y. 1967), the Court suggested that successor jurisdiction inheres not only by merger, but also by “a scheme to avoid jurisdiction,” and by “an assumption of [the predecessor’s] liabilities.” Id. at 526; see also Jeffrey v. Rapid Am. Corp., 448 Mich. 178, 529 N.W.2d 644, 652 (1995) (“the acts of a predecessor may be imputed to the successor for jurisdictional purposes [when] the successor expressly assume[s] the predecessor’s liabilities.”); but see Viacom, 774 F.Supp. at 864 (implying that merger is the only circumstance implicating successor jurisdiction). The New York Appellate Division cited Schenin favorably in Applied Hydro-Pneumatics, Inc. v. Bauer Manufacturing Inc., 68 A.D.2d 42, 416 N.Y.S.2d 817, 820 (1979). See Nationwide, 230 F.3d at 637 (in predicting state law, the Court can give due regard to lower state court decisions). Applied Hydro-Pneumatics also concluded that jurisdiction existed, despite an acquisition of assets, where a successor corporation had nunc pro tunc ratified the predecessor’s New York contract activities. Id. These cases teach that successor-jurisdiction in New York can be present in the following situations: (1) merger or de facto merger; (2) express or implied assumption of liabilities, including by a ratification of the predecessor’s activities; or (3) acquisition of assets or reorganization undertaken to fraudulently avoid jurisdiction. Notably, successor liability is imputed in similar circumstances. Schumacher v. Richards Shear Co., 59 N.Y.2d 239, 464 N.Y.S.2d 437, 451 N.E.2d 195, 198 (1983) (describing circumstances of successor liability). See also City of Richmond v. Madison Mgmt. Group, 918 F.2d 438, 454 (4th Cir.1990) (successor jurisdiction exists if successor liability is present); but cf. Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 460, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965) (“ultimate liability” is separate issue from jurisdiction). Plaintiffs bear the burden to show a prima facie case of personal jurisdiction over defendants. Miller, 384 F.3d at 97. Normally, where no evidentiary hearing is held, we would accept the allegations in the complaint as true. Id. The District Court did not conduct an evidentiary hearing, but it did allow jurisdictional discovery. Accordingly, the parties agreed “that the factual materials now before the Court allow the Court to decide whether plaintiff has made a prima facie showing of personal jurisdiction over each defendant based upon competent evidence, ” and not merely upon plaintiffs’ allegations. (JA 54 (emphasis added).) See also In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir.2003) (permitting review of facts outside the pleadings after jurisdictional discovery but absent an evidentiary hearing); In re Korean Air Lines Disaster, 829 F.2d 1171 (D.C.Cir.1987) (law of transferor district merits “close consideration”). The parties do not dispute the facts regarding the defendants’ corporate reorganizations, which are described in the declaration of Dr. Harold Kruez (JA 1085 — 92). Absent a factual dispute, this Court exercises plenary review over the District Court’s grant of a 12(b)(2) motion. IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 258 (3d Cir.1998); In re Seventh Jud. Dist. Asbestos Litigation, 6 Misc.3d 749, 788 N.Y.S.2d 579, 583 — 84 (2005) (noting that determining whether de facto merger occurred based on particular facts is an issue of law). Plaintiffs must show jurisdiction with particularity to their claims. Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir.2004). B. The District Court correctly concluded that Karstadt is not Hertie’s jurisdictional successor under § 302(a)(2), but incorrectly concluded the same about WW. According to defendants’ evidence and general merger concepts, Karstadt merged with Hertie. (JA 1086 — 87); Grant-Howard Assocs. v. Gen. Housewares Corp., 115 Misc.2d 704, 454 N.Y.S.2d 521, 523 (1982) (defining merger as “absorption of one corporation by another which retains its name and corporate identity with the added capital, franchises and powers of a merged corporation”). In addition, Karstadt expressly assumed Hertie’s liabilities, but Karstadt promptly transferred Herties’ operations and liabilities to a subsidiary. Plaintiffs do not allege that the transfer “was part of a scheme to avoid jurisdiction,” Schenin, 272 F.Supp. at 526, nor do they challenge the District Court’s conclusion that the activities of Karstadt’s subsidiaries do not subject it to jurisdiction (JA 60 — 66). Therefore, Karstadt no longer possesses the specific predicate for being subject to § 302(a)(2) jurisdiction for the claims involving Lindgens’ alleged fraud. Unlike Karstadt, WW is AWAG’s jurisdictional successor with regard to the claims involving Lindgens’ alleged fraud. WW acquired AWAG’s assets and liabilities in 1960. WW later transferred AWAG’s department stores to Hertie, but there is no evidence that WW also disposed of AWAG’s liabilities. Defendants argue that WW has no operations and few remaining assets, but they do not show that WW no longer possesses AWAG’s liabilities. In addition, WW apparently merged with AWAG. See Grant-Howard Assocs., 454 N.Y.S.2d at 523 (defining merger); In re New York City Asbestos Litig., 15 A.D.3d 254, 789 N.Y.S.2d 484, 486 (2005) (defining de facto merger by “continuity of ownership,” “dissolution of the selling corporation,” “assumption of the liabilities,” and “continuity of general business operation”); Fitzgerald v. Fahnestock & Co., 286 A.D.2d 573, 730 N.Y.S.2d 70, 71—72 (2001) (stating that, in a de facto merger, “ ‘a successor that effectively takes over a company in its entirety should carry the predecessor’s liabilities as a concomitant to the benefits it derives from the good will purchased” ’ (quoting Grant-Howard Assocs., 63 N.Y.2d at 296, 482 N.Y.S.2d 225, 472 N.E.2d 1)). C. To obtain jurisdiction over WW, plaintiffs were also required to show that AWAG, “in person or through an agent ... committed] a tortious act within the state .... ” § 302(a) and (a)(2). The District Court did not clearly err in finding that AWAG was Lindgens’ co-conspirator in defrauding the brothers in New York. Nevertheless, as discussed below, the weak nexus connecting AWAG to New York undermines the constitutional permissibility of exercising jurisdiction over WW. III. In order to assert personal jurisdiction over a defendant, the Due Process Clause of the Fourteenth Amendment requires that (1) the defendant has “minimum contacts” with the forum, and (2) the exercise of jurisdiction comports with “traditional notions of fair play and substantial justice.” Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 451 (3d Cir.2003) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 368 (3d Cir.2002), Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), and Int’l Shoe, 326 U.S. at 316, 66 S.Ct. 154). A defendant has “minimum contacts” if it “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Id. (quoting Asahi Metal Indus. Co. v. Superior Ct., 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)). Jurisdiction is “fair” if the defendant “ ‘should reasonably anticipate being haled into court’ in the forum.” Id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). Reasonableness involves the following factors: the burden on the defendant, the forum State’s interest in adjudicating the dispute, the plaintiffs interest in obtaining convenient and effective relief, the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies. Pennzoil Prods. Co. v. Colelli & Assocs., 149 F.3d 197, 205-06 (3d Cir.1998) (quoting Burger King, 471 U.S. at 477, 105 S.Ct. 2174). A weak minimum contacts showing requires greater emphasis on reasonableness. Metro. Life Ins. Co. v. RobertsonCeco Corp., 84 F.3d 560, 568 (2d Cir.1996) (citing other circuits). “[Sjeveral courts have recognized that the jurisdictional contacts of a predecessor corporation may be imputed to its successor corporation without offending due process.” Purdue Research Found, v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 783 (7th Cir.2003). Nevertheless, due process must be assessed for each defendant individually. Carteret Sav. Bank, FA v. Shushan, 954 F.2d 141, 145 n. 6 (3d Cir.1992) (citing Colder v. Jones, 465 U.S. 783, 790, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)). Mere tort liability, even if sufficient to establish statutory jurisdiction, might not satisfy due process. See Carty v. Beech Aircraft Corp., 679 F.2d 1051, 1061 (3d Cir.1982) (citing Witt v. Scully, 539 F.2d 950, 951 (3d Cir.1976)). The District Court correctly determined that the exercise of jurisdiction over WW does not comport with due process. WW possesses contacts to New York only through AWAG, which through a power of attorney executed the October 1951 sale, which references the August 1951 sale, which through Lindgens is linked to the alleged fraud of the brothers. The power of attorney does not direct that Lindgens conduct any activities in New York, nor did the brothers live in New York. These multiple degrees of separation fail to demonstrate that AWAG and WW “purposefully avail[ed]” themselves of New York law such that they could expect to be haled into court there. Plaintiffs argue that WW recently sought to benefit from the sale, but those actions do not directly capitalize on the alleged fraud or represent a contact with New York. Nor can plaintiffs satisfy the greater emphasis that the Court places on reasonableness due to the weak minimum contacts showing. Forcing a wholly foreign company with no day-to-day operations to litigate in New York is no small burden. “The unique burdens placed upon one who must defend oneself in a foreign legal system should have significant weight in assessing the reasonableness of stretching the long arm of personal jurisdiction over national borders.” Asahi 480 U.S. at 114, 107 S.Ct. 1026. Plaintiffs point to WW’s corporate sophistication, but they “fail to allege [that WW] transacts any business in New York.” (JA 66.) New York has minimal interest in this case because Lindgens’ New York activities in furtherance of the alleged fraud are little more than an “isolated occurrence where the defendant had no connection with the forum state.... ” Mesalic v. Fiberfloat Corp., 897 F.2d 696, 702 (3d Cir. 1990). The subject of the tort, its victims and injury, all exist outside New York. Relying on Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 791 (2d Cir.1999), plaintiffs argue that the injury occurred in New York, but that case addresses “the original event which caused the injury” under § 302(a)(3), and not “the final economic injury and the felt consequences of the tort.” Plaintiffs’ interest in obtaining relief in New York relies upon choice-of-law issues that, as the District Court noted, “are not permissible considerations in the context of a jurisdictional inquiry.” Metro. Life Ins., 84 F.3d at 574 (citing Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 778, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984)). Other considerations also counsel against asserting jurisdiction over WW. Plaintiffs seek adjudication of real property interests in Germany, as well as rights at issue in former and pending proceedings in German tribunals. (JA 96 — 97, 101 — 02.) “Great care and reserve should be exercised when extending our notions of personal jurisdiction into the international field.” Asahi, 480 U.S. at 115, 107 S.Ct. 1026 (quoting United States v. First National City Bank, 379 U.S. 378, 404, 85 S.Ct. 528, 13 L.Ed.2d 365 (1965) (Harlan, J., dissenting)). For all of these reasons, we affirm the District Court’s grant of defendants’ motion to dismiss for lack of personal jurisdiction. IV. Plaintiffs raise several other challenges. Plaintiffs cannot challenge the MDL Panel’s transfer order in this appeal, see 28 U.S.C. § 1407(e), and their objection to the District Court’s refusal to suggest transfer is moot in light of the lack of jurisdiction. The District Court did not abuse its discretion in refusing to recuse itself based on its conflicted but walled-off law clerks. Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 166 (3d Cir.2004) (denial of motion to recuse is reviewed for abuse of discretion). The isolation of both law clerks from the case, the absence of prior work on Nazi era cases by Ms. Park, and the open and cautious way in which the District Court dealt with the issue, all sufficiently support the conclusion that a reasonable person would not question its impartiality. See Hamid v. Price Water-house, 51 F.3d 1411, 1417 (9th Cir.1995) (finding no abuse of discretion where one law clerk who later worked at a defendant’s firm did not work on the case during the clerkship, and the other law clerk who worked at a defendant’s firm before the clerkship and worked on the case during the clerkship did not return to work at that firm). Isolation of law clerks usually ameliorates the appearance of impropriety. First Interstate Bank of Arizona, N. A. v. Murphy, Weir & Butler, 210 F.3d 983, 989 (9th Cir.2000); see also Byrne v. Nezhat, 261 F.3d 1075, 1101—02 (11th Cir.2001) (finding no abuse of discretion where the judge walled off a law clerk who had worked on the case during prior employment); Hunt v. American Bank & Trust Co., 783 F.2d 1011, 1016 (11th Cir.1986) (“If a clerk has a possible conflict of interest, it is the clerk, not the judge, who must be disqualified.”). We review for abuse of discretion the District Court’s refusal to strike a letter from Wolfgang Isehinger, the Ambassador of the Federal Republic of Germany. Lloyd v. Hovensa, LLC, 369 F.3d 263, 274 (3d Cir.2004). Germany submitted the letter in support of defendants’ motion to dismiss, arguing that litigation relating to settled restitution claims undermines negotiations between Germany and the Conference on Jewish Material Claims against Germany, Inc. (JA 761.1 — 61.2.) Germany did not intervene under Fed.R.Civ.P. 24, nor did it formally obtain status as an amicus curiae. Although appellate rules regulate the submission of amicus briefs on appeal, see Fed. R.App. P. 29, a district court’s decision to accept or reject an amicus filing is entirely within the court’s discretion. United States v. Gotti, 755 F.Supp. 1157, 1158 (E.D.N.Y.1991); United States v. Alkaabi, 223 F.Supp.2d 583, 592 (D.N.J.2002). On appeal, amicus briefs are permitted when amici disclose “a sufficient ‘interest’ in the case and [] their brief is ‘desirable’ and discusses matters that are ‘relevant to the disposition of the case____’ ” Neonatology Associates, P.A. v. C.I.R., 293 F.3d 128, 129 (3d Cir.2002) (quoting Rule 29(b)). Because the District Court could have granted Germany amicus curiae status, denying plaintiffs’ motion to strike was within the Court’s discretion. Plaintiffs’ only objection is that the District Court did not require Germany to submit a statement of financial interest, but plaintiffs cite no authority that necessitates such a filing. V. For the reasons given above, we affirm the decisions of the District Court. . AWAG, WW, Hertie, and Karstadt all underwent numerous name changes and mergers unrelated to the relevant events of this case. For simplicity we refer to the companies by these four names only. . Substantive state law is taken from the state of the transferor court. Nationwide Mut. Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000). . Plaintiffs allege that defendants recently claimed to be legal successors of Hertie and AWAG, but those admissions do not alter the actual processes by which the companies combined. . The District Court concluded that successor jurisdiction cannot exist without consent by the corporate successor, relying on Armour Handcrafts, Inc. v. Miami Decorating and Design Center, Inc., 99 A.D.2d 521, 471 N.Y.S.2d 607 (1984). Armour Handcrafts held that consent is sufficient to implicate successor jurisdiction, but not that consent is necessary. The merged corporation over whom jurisdiction was initially lacking in that case may have simply failed to meet the standard of § 302(a)(4) (involving control over real property in New York). . Similarly for Karstadt, paying the settlement out of Hertie’s bank was not directed at New York.

PER CURIAM. Mar-Jac Poultry, Inc. appeals the district court’s denial of its motion to hold the government in contempt for including details in a responsive pleading about MarJac’s alleged involvement in illegal acts. The appeal now is moot: we lack jurisdiction to hear the appeal and remand for the district court to dismiss for lack of subject matter jurisdiction. Mar-Jac began this proceeding in 2003 when it filed a Fed.R.Crim.P. 41(g) motion for return of property (books, records, and files) seized by the government from MarJac’s offices in connection with a criminal investigation into illegal money laundering and providing financial assistance to terrorist groups. Mar-Jac argued that the facts alleged in the affidavit used to obtain the search warrant did not show that probable cause existed for the search. The government opposed this motion. In reply, Mar-Jac raised, for the first time, several serious allegations of misconduct about the affidavit and the criminal investigation, including a claim that the government lied by claiming that Mar-Jac had made international fund transfers. On 15 January 2004, the district court granted the government’s motion for leave to file a supplemental opposition, “provided that the Supplemental Opposition contains no details of the pending investigation of Mar-Jac.” The government submitted three copies of its supplemental opposition: one to the judge, containing both ex parte and sealed information; one to Mar-Jac, containing sealed information; and one to the clerk’s office, with the ex parte and sealed information redacted, but with information from its investigation refuting Mar-Jac’s claim that the government lied about MarJac making international fund transfers. Mar-Jac moved to seal the government’s opposition. Mar-Jac asserted that the district court had allowed filing of the supplemental opposition only to the extent that it revealed no details of the pending investigation, but that the copy it received and the copy filed with the clerk’s office contained such details. The district court granted this motion; it ordered the supplemental oppositions and the attached exhibits placed under seal until further order of the court. Mar-Jac then moved the district court to hold the government in civil contempt for disregarding the court’s order forbidding the supplemental opposition to contain details of the pending investigation of Mar-Jac. Mar-Jac asked the district court to render a determination of “coercive civil contempt” to force the government to comply with the district court’s 15 January 2004 order. Mar-Jac requested that the government “be ordered to withdraw its Supplemental Opposition filings, and to submit a pleading in compliance with” the district court’s order. In May 2004, the district court denied Mar-Jac’s Rule 41 motion for return of seized property. Mar-Jac did not appeal the denial of this motion. In June 2004, the court denied Mar-Jac’s motion for contempt. The court then ordered unsealed the version of the supplemental opposition filed with the clerk’s office. The district court denied Mar-Jac’s motion for reconsideration of denial of the contempt motion. Mar-Jac appealed the denial of the contempt motion and of the motion for reconsideration. Mar-Jac argues on appeal that the district court abused its discretion in refusing to hold the government in contempt for including improper information in the supplemental opposition to Mar-Jac’s motion for return of property. The government counters that Mar-Jac’s claim is moot and that we lack jurisdiction over the appeal. We agree with the government. “We review issues of federal subject matter jurisdiction de novo. ” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 408 (11th Cir.1999). “[A] case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief.” Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir.2000) (citation omitted). ‘When events subsequent to the commencement of a lawsuit create a situation in which the court can no longer give the plaintiff meaningful relief, the case is moot and must be dismissed.” Id. The question of mootness is jurisdictional in nature: we may examine it at any time, “regardless of whether the district court considered it.” Nat’l Adver. Co. v. City of Miami, 402 F.3d 1329, 1331-32 (11th Cir.2005). Here, Mar-Jac brought a coercive civil contempt proceeding against the government. Mar-Jac sought to have the government comply with the district court’s 15 January 2004 order: Mar-Jac requested that the government “be ordered to withdraw its Supplemental Opposition filings, and to submit a pleading in compliance with” the district court’s order. Mar-Jac concedes that, in the light of the district court’s decision to unseal the challenged supplemental opposition, retraction of the pleading now would be “ineffectual.” Thus, the district court no longer can give the “meaningful relief’ that MarJac requested through the civil contempt proceeding it initiated. See Fla. Ass’n of Rehab. Facilities, 225 F.3d at 1217. Mar-Jac asserts in its reply brief that we could order the district court to allow Mar-Jac compensatory relief for the alleged losses it suffered to its business reputation as a result of the government’s pleading. See E.E.O.C. v. Guardian Pools, Inc., 828 F.2d 1507, 1515 (11th Cir. 1987) (stating that, where purpose of contempt sanction is compensation, a fine is imposed that generally is payable to the complainant). The problem is that MarJac at no time asked the district court for compensatory relief: instead, Mar-Jac’s contempt proceeding was coercive — not compensatory — in nature. Mar-Jac only has argued for compensatory relief for the first time in its reply brief. We do not consider this argument. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330-31 (11th Cir.2004) (refusing to address issue not raised in the district court). And we are mindful that Mar-Jac’s proceeding to compel the return of property seized by the government — the proceeding out of which the coercive civil contempt proceeding arose — has been terminated. See Petroleos Mexicanos v. Crawford Enter., Inc., 826 F.2d 392, 400 (5th Cir.1987) (writing that, if civil contempt proceeding is coercive, “the general rule is that it is mooted when the proceeding out of which it arises is terminated”; but if civil contempt proceeding is compensatory, “the termination of the underlying action out of which the contempt hearing arose does not moot the contempt proceeding”). In sum, Mar-Jac’s appeal of the denial of its motion to hold the government in civil contempt now is moot: the district court no longer can grant the meaningful relief that Mar-Jac requested; and the underlying return-of-property proceeding has been terminated. Mar-Jac’s civil contempt proceeding is moot: we lack jurisdiction over, and must dismiss, this appeal. See Nat’l Adver. Co., 402 F.3d at 1332. VACATED and REMANDED, with instructions to DISMISS for lack of subject matter jurisdiction. . The district court noted that the government by that time had returned all seized original documents to Mar-Jac, but that Mar-Jac wished the return of the copies of those documents. . Because of Mar-Jac’s concession, we do not consider whether retraction of the allegedly contemptuous pleading at this point could constitute meaningful relief.

PER CURIAM: Appealing the Judgment in a Criminal Case, Francisco Valencia-Sanchez raises arguments that are foreclosed by Almendarez-Torres v. United States, 528 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that a prior conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and not a separate criminal offense. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

PER CURIAM: Appealing the Judgment in a Criminal Case, Teodoro Rocha-Cerda raises arguments that are foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that a prior conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and not a separate criminal offense. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

OPINION OF THE COURT PER CURIAM. Before us are an appeal and cross-appeal from a judgment entered after a bench trial. We affirm. I. Roadmaster, an importer, sued Calmodal, claiming that Calmodal breached an oral agreement dealing with the interstate transport of goods. At trial, Roadmaster argued that Calmodal acted as an interstate carrier, rather than as a broker, as defined by the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 13102. Under the statute, it was necessary for Roadmaster to prove that Calmodal was an interstate carrier rather than a broker in order to recover the damages it alleged. See, e.g., Graham v. Malone Freight Lines, Inc., 314 F.3d 7, 15 (1st Cir.1999) (transportation broker is not liable for the negligence of the trucker it hires as independent contractor). The District Court, finding that Calmodal did not act as an interstate carrier, held in Calmodal’s favor. In doing so, the Court cited testimony by Calmodal’s president that he had merely “arrangfed]” for but had not “provid[ed]” interstate transportation. A15-16. Calmodal counterclaimed, seeking compensation for unpaid invoices submitted to Roadmaster from March 2000 through January 2001. On this issue, the District Court found that Roadmaster indeed owed Calmodal some money, but found no evidence that Calmodal’s damage calculation of $238,165.81 was correct. Because Cal-modal could not provide a reliable accounting of its damages, the Court turned to the testimony of Roadmaster’s Chief Financial Officer and Controller, who admitted that Roadmaster had not paid all of Calmodal’s invoices, and testified that Roadmaster held back $129,269.50 against its damage claim. Based on this testimony, the District Court held that Roadmaster was liable for $129,269.50. Roadmaster filed a timely motion to amend the Court’s findings of fact and conclusions of law pursuant to Fed R. Civ. P. 52(b). Roadmaster argued that, if Cal-modal did not act as an interstate carrier, it must have acted as a broker and that if Calmodal acted as a broker, it did so without a license, violating 49 U.S.C. § 13901 and thus rendering the contract illegal and unenforceable. The District Court denied Roadmaster’s motion, chastising Roadmaster for “taking [the] Court’s findings of fact out of context.” A-22. Both Roadmaster appealed and Calmodal cross-appealed. II. We review the District Court’s denial of the Rule 52(b) motion under an abuse of discretion standard. Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir.1999). Fed R. Civ. P 52(b) states that “[o]n a party’s motion ..., the court may amend its findings — or make additional findings — and may amend the judgment accordingly.” The purpose of this rule is to allow the court to correct plain errors of law or fact, or, in limited situations, to allow the parties to present newly discovered evidence. See Gutierrez v. Ashcroft, 289 F.Supp.2d 555, 561 (D.N.J.2003). Here, Roadmaster presented no new evidence, and the Court saw no errors to correct. Given that Roadmaster based its reconsideration argument on the “implications” it drew from the wording of the District Court’s own findings, it is well within the Court’s broad discretion to clarify that Roadmaster’s interpretation was incorrect. We therefore conclude that the District Court did not abuse its discretion by denying Roadmaster’s Rule 52(b) motion. II. Throughout the bench trial, Road-master argued that, because it contracted with Calmodal as an interstate motor carrier (and not as a broker), Calmodal was liable for the value of the goods transported. Only after the District Court found that Calmodal was not a carrier did Road-master argue, as it does in this proceeding, that the contract was invalid because Cal-modal acted as an unlicensed broker. We hold that Roadmaster has waived this argument because it failed to present it to the District Court. This Court generally does not consider issues that are raised for the first time on appeal. Frank v. Colt Industries, Inc., 910 F.2d 90, 100 (3d Cir. 1990). Roadmaster claims to have presented the issue prior to its Rule 52(b) motion, but an examination of the record of proceedings reveals nothing of the sort. See id.; Kiewit Eastern Co., Inc. v.L & R Construction Co., Inc., 44 F.3d 1194,1203- 04 (3d Cir.1995) (upholding a district court’s finding that a party had waived an issue when memoranda made only vague references to the issue). Thus, by failing to properly raise this argument before the District Court, Roadmaster waived this argument. Even if Roadmaster had not waived the right to present the issue, its argument lacks merit. Roadmaster seeks to invalidate the contract between itself and Cal-modal as illegal, and therefore unenforceable, because Calmodal allegedly violated the Interstate Commerce Act by acting as a broker without a license. However, the Act provides a specific penalty for brokers operating without a license. See 49 U.S.C. § 14901(a) (providing that a person that “does not comply with section 13901 ... is liable to the United States for a civil penalty of not less than $500 for each violation and for each additional day the violation continues”). It is inappropriate to “add judicially to the remedies” by rendering a private contract void when a congressional statute provides specific penalties for violation. See Kelly v. Kosuga, 358 U.S. 516, 519, 79 S.Ct. 429, 3 L.Ed.2d 475 (1959) (holding that a promisor may not avoid performing a legal promise because he elsewhere violated the Sherman Act); Concord Industries, Inc. v. KT.I. Holdings, Inc., 711 F.Supp. 728, 729 (E.D.N.Y. 1989). Because the subject matter of the Roadmaster-Calmodal contract is legal, it is controlled by Kosuga. See Northern Indiana Public Service Co. v. Carbon County Coal Co., 799 F.2d 265, 273 (7th Cir.1986) (declining to void a contract for illegality because the subject matter of the contract was not illegal). IV. Calmodal also appeals the District Court’s damage award of $129,269.50. We review the District Court’s calculation of Calmodal’s damages for clear error. See Lerman v. Joyce Intern., Inc., 10 F.3d 106, 113 (3d Cir.1993). Damages must be proven to a reasonable degree of certainty, though absolute precision is not required. Berg Chilling Systems, Inc. v. Hull Corp. 369 F.3d 745, 764 (3d Cir.2004) (internal citations omitted). Considering the evidence presented at trial, $129,269.50 in damages remains the most reliable calculation available. Calmodal cannot convincingly show that Roadmaster owes a different amount, and we therefore affirm.

PER CURIAM: Michael J. Gill appeals the district court’s Fed.R.Civ.P. 54(b) judgment dismissing several of the claims raised in his 42 U.S.C. § 1983 complaint. Gill contends that the district court erred when it dismissed his claims under 18 U.S.C. §§ 241 and 242 as legally frivolous. He also contends that the district court erred when it dismissed his failure to file criminal charges claims as legally frivolous. Contrary to Gill’s contention, 18 U.S.C. §§ 241 and 242 do not provide a basis for civil liability. See Hanna v. Home Ins. Co., 281 F.2d 298, 303 (5th Cir.1960); Ali v. Shabazz, 8 F.3d 22 (5th Cir.1993) (unpublished). Further, decisions whether to prosecute or file criminal charges are generally within the prosecutor’s discretion, and, as a private citizen, Gill has no standing to institute a federal criminal prosecution and no power to enforce a criminal statute. See Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973); United States v. Batchelder, 442 U.S. 114, 124, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). Therefore, the district court did not abuse its discretion when it dismissed these claims as legally frivolous. See Harper v. Showers, 174 F.3d 716, 718 (5th Cir.1999). Gill also contends that his ineffective assistance of counsel, false charge, unlawful arrest, involuntary confession, right to counsel, and false imprisonment claims were not barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because the criminal charges against him were dismissed. He also contends that because the criminal charges against him were dismissed, he is entitled to pursue his malicious prosecution claims. In support of these contentions, Gill attaches an order dismissing the criminal charges. Gill did not present the order of dismissal to the district court prior to the district court’s judgment, and this court may not consider evidence relating to the dismissal of Gill’s criminal charges furnished for the first time on appeal. See Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n. 26 (5th Cir.1999). Although Gill attached a copy of the order of dismissal to a motion to suppress filed prior to the district court’s denial of Gill’s motions to reconsider and amend the pleadings, Gill did not file an amended notice of appeal from the denial of these motions and, thus, this court does not have jurisdiction to review the district court’s decision. See Fed. R.App. P. 4(a)(4)(B)(ii); Dison v. Whitley, 20 F.3d 185,186 (5th Cir.1994). Gill also contends that the district court erred when it dismissed his slander claims as legally frivolous. His conclusional allegations that the defendants’ slanderous statements resulted in lost friendships, lost livelihood, lost time, and physical injuries are insufficient to state a claim under 42 U.S.C. § 1983. See Arnaud v. Odom, 870 F.2d 304, 307 (5th Cir.1989). Further, Gill’s attempt to incorporate his district court pleadings by reference is an insufficient means of raising his arguments in this court. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Gill also contends that the district court erred when it denied his request for the appointment of counsel. Contrary to Gill’s contention, his civil rights action was not complex, he was educated and able to adequately present his case, and he was not incarcerated or unable to adequately investigate his claims. Therefore, the district court’s refusal to appoint counsel was not an abuse of discretion. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir.1987). Gill does not challenge the district court’s determination that (1) he failed to state a claim against Mary Bednarz, Tom Gill, James “Jimmy” Bednarz, Theresa Beyer, Linda Bednarz, Michael Chandler, Jeremy Judge, and FNU Sanchez and (2) any complaints regarding incidents alleged to have occurred two years before Gill filed the complaint were barred by the applicable statute of limitations. Therefore, these claims are abandoned. See Yohey, 985 F.2d at 224-25. Finally, although Gill reasserts his conditions of confinement, excessive force, denial of medical care, access to the courts, safe and sanitary housing, religious practice, excessive bail, cruel and unusual punishment, and change of social security number claims, these claims were not dismissed in the judgment being appealed, and Gill has not filed an amended notice of appeal from the dismissal of these claims. See Fed. R.App. P. 4(a)(4)(B)(ii). Therefore, this court is without jurisdiction to consider an appeal from the district court’s dismissal of these claims. See Dison, 20 F.3d at 186. Accordingly, the district court’s judgment is AFFIRMED, and Gill’s motion for the appointment of appellate counsel is DENIED. AFFIRMED; MOTION DENIED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

ORDER AND JUDGMENT HENRY, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Euel Donahou, proceeding pro se, filed suit under 42 U.S.C. § 1983. He alleges various violations of his civil rights related to a domestic relations case from 1994 in the district court of Tulsa County, Oklahoma. The federal district court dismissed his § 1983 suit with prejudice after concluding that the Rooker-Feldman doctrine barred review of Mr. Donahou’s claims. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s application of the Rooker-Feldman doctrine to dismiss the suit. As we explain below, we differ with the district court only on a procedural point that is easily accommodated through a minor modification of the district court’s judgment. As so modified, we affirm the judgment. I. BACKGROUND In March 2005, Mr. Donahou filed a § 1983 complaint in federal district court. He sets forth various allegations that state courts improperly ruled on evidentiary issues related to medical expenses for his minor child. Mr. Donahou primarily contends that state courts disregarded evidence that he presented in a 1994 domestic relations case and subsequent state appeals. The complaint also asserts that the Oklahoma “appeals court and judges he” and the Oklahoma “Supreme Court refuse [sic] to hear.” Rec. vol. I, doc. 1, at 3 (Complaint, filed March 16, 2005). Mr. Donahou’s complaint requests sanctions on the defendants and Oklahoma state courts. Several defendants filed motions to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim. In May 2005, the district court granted permission for Mr. Donahou to proceed in forma pauperis, and dismissed his § 1983 claim with prejudice. Its order noted that he had filed two previous cases involving the same subject matter in federal district court; both were summarily dismissed. II. DISCUSSION ‘We review de novo a district court’s dismissal for lack of subject matter jurisdiction.” United States v. Rodriguez-Aguirre, 414 F.3d 1177, 1181 (10th Cir. 2005). “On appeal from the dismissal of a pro se complaint, we must construe the plaintiff’s pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and accept their allegations as true.” Wares v. Simmons, 392 F.3d 1141, 1144 (10th Cir.2004). The liberal-construction principle carries over to pro se appellate filings as well. See Cummings v. Evans, 161 F.3d 610, 613 (10th Cir.1998). Even liberally construing Mr. Donahou’s appellate brief, we only find factual disputes with the earlier state court domestic relations case; he neither argues that the district court erred in dismissing his § 1983 suit for lack of subject matter jurisdiction, nor explains why he can seek review of a final state court judgment in this court. Mr. Donahou appears to contend that his due process rights were violated in the state court domestic relations case, and he asserts jurisdiction in federal court because he exhausted his state appeals. However, “[w]here a constitutional issue could have been reviewed on direct appeal by the state appellate courts, a litigant may not seek to reverse or modify the state court judgment by bringing a constitutional claim under 42 U.S.C. § 1983.” Anderson v. Colorado, 793 F.2d 262, 263 (10th Cir.1986). In Anderson, we upheld the district court’s dismissal of a § 1983 action under the Rooker-Feldman doctrine, noting that the plaintiffs suit “essentially [sought] to undo” the state court decision. Id. at 264. Similarly, Mr. Donahou could have raised his due process challenge in state proceedings, and his § 1983 suit is intertwined with and seeks to undo his earlier state court decision. Thus, we agree with the district court that it lacked subject matter jurisdiction over Mr. Donahou’s complaint. “Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari.” 28 U.S.C. § 1257(a). “Section 1257(a) thus implicitly deprives lower federal courts of subject matter jurisdiction to entertain cases that would entail review of decisions rendered by state courts.” Crutchfield v. Countrywide Home Loans, 389 F.3d 1144, 1147 (10th Cir.2004); see Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44 S.Ct. 149, 68 L.Ed. 362 (1923) (prohibiting lower federal courts from hearing claims actually decided by a state court); see also District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n. 16, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) (extending the holding of Rooker to claims that are “inextricably intertwined” with a state court judgment). However, we further conclude that the district court should not have dismissed Mr. Donahou’s § 1983 claim with prejudice. A federal court applying the Rooker-Feldman doctrine lacks jurisdiction to reach the merits of the case. “A suit dismissed for lack of jurisdiction cannot also be dismissed ‘with prejudice’; that’s a disposition on the merits, which only a court with jurisdiction may render.” Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir.2004). In addition, the Seventh Circuit noted: When the Rooker-Feldman doctrine applies, there is only one proper disposition: dismissal for lack of federal jurisdiction. A jurisdictional disposition is conclusive on the jurisdictional question: the plaintiff cannot re-file in federal court. But it is without prejudice on the merits, which are open to review in state court to the extent the state’s law of preclusion permits. Id.; see also Kenmen Eng’g v. City of Union, 314 F.3d 468, 479, 482 (10th Cir. 2002) (stating that “[t]he Rooker-Feldman doctrine is a jurisdictional prohibition” and affirming the district court’s application of the Rooker-Feldman doctrine and dismissal of the case for lack of subject matter jurisdiction). III. CONCLUSION Accordingly, we AFFIRM the district court’s application of the Rooker-Feldman doctrine to dismiss Mr. Donahou’s § 1983 claim. We MODIFY the district court’s judgment to reflect that all claims asserted in this action are dismissed for lack of federal jurisdiction, and as so modified the judgment is AFFIRMED. See 28 U.S.C. § 2106; Atkinson-Bird v. Utah Div. of Child & Family Servs., 92 Fed. Appx. 645, 648 (10th Cir.2004) (unpublished) (modify ing a district court’s judgment as to application of the Rooker-Feldman doctrine and affirming the judgment as so modified). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

SUMMARY ORDER ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED in part and VACATED in part, and that the case be REMANDED for further proceedings. Plaintiff-appellant Myron Dukes appeals, pro se, from the June 16, 2004 order of the United States District Court for the Southern District of New York (Brieant, J.), granting defendant-appellees’ motion to dismiss. We assume the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal. The district court dismissed Dukes’s claims on two grounds. First, the court found that, as to defendants Selsky, Bodzak, and Holland, Dukes had failed to allege the necessary personal involvement to state a claim under 42 U.S.C. § 1983. Athough Dukes’s complaint states that each of these defendants personally failed to act on knowledge of the assault on Dukes, this is insufficient to state an independent constitutional violation, and no causal relationship between these failures and the assault is alleged. See Poe v. Leonard, 282 F.3d 123, 140 (2d Cir.2002). In addition, Dukes’s allegations of negligent medical treatment by defendant Bodzak are also insufficient to state a claim for deliberate indifference to a serious medical need, which requires more than negligence. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003). Therefore, we affirm the district court’s dismissal of the claims against these defendants. The district court dismissed Dukes’s remaining claims for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a). After the district court’s decision, we issued a series of opinions regarding the exhaustion requirement under the PLRA. See Abney v. McGinnis, 380 F.3d 663 (2d Cir.2004); Giano v. Goord, 380 F.3d 670 (2d Cir.2004); Hemphill v. New York, 380 F.3d 680 (2d Cir.2004); Johnson v. Testman, 380 F.3d 691 (2d Cir.2004); Ortiz v. McBride, 380 F.3d 649 (2d Cir.2004). In light of these recent cases, we remand for the district court to consider, under the framework laid out in Hemphill, whether (1) administrative remedies were “available” to Dukes under the PLRA; (2) defendants are estopped from asserting an exhaustion defense; or (3) special circumstances exist such that Dukes is excused from complying with exhaustion. 380 F.3d at 686. Although we express no opinion as to the outcome of this determination, we direct the district court’s attention to several relevant passages in these decisions. First, our decision in Johnson makes clear that the “PLRA’s exhaustion requirement is designed to ‘afford [] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case,’ ” therefore the standard for exhaustion is more akin to notice pleading than to the “strict compliance” the district court believed was necessary. 380 F.3d at 697 (quoting Porter v. Nussle, 534 U.S. 516, 524-25, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)) (holding that “[ujncounselled inmates navigating prison administrative procedures without assistance cannot be expected to satisfy a standard more stringent than that of notice pleading.”). Second, we noted in Hemp-hill that “there may be a question as to the availability of remedies, since Hemphill received no response to his letter, and there is no indication in the record that his grievance was ever recorded, as required by DOCS regulations.” 380 F.3d at 687 n. 6 (citing cases in other circuits finding that a failure to respond to a grievance renders an administrative remedy unavailable). Finally, the district court should consider whether Dukes’s attempts to follow the grievance procedures set out in 7 N.Y.C.R.R. § 701.7 were, even if imperfect, a reasonable interpretation of these regulations. See Giano, 380 F.3d at 678-79. Because we vacate and remand the relevant portion of the district court’s opinion, we need not reach the issue of whether the district court’s failure to wait until it received plaintiffs response to defendants’ objections, which he was permitted to file under Federal Rule of Civil Procedure 72(b), was harmless. Based on the foregoing, the judgment of the district court is AFFIRMED in part and VACATED in part, and the case is REMANDED for findings on the issues listed above.

PER CURIAM: Deon J. Webb appeals from his 115-month sentence entered after a jury found Webb guilty of possession of a firearm by a convicted felon. On appeal, Webb asserts that his sentence violated United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In addition, he asserts that, on remand, the Booker remedial scheme should not be applied because it violates due process and the Ex Post Facto Clause. We affirm. Webb contends that an enhancement to his sentence based on the district court’s finding that the firearm was used in connection with another felony violated the Sixth Amendment under Booker. Because Webb preserved this issue by objecting below, we review de novo. See United States v. Mackins, 315 F.3d 399, 405 (4th Cir.2003). When a defendant preserves a Sixth Amendment error, we “must reverse unless [we] find this constitutional error harmless beyond a reasonable doubt, with the Government bearing the burden of proving harmlessness.” Id. The Government admits that there was a Sixth Amendment violation in this case since Webb’s sentence was enhanced by a fact not found by the jury. Without the improper enhancement, the upper end of Webb’s guideline range would have been more than a year less than the sentence he received. However, the district court imposed an identical, alternative sentence under 18 U.S.C. § 3553(a) (2000), in the event the guidelines were found to be unconstitutional. Because the district court explicitly stated that it would have imposed the same sentence even under an advisory guideline system, the Sixth Amendment error was harmless. See United States v. Bassett, 406 F.3d 526, 527 (8th Cir.2005). Webb’s remaining issue concerns the proper procedure to be applied at his re-sentencing. However, since there was no reversible error, this claim is moot. Accordingly, we affirm Webb’s sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED To the extent Webb’s due process and ex post facto arguments could be construed to affect the Sixth Amendment error analysis, we find them without merit. See United States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir. 2005), cert. denied, - U.S. -, 126 S.Ct. 432, - L.Ed.2d -, 2005 WL 2493971 (U.S. Oct. 11, 2005) (No. 05-5467).

SUMMARY ORDER Defendants-appellants Makene Jacobs and Daniel Herredia appeal from judgments sentencing each of them to mandatory life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A) for conspiring to possess with intent to distribute 1000 grams of heroin because each had at least two prior felony drug convictions. We assume the parties’ familiarity with the facts in this case, the relevant procedural history, and the issues on appeal. In a concurrently filed opinion, we address and reject the appellants’ claim that prior felony convictions triggering mandatory minimum sentences under 21 U.S.C. § 841(b)(1)(A) must be charged in the indictment and proven to a jury beyond a reasonable doubt. I. Jacobs’ Claims 1. Ineffectiveness of Counsel We previously remanded this case to the district court for a determination on whether Jacobs’ trial counsel was ineffective for failing to file a motion to suppress and failing to investigate the circumstances surrounding the seizure of $2,407 at the time of Jacobs’ arrest. The district court credited the attorney’s testimony that he decided not to make the suppression motion after a purported witness to the seizure told him that she would deliver to the United States Attorney’s Office a letter from Jacobs requesting fraudulent testimony if the attorney asked her or her mother to testify on Jacobs’ behalf. The district court’s factual findings and credibility determination are not clearly erroneous. See United States v. Monzon, 359 F.3d 110, 119 (2d Cir.2004) (giving particularly strong deference to the district court’s credibility determinations). Moreover, on the basis of those facts, the district court’s conclusion that Jacobs had not shown that the suppression motion would have been meritorious and that there was a reasonable probability that the verdict would have been different was not error. See United States v. Matos, 905 F.2d 30, 32 (2d Cir.1990). The district court similarly did not err in concluding that Jacobs’ attorney decided not to make a motion to suppress after having reasonably investigated the issue. Although observing the absence of relevant entries in the attorney’s CJA records, the district court nonetheless credited the attorney’s testimony, as noted above, that he spoke with a purported witness who threatened to supply the prosecution with incriminating evidence if she or her mother were called upon to testify. This credibility determination amply supported the district court’s conclusion that the attorney made reasonable investigations and likewise acted reasonably in deciding not to interview the witness’s mother. Jacobs also argues that his attorney was ineffective by failing to object to, or seek to limit, the admission of a video that showed him selling drugs in a housing project controlled by the Estrada organization to a woman accompanied by two children. Although Jacobs did not raise the issue before the district court, and we are mindful that ineffective assistance claims are often best addressed via collateral attack, see Massaro v. United States, 538 U.S. 500, 508-09, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), we find this to be a case in which we may justifiably resolve an issue not passed on below. See United States v. Aulet, 618 F.2d 182, 186 (2d Cir.1980) (finding it appropriate to address an issue not presented to the district court where ‘“the proper resolution is beyond any doubt” ’ or to do so would be in the interest of justice) (quoting Singleton v. Wulff 428 U.S. 106, 121, 96 S.Ct. 2868, 49 ' L.Ed.2d 826 (1976)). While we doubt that counsel’s performance fell below an objective standard of reasonableness, it is clear that Jacobs cannot establish prejudice. The video was highly probative of Jacobs’ involvement in the Estrada conspiracy, and thus prejudicial to him, but not unfairly so. See Costantino v. Herzog, 203 F.3d 164, 174-75 (2d Cir.2000) (holding that in order to justify exclusion under Fed. R.Evid. 403, the prejudice must be unfair, involving an adverse effect beyond tending to prove a fact or issue that justifies admission). Moreover, even without the portion of the video to which Jacobs now objects, the evidence against him, including the testimony of cooperating witnesses and law enforcement officers, was substantial. Thus, Jacobs cannot establish prejudice. 2. Fair Trial As a preliminary matter, Jacobs waived his request for a new trial by failing to move under Fed.R.Crim.P. 33 within the specified time period. See United States v. Canova, 412 F.3d 331, 344-45 (2d Cir.2005) (declining to rule on whether Rule 33 is jurisdictional in nature but finding its time limits to be “rigid”). Jacobs’ claims would fail even if we were to reach the merits of his arguments. Jacobs’ argument that a government witness proffered perjured testimony is without merit because there is no evidence, other than his own testimony, that the witness committed perjury, and Jacobs provided his account of the arrest and seizure at trial. See United States v. McCarthy, 271 F.3d 387, 399-400 (2d Cir. 2001) (stating test for new trial based on perjured testimony to be, inter alia, whether the witness actually committed perjury and whether the perjury remained undisclosed during trial, and finding that, once aware of conflicting testimony, a jury is entitled to decide the credibility issues). Jacobs identifies twenty-two instances in which the prosecutor used a variant of the pronoun “I” in the summation and claims that this use constituted prosecutorial misconduct. While we have cautioned against excessive use of the personal pronoun, particularly insofar as it makes an issue of the prosecutor’s credibility or implies the existence of extraneous proof, we have found acceptable a prosecutor’s use of the phrases “I submit that” and “I think” when asking a jury to draw inferences based on common sense. United States v. Eltayib, 88 F.3d 157, 173 (2d Cir.1996); United States v. Jaswal, 47 F.3d 539, 544 (2d Cir.1995). Here, in each of the instances Jacobs identifies, the prosecutor was properly discussing the evidence and was not referring to his personal beliefs or to any additional information he might have had. We reject Jacobs’ claim that the prosecutor relied in his summation on an expert who did not testify. The statements at issue appealed only to the jury’s common sense. Moreover, in light of Jacobs’ testimony on direct examination, we find no misconduct in the prosecutor’s cross-examination of Jacobs as to whether he knew one of the arresting officers who did not testify at trial. The district court cured any prejudice resulting from the prosecutor’s elicitation of hearsay testimony from Officer Bailey when it promptly sustained the defense counsel’s objection and struck the testimony from the record. See United States v. Bums, 104 F.3d 529, 538 (2d Cir.1997) (finding prejudice from prosecutor’s cross-examination to be cured when the district court promptly sustained the objection). The prosecutor’s statements during summation challenged by Jacobs on appeal were the kind of rhetorical devices or colorful language a prosecutor is permitted to use on summation. See Jaswal, 47 F.3d at 544. To the extent the prosecutor implied that the judge knew or thought that Jacobs was guilty, it was improper. See United States v. Melendez, 57 F.3d 238, 240-41 (2d Cir.1995). The remark, however, was an aberration in an otherwise fair proceeding, and we do not find that it rose to the level of prejudicial error. See id. at 241 (holding that inappropriate prosecutorial remarks must be examined within the context of the entire trial). 3. Sentencing Jacobs argues that the district court erred by sentencing him to mandatory life imprisonment under 21 U.S.C. § 841(b)(1)(A), claiming that his felony convictions were not “prior” and that the statute is unconstitutionally vague. Jacobs acknowledges that his first argument is foreclosed by United States v. Martino, 294 F.3d 346 (2d Cir.2002), given that he continued to engage in criminal activity after the prior convictions became final. Id. at 350-51. We review Jacobs’ vagueness argument for plain error because he did not raise this challenge below. At sentencing, the district court made factual findings that two of the four drug felonies included in the felony information filed by the United States Attorney’s Office, his 1995 and 1997 convictions, were independent of the Estrada conspiracy charged in the indictment. In light of the district court’s findings, which are not clearly erroneous, the statute as applied to Jacobs cannot be characterized as vague, and we find no plain error. See United States v. Venturella, 391 F.3d 120,134 (2d Cir.2004). II. Herredia’s Claims 1. Severance Where the district court instructed the jury to consider the evidence against each defendant separately and the jury rendered a discriminating verdict, the district court’s denial of Herredia’s motion to sever his trial from that of Jacobs because of the admission of the video showing Jacobs selling drugs to a woman with children did not constitute an abuse of discretion. See United States v. Casamento, 887 F.2d 1141, 1153-54 (2d Cir.1989). 2. Investigator’s Testimony The district court also did not abuse its discretion in excluding the testimony of Herredia’s investigator who would have testified that an interviewee was afraid of Jose Reyes but not of Herredia, with whose brother she had a child. The probative value of this testimony was marginal at best and the testimony had little, if any, bearing on whether Herredia was involved in the conspiracy. 3. Statutory Minimum Herredia challenges the use of his 1988 felony conviction for street-level sales as a prior conviction, but his challenge, even if meritorious, does not alter the application of the mandatory lifetime minimum sentence in light of his other prior convictions. Moreover, the district court did not err in concluding that it lacked authority to depart below the mandatory minimum pursuant to U.S.S.G. § 5K2.0. See United States v. Medley, 313 F.3d 745, 749 (2d Cir.2002) (holding that district courts may depart below a mandatory minimum sentence only where the government files a motion based on substantial assistance pursuant to 18 U.S.C. § 3553(e) or the defendant meets the “safety valve” requirements set forth at § 3553(f)). For the foregoing reasons, the judgments of conviction and sentence of the district court are AFFIRMED. . We note that the district court, following a hearing on Jacobs’ ineffective assistance claim, credited the testimony of Officer Pierce and found that the two witnesses who Jacobs claims could support his testimony would have been unable to corroborate his story as neither was present at the time of the arrest.

ORDER AND JUDGMENT BOBBY R. BALDOCK, Circuit Judge. Defendant Michael Glover stands indicted on one count of robbery in violation of 18 U.S.C. § 2113(a) and one count of robbery and two counts of attempted robbery all in violation of 18 U.S.C. § 1951. Defendant suffers from paranoid schizophrenia which presently renders him incompetent to stand trial. The district court has authorized the Bureau of Prisons to administer antipsychotic drugs to Defendant in an effort to render him competent to stand trial. Defendant appeals. He objects to the forced administration of such drugs claiming they will adversely affect his health. We exercise jurisdiction under the collateral order doctrine, vacate the district court’s order, and remand for further proceedings consistent with United States v. Morrison, 415 F.3d 1180 (10th Cir .2005). Morrison, decided after the district court's order in this case, similarly involved a defendant’s appeal from an order “authorizing involuntary administration of antipsychotic medication to render him competent to stand trial.” Id. at 1181. As here, the district court approved forced medication based on its application of the four-part test set out in Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). We vacated and remanded because the district court did not consider possible alternative bases for administering the drugs before conducting the Sell inquiry. As we explained in Morrison, Sell cautioned that “less troublesome grounds” for administering antipsy chotie drugs to a pretrial detainee may exist apart from the competency inquiry: “A court need not consider whether to allow forced medication for purposes of rendering the defendant competent to stand trial, if forced medication is warranted for a different purpose, such as ... purposes ... related to the individual’s dangerousness, or purposes related to the individual’s own interests where refusal to take drugs puts his health gravely at risk. There are often strong reasons for a court to determine whether forced administration of drugs can be justified on these alternative grounds before turning to the trial competence question.” Morrison, 415 F.3d at 1185 (internal brackets omitted) (quoting Sell, 539 U.S. at 181-82, 123 S.Ct. 2174). Morrison further explained that an alternative inquiry “will not be time wasted even if it does not result in compulsory medication, because ‘the findings underlying such a decision will help to inform expert opinion and judicial decisionmaking in respect to a request to administer drugs for trial competence purposes.’ ” Id. at 1186 (quoting Sell, 539 U.S. at 183,123 S.Ct. 2174). In conducting its Sell inquiry in this ease, the district court noted that in addition to schizophrenia Defendant’s “medical condition allegedly includes a heart attack and a family history of diabetes, along with confirmed hepatitis C and elevated cholesterol.” The court explained the Government’s expert “felt very strongly that defendant should be medicated to help improve his mental condition, that a failure to do so may in fact be harmful to defendant, and that a failure to recommend treatment to a patient in defendant’s condition would certainly fall below the standard of care.” According to the court, Defendant’s expert “[rjather than opine that involuntary administration of psychotropic drugs would risk more harm than benefit, ... testified that giving these medications to defendant was medically appropriate. He simply recommended that a few more tests be run to monitor defendant for adverse side effects.” The district court’s discussion of the experts’ opinions reinforces our view that the court, before proceeding to the Sell inquiry, should have inquired whether the Government could seek forced medication of Defendant on some alternative legitimate ground, and if not, why not. Accordingly, we vacate the district court’s order authorizing the forced administration of antipsychotic drugs to Defendant and remand for further proceedings consistent with the foregoing. VACATED and REMANDED. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. . All this is not to ignore Defendant’s liberty interest in freedom from the unwanted administration of drugs. See Washington v. Harper, 494 U.S. 210, 221-22, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). Any decision to administer drugs to Defendant, whether based on Sell’s four-part test or some alternative ground, must have some reasonable relationship to a legitimate state interest. Id. at 223, 110 S.Ct. 1028.

PER CURIAM: Appealing the Judgment in a Criminal Case, Jesus Manuel Ek-Canul raises argu ments that are foreclosed by Almendarez-Torres v. United States, 528 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which held that a prior conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and not a separate criminal offense. The Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

ORDER AND JUDGMENT CARLOS F. LUCERO, Circuit Judge. The State of Oklahoma, ex rel. the Board of Regents of the University of Oklahoma, ex rel. Rogers State University (“RSU”), appeals from the district court’s dismissal of this action pursuant to Fed. R.Civ.P. 12(b)(5). The court based its order of dismissal on RSU’s failure to effect timely service of process on the defendant. We REVERSE and REMAND for further proceedings. On July 14, 2004, RSU filed a civil action against Joshua Stephen Fellman. The complaint alleged that Fellman, a former RSU student and employee, accessed RSU computers without authorization, obtained confidential information, intercepted electronic communications, and interfered with or obstructed computer operations on RSU’s computer network. The complaint raised various statutory and common law claims. RSU filed an Application for Enlargement of Time to Serve Summons and Complaint on November 12, 2004, the last day of the 120-day time period for service set forth in Fed.R.Civ.P. 4(m), asking for a twenty-day good-cause extension. The district court entered a minute order on November 22, 2004, that did not explicitly grant or deny the application. It read, in relevant part: “The Court directs Plaintiff to effect service of process on Defendant forthwith. This Order does not preclude Defendant from moving for dismissal pursuant to Fed.R.Civ.P. 4(m) in the event that Plaintiffs service on Defendant is not proper under the Federal Rules.” On December 3, 2004, Fellman moved to dismiss the action on the ground that service was insufficient. In the motion, Fell-man stated that he received a copy of the complaint by mail, return receipt requested, on November 15, 2004, after the expiration of the 120-day limit. The district court granted the motion, stating, “[ajfter a review of the record, the Court finds that proper service was not effectuated within 120 days. Accordingly, pursuant to Fed. R.Civ.P. 12(b)(5), Defendant’s Motion ... is hereby granted. Plaintiffs action is hereby dismissed without prejudice.” RSU appeals. We review the district court’s dismissal of an action for untimely service of process for abuse of discretion. ARW Exploration Corp. v. Aguirre, 45 F.3d 1455, 1459 (10th Cir.1995). “A district court that does not exercise its discretion, or makes a decision without providing reasons, abuses that discretion.” Id. Federal Rule of Civil Procedure 4(m) reads, in relevant part: If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period. Fed.R.Civ.P. 4(m) (emphasis added). Rule 4(m) makes clear that a district court must extend the time for service if a plaintiff shows good cause. See Espinoza v. Unit ed States, 52 F.3d 838, 841 (10th Cir.1995) (holding that, upon a showing of good cause, Rule 4(m)’s exception is mandatory). Furthermore, “[i]f the plaintiff fails to show good cause, the district court must still consider whether a permissive extension of time may be warranted. At that point the district court may in its discretion either dismiss the case without prejudice or extend the time for service.” Id. The district court’s dismissal order does not indicate how the court made the good cause determination, or whether it considered good cause at all. The only finding the court made as a basis for dismissal was that “proper service was not effectuated within 120 days.” “Without anything in the record to indicate how the district court made its determination with respect to the good cause exception — assuming it did — appellate review is impossible.” ARW Exploration Corp., 45 F.3d at 1459. The court, therefore, abused its discretion in dismissing the case without making the required good-cause determination. It further abused its discretion by failing to consider whether a permissive time extension was warranted. Espinoza, 52 F.3d at 841. We emphasize that this is not a case where the court made an explicit finding that the plaintiff failed to show good cause but declined to elaborate on its reasoning. Rather, the district court made no determination that RSU lacked good cause. The judgment of the district court is REVERSED and the case is REMANDED for a determination of whether good cause exists for extending the 120-day deadline for service of process or, if no good cause exists, whether a permissive extension of time is warranted. We DENY Fellman’s Opposed Request for Judicial Notice in Support of Brief because none of the documents of which Fellman asks us to take judicial notice is necessary to our disposition of this appeal. The case is unanimously ordered submitted without oral argument pursuant to Fed. R.App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. . Based on the foregoing disposition, it is unnecessary to consider RSU’s alternative argument that dismissal was unjust because the statute of limitations would bar refiling the action. Additionally, we reject RSU’s argument that the district court had granted RSU’s application for an enlargement of time. The court neither granted nor denied the application. Rather, it directed RSU to "effect service of process on Defendant forthwith” subject to a motion to dismiss if service was "not proper under the Federal Rules.”

OPINION MCKEE, Circuit Judge. Ket Fung Tjhia petitions for review of a decision of the Board of Immigration Appeals affirming the decision of an Immigration Judge denying Tjhia’s application for asylum and withholding of removal. For the reasons that follow, we will deny the petition for review. I. Because we write primarily for the parties, we will recite only the facts and procedural history necessary that may be helpful to our brief discussion. Tjhia entered the United States on December 11, 1997, but he did not file an application for asylum until June 20, 2001. Absent circumstance not relevant here, an alien seeking asylum must file an application for relief within one year of entering the United States, 8 U.S.C. § 1158(a)(2)(B). See 8 U.S.C. § 1158(a)(2)(D). The IJ ruled that Tjhia’s application for asylum was untimely, and we do not have jurisdiction to review that determination. See 8 U.S.C. § 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003). However, Tjhia’s delay in filing for asylum does not deprive us of jurisdiction to review denial of his application for withholding of removal. To qualify for withholding of removal under 8 U.S.C. § 1231(b)(3)(A), petitioner must establish by a “clear probability” that his life or freedom would be threatened because of his race, religion, nationality, membership in a particular social group, or political opinion if he were removed to Indonesia. Tarrawally, 338 F.3d at 186. “A clear probability means ‘more likely than not.’ ” Id. (quoting INS v. Stevic, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984)). We conclude that substantial evidence supports the IJ’s finding that Tjhia has not met his burden of demonstrating a clear probability that his life would be threatened if he was returned to Indonesia. In his asylum application, Tjhia described an incident that he claims occurred in December 1996 when he was walking with friends on his way home, and was confronted by strangers asking for money. Tjhia refused to give them money, and a mob arrived and began talking about killing Chinese. However, in his testimony at the hearing he did not make any reference to that incident at all. Yet, even if we credit the information contained in his asylum application, Tjhia has only established one incident, and that does not meet his burden. Moreover, Tjhia testified that while in Indonesia he was employed by a stationary company from 1986 to 1991 when he opened his own office supply business. He testified that he operated this business for four years but his business was down because the violence and dangerous conditions in Indonesia made it difficult to supply his customers. That hardly establishes a clear probability that his life would be threatened because of a protected status under immigration law. Rather, the evidence shows that his business problems were due to the general turmoil in the country at the time. Finally, the fact that Tjhia’s putative wife (the mother of his three children), his mother and his three siblings are currently living in Indonesia without encountering any problems seriously undermines his claim that of a clear probability of harm. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005) (“when family members remain in petitioner’s native country without meeting harm, and there is no individualized showing that petitioner would be singled out for persecution, the reasonableness of petitioner’s well-founded fear of future persecution is diminished”). II. For all of these reasons, we will deny the petition for review. . Claims of violence or other harm perpetrated by civilians against the petitioner’s group does not constitute persecution unless such acts are "committed by the government or forces the government is either 'unable or unwilling’ to control.” Abdulrahmam v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003). There is no evidence here that establishes that the government of Indonesia is unable or unwilling to control violence against Chinese Christians in Indonesia. . One matter remains. On May 12, 2004, Tjhia filed a motion captioned "motion to reconsider/reopen” the BIA’s April 13, 2004 decision, alleging ineffective assistance of counsel and changed country conditions. The BIA denied that motion on September 21, 2004. Tjhia did not file a petition for review from the denial of his motion. Thus, judicial review of the denial is foreclosed. See 8 U.S.C. § 1252(b)(1); Stone v. INS, 514 U.S. 386, 405-06, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).

SUMMARY ORDER UPON DUE CONSIDERATION of this petition for review of the Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED. Mikel Paluca, through counsel, petitions for review of the BIA decision affirming the Immigration Judge’s (“IJ”) decision denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We assume the parties’ familiarity with the underlying facts and procedural history. This Court reviews the IJ’s decision where, as here, the BIA summarily affirmed the IJ decision without opinion. See Arango-Aradondo v. INS, 13 F.3d 610, 613 (2d Cir.1994). This Court reviews an IJ’s factual findings under the substantial evidence standard, under which “a finding will stand if it is supported by ‘reasonable, substantial, and probative’ evidence in the record when considered as a whole.” Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (quoting Diallo v. INS, 232 F.3d 279, 287 (2d Cir.2000)). The same standard of review applies to factual questions involved in the denial of withholding of removal, and withholding or deferral of removal under the CAT. See Melendez v. United States Dep’t of Justice, 926 F.2d 211, 218 (2d Cir.1991). In this case, the IJ’s findings of fact were substantially supported by the record as a whole. The IJ’s factual determination that Paluca had not experienced, and was not likely to experience, persecution in Albania on account of his religion, political opinion, or membership in a particular social group was amply supported by his failure to allege that he had ever been harmed or threatened on one of these bases. To the extent that his claim rested on the persecution his family members experienced under the Communist regime, the IJ reasonably found that the election of a democratic regime in 1992 and his family members’ failure to testify or submit affidavits in support undercut his claim. Paluca failed to raise the CAT claim in his appeal, and therefore it is deemed waived. See 8 U.S.C. § 1252(d); Mejia-Ruiz v. INS, 51 F.3d 358, 362 (2d Cir.1995). Paluca’s constitutional challenge to the BIA’s summary affirmance procedure also fails. This circuit, as well as the nine other circuits that have addressed the issue, have all held that the “streamlining regulations’ provision for summary affirmance by a single Board member does not deprive an asylum applicant of due process.” Zhang v. U.S. D.O.J., 362 F.3d 155, 156-57 (2d Cir.2004). The decision of the BIA is accordingly AFFIRMED and the Motion for a Stay of Removal is DENIED.

PER CURIAM: Willie Lawson appeals his convictions and 684-month (57-year) sentence for conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371 (2000), two counts of armed bank robbery in violation of 18 U.S.C. §§ 2, 2113(a), (d) (2000), and two counts of using or carrying a firearm during or in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (West 2000 & Supp.2005). For the reasons that follow, we affirm Lawson’s convictions and sentence. Lawson first argues that the district court erred in denying his motion to dis miss the indictment in which he asserted that this indictment charged him with the same conspiracy charge for which he was convicted in the Eastern District of Virginia. Applying the factors set forth in United States v. MacDougall, 790 F.2d 1135, 1144 (4th Cir.1986), and considering the totality of the circumstances, we find that the evidence actually used to prosecute the earlier conspiracy offense would not be sufficient to convict Lawson of the conspiracy charged in the instant case. Therefore, the underlying prosecution does not violate double jeopardy. See United States v. Ragins, 840 F.2d 1184, 1188 (4th Cir.1988). The next issue presented on appeal is Lawson’s challenge to the sufficiency of the evidence to support his convictions for using and carrying a firearm. Viewing the evidence in the light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we find that the evidence was sufficient both as to Lawson’s identity and to his use of a firearm. See United States v. Redd, 161 F.3d 793, 797 (4th Cir.1998); United States v. Jones, 907 F.2d 456, 460 (4th Cir.1990). Accordingly, we affirm the district court’s denial of Lawson’s motion for judgment of acquittal. See United States v. Wilson, 118 F.3d 228, 234 (4th Cir.1997) (providing standard). Next, Lawson contends that the district court erred in denying his motion to dismiss the indictment based on alleged violations of Fed.R.CrimJP. 5 and 40. Lawson asserts that he was improperly taken to a magistrate judge in Virginia following his arrest in the District of Columbia on a warrant issued in Virginia. Rules 5(a) and 40(a) of the Federal Rules of Criminal Procedure in effect at the time of Lawson’s arrest on the Virginia charge required that anyone arrested in a district other than that in which the offense was allegedly committed be taken “without unnecessary delay before the nearest available federal magistrate judge.” Fed. R.Crim.P. 5(a), 40(a). Where the alleged delay does not result in unwarranted interrogation, no prejudice results, and any violation of Rule 5(a) does not require dismissal of the indictment. See United States v. Neiswender, 590 F.2d 1269,1271-72 (4th Cir.1979); Tarkington v. United States, 194 F.2d 63, 67-68 (4th Cir.1952). Because Lawson does not allege any prejudice to the underlying case from the alleged violations in his prosecution in the Virginia case, we uphold the district court’s denial of his motion to dismiss the indictment. To the extent that Lawson asserts that the violations of Rule 5 and 40 in the Virginia prosecution denied him a speedy trial in this prosecution, we find no merit to that claim. See 18 U.S.C.A. 3161(c)(1) (West Supp.2005). Lawson next challenges the district court’s imposition of a 25-year sentence on his conviction on count three of the indictment, the first § 924(c) count. He asserts that, because his § 924(c) conviction in the Virginia case was not final, it could not be treated as a prior conviction at sentencing in the Maryland case. We agree with the district court that the fact that the prior conviction was on appeal did not preclude the application of the enhanced penalty provision. See Deal v. United States, 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993); United States v. Neal, 976 F.2d 601, 602-03 (4th Cir.1992). In a supplemental brief, Lawson challenges his sentence on the bank robbery offenses. First, he contends that his sentence was enhanced based on judicial fact-finding, in violation of his Sixth Amendment rights. However, because the sentence imposed did not exceed the maximum sentence authorized by the jury’s verdict alone, see United States v. Evans, 416 F.3d 298, 300-01 & n. 4 (4th Cir.2005), there was no error, much less plain error. United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir.2005) (providing for plain error review when issue raised for first time on appeal). Lawson also asserts that he was sentenced under the federal Sentencing Guidelines and that the Guidelines are unconstitutional after Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that the mandatory manner in which the federal Sentencing Guidelines required courts to impose sentencing enhancements based on facts found by the court by a preponderance of the evidence violated the Sixth Amendment. Id. at 746, 750 (Stevens, J., opinion of the Court). The Court remedied the constitutional violation by severing two statutory provisions, 18 U.S.C.A. § 3553(b)(1) (West Supp.2005) (requiring courts to impose a sentence within the applicable guideline range), and 18 U.S.C.A. § 3742(e) (West 2000 & Supp. 2005) (setting forth appellate standards of review for guideline issues), thereby making the Guidelines advisory. Hughes, 401 F.3d at 546 (citing Booker, 125 S.Ct. at 757, 764 (Breyer, J., opinion of the Court)). Although it was error for Lawson to be sentenced under the Guidelines as mandatory, he has failed to show that this error affected his substantial rights. See United States v. White, 405 F.3d 208, 223 (4th Cir.2005) (holding that defendant bears burden of showing that error “ ‘affected the outcome of the district court proceedings’” (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993))). Our review of the record “provides no nonspeculative basis for concluding that the treatment of the [Guidelines as mandatory ‘affect[ed] the district court’s selection of the sentence imposed.’ ” White, 405 F.3d at 223 (quoting Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992) (alteration in original)). Because we find that Lawson has failed to show that his substantial rights were affected by the district court’s error in imposing a sentence under the Guidelines as mandatory, we affirm Lawson’s sentence. See White, 405 F.3d at 224-25; Fed.R.Crim.P. 52(b); Olano, 507 U.S. at 735, 737, 113 S.Ct. 1770. In conclusion, we affirm Lawson’s convictions and sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED A petition for certiorari was pending in the Supreme Court on the date of Lawson's sentencing in the Maryland case. The Supreme Court denied certiorari on October 6, 2003.

ORDER KOZINSKI, Chief Judge: A misconduct complaint has been filed against a district judge. Complainant filed a pro se federal habeas petition, and the matter was assigned to the subject judge. The judge also presided over a state civil suit by complainant prior to joining the federal bench. The bulk of complainant’s allegations involve the judge’s rulings as a state court judge in the earlier proceeding. Because the plain language of the Judicial Conduct and Disability Act limits its scope to conduct by federal judicial officers, 28 U.S.C. §§ 351(a) and (d)(1), these allegations must be dismissed. See also Judicial-Conduct Rules 4 and 11(c)(1)(G); In re Complaint of Judicial Misconduct, No. 06-89087 (9th Cir. Jud. Council 2007). Congress limited the scope of misconduct proceedings in order to preserve the constitutional scheme of presidential appointment and legislative confirmation: The judicial branch has no constitutional role in considering the fitness of an individual to assume judicial office. Congress noted the differing roles of the coordinate branches in relation to judicial fitness, and recognized that “[b]e-cause of the separation of powers principle established by the Constitution, these roles must remain separate.” In re Charge of Judicial Misconduct, No. 83-8037, infra pp. 1154-55 (9th Cir. Jud. Council 1986) (Browning, C.J.) (quoting H.R.Rep. No. ISIS at 5). It “would be incompatible with this constitutional principle” to sanction a judge for conduct preceding confirmation. Id. at 1155. Chief Judge Browning expounded on these principles in an opinion that was rendered long before orders in judicial misconduct cases were published on our web page. Indeed, at the time, the internet was little more than an obscure government research project. Because the opinion contains much useful analysis on this issue, it is appended and incorporated in part by reference. To the extent complainant attempts to allege that the judge should have recused himself from the habeas petition, this allegation relates directly to the merits of the judge’s rulings and must be dismissed. See 28 U.S.C. § 352(b)(l)(A)(ii); Judicial-Conduct Rules 3(h)(3)(A) and 11(c)(1)(B). A misconduct complaint is not a proper vehicle for challenging the merits of a judge’s rulings. See In re Charge of Judicial Misconduct, 685 F.2d 1226, 1227 (9th Cir. Jud. Council 1982). Complainant’s allegations against other state court judges are also dismissed, as the Act only applies to federal judges. See Judicial Conduct Rule 4. DISMISSED. APPENDIX UNITED STATES JUDICIAL COUNCIL FOR THE NINTH CIRCUIT IN RE CHARGE OF JUDICIAL MISCONDUCT Filed March 5,1986 Before: James R. Browning, Chief Judge No. 83-8037 ORDER A complaint has been filed against a district judge in this circuit pursuant to the Procedures of the Ninth Circuit Relating to the Handling of Complaints of Judicial Misconduct Under 28 U.S.C. § 372(c), 28 U.S.C., 9th Cir.R.App. B (West Supp. 1985), issued under the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980. 28-U.S.C. §§ 332, 372, 604 (1982). Complainant alleges acts of misconduct over a period of years. The allegations relate to conduct before the judge was appointed to the bench, and to both official and non-official conduct after his appointment. The difficult question posed by this complaint is whether the Act covers all of these allegations or only those relating to misconduct that adversely affects the functioning of the courts or the performance by the judge of his official duties. To resolve this question, I will first discuss the legislative history of the Act and then address the specific allegations of the complaint. I. The legislative history of the Act reflects a long and hotly debated effort by Congress to balance a perceived need for public accountability of members of the federal judiciary against the need to preserve the independence of the judiciary and maintain the constitutional separation of powers. The debates focused on three primary elements of several legislative proposals: the forum that would consider complaints of judicial misconduct, the sanctions that would be available, and the types of conduct that would be covered. With regard to the conduct covered, congressmen, witnesses and commentators were divided into two camps. One group believed public accountability and maintenance of public confidence in the judiciary were the primary goals, and the legislation therefore should create a system to deal with all allegations that a judge had engaged in conduct or was subject to a condition that would undermine public respect and trust in the judge and, because of his presence on the bench, in the judicial process itself. The model for this approach was found in state judicial disciplinary ' systems, which typically reached “willful misconduct in office, willful and persistent failure to perform duties of the office, habitual intemperance, or other conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” S.Rep. No. 1035, 95th Cong., 2d Sess. 32-33 (1978) (hereinafter S.Rep. No. 1035). The other group, including the Judicial Conference of the United States, argued that the legislation should provide an administrative process for solving problems that involved interference with the effective conduct of the business of the courts, specifically problems created by the conduct or condition of a judge that impeded the fair and prompt disposition of litigation. The concern for the public’s perception of the courts was tempered by a concern for preserving the independence of federal judges by limiting their exposure to personal harassment and abuse. The judicial councils of the circuits had exercised such administrative oversight for forty years under the authority of 28 U.S.C. § 332 (1964) (amended 1980), which required the councils to “make all necessary orders for the effective and expeditious administration of the business of the courts.” Proponents of this approach argued that no additional statutory authority was necessary to assure judicial accountability or, at most, that codification of existing procedures would suffice. The provisions ultimately included in the Act conformed more nearly to this administrative approach. A. Predecesssors to S. 1873 In 1966 the Senate Subcommittee on Improvements in Judicial Machinery of the Committee on the Judiciary, under the chairmanship of Senator Tydings, began hearings on the problem of the “unfit judge.” See Judicial Tenure Act: Hearings on S. 1123 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm, on the Judiciary, 95th Cong., 1st Sess. 61-62 (1977) (statement of Sen. Tydings) (hereinafter 1977 Senate Subcomm. Hearings). After two years of study, Senator Tydings introduced the first judicial conduct and disability legislation of recent years, S. 3055, 90th Cong., 2d Sess. (1968), subsequently amended and reintroduced as S. 1506, 91st Cong., 1st Sess. (1969). S. 1506 proposed creation of a Commission on Judicial Disabilities and Tenure with authority to investigate “the official conduct of any judge of the United States ... to determine whether the conduct of such judge is and has been consistent with the good behavior required by [article III of the Constitution].” Id., reprinted in 1977 Senate Subcomm. Hearings 64, 65. Senator Tyding’s bill, which was heavily influenced by state models, particularly California’s Commission on Judicial Qualifications, provided for removal of misbehaving or disabled federal judges. 1977 Senate Subcomm. Hearings at 62 (statement of Sen. Tydings). The legislation did not receive substantial support, primarily because of opposition from those who believed impeachment to be the only means by which federal judges could be removed from office under the Constitution. Id. at 63, 76-77. The next major attempt to create a statutory system of judicial discipline occurred in 1975 when Senator Nunn introduced S. 1110, 94th Cong., 1st Sess. (1975), the Judicial Tenure Act. That Act, like its predecessor, proposed an independent review council to investigate and. remove federal judges for conduct “inconsistent with the good behavior required by article III section 1 of the Constitution.” S. 1110 §§ 2(a), 3(a)(1), reprinted in Judicial Tenure Act: Hearings on S. 1110 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm, on the Judiciary, 94th Cong., 2d Sess. 4-5, 16 (1976) (hereinafter 1976 Senate Subcomm. Hearings). Again the hearings focused on the constitutionality of this type of disciplinary scheme, with little elaboration on the specific conduct that would violate the “good behavior” standard. One witness before the Subcommittee urged that the “good behavior” standard be defined in the statute as including criminal misconduct in office, embezzlement, bribery, corruption, abuse of office, neglect of duty, habitual intemperance, 1976 Senate Subcomm. Hearings at 94-96, 112-13(testimony of Prof. Raoul Berger). Other witnesses suggested that the standard include conduct prejudicial to the administration of justice which brings the judicial office into disrepute. Id. at 48 (statement of John A. Sutro, Chairman, Standing Committee on Judicial Selection, Tenure and Compensation of the American Bar Association), 119(statement of Jack E. Frankel quoting the standards of the California Commission on Judicial Qualifications). Without further definition of the “good behavior” standard, the Subcommittee reported S. 1110 to the Judiciary Committee, but Congress adjourned without action by the full Committee. In 1977 Senators Nunn and DeConcini introduced S. 1423, 95th Cong., 1st Sess. (1977) , a second Judicial Tenure Act. S. 1423 was substantially the same as prior proposals; it provided for an independent commission to consider complaints for- violation of the “good behavior” standard with removal as a possible sanction. 1977 Senate Subcomm. Hearings at 1 (statement of Sen. DeConcini). For the first time, the legislation defined conduct inconsistent with the “good behavior” standard as including “wilful misconduct in office, wilful and persistent failure to perform duties of the office, habitual intemperance, or other conduct prejudicial to the administration of justice that brings the judicial office into disrepute,” S. 1423 § 2(a), reprinted in id. at 14-15—the standard common in state statutes. Although some witnesses argued that the constitutional phrase “good behavior” should be left undefined, see 1977 Senate Subcomm. Hearings at 113-14(statement of J. Michael McWilliams on behalf of the Standing Committee on Judicial Selection, Tenure and Compensation of the American Bar Association), the argument was rejected. S.Rep. No. 1035 at 33. By adopting the standard used in many state judicial disciplinary systems, the Committee believed a body of case law would be available to aid the judicial discipline tribunal in applying the statute to specific cases. Id. at 33-36. The Senate Committee Report on S. 1423 also quotes the statement from the California Supreme Court’s opinion in Geiler v. Commission on Judicial Qualifications, 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1 (1973), that the disrepute standard covers “unjudicial conduct committed in bad faith by a judge not then acting in a judicial capacity.” S.Rep. No. 1035, at 34. S. 1423 was approved by the Senate in the 95th Congress, but received no attention in the House. B. S. 1873 The Judicial Conference had approved the Nunn-DeConcini bill “in principle” before it passed the Senate. After passage, however, the Conference restated its position to make it clear that the Conference disapproved any legislative proposal that included power to remove a federal judge by means other than impeachment. Report of the Proceedings of the Judicial Conference of the United States 49-50(Sept.l978). In view of the Conference’s opposition, it appeared unlikely the House of Representatives would approve any proposal permitting removal. The Senate Subcommittee on Improvements in Judicial Machinery then began work on S. 1873, 96th Cong., 1st Sess. (1979), a proposed compromise judicial tenure and discipline bill. S. 1873 did not allow for removal of misbehaving or disabled judges, nor did it create an independent review commission outside the judiciary. The bill placed primary responsibility for resolution of allegations against federal judges in the judicial council of each circuit, but created a centralized Court on Judicial Conduct and Disability to review council action. S.Rep. No. 362, 96th Cong., 1st Sess. 2-3 (1979) (hereinafter S.Rep. No. 362). The early draft of S. 1873 also replaced the “good behavior” standard of prior proposals with the requirement that a complainant allege conduct “inconsistent with the effective and expeditious administration of the business of the courts” or “prejudicial to the administration of justice by bringing the judicial office into disrepute.” The first element of this new dual standard was taken from the provision of the Administrative Office Act of 1939 which created the judicial councils of the circuits and gave them authority to “make all necessary and appropriate orders for the effective and expeditious administration of the courts within the circuit.” 28 U.S.C. § 332 (1964) (amended 1980); see generally Administration of United States Courts: Hearings on H.R.- 2973 and H.R. 8999 Before the House Comm, on the Judiciary, 76th Cong., 1st Sess. (1939); Administration of United States Courts: Hearings on S. 188 Before a Subcomm. of the Senate Comm. on the Judiciary, 76th Cong., 1st Sess. (1939). The second element of the dual standard utilized language from state models such as that of California, and focused on the public perception of the judiciary rather than on the effective functioning of the judicial system. The Judicial Conference opposed both the creation of a centralized Court on Judicial Conduct and Disability and the adoption of a dual standard for determining the conduct covered. The Conference pointed out to Congress that the circuit council, acting solely under the administrative authority conferred upon them by section 332, and without outside intervention, had established administrative procedures for handling complaints of judicial misconduct, and had for many years dealt quietly, informally, and effectively with “problem judges”—disabled judges, alcoholic judges, senile judges, procrastinators. The Judicial Conference recommended to Congress that if any legislation were enacted, it be modeled on this existing procedure. Judicial Tenure and Discipline-1979-80: Hearings Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm, on the Judiciary, 96th Cong., 1st and 2d Sess. 56-58(testimony of Judge Hunter); 62-63(March 1979 Resolution of the Judicial Conference of the United States) (hereinafter 1979-80 House Subcomm. Hearings ). During the full committee markup the “disrepute” element of the dual standard was deleted from the bill. As Senator Thurmond later stated on the Senate floor, “[t]his so-called disrepute standard was dropped because it w;as felt that this standard could be too intrusive on the judge’s personal life and was subject to possible abuse.” 125 Cong. Rec. 30,050 (1979) (statement of Sen. Thurmond). The Judiciary Committee’s Report to the Senate contains ambiguous and contradictory statements regarding the conduct covered. The Report first states that the council may dismiss any complaint that is “without jurisdiction” or is “insufficient under the standards prescribed by the legislation,” that is, which does not allege “conduct inconsistent with the effective and expeditious administration of the business of the courts,” S.Rep. No. 862 at 2, and that “[cjomplaints relating to the conduct of a member of the judiciary which are not connected with the judicial office or which do not affect the administration of justice are without jurisdiction....” Id. at 3. The report also states that the object of S. 1873 “is to remedy matters relating to a judge’s condition or conduct which interferes with his performance and responsibility.” Id. at 6. Other statements in the Report, however, point in a different direction. After stating that the legislation was primarily intended to reach conduct which falls short of that required for impeachment, the Report notes “[tjhere have been documented instances and allegations of judicial misconduct ... that do not rise to the level of constitutional prescription found in Article II, section 4, but which do bring the Federal judiciary into disrepute. Such judicial misbehavior should be investigated and, when warranted, remedied.” Id. at 5. The sectional analysis in the Senate Report also suggests a broad coverage for the Act similar to that of state systems, not limited to conduct interfering with the effective operation of the courts but extending to any conduct bringing the judicial office into disrepute: The standards spelled out in the statute are to be given their common usage and already existing statutory understanding. ... “Effective and expeditious administration of the business of the courts” is language already found in section 332 of title 28 and. is intended to include willful misconduct in office, willful and persistent failure to perform duties of the office, habitual intemperance, and other conduct prejudicial to the administration of justice that brings the judicial office into disrepute. Each of these terms are terms which have been in use in several states which have existing judicial disability and disciplinary systems. Further, it is the intention of the Committee that the judicial council may consider, but is not bound by, other factors in determining whether the behavior of the judge is consistent with that specified in the bill. They include the following: (1) the Cannons [sic] of Judicial Ethics of the American Bar Association and the Code of Judicial Conduct for the United States Judges, as approved by the Judicial Conference of the United States, (2) Resolutions of the Judicial Conference of the United States relating to judicial conduct, and (3) Acts of Congress relating to judicial conduct. The Committee believes that the use of these grounds as specified in state law tends to make them “terms of art”. This offers a body of case law which will aid the judicial councils and the Court on Judicial Conduct and Disability in applying federal law to specific cases as they arise. If it is true that the specified grounds for [sic] becoming “terms of art”, the Committee does not believe that it should attempt in this report to add a legislative gloss to the terms. The testimony given at the committee hearings on this bill and its predecessor will aid in interpretation. Id. at 8-9. Much of this discussion in the Senate Report on S. 1873 was' taken verbatim from the Senate Committee Report on S. 1423, the predecessor to S. 1873. See S.Rep. No. 1035 at 32-36. As we have seen, however, the earlier statute, S. 1423, adopted the “good behavior” standard and defined it, following state models, as including “conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” Id. at 32 (emphasis added). S. 1873, on the other hand, replaced the “good behavior” language with the phrase “conduct inconsistent with the effective and expeditious administration of the business of the courts,” and deleted the reference to conduct “that brings the judicial office into disrepute.” Ignoring these changes, the Report on S. 1873 simply copied the language used in the earlier report. S.Rep. No. 362 at 8-9. The Senate Report on S. 1873 suggests that in determining whether particular conduct is covered, the chief judges and judicial councils of the circuits should give the statutory standards “their common usage and already existing statutory understanding.” Id. Unfortunately, it appears from the procedures formulated by the circuits for handling complaints of judicial misconduct under section 332 prior to the enactment of the statute, that there was no consensus among them as to the meaning of the phrase in section' 332 in relation to misconduct by judges. The focus of the debate in the Senate was the constitutionality of any legislation permitting discipline of federal judges by means other than impeachment. See 125 Cong. Rec. 30,044-64 (1979) (statements of Sen DeConcini, Sen. Thurmond, Sen. Lax-alt, Sen. Mathias, Sen. Heflin, Sen. Nunn, & Sen. Bayh). Little was said about the kind of conduct that was to be subject to the procedures established by the Act. Two senators commented on the subject. As noted earlier, Senator Thurmond called attention to the deletion by the Judiciary Committee of the “disrepute” standard and the reasons for that deletion: I feel it is also appropriate to comment on the standards which were not included in the final draft of S. 1873. During the full committee markup of this bill, the members of the committee agreed, at the suggestion of the senior Senator from Indiana, to delete a third standard which allowed the filing of a complaint if the judge had engaged in conduct prejudicial to the administration of justice by bringing the judicial office into disrepute. This so-called disrepute standard was dropped because it was felt that this standard could be too intrusive on the judge’s personal life and was subject to possible abuse. The deletion of the disrepute standard was also requested by the Administrative Office of the U.S. Courts. 125 Cong. Rec. 30,050 (1979) (statement of Sen. Thurmond). Senator Bayh commented on his understanding of the standard: The bill before us today is designed to handle misconduct by a judge which interferes “with the effective and expeditious administration of the business of his court,” in other words his behavior as it affects his job as a judge: For example, whether he is behind in handling cases, or having a drinking problem, or suspected of having a conflict of interest in the cases before him. Id. at 30,062 (statement of Sen. Bayh). S. 1873 also allows judges to be independent to live their personal lives as they see fit. Extrajudicial habits and behavior are outside the reach of the bill. It is only when a judge’s behavior affects his performance on the bench that a complaint is valid. This again is as it should be. Id. at 30, 064. C. House Consideration Shortly before S. 1873 was reported out of the Judiciary Committee of the Senate, the House began the consideration of legislation on judicial disability and tenure. Hearings on proposed legislation were held by the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice beginning in July 1979. As in the Senate, most of the discussion was directed at the constitutionality of judicial discipline legislation and the need to establish a system that would minimize the threat to judicial independence. Such comment as appears concerning the conduct to be covered reflected an understanding that the standard, as written, was limited in coverage to conduct interfering with the fair and efficient operation of the courts. Senator DeConcini, a strong proponent of judicial discipline legislation and a sponsor of S. 1873, testified that the procedures were intended to address complaints against judges “who through their arrogance continue to operate when conflicts of interest have been brought to their attention, to take such actions that indicate their disregard for recognized criminal procedure, [or] rules of procedure adopted by the court itself.” 1979-80 House Subcomm. Hearings at 27(statement of Sen. DeConcini). Although many congressmen voiced their opinions regarding the legislation during the hearings, none of these comments bear on the issue of what conduct fell within the standards. Many non-congressional witnesses, however, made clear their understanding that the standards, as written, were limited in scope to conduct interfering with the fair and efficient operation of the courts. Judge Elmo Hunter, appearing on behalf of the Judicial Conference of the United States, noted that “judges have no right to be insulated from the consequences of their own misbehavior when it impairs the proper operation of the courts and the administration of justice.” Id at 55(state-ment of Judge Hunter). He remarked that “the kind ofjudicial misbehavior’ which is relevant is misbehavior which interferes with the effective and expeditious administration of the business of the courts.” Id at 60, 67. The Department of Justice objected to use of such an administrative standard of misconduct, arguing that a broader standard was needed'to reach conduct which, though unrelated to the administration of the courts, “would tarnish in the popular perception the" image of the Federal courts.” Id at 170 (testimony of Maurice Rosenberg, Assistant Attorney General). The Department urged a return to a standard initially proposed and ultimately rejected in the Senate, defining misconduct “as action ‘inconsistent with the good behavior required by article III, section 1, of the Constitution,’ including, but not limited to, ‘willful misconduct in office, willful and persistent failure to perform duties of the office, habitual intemperance, or other conduct prejudicial to the administration of justice that brings the judicial office into disrepute.’ ” Id at 163 (footnote omitted). According to the Department spokesman, the administrative standard would not reach misbehavior the Department believed required action, but which “wouldn’t have to do with the business of the courts, or the expeditious movement of that business,” id at 170, citing as examples that a “judge might get into shady business deals or inappropriate financial entanglements .... A judge might get into a drunken brawl at a social party, private or public ... ■ [or a] judge might gamble heavily, notoriously, and with very bad company.” Id at 169-70. The American Bar Association’s Standing Committee on Judicial Selection, Tenure and Compensation shared the views of the Department of Justice. The ABA Committee commented: The language proposed by the judges: “conduct inconsistent with the effective and expeditious administration of the courts” is taken from 28 U.S.C. § 332. That section deals with administration and is inappropriate as a specification of the grounds for judicial discipline. Id at 213 (exhibit B to letter from Herbert H. Anderson, member, American Bar Association Standing Committee on Judicial Selection, Tenure and Compensation). The Committee’s suggested list of conduct to be covered included “willful misconduct which although not related to judicial duties, brings the judicial office into disrepute,” and “[c]onduet prejudicial to the administration of justice or conduct unbecoming a judicial officer, whether conduct in office or outside of judicial duties, that brings the judicial office into disrepute.” Id H.R. 7974, 96th Cong., 2d Sess. (1980), the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 7727 emerged from these hearings. The House proposal adopted the administrative standard drawn from section 332, as had the Senate’s, but departed from the Senate proposal by requiring that included conduct be “prejudicial to” rather than merely “inconsistent with” the effective and expeditious administration of the business of the courts, thus indicating that a causal connection was required between the alleged misconduct and the administration of the courts. Compare S. 1873, 96th Cong., 1st Sess. § 2 (1979), reprinted in 125 Con. Rec. 30,100 (1980) with 28 U.S.C. § 372(c)(1). The House bill provided that actions taken by the circuit councils were to be reviewed by the Judicial Conference rather than by a Court of Judicial Conduct and Disability as provided in the bill enacted by the Senate. Thus, the House bill incorporated both of the major revisions in the Senate bill proposed by the Judicial Conference. In doing so, the House Committee impliedly rejected the criticisms of the administrative standard based on section 332. There is no express comment on these criticisms, however, in the Committee report accompanying the bill. The report simply states that a complainant need only allege that a judge “has engaged in conduct that is inconsistent with the effective and expeditious administration of the business of the courts,” H.R.Rep. No. 1313, 96th Cong., 2d Sess. 10 (1980) (hereinafter H.RRep. No. ISIS), and that the chief judge “may dismiss the complaint if it does not relate to the effective, expeditious and fair administration of. justice within the circuit.” Id. The Report notes the concern that an “adversary accusatorial proceeding raised the dangers of a substantial chilling effect on judicial independence, as well as the danger of infliction of harm and disruption on the administration of justice,” id. at 18 (footnote omitted), and states that the bill reported by the Committee would create “an administrative remedy, as opposed to the purely adjudicative and adversarial model that has prevailed in the past for such legislation.” Id. at 4; see also id. at 14. The House Report is not entirely without ambiguity with respect to coverage, however. It notes that one of the goals of the legislation is “to promote respect for the principle that the appearance of justice is an integral element of this country’s justice system,” id. at 1, refers to the Act covering complaints of “unfitness,” id. at 5, and suggests that the Act would apply to “an allegation that several judges have engaged in activities demeaning to the bench; assume, for example, that ... a large number of judges became intoxicated in a bar of ill repute.” Id. at 12. Finally, the Report refers to the administrative standard and then states, “[cjlearly, this incorporates complaints regarding impeachable behavior, [and] violations of the criminal laws of any State or the United States.” Id. at 10. H.R. 7974 was unanimously reported to the House of Representatives by the Judiciary Committee. There was no reference to the conduct intended to be covered by the bill in the debates preceding the vote, except an occasional quotation of the statutory standard. Congressman Kastenmeier moved to substitute the provisions of the House bill for the provisions of the Senate bill, S. 1873. The House agreed to the motion and unanimously passed the legislation by voice vote on September 15, 1980. 126 Cong. Rec. 25,372-74 (1980). The Senate passed the amended version of S. 1873 two weeks later with minor changes subsequently ratified by the House. II. The legislative history of the Act, particularly in the Senate, contains ambiguous and inconsistent evidence of legislative intent. A clearer picture emerges, however, from a review of the chronological development of the legislation. Earlier proposals in the Senate were broad, covering a wide range of conduct, establishing an independent adjudicatory court and authorizing sanctions as severe as removal from office. These proposals received no attention from the House. Each successive proposal in the Senate eliminated one or another aspect of the scheme thought to pose a threat to judicial independence. By the time the final Senate bill, S. 1873, was reported to the full Senate, removal had been eliminated as a potential sanction, the primary authority for considering complaints against judges had been placed in the judicial councils of the circuits, an administrative approach had replaced the adversarial-adjudicatory approach, and the “good behavior” and “disrepute” standard had been replaced by a standard focusing on the effective and expeditious administration of the business of the courts. The Senate Report states that coverage under S. 1873 was limited to conduct connected with the judge’s official performance. It is true that some portions of the Senate Report still suggested that the “good behavior” and “disrepute” standards were somehow incorporated in the administrative test finally adopted as the jurisdictional standard. But as noted, most of this language was taken verbatim from a committee report on a predecessor bill which expressly adopted the state standards. These earlier proposals modeled on state systems received substantial support in the Senate, but were never considered by the House. Only after the Senate proposal had been pared down to a purely administrative format unlike the state systems did the House begin to work toward passage of the legislation. Retention in the Senate Report of references to state standards was in all probability inadvertent. The Senate Committee eliminated the state-originated disrepute standard from the language of the Senate bill because of the concern for preserving judicial independence and the full Senate was so advised by the ranking minority member of the Committee, see 125 Cong. Rec. 30,050 (1979) (statement of Sen. Thurmond). As quoted above, Senator Bayh also stated on the floor that the Act was aimed at conduct adversely affecting official performance rather than the public perception of a judge’s private conduct. See Id. at 30,062, 30,064 (statement of Sen. Bayh). If other members of the Senate believed the Act would reach conduct which was unrelated to-the judicial office, but brought that office into disrepute, a response to. these clear1 and unequivocal statements to the contrary might have been expected. There was none. Even if some members of the Senate intended S. 1873 to reach conduct unrelated to the judicial office, it was not the Senate but the House that succeeded in drafting the compromise bill eventually enacted. The history of the legislation in the House is far less ambiguous and contradictory than in the Senate. Although witnesses before the House Subcommittee had differing views as to the conduct that should be covered, all appeared to agree that the language adopted—“conduct prejudicial to the effective and expeditious administration of the business of the courts”—would cover only conduct directly affecting the functioning of the courts or the performance of judicial duties. As noted, two statements in the- House Report may suggest a broader coverage. First, the Report’s statement that the standard incorporates violations of state and federal criminal law is not necessarily inconsistent with an administrative standard. Conduct by a judge that violates the criminal law may not in itself affect the administration of the court or the judge’s official performance, but conviction of such conduct with the possibility of incarceration obviously would, and the reference may easily be read as- applying to conviction of crime rather than to mere allegation of unproved criminal conduct. To subject a judge to administrative proceedings on the basis of unproved allegations of criminal conduct that do not themselves reveal a deficiency in the judge’s perform anee would be inconsistent with congressional intent to protect judicial independence. The second reference, concerning the intoxication “of a large number of judges at a bar of ill repute” is misleading out of context. In context the discussion concerned the kind of cases that a judicial council of a circuit should certify directly to the Judicial Conference rather than deciding itself. See 28 U.S.C. § 372(c)(7)(B)(ii). The focus was on the number of judges involved and their relationship and the consequent need to avoid the appearance of conflicting loyalties by those charged with considering the complaint. The reference was merely a misleading attempt to explain the purpose of section 372(c)(7)(B)(ii) permitting referral to the Judicial Conference; it cannot be reasonably read as intended to expand the jurisdictional limits established by the administrative standard adopted in the Act. The conduct covered by the Act was not mentioned on the House floor; congressmen speaking in support of the bill merely quoted the administrative standard without elaboration. No one expressed concern that the administrative standard was too narrow to achieve the Act’s purpose. Nothing in the House debates supports an interpretation that would include conduct not within the literal language of the Act: “conduct prejudicial to the effective and expeditious administration of the business of the courts.” The most reasonable conclusion to be drawn from the House materials is that the House intended to limit jurisdiction under the Act to conduct adversely affecting judicial performance in some concrete manner. Although some evidence of legislative intent in the Senate is ambiguous and might be selectively used to support a broad jurisdictional standard, as in state systems, the continuous, progressive narrowing of the scope of the Senate proposals, and the action Anally taken by the Senate and the reasons given for that action, lead to the same conclusion. Taken as a whole the legislative history of both chambers can be harmonized only by interpreting the phrase “prejudicial to the effective and expeditious administration of the business of the courts” according to its plain meaning and requiring complaints to allege conduct affecting the functioning of the courts. With this understanding of the jurisdictional standard and its application, I address the speciAc allegations of the complaint. III. A. Most of the complainant’s allegations involve conduct by the judge while engaged in private practice as an attorney prior to his appointment, unrelated to the effective functioning of the judge’s court. The plain language of the statute indicates its scope is limited to conduct by a judicial ofAcer. “Any person alleging that a circuit, district or bankruptcy judge, or a magistrate” has engaged in conduct covered by the Act may Ale a complaint. The legislative history contains only one reference to conduct preceding the judge’s appointment to the bench. That reference suggests that such conduct is not covered by the Act. See 1979-80 House Subcomm. Hearings at 105 (testimony of Judge Wallace). The principle- of separation of powers supports this construction. Article III, Section 2 of the United States Constitution vests the President with power to nominate offlcers of the United States, including federal judges, and to appoint such ofAcers with the advice and consent of the Senate. The judicial branch has no constitutional role in considering the At ness of an individual to assume judicial office. Congress noted the differing roles of the coordinate branches in relation to judicial fitness, and recognized that, “[b]e-cause of the separation of powers principle established by the Constitution, these roles must remain separate.” H.RRep. No. 1313 at 5. It would be incompatible with this constitutional principle for the judiciary to review the determination of the executive and legislative branches in the nomination and confirmation process by investigating and possibly disciplining a judge for conduct occurring before appointment to the bench. Confirmation by the Senate does not, of course, shield a judge from responsibility for prior misconduct. If allegations of preconfirmation conduct involve violation of the state’s ethical standards for lawyers, the complainant may file charges with the state bar association’s disciplinary body. If the allegations rise to the level of criminal conduct, as in this case, complainant may lodge his complaint with the United States Department of Justice or the appropriate state law enforcement authorities. If the allegations involve conduct constituting “Treason, Bribery or other high Crimes and Misdemeanors,” complainant may take the complaint directly to the House of Representatives. Complainant has, in fact, submitted his complaint and supplemental materials directly to Congress as well as to state and federal prosecutors. Complainant acknowledges that we may lack jurisdiction over most of his allegations and urges us, also, to refer the complaint to the House of Representatives. The Act does provide that if the judicial council of the circuit determines that a judge has engaged in conduct “which might constitute one or more grounds for impeachment ... the judicial council shall promptly certify such determination ... to the Judicial Conference of the United States.” 28 U.S.C. § 372(c)(7)(B)©. This is not, however an independent grant of power. Before the council may conduct the investigation and make the factual determination necessary to certify that a judge has engaged in conduct that might constitute a ground for impeachment, the council must first be presented with allegations of conduct over which it has jurisdiction under section 372(c)(1). The ... allegations of the complaint are dismissed on the ground they are not within the jurisdiction of the Judicial Council of the Ninth Circuit under section 372(c)(1).

Opinion for the Court filed by Circuit Judge GINSBURG. GINSBURG, Circuit Judge: When S & F Market Street Healthcare LLC acquired a nursing home previously operated by a different company, it decided to meet its immediate staffing needs in part by offering temporary employment to employees of the prior operator. S & F informed the employees it would consider hiring those who met S & F’s “operational needs” and it would hire them on an at-will basis, subject to a probationary period, to various drug and background checks, and to their signing an arbitration agreement. When it began operations, S & F implemented these and other new terms and conditions of employment. The National Labor Relations Board later held that, because S & F failed to notify the employees that the terms and conditions of their employment would change, S & F was a “perfectly clear” successor within the meaning of NLRB v. Burns International Security Services, 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972). As such, S & F was bound by the collective bargaining agreement (CBA) between its predecessor and the Service Employees International Union and had violated § 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (5), by unilaterally changing the terms and conditions of employment prescribed in that CBA. Consequently, the Board ordered S & F to restore the preexisting terms of employment and to make the employees whole with back pay. S & F petitions for review, and the Board cross-appeals for enforcement, of that order. We hold the Board erred in concluding S & F was a “perfectly clear” successor and was not entitled to implement new terms and conditions of employment. We therefore grant in part the petition for review and deny in part enforcement of the Board’s order. We enforce the Board’s order as it relates to matters S & F does not contest. I. Background S & F Market Street Healthcare LLC (d/b/a Windsor Convalescent Center of North Long Beach) is affiliated with a chain of nursing and assisted living facilities managed by SnF Management and operated under the Windsor name. In 2004 S & F purchased Candléwood Care Center from Covenant Care Orange Inc. Covenant Care had collective bargaining agreements with the SEIU, Local 434B, covering two different bargaining units at Candlewood. Prior to assuming control of the Candle-wood facility, S & F concluded it would need to increase the level of care, replace the staff, and renovate the building. Closer to taking over on July 1, 2004 S & F decided it could not replace the entire staff at once because the turnover would be too disruptive to the residents. Instead, S & F decided to hire some of Candlewood’s employees for up to 90 days while it continued to recruit new employees. In June 2004 S & F caused applications for employment to be distributed to the existing staff. A cover sheet informed the employees that S & F “intends to implement significant operational changes” and “[c]urrent Candlewood employees interested in positions with [S & F] must submit the attached application for employment.” Further, it advised, only “[a]pplicants who meet the [Company’s] operational needs will be interviewed,” and any offer of employment “will be contingent on your passing a pre-employment physical, drug test and acceptable reference and background checks.” The job application itself required the applicant to affirm his or her understanding that successfully passing the tests and checks was a condition of employment, that any employment would be at will, and that S & F “can change benefits, policies and conditions at any time.” At the end of June, S &'F interviewed all the Candlewood employees who had submitted applications. In each interview, the applicant was informed that any possible employment would be temporary and would last no more than 90 days. S & F’s director of human resources sent to each employee who was selected a letter dated June 30 with the subject line “OFFER OF TEMPORARY EMPLOYMENT.” The letter explained, “As a temporary employee of Windsor, you are not eligible for company benefits.... Other terms and conditions of your employment will be set forth in Windsor’s personnel policies and its employee handbook.” The letter further stated the employment was temporary because S & F had not yet been able to assess the employee’s “skills and abilities” or “the building’s ongoing operational and staffing needs.” It also noted that employment was at will and that “[n]o later than the expiration of the 90-day period, which ends on September 29th, your employment with Windsor will end, unless you are selected for regular employment.” In order to accept the offer the addressee was required to sign and date the letter. Those hired also had to sign an “Agreement to be Bound by Alternative Dispute Resolution Policy,” which provided that arbitration would be the exclusive means of resolving all disputes relating to termination of employment, unlawful discrimination, and sexual harassment. S & F began operations on July 1 with approximately 120 employees. Most were former Candlewood employees newly employed on a temporary basis; 10 to 12 had not been employed by Candlewood. Seventeen Candlewood employees were not employed either because they had not applied or because they were not chosen. At a staff meeting on July 9, S & F distributed to the employees handbooks describing Windsor’s policies and its terms and conditions of employment. The temporary employees received a handbook dated July 1, 2004 that did not include information about employer-provided benefits. The “regular” employees (i.e., those who had not worked for Candlewood) received a handbook dated January 1, 2004, reflecting the most recent revision of Windsor’s system-wide policies; this version did include information about employer-provided benefits. S & F continued over the next three months to replace former Candlewood employees with new employees. By October 1 a majority of the company’s employees had been hired from outside the Candle-wood staff; some 30-40 of the Candlewood employees hired initially as temporary employees had been hired for regular employment and given the January 1 version of the handbook. Also following the takeover, S & F invested about $500,000 to renovate the facility. Among other changes, S & F repainted the employee lounge and the hallway where Candlewood had hung a bulletin board for the use of the Union, at which time S & F removed the bulletin board. Meanwhile, on July 1 the Union requested bargaining with S & F. The Company responded on July 7 that it had not yet hired a representative complement of employees, so the Union’s demand for bargaining was premature. The Union filed unfair labor practice charges, and the Board General Counsel issued a complaint alleging that when S & F began operating the facility on July 1, 2004, it became “a successor to Candlewood” but refused to bargain with the Union, in violation of § 8(a)(1) and (5) of the Act. The complaint further alleged that since July 1, 2004 S & F had made unilateral changes at the former Candlewood facility—removing union-related materials from a bulletin board, prohibiting the posting of union materials, and implementing new employment policies^—again in violation of § 8(a)(1) and (5), and had violated § 8(a)(3) in several ways unrelated to the issue of successorship. Following a hearing, an Administrative Law Judge found S & F was a successor to Candlewood. According to the ALJ, the “temporary” employees were actually akin to probationary employees because their work was to be evaluated during the period of temporary employment and they did not have a definite anticipated termination date. Therefore the temporary employees could be counted in determining whether S & F had a substantial and representative complement of employees, and whether a majority of that complement were from Candlewood, when S & F began operations on July 1. Having answered both questions in the affirmative, the ALJ concluded S & F was obligated to recognize and to bargain with the Union as of July 1. At the same time, the ALJ found S & F, although a successor to Candlewood, was not a “perfectly clear” successor because S & F’s pre-employment communications to the Candlewood employees put them on notice that the terms and conditions of their employment would change. Accordingly, although S & F was obliged to recognize and to bargain with the Union, it was entitled first to establish the initial terms and conditions of employment. The Board affirmed the ALJ’s finding that S & F was a successor to Candlewood but went on, with Member Schaumber dissenting, to hold (1) as a matter of law, S & F was a “perfectly clear” successor and, (2) as a matter of fact, had “failed to clearly announce its intent to establish a new set of conditions prior to inviting former [Candlewood] employees to accept employment.” Windsor Convalescent Ctr. of N. Long Beach, 351 N.L.R.B. 975, 980 (2007). The Board concluded, therefore, that S & F did not have the right unilaterally to set the initial terms and conditions of employment. S & F petitions for review solely of the legal and factual underpinnings of this determination. The Board also held, and S & F does not contest, that S & F refused to hire four union stewards, suspended or terminated certain employees for engaging in protected activity, and informed employees the facility would be nonunion, all in violation of § 8(a)(1) and (3) of the Act; and, although a successor employer, S & F failed to recognize and to bargain with the Union, in violation of § 8(a)(5) of the Act. In keeping with this court’s “longstanding rule,” Carpenters & Millwrights, Local Union 24.71 v. NLRB, 481 F.3d 804, 808 (2007), “[t]he Board is entitled to summary enforcement of the uncontested portions of its order.” Flying Food Group Inc. v. NLRB, 471 F.3d 178,181 (2006). II. Analysis We turn now to the two rulings S & F does contest. First, the Board held S & F was not only a successor but a “perfectly clear” successor and therefore could not lawfully set the initial terms and conditions of employment, as it did in issuing the employee handbooks and removing the union bulletin board, without first having bargained with the Union. Second, the Board held that, even if S & F were not a “perfectly clear” successor, it could not unilaterally change the terms and conditions of employment because, it found, S & F had not specifically announced the new terms prior to becoming the incumbent employer on July 1. We must uphold an order of the Board unless it rests upon a finding not supported by “substantial evidence,” 29 U.S.C. § 160(f), or the Board failed to apply the proper legal standard or departed from precedent without giving a reasoned justification therefor. Mail Contractors of Am. v. NLRB, 514 F.3d 27, 31 (D.C.Cir.2008). In this case we conclude the Board erred in applying the exception in NLRB v. Bums International Security Services for “perfectly clear” successors. 406 U.S. at 294-95, 92 S.Ct. 1571. In addition, its finding that S & F failed to notify the employees of its intent to establish new terms and conditions is unsupported by substantial evidence, and its conclusion that S & F could not implement any terms or conditions it had not specifically announced prior to July 1 is an unjustified departure from Board precedent. A. “Perfectly Clear” Successor Status In Bums, the Supreme Court explained that, “although successor employers may be bound to recognize and bargain with the union,” except in rare circumstances “they are not bound by the substantive provisions of a collective-bargaining contract negotiated by their predecessors but not agreed to or assumed by them.” Id. at 284, 92 S.Ct. 1571. The rare exception is for “instances in which it is perfectly clear that the new employer plans to retain all of the employees in the [bargaining] unit.” Id. at 294-95, 92 S.Ct. 1571. That is, “a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor,” but a so-called “perfectly clear” successor must bargain with the employees’ representative before it changes any terms to which its predecessor had agreed. Id. The “perfectly clear” exception is and must remain a narrow one because it conflicts with the “congressional policy manifest in the Act ... to enable the parties to negotiate for any protection either deems appropriate, but to allow the balance of bargaining advantage to be set by economic power realities.” Id. at 288, 92 S.Ct. 1571. In the Board’s leading case on the “perfectly clear” exception, Spruce Up Corp., 209 N.L.R.B. 194 (1974), enf'd per curiam 529 F.2d 516 (4th Cir.1975), which came fast on the heels of Bums itself, the Board recognized the importance of the employer’s right to set the initial terms and conditions of employment and the correlative narrowness of the “perfectly clear” exception. The employer there had expressed a “general willingness” to hire his predecessor’s employees, but also announced he was going to change their commission rates. The employer “thereby made it clear from the outset that he intended to set his own initial terms, and that whether or not he would in fact retain the incumbent [employees] would depend upon their willingness to accept those terms.” 209 N.L.R.B. at 195. For that reason, it could not be said the employer “planfned] to retain all the employees in the unit” and the Board held the “perfectly clear” exception did not apply. Id. The Board explained: the caveat in Bums ... should be restricted to circumstances in which the new employer has either actively or, by tacit inference, misled employees into believing they would all be retained without change in their wages, hours, or conditions of employment, or at least to circumstances where the new employer ... has failed to clearly announce its intent to establish a new set of conditions prior to inviting former employees to accept employment. Id. Thus, at bottom the “perfectly clear” exception is intended to prevent an employer from inducing possibly adverse reliance upon the part of employees it misled or lulled into not looking for other work. The Board adhered to its original understanding of Bums as recently as Ridgewell’s, Inc., 334 N.L.R.B. 37 (2001), enf'd 38 Fed.Appx. 29 (D.C.Cir.2002). In that case, the successor employer announced it would retain the incumbent employees but only as independent contractors. The Board found they continued to work as employees within the meaning of the Act rather than as independent contractors. 334 N.L.R.B. at 37. Nevertheless, the employer’s announcement, although legally erroneous, was sufficient to avoid the “perfectly clear” exception because it “portended employment under different terms and conditions” and thereby put the employees “on notice that a new set of employment conditions would be in effect.” Id. In the present case the ALJ found S & F “informed the Candlewood applicants that they would be employed only in a temporary or probationary status for 90 days,” which “should have signaled to the applicants that terms and conditions of employment with [S & F] were not going to be identical with those of its predecessor.” 351 N.L.R.B. at 1001. As in Ridgewell’s, the employer’s announcement portended employment under different— indeed, significantly different—terms and conditions. Therefore, the ALJ held S & F did not violate the Act by setting the initial terms and conditions of employment. The Board, however, reversed the ALJ and applied the “perfectly clear” exception because it found S & F had failed to announce its intent to establish new terms and conditions before it invited the former Candlewood employees to accept employment. That finding is unsupported by substantial evidence. On the undisput ed facts of this case, no employee could have failed to understand that significant changes were afoot. The cover letter attached to each job application foretold “significant operational changes,” identified various pre-employment checks and tests to be passed, and explained that any employment offered would be both temporary and at will. The Board discounted the cover letter on the ground that it “lacked any mention of intended changes to employees’ terms and conditions of employment.” Id. at 981. Yet under Candle-wood’s collective-bargaining agreements with the Union, as any employee would know, each employee with 90 days on the job had vested “seniority rights” and could not be terminated except for cause, which the Union could contest through the negotiated grievance and arbitration procedure. By announcing that any employment with S & F would be at will, therefore, S & F was announcing a very significant change in the terms and conditions of employment—both for those who had been employed by Candlewood for 90 days or more and for those who expected to be. In addition, by requiring its new employees to agree to its own alternative dispute resolution policy, S & F made it clear the grievance mechanism the Union had negotiated with Candlewood would not be available. The Board not only muffed its reading of the record; it also misread Bums to require more from the successor employer than a portent of employment under different terms and conditions. Recall that the “perfectly clear” exception applies only to cases in which the successor employer has led the predecessor’s employees to believe their employment status would continue unchanged after accepting employment with the successor. Here, as we have seen, the employees had every indication— from S & F’s job applications, interviews, and letters offering employment—that S & F intended to institute new terms of employment. Under a proper reading of Bums and Ridgewell’s, therefore, S & F cannot be considered a “perfectly clear” successor. The Board attempts to distinguish Ridgewell’s as follows: “An announcement that workers will be hired as ‘independent contractors’ necessarily signals an intent to establish a new set of [employment] conditions, because it signals an intent to divest the predecessor’s employees of ‘employee’ status altogether.” Id. at 981 n. 28 (internal citation and quotation marks omitted). That is obviously true but irrelevant: A successor need not signal an intent to divest the predecessor’s employees of their status as statutory employees in order to signal its intent, as did S & F here, to establish new terms and conditions of employment under which some of the predecessor’s employees may be hired. The Board quibbles over when the employees may have received the June 30 offers of temporary employment, suggesting that some employees may have received their letters after S & F took over operations on July 1. The anachronism, if it occurred, changes nothing, however. First, as we have seen, the June 30 letter was not the only indication S & F provided to the Candlewood employees that the terms and conditions of their employment would change. Furthermore, because that letter was the very instrument by which the Company invited employees to accept employment with S & F, it was necessarily received “prior to inviting former employees to accept employment.” Spruce Up Corp., 209 N.L.R.B. at 195. That some employees may have received the letter immediately after the Company took over the operation rather than immediately before cannot make the crucial difference under Bums unless the employees were misled into expecting the terms of employment to continue wholly without change. Nevertheless, the Board concluded “there is no evidence that [S & F], prior to the takeover, informed Candlewood employees that those who were retained would be working under different core terms and conditions of employment.” 351 N.L.R.B. at 981. We see two errors of law in this restatement of the “perfectly clear” standard. First, the focus upon “core” terms and conditions misstates the rule, which is that the successor employer must simply convey its intention to set its own terms and conditions rather than adopt those of the previous employer. Granting that a trivial change in employment conditions may not suffice, there is no requirement in Bums or Spruce Up that the intended change(s) involve “core” terms. Whatever that term may mean, however, it surely includes instituting at-will employment and eliminating the negotiated grievance and arbitration procedure. Second, the Board’s holding achieves precisely what Bums and Spruce Up sought to avoid. In those cases the Supreme Court and the Board respectively started from the presumption that a successor employer may set its own terms and conditions of employment and reserved the “perfectly clear” exception for cases in which employees had been misled into believing their terms and conditions would continue unchanged. See Burns, 406 U.S. at 294-95, 92 S.Ct. 1571; Spruce Up, 209 N.L.R.B. at 19. In this case, the Board presumed the predecessor’s terms and conditions must remain in effect unless the successor employer specifically announces it will change “core” terms and conditions. Thus does the exception in Bums swallow the rule in Bums. Under the proper standard, S & F clearly comes within the protection of the rule rather than the straightjacket of the exception: It was never “perfectly clear that the new employer plan[ned] to retain all of the employees in the unit,” Bums, 406 U.S. at 294-95, 92 S.Ct. 1571, let alone that it did so “with no notice that they would be expected to work under new and different terms,” Spruce Up, 209 N.L.R.B. at 195 n. 7. On the contrary, the Company announced it would retain only those who met certain preemployment tests and stated its intent to set new initial terms and conditions of employment. B. Announcing Terms and Conditions After the July 1 Takeover The Board held in the alternative that even if S & F had expressed a “sufficiently clear intent to change employment terms” and thus avoided being deemed a “perfectly clear” successor, S & F “still had an obligation to bargain over any unannounced specific changes to terms and conditions of employment occurring after July 1, including dismantling the bulletin board and issuing new handbooks.” 351 N.L.R.B. at 982 n. 31. In the Board’s view, that is, a successor employer may change preexisting terms and conditions of employment only to the extent it has specified those changes in advance of assuming control over the operation. The Board’s novel rule in this case misapplied its own precedent and that of the Supreme Court. In Bums, the Supreme Court was perfectly clear that a successor employer is not bound by the substantive provisions of a CBA negotiated by its predecessor: “It is difficult to understand how [the successor employer] could be said to have changed unilaterally any pre-existing term or condition of employment without bargaining when it had no previous relationship whatsoever to the bargaining unit and, prior to July 1, no outstanding terms and conditions of employment from which a change could be inferred.” 406 U.S. at 294, 92 S.Ct. 1571. True to this teaching, the Board in Spruce Up did not require the employer to announce in advance all (or indeed any) new terms it intended to establish upon taking over; it was sufficient that the employer had announced its intention to establish new terms. See 209 N.L.R.B. at 195. S & F, having put the employees on notice of that intention, was not bound by the Candlewood CBA but was free unilaterally to implement its own initial terms and conditions of employment. In support of its view, the Board offers Banknote Corp. of Am,., 315 N.L.R.B. 1041 (1994), enf'd 84 F.3d 637 (2d Cir.1996). In that case the Board correctly stated that an employer is free to set initial terms and conditions prior to hiring its predecessor’s employees. 315 N.L.R.B. at 1042. The wrinkle in that case was that, when interviewing for jobs with the new employer, “the employees were told [working conditions] would be about the same.” Id. at 1043. Subsequent changes were thus a deviation from the terms under which the employees were told they were being hired. Banknote therefore stands for the principle that once an employer has hired its predecessor’s employees under any specified terms and conditions of employment—its own or those in its predecessor’s CBA—it must bargain over subsequent changes. In this case, the offer of temporary employment S & F made to former Candle-wood employees, which they had to sign in order to accept employment with S & F, incorporated by reference the employee handbook; and the handbook expressly stated the initial terms and conditions of employment that S & F set when it hired the employees. To reiterate the relevant facts, the successor employer: (1) before soliciting job applications, informed the predecessor’s employees of its intention to change the terms and conditions of employment; (2) upon hiring the predecessor’s employees, explained that the new terms and conditions were set out in detail in the employee handbook; and (3) shortly after assuming operations, gave each employee a copy of the handbook. These steps together constitute the process by which the employer set the initial terms and conditions; it did not accept its predecessor’s terms nor set its own initial terms, hire the employees upon those terms, and then unilaterally change them. Because the employer did not change any terms it previously established but merely replaced its predecessor’s terms with its own, it was not required first to bargain with the Union over the content of the employee handbook or its removal of the bulletin board during its initial renovation. III. Conclusion For the reasons set out above, we hold S & F was not a “perfectly clear” successor under Bums, nor was it obligated to bargain over initial terms and conditions simply because those terms had not been specifically announced prior to July 1, 2004. We therefore grant the petition for review and deny enforcement of the Board’s order insofar as it requires that S & F restore the terms and conditions of employment established by its predecessor and make its employees whole for losses caused by its failure to apply the terms and conditions of employment that existed prior to its commencing operations. We grant the Board’s cross-application for enforcement with respect to those aspects S & F does not contest. So ordered. In that regard the Board recounts in a footnote testimony indicating three former Candlewood supervisors told employees not to worry about their employment prospects or future salaries. 351 N.L.R.B. at 981 n. 29. But, as the Board acknowledges, the ALJ made no finding that these statements occurred, id. at 981, let alone that they were made by agents of S & F, which argues, fairly enough, that former Candlewood supervisors were not authorized to speak for S & F. In any event, the statements do not contradict S & F’s announcement that any employment would be temporary and at will. As the Board recognized in Spruce Up, Bums was not meant to force an employer “to refrain from commenting favorably at all upon employment prospects of old employees for fear he would thereby forfeit his right to unilaterally set initial terms”; the "perfectly clear” exception must be read narrowly so as not to "encourage employer action contrary to the purposes of th[e] Act” or “discourage continuity in employment relationships for such legalistic and artificial considerations.” 209 N.L.R.B. at 195. The only testimony that could provide support for the contention that S & F misled employees is that of a Candlewood employee who claimed S & F’s director of human resources, in responding to employees' concerns about their wages being decreased, said “nothing was going to change." In fact, the only relevant evidence in the record is that nothing about their wages did change during their period of temporary employment. In any event, the alleged statement was denied both by another Candlewood employee and by S & F’s human resources director and the ALJ did not resolve the dispute. Taking into account the totality of S & F's communications to the Candlewood employees, even if credited this piece of evidence is insufficient to support a finding that S & F materially misled the Candlewood employees. See Pacific Micronesia Corp. v. NLRB, 219 F.3d 661, 665 (D.C.Cir.2000) ("To meet the requirement of 'substantial evidence,' the Board must produce 'more than a mere scintilla’ of evidence; it must present on the record 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,’ taking into consideration the ‘record in its entirety ... including the body of evidence opposed to the Board's view’ ”) (internal citation omitted).

OPINION OF THE COURT RENDELL, Circuit Judge. Petitioner Shi, Bi Ling (“Ling”) challenges the order of the Board of Immigration Appeals (“BIA”), which affirmed the decision of the Immigration Judge (“IJ”) to deny Ling’s application for asylum, withholding of removal and protection under Article III of the Convention Against Torture. Our jurisdiction arises under 8 U.S.C. § 1252. For the reasons that follow, we will deny the petition for review. FACTS Ling, a citizen of the People’s Republic of China, came to the United States in August 2001. Under former counsel, Ling filed applications for asylum, withholding of removal and relief under Article III of the Convention Against Torture. The original asylum application specified that Ling suffered persecution because her cohabitation with a boyfriend in China led to her expulsion from school and orders to attend a birth control education camp. After obtaining current counsel, Ling supplemented her original application by claiming she was forced to undergo an abortion by Chinese authorities when she became pregnant during her relationship with her boyfriend. Ling allegedly became pregnant while underage and unmarried and thus was forced to abort her baby. The IJ concluded that the original application was not fabricated, but questioned why the supplemental information regarding the pregnancy and forced abortion was not provided in the original application. Ling argues that she did not provide the information originally on the advice of the smugglers who helped her enter the United States and on the advice of her former counsel. The Government argues that when Ling realized that her original application did not support relief, she supplemented the application with the abortion story because it would more likely support her claims. The Government also notes inconsistencies in Ling’s story, including discrepancies in the name of the school she attended and the fact that her mother’s letter to the court in support of her daughter’s claim mentioned her expulsion from school and the orders to attend birth control education camp, but not Ling’s supposed pregnancy and forced abortion. In an oral decision, the IJ denied Ling’s claims for relief, stating that her supplemental information lacked corroborating evidence to support her pregnancy and forced abortion story. Additionally, the IJ stated that even if Ling’s testimony were true, her story would likely not support a claim for asylum. In a brief one-paragraph opinion, the BIA stated: We do not concur with the Immigration Judge’s comments on whether the respondent would have a well founded fear if all parts of her testimony were believed (I.J. at 10-11). However, we agree with the Immigration Judge that the respondent has not established past persecution based on one of the five protected grounds under the Immigration and Nationality Act. In particular, she has failed to sufficiently corroborate those aspects of her claim in which it is reasonable to expect corroboration. See Diallo v. INS, 232 F.3d 279, 286 (2d Cir.2000); Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir.2001). Accordingly, the appeal is dismissed. BIA Opinion at App. 2. STANDARD OF REVIEW Determining whether an asylum applicant has established past persecution or fear of future persecution is a factual determination by the court analyzed under a substantial evidence standard. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). The court will uphold BIA or IJ findings “to the extent that they are supported by reasonable, substantial and probative evidence on the record considered as a whole, and will reverse those findings only if there is evidence so compelling that no reasonable factfinder could conclude as the BIA did.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003). “[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Also, in immigration cases where the BIA adopts findings of the IJ and discusses some of the bases for the IJ’s opinion, the court has the authority to review both the BIA and IJ opinions. He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004); Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004); see also Wang v. Attorney General of the United States, 423 F.3d 260, 266-67 (3d Cir.2005) (reviewing IJ’s opinion to extent that BIA relied on IJ opinion in the BIA’s one-paragraph opinion). Therefore, in this case, we will look at the BIA and IJ opinions in tandem. DISCUSSION Neither the BIA nor the IJ made an explicit adverse credibility finding. Minor inconsistences and discrepancies in an applicant’s testimony and story do not support an adverse credibility finding. Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir.2004). Rather, adverse credibility involves discrepancies that go to the heart of the asylum claim. Id. There are discrepancies between Ling’s asylum application and documentation that Ling submitted, but the IJ stated that the cited inconsistencies, such as where Ling attended school and the discrepancies between her household directory card and her asylum application, were not critical to the decision that she should not be granted relief. Rather, both the IJ and the BIA emphasized lack of corroboration as the reason for denying Ling relief. An applicant may be required to provide corroborating evidence in certain situations. See Abdulai, 239 F.3d at 545 (holding BIA may “sometimes require otherwise-credible applicants for asylum or withholding of removal to present evidence corroborating their stories in order to meet their burden of proof’). The Court in Abdulai held that regulations that state that testimony of an applicant “if credible, may be sufficient to sustain the burden of proof without corroboration,” 8 C.F.R. § 208.13, do not indicate that the BIA may never require corroborating evidence of otherwise credible testimony. Abdulai, 239 F.3d at 552. This Court in Abdulai affirmed the BIA’s rule in In re S-M-J-that corroborating evidence may be required if it is reasonable to expect corroboration and if it is reasonable to require such corroboration. In such cases, an applicant who can neither introduce evidence or offer a satisfactory explanation as to why the applicant cannot do so may fail to meet his or her burden of proof. Id. at 551. In Abdulai, we approved of a three-part inquiry that the IJ should apply with regard to requiring corroborating evidence: (1) an identification of the facts for which “it is reasonable to expect corroboration;” (2) an inquiry as to whether the applicant has provided information corroborating the relevant facts; and, if he or she has not, (3) an analysis whether the applicant has adequately explained his or her failure to do so. Id. at 554 (citing In re S-M-J-, Interim Decision 3303, 1997 WL 80984 (BIA 1997), available at 1997 WL 80984). We held in Abdulai that the BIA in that case did not adequately apply this three-part inquiry because it did not state the particular aspects of the alien’s testimony that reasonably needed to be corroborated. Corroboration is particularly important in this case because Ling added a supplemental affidavit discussing her pregnancy and forced abortion as the basis for her claim. Her original application did not mention these facts and was only based on her expulsion from school due to cohabiting with her boyfriend and being forced to attend birth control camp. Corroboration of her pregnancy and forced abortion is crucial to her asylum claims because her original claim was insufficient to grant her asylum. See IJ Opinion at App. 33 (stating that “the prior information was basically no claim at all”). The types of facts that generally should be corroborated are place of birth, media accounts of large demonstrations, medical treatment documentation and “it is generally reasonable to expect applicants to produce letters from family members remaining in the applicant’s home country.” Abdulai 239 F.3d at 554. The IJ did identify the facts in need of corroboration, namely that Ling had had a forced abortion and that presenting some evidence other than Ling’s testimony regarding the forced abortion was something that Ling “could have done during the period of time that she was here in the United States, to try to help establish her claim, that she had a prior abortion.” IJ Opinion at App. 38. Ling presented a letter from her mother supporting Ling’s claim that she was expelled from school and forced to attend birth control classes and routine gynecological checkups. However, the letter did not discuss Ling’s claims of a pregnancy and forced abortion. It is reasonable to expect Ling’s claims to have been corroborated in her mother’s letter. The IJ also satisfied the second prong of the Abdulai test when the IJ explicitly stated that Ling failed to corroborate her abortion story. The IJ stated that no information was given, other than Ling’s own real testimony, as to her pregnancy and abortion story. Although it was reasonable to expect Ling to corroborate the story, at least in her mother’s letter, Ling failed to provide this documentary evidence. Although the IJ satisfied the first two prongs of the Abdulai test, the IJ did not specifically discuss whether Ling had adequately explained her reason for not providing corroborating evidence required by the third prong of the test. Under Abdulai if an applicant does not offer “a satisfactory explanation as to why he or she cannot” offer corroborating evidence, the applicant may have failed to meet his or her burden of proof. Abdulai 239 F.3d at 551. We cannot help but conclude that, although not specifically referenced, the IJ answered the third prong in the negative. The reason proffered by Ling for not providing corroborating evidence made no sense. At the IJ hearing, Ling was asked by opposing counsel why her mother’s letter did not discuss Ling’s pregnancy or forced abortion. Ling first stated that she did not know why her mother did not mention it in the letter. Ling then stated that her former counsel told her that her mother should not mention anything about the abortion in the letter since Ling did not mention it in her asylum application. When asked by opposing counsel why Ling did not obtain a letter from her mother after her new counsel supplemented her claim with her pregnancy and forced abortion, Ling responded that her new attorney told her that if the judge believed what she said in court, the judge would trust her and it was unnecessary to obtain another letter from her mother. This is not an adequate reason why Ling could not ask her mother to provide a corroborating letter. Moreover, the letter from her mother was of little relevance without corroboration of the forced abortion. To proceed with such a letter that did not refer to the forced abortion was to reinforce the notion that her initial story was false. Thus, not only did the letter not corroborate, but even worse, it detracted from her case. Accordingly, we believe the agency’s determination that, absent some corroboration, Ling failed to meet her burden of proof, is supported by substantial evidence. We will deny the petition for review. . The REAL ID Act has amended the credibility provisions 8 U.S.C. § 1158(b)(1) (the asylum statute) for applications filed after May 11, 2005. Section 1158(b)(l)(B)(iii) now provides that the trier of fact should consider "the totality of the circumstances, and all relevant factors [listing factors] ... without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim." See Zheng v. Gonzales, 417 F.3d 379, 381 n. 1 (3d Cir.2005) (explaining change to credibility standard). The section also adds a "rebuttable presumption of credibility on appeal” where no adverse credibility determination has been explicitly made. Since this case was filed before May 11, 2005, the REAL ID standard does not apply.

ORDER DENYING CERTIFICATE OF APPEALABILITY PAUL J. KELLY, JR., Circuit Judge. Petitioner-Appellant Howard Patrick Phillips, a state inmate appearing pro se, seeks a certificate of appealability (“COA”) allowing him to appeal the district court’s order denying relief on his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. As Mr. Phillips has failed to make a “substantial showing of the denial of a constitutional right” as required by U.S.C. § 2253(c)(2), we deny his request and dismiss the appeal. Mr. Phillips’ appeal concerns a consolidated criminal trial. In Case No. CF-96-823, Mr. Phillips was convicted by a jury in Oklahoma state court of four counts of knowingly withholding stolen property, after former conviction of two or more prior felonies in violation of Okla. Stat. tit. 21, § 1713 (“Case 1”). In Case No. CF-96-824, Mr. Phillips was convicted by a jury on two counts of possession of a stolen vehicle, after former conviction of two or more felonies in violation of Okla. Stat. tit. 47, § 4-103 (“Case 2”). In Case 1, he was sentenced to concurrent sentences of 20, 20, 20, and 35 years. In Case 2, he was sentenced to consecutive prison terms of 25 and 30 years. Further, the sentences entered in Case 1 were to be served consecutively to the sentences in Case 2. As such, Mr. Phillips’ sentences total 90 years imprisonment. On direct appeal on March 31, 2000, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed. R. Doc. 5, Ex. A. The United States Supreme Court denied Mr. Phillips’ certiorari petition on January 8, 2001. Phillips v. Oklahoma, 531 U.S. 1088, 121 S.Ct. 806, 148 L.Ed.2d 692 (2001). It does not appear that Mr. Phillips pursued any state post-conviction relief. On May 31, 2001, Mr. Phillips filed a counseled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in federal district court asserting three claims, all of which were raised on direct appeal: (1) that he was denied a fair and impartial jury in violation of the Sixth and Fourteenth Amendments to the United States Constitution; (2) that his multiple convictions violated his privilege to be free from Double Jeopardy in violation of the United States Constitution; and (3) that he was denied the right to present mitigating evidence to the jury in violation of the Fourteenth Amendment. R. Doc. 1. On September 6, 2002, Mr. Phillips filed a pro se supplemental brief apparently containing claims of insufficient evidence and ineffective assistance of counsel. On July 23, 2003, Mr. Phillips filed a pro se motion to dismiss requesting that the court dismiss without prejudice as well as hold the matter while he exhausted claims of ineffective assistance of trial and appellate counsel. See R. Doc. 9 & Doc. Entry 6 & 8. After allowing a twenty day period to cure, the district court struck these pro se pleadings because it interpreted Fed.R.Civ.P. 11(a) as not permitting a litigant to sign pleadings when represented. Docs. 9 (July 28, 2003 Order allowing for cure) & 11 (April 2, 2004 Order striking). Mr. Phillips’ counsel was allowed to withdraw, the court apparently declined to appoint another attorney, and Mr. Phillips entered an appearance pro se. Id.; Docs. 12 & 13. On April 21, 2005, Mr. Phillips sought mandamus from this court to require the district judge to hear and decide his habeas corpus petition. On May 11, 2005, the district court entered judgment denying the petition, and this court subsequently denied the mandamus petition as moot. In seeking a COA, Mr. Phillips now reasserts the same three counseled claims raised before the district court. In addition, Mr. Phillips raises several issues that were not addressed by the district court: (1) ineffective assistance of counsel in violation of the Sixth Amendment; (2) that he was sentenced in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); and (3) that he was prejudiced by the length of time his petition for habeas corpus was pending before the district court. COA Appl. at 5. In order for this court to grant a COA, Mr. Phillips must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district court has rejected a habeas petitioner’s constitutional claims on the merits, the petitioner must demonstrate that “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595,146 L.Ed.2d 542 (2000). The counseled claims before the district court were presented to the OCCA and were denied by that court in a summary opinion that contained a short discussion of each claim. R. Doc. 5, Ex. A. As such, the district court could not properly issue a writ of habeas corpus unless it found that the state court adjudication resulted in a decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 862, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Further, the fact that the OCCA denied relief to Mr. Phillips in a summary opinion has no effect on the deference owed to the state court’s result. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.2004). It is against these standards that the district court’s denial of Mr. Phillips’ petition must be assessed. Having carefully reviewed Mr. Phillips’ arguments, the OCCA summary opinion, and the district court’s order, we do not think that the district court’s resolution of these issues is fairly debatable. R. Doc. 18. The additional claims now raised by Mr. Phillips were not raised in his initial habeas petition and are considered waived. Wares v. Simmons, 392 F.3d 1141, 1143 (10th Cir.2004). To the extent that Mr. Phillips sought to raise such claims at the district court by his September 6, 2002 filing, counsel plainly recognized that they were not only unexhausted, but beyond the one-year limitation period from the date of denial of certiorari by the Supreme Court (January 8, 2001) following his direct appeal. 28 U.S.C. § 2244(d); Doc. 10 at 2-3. There is no right to counsel in collateral proceedings and it was within the district court’s discretion to decline to appoint counsel. Swazo v. Wyoming Dept, of Corr. State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir.1994). We DENY a COA and DISMISS the appeal. . Counsel explained that he did not agree with Mr. Phillips’ pro se actions because they raised unexhausted claims, and any return to state court would not toll the one-year federal limitation period contained in 28 U.S.C. § 2244(d). Doc. 10 at 2. Counsel plainly was concerned that the federal petition would be dismissed as a mixed petition, and all claims would be time barred given that federal habeas proceedings do not toll the one-year limitation period. See Duncan v. Walker, 533 U.S. 167, 181-182, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). Doc. 10 at 2 n. 2. Counsel also indicated that Mr. Phillips (through counsel) believed it to be in his best interest to strike the pleadings so that the claims that were properly raised could be heard. Id. at 2-3. Counsel sought to withdraw because of a potential conflict with any ineffective assistance of counsel claims (he had worked on the direct appeal research), and he no longer was in private practice. Id. at 3. Counsel requested that the Federal Public Defender be appointed to represent Mr. Phillips.

OPINION PER CURIAM. Appellant James Larry Hood (“Hood”), a Caucasian male, worked for Appellee Kentucky Cabinet for Families and Children (“Cabinet”) and its predecessor, from 1975 until July 31, 2002, when he retired with full benefits. He brought this lawsuit against the Cabinet and a number of its employees, claiming that he had been discriminated against on the basis of his race and sex, by being denied a pay raise in 1999 and a promotion in 2001, and that he had been the victim of retaliation for having opposed Appellees’ alleged discriminatory practices and for having exercised his rights under the First Amendment to criticize the operations of the Cabinet. He set forth claims of discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. §§ 1983 and 1985. The district court granted summary judgment to the Appellees, concluding that the evidence failed to raise genuine issues of material fact as to the elements of Hood’s prima facie cases of discrimination and retaliation. Hood appeals, arguing that the grant of summary judgment was erroneous, because the evidence raised such issues of material fact and the district court erred in resolving factual disputes in favor of the Appellees. We review the grant of summary judgment de novo. Schweitzer v. Teamster Local 100, 413 F.3d 533, 536 (6th Cir.2005). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). Having had the benefit of oral argument, and having studied the record and the briefs of the parties, we are not persuaded that the district court erred in granting summary judgment to the Appellees. Given that the district court thoroughly and correctly articulated the reasons why the Appellees are entitled to summary judgment, the issuance of a detailed opinion by this Court would be superfluous and would serve no useful purpose. Accordingly, we affirm the judgment of the district court, based upon the reasoning set forth in its memorandum opinion filed on October 4, 2004.

ORDER AND JUDGMENT STEPHEN H. ANDERSON, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Britt Jarriel Hammons pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was subsequently sentenced to a term of 180 months imprisonment, pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), to be served consecutively to prison terms imposed for violations of state law. He appeals his sentence, which we affirm. BACKGROUND On November 28, 2003, while driving in Edmond, Oklahoma, Hammons was stopped by the police for various traffic violations. Because his own driver’s license was suspended, Hammons gave to the police his brother’s name. When the police officer discovered there was an arrest warrant out for Hammons’ brother, the officer arrested Hammons. Hammons then revealed that there was a 9 mm pistol under the passenger seat of the car. Hammons was subsequently indicted on one count of being a felon in possession of a firearm. He pled guilty to the charge, including admitting during the plea colloquy that he had prior convictions for possession of a false ID card, “false personation, concealing stolen property, ... forgery [and] discharging a firearm from a moving vehicle.” Tr. of Plea Proceedings at 12-13, R. Vol. 2. He was also told during his plea proceedings that he likely faced a ten-year maximum sentence, as provided by 18 U.S.C. § 924(a)(2), for being a felon in possession of a firearm under § 922(g)(1). The case was then assigned to the probation office so a presentence report (“PSR”) could be prepared. The probation officer concluded that, because of Hammons’ prior criminal record, he qualified as an Armed Career Criminal under the ACCA, 18 U.S.C. § 924(e). He accordingly recommended that Hammons receive the fifteen-year mandatory minimum required by the ACCA. Because Hammons had been told in his plea proceedings that his maximum sentence would be ten years, the court inquired whether Hammons wished to withdraw his guilty plea. Hammons chose to persist in his guilty plea. The court concluded that the ACCA was applicable, and sentenced Hammons to 180 months, the statutory minimum under the ACCA, to be served consecutively to sentences he was serving for violations of state law. The court also imposed a five-year term of supervised release and a $100.00 special assessment. Hammons appeals, arguing (1) the district court erred in sentencing Hammons under the ACCA where neither the indictment, Hammons’ plea petition, nor the plea proceedings mentioned the ACCA but, rather, stated that his maximum exposure was ten years; (2) the district court erred in treating Hammons’ prior felony convictions for using, and attempting to use, a vehicle to facilitate the discharge of a firearm as separate offenses for purposes of applying the ACCA; and (3) the district court abused its discretion in refusing to have Hammons’ federal sentence run concurrently with his state sentences. DISCUSSION Hammons first argues that, in sentencing him under the ACCA, the court violated Hammons’ Fifth and Sixth Amendment rights because the sentence “exceeded the maximum authorized by the indictment, his plea and his admissions.” Appellant’s Br. at 7. Hammons concedes, however, as he must, that this argument is foreclosed by numerous decisions of this court, including United States v. Dorris, 236 F.3d 582 (10th Cir.2000), and United States v. Moore, 401 F.3d 1220 (10th Cir.2005). We are bound by those decisions. Hammons next argues that the district court erred in sentencing him under the ACCA because the court improperly treated as separate incidents the four counts of Hammons’ conviction in 1992 for using a vehicle to facilitate the intentional discharge of a firearm and of attempting to do so. He argues “the counts for which Mr. Hammons was convicted were so related and close in time that they should be treated as a single conviction.” Appellant’s Br. at 8. He concedes, as he must, that this argument is foreclosed by United States v. Tisdale, 921 F.2d 1095 (10th Cir. 1990), cert. denied, 502 U.S. 986, 112 S.Ct.' 596, 116 L.Ed.2d 619 (1991), and cases following it. See United States v. Green, 967 F.2d 459 (10th Cir.1992). We are bound by those decisions. Finally, Hammons argues the district court erred in determining that his fifteen year sentence under the ACCA should run consecutively to his state sentences. Hammons was subject to three concurrent eight-year terms of imprisonment, two of which involved revocations of probation stemming from other crimes and one of which involved the use of a false ID card. Hammons’ counsel argued at sentencing that the fifteen-year ACCA term should run concurrently with those sentences. The district court rejected that argument, concluding that the state crimes were completely unrelated to the federal crime, and, further, “the state crimes involving false personation and other crimes of a similar nature, concealing stolen property and forgery, are crimes which in and of themselves are deserving of separate and serious attention by the state authorities.” Tr. of Sentencing at 25, R. Vol. 3. The court additionally noted Hammons’ significant criminal history in deciding to impose the federal sentence consecutively. “A district court generally has broad discretion to impose a consecutive or concurrent sentence. In exercising its discretion to impose a concurrent or consecutive sentence, the district court must provide reasons for its decision.” United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002) (citations omitted). The district court explained why it determined to impose Hammons’ federal sentence consecutively to his state sentences, and did not abuse its discretion in so doing. For the foregoing reasons, Hammons’ sentence is AFFIRMED. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. . Although Hammons was told by the government during his plea proceedings that he would face a ten year maximum sentence, the district court reminded Hammons "that the sentence imposed by the Court may be different from any estimate [his] attorney may have given [him].” Tr. of Plea Proceedings at 7, R. Vol. 2. . As detailed in the PSR, the incidents in question were a series of drive-by shootings directed at the same residence and involving essentially the same people. Nevertheless, they occurred over a period of four weeks in late 1992: November 17, November 27, December 3 and December 12. PSR at U 24, R. Vol. 4.

TORRUELLA, Circuit Judge. This difficult appeal concerns constitutional challenges to amendments to Puerto Rico’s Compulsory Motor Vehicle Liability Insurance Act, Act No. 253 (“Law 253”). Law 253 requires Puerto Rican motor vehicle owners to pay an annual premium for compulsory car insurance at the time of acquisition or renewal of vehicle registration. The premiums, initially collected by the Secretary of the Treasury (the “Secretary”), are transferred to the Compulsory Liability Joint Underwriting Association of Puerto Rico (“JUA”), a Commonwealth-created association of all private insurers in Puerto Rico. JUA then provides the compulsory car insurance. Motor vehicle owners can opt out of the compulsory liability insurance scheme by privately purchasing insurance with the same or comparable coverage. Those owners who opt out can either avoid paying the uniform premium at vehicle registration or seek reimbursement of the “duplicate premium” paid. The amendments at issue in this appeal, Law 230 and Law 414, concern the duplicate premiums collected by JUA. In essence, the amendments mandate the transfer of funds designated by JUA for the reimbursement of duplicate premiums (plus the interest they generate) back to the Secretary for use by the Commonwealth to address budget shortfalls. Moreover, Law 230 promulgates a separate procedure, Procedure No. 96, to provide reimbursement. In 2002, the plaintiffs-appellants (the “Plaintiffs”), all owners of motor vehicles in Puerto Rico who privately purchased car insurance but paid duplicate premiums, filed suit against the Secretary and the Governor of the Commonwealth (the “Governor” and, together with the Secretary, the “Defendants”) in their official and personal capacities. Plaintiffs claim that Law 230 and Law 414 violate the Takings, Due Process, and Equal Protection Clauses. They sought declaratory relief, preliminary and permanent injunctive relief, reimbursement, compensatory damages, and certification of a class of similarly situated vehicle owners. The district court denied almost all relief requested, including Plaintiffs’ request for class certification. However, the district court granted a preliminary injunction, later made permanent, enjoining the transfer of the interest generated by the duplicate premiums and ordering the Commonwealth to develop an adequate scheme of reimbursement of that interest. This appeal followed. After careful consideration, we affirm-in-part, reverse-in-part, and remand for further proceedings. I. Background Our discussion of Law 253 and the amendments at issue in this appeal draw from, and incorporate by reference, our prior decisions concerning Law 253. See Asociación De Subscripción Conjunta Del Seguro De Responsibilidad Obligatorio v. Flores Galarza, 484 F.3d 1 (1st Cir.2007); Arroyo-Melecio v. Puerto Rican Am. Ins. Co., 398 F.3d 56 (1st Cir.2005). A. Law 253 Law 253, codified at P.R. Laws Ann. tit. 26, §§ 8051-61, requires liability insurance coverage for all registered motor vehicles in Puerto Rico “that travel on public thoroughfares.” Flores Galarza, 484 F.3d at 6. To that end, Law 253 provides for compulsory liability insurance, “ ‘with $3000 of coverage for damages caused to third par ties per accident in exchange for a uniform premium, initially set at $99 for each private passenger vehicle and $148 for each commercial vehicle.’ ” Id. (quoting Arroyo-Melecio, 398 F.3d at 60-61). The compulsory liability insurance is provided by JUA, “an association of all private insurers in Puerto Rico.” Id. at 7. JUA must provide this coverage to all drivers, even high risk ones, with “ ‘the risk of insuring these high-risk drivers ... spread among all of the private insurers.’ ” Id. (quoting Arroyo-Melecio, 398 F.3d at 62). To fund the compulsory liability insurance, Law 253 requires motor vehicle owners to pay the uniform premium annually to the Secretary at the time of acquisition or renewal of vehicle registration. Id. (citing Arroyo-Melecio, 398 F.3d at 61 n. 2). The Secretary then transfers the premiums periodically to JUA. Id. (citing P.R. Laws Ann. tit. 26, § 8055(c)). Motor vehicle owners can “opt out of the compulsory liability insurance scheme by privately purchasing liability insurance with comparable or better coverage.” See id. at 7 (citing Arroyo-Melecio, 398 F.3d at 61 n. 2). Although, in some circumstances, individual motor vehicle owners who opt out can “avoid paying the compulsory insurance premium to the Secretary” at the time of registration, see id. at 7 n. 2, a number of such vehicle owners still pay the compulsory insurance premium. For those owners, Law 253 provides for reimbursement; in particular, vehicle owners “may then seek reimbursement directly from the JUA or from his insurer, who will, in turn, seek reimbursement from the JUA.” Id. at 7. These procedures are not at issue in this appeal. “Because a portion of the total amount of premiums received by JUA may be owed to third parties who seek refunds for duplicate payments,” JUA is required by law to “set aside these premiums and accumulate them in a separate reserve account (the ‘Reserve’).” Id. at 8. However, since January 1, 1998, the effective date of Law 253, JUA “has been unable to determine exactly how many registered motor vehicles in Puerto Rico are covered by private liability insurance.” Id. As a result, JUA has divided the Reserve account between the “duplicate premiums” it estimates it is required to reimburse to motor vehicle owners, and an “overstated” amount of funds, which are funds set aside by JUA as a buffer to meet all requests for reimbursement. See id. at 8-9. The general provisions of Puerto Rico insurance law with respect to “unclaimed funds” apply to Law 253. See id. at 8 n. 5 (“Puerto Rico’s Insurance Code makes clear that this general provision applies to the compulsory liability insurance system under Law 253.” (citing P.R. Laws Ann. tit. 26, § 2612)). Under Puerto Rico insurance law, vehicle owners have seven years to claim a duplicate premium. See P.R. Laws Ann. tit. 26, § 2603; see also Flores Galarza, 484 F.3d at 10 n. 9. Otherwise, the duplicate premium escheats to the Commonwealth. B. Law 230 and Law 414 On September 11, 2002, the Puerto Rican legislature enacted Law 230, codified at P.R. Laws Ann. tit. 26, § 8055(1). Law 230 requires JUA to retransfer to the Secretary all funds held in the Reserve every two years to balance the Commonwealth’s budget. The first transfer mandated under Law 230, $73 million, occurred the same month of Law 230’s enactment. Law 230 also provided that the Commonwealth could spend $53 million of the funds immediately. The $53 million, according to the Statement of Motives of the subsequently enacted Law 414, corresponded to the overstated funds contained in the Reserve. Under Law 230, the remaining $20 million, an estimate of the actual duplicate premiums paid, remained in the custody of the Secretary as trustee for five years, after which all unclaimed duplicate premiums became the property of the Commonwealth. However, any income generated by the funds, such as interest, reverted to the Commonwealth’s General Fund as it accrued. Accordingly, under Law 230, “the seven-year period provided by the general provisions of Puerto Rico’s Insurance Code ... [is divided] among the JUA (which holds the funds for two years) and the Secretary (who holds the funds for five additional years), after which time the funds lapse to the general fund.” Flores Galarza, 484 F.3d at 10 n. 9. Pursuant to Law 230, the Secretary adopted Procedure No. 96, a procedure by which motor vehicle owners can seek reimbursement from the Secretary. To obtain reimbursement, a vehicle owner must fill out a model form and submit, via mail or at certain designated offices, the following: a. Copy of the Motor Vehicle Registration License for which such reimbursement is being claimed; b. Copy of the insurance policy. Said policy shall be for each year that is being claimed; c. In the case such that it is the insurance firm which is making the claim, it shall attach certified copies of those policies that it is claiming; d. Certification of payment of the policy for each year being claimed. Such certification shall be issued by the insurance firm; e. Certification that such insurance firm has not received any reimbursement from [JUA], nor has reimbursed the premium for the Mandatory Liability Insurance, to the insured party. According to the Statement of Motives of Law 414, the Secretary has only reim bursed approximately $500,000 of duplicate premiums in the first two years of the enactment of Law 230. On September 22, 2004, the legislature passed Law 414, also codified at P.R. Laws Ann. tit. 26, §§ 8055(1). Among other things, Law 414 permitted the Commonwealth to use $19 million of the remaining funds transferred in September 2002 to balance the 2004-05 fiscal year budget. Law 414 also requires the Commonwealth to use money from the General Fund and the Budgetary Fund to reimburse vehicle owners if the amount transferred by JUA every two years is not sufficient to satisfy reimbursement requests. C. Procedural History Plaintiffs are motor vehicle owners who privately purchased liability insurance but also paid duplicate premiums. On February 6, 2002, in anticipation of the passage of Law 230, Plaintiffs filed a complaint in district court seeking equitable relief and damages under 42 U.S.C. § 1983. Plaintiffs refuse to seek reimbursement from the Secretary through Procedure No. 96. In their complaint, which has been amended, Plaintiffs assert a property interest in the duplicate premiums and the interest they generate. Consequently, Plaintiffs contend that each transfer of the funds from the Reserve account to the Secretary, starting with the $73 million in September of 2002, constitutes a temporary physical appropriation of their property without compensation and without due process, in violation of the Fifth and Fourteenth Amendments. They also contend that the Secretary permanently, and unlawfully, appropriated the interest generated by the funds. Finally, they contend that, as payers of the duplicate premiums, they and others similarly situated were singled out by the Commonwealth to address its budget concerns, in violation of the Equal Protection Clause. Plaintiffs sought 1. a declaratory judgment that the Governor “cannot implement” Laws 230 and 414; 2. a preliminary and permanent injunction to prevent the transfer of funds from the Reserve to the Secretary; 3. $70 million in damages from the Secretary and the Governor in their personal capacities; and 4. costs and attorneys’ fees. Plaintiffs also sought to certify a class. The Governor and the Secretary each moved to dismiss the claims, claiming, among other things, qualified immunity. Plaintiffs opposed, and moved separately for a prehminary injunction and class certification. On August 30, 2007, the district court issued an opinion and order that addressed these various motions. García-Rubiera v. Flores-Galarza, 516 F.Supp.2d 180 (D.P.R.2007). In the order, the district court dismissed as unripe the takings claim with respect to the duplicate premiums, since Plaintiffs had not availed themselves of their administrative remedy under Procedure No. 96. Id. at 188-90. The order also dismissed Plaintiffs’ damages claims against the Secretary and the Treasurer in their personal capacities, finding that both were entitled to qualified immunity. Id. at 194-95. The district court further denied preliminary injunctive relief that would have prevented the Commonwealth from taking title to those duplicate premiums transferred in September 2002, which were scheduled to escheat to the Commonwealth in September 2007. Id. at 195-96. The district court also denied Plaintiffs’ motion for class certification. Id. at 198. However, the district court granted a preliminary injunction, made permanent, that enjoined Defendants from depositing into the General Fund any interest generated by the duplicate premiums. Id. at 196-98 & n. 20. The district court later entered a separate judgment setting forth the terms of the permanent injunction, whereby it retained jurisdiction until the Commonwealth instituted a constitutionally adequate scheme “to deal with the interest generated by the Duplicate Premiums.” It further stated that “[jjudgment is also entered dismissing all claims against [the Secretary] and [the Governor] in their personal capacities.” Plaintiffs now appeal. II. Discussion Plaintiffs raise several issues on appeal. We discuss each in turn. A. The Takings Claim Plaintiffs first argue that the district court erred by dismissing their Takings Clause claim with respect to the duplicate premiums as unripe because of Plaintiffs’ refusal to pursue their administrative remedy under Procedure No. 96. As discussed in more detail below, we disagree with the district court and conclude that Plaintiffs’ takings claim for declaratory and injunctive relief is ripe despite their failure to utilize Procedure No. 96. We review de novo the dismissal of a takings claim on ripeness grounds. Deniz v. Municipality of Guaynabo, 285 F.3d 142, 145 (1st Cir.2002). To assert a ripe takings claim, a plaintiff must satisfy “ ‘two independent procedural hurdles.’ ” Flores Galarza, 484 F.3d at 13 (quoting Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 733-34, 117 S.Ct. 1659, 137 L.Ed.2d 980 (1997)). As explained by the Supreme Court in Williamson County Reg'l, Planning Commission v. Hamilton Bank, 473 U.S. 172, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), a plaintiff asserting a takings claim must demonstrate that (1) he or she “received a final decision from the state on the use of his property,” and (2) “sought compensation through the procedures the State has provided for doing so.” See Flores Galarza, 484 F.3d at 13-14 (quoting Williamson County, 473 U.S. at 194, 105 S.Ct. 3108). Plaintiffs have the burden of demonstrating ripeness. See Pascoag Reservoir & Dam, LLC v. Rhode Island, 337 F.3d 87, 91 (1st Cir.2003) (holding that “[a] federal suit is not timely until a plaintiff demonstrates” ripeness (emphasis added)). I. The Finality Prong Plaintiffs satisfy the first, finality prong. First, Plaintiffs have a sufficient property interest in the duplicate premiums to support their takings claim. For purposes of the Takings Clause, “the existence of a property interest is determined by reference to ‘existing rules or understandings that stem from an independent source such as state law.’ ” See Phillips v. Wash. Legal Found., 524 U.S. 156, 164, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998) (quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). Here, Puerto Rico law plainly establishes that Plaintiffs have a sufficient property interest in the duplicate premiums. By regulation, JUA must segregate those premiums collected that are thought to be duplicate premiums, and Puerto Rico’s insurance law concerning “unclaimed funds” apply to the duplicate premiums collected. See Flores Galarza, 484 F.3d at 8 & n. 5. Furthermore, upon transfer to the Secretary, Law 230 requires the Secretary to hold the duplicate premiums in a fiduciary capacity. See P.R. Laws Ann. tit. 26, §§ 8055(1) (“The Secretary of the Treasury shall retain these funds as trustee ....”) (emphasis added). Finally, Law 253, Law 230,- and Law 414 all provide for reimbursement of the duplicate premiums. Thus, like funds held in trust in an IOLTA account or an interpleader account, the funds held by JUA or the Secretary are clearly the “private property” of Plaintiffs for purposes of the Takings Clause. See Phillips, 524 U.S. at 164, 118 S.Ct. 1925 (“All agree that under Texas law the principal held in IOLTA trust accounts is the ‘private property’ of the client.”); see also Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980) (holding that funds deposited in interpleader fund for benefit of creditors are the property of creditors); cf. Flores Galarza, 484 F.3d at 30 (finding that the duplicate premiums “‘constitute a double payment for the same insurance,’ and, therefore, do not belong to JUA, but rather belong to private insured motorists.”) (quotations omitted and emphasis added). Second, the Secretary’s appropriation of the duplicate premiums constitutes a “final decision” for purposes of the finality prong. “[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.” Id. at 15 n. 18 (quoting Williamson County, 473 U.S. at 193, 105 S.Ct. 3108) (emphasis added). As we stated in Flores Galarza, The case law addressing the first “hurdle” focuses on whether the administrative body responsible for applying the challenged regulations has completed discretionary review of the plaintiffs particular situation. Here, there is no pending administrative process that could, through a variance, waiver or other discretionary decision, modify the statute’s impact on the JUA. Id. at 15. The same is true here, as there is no pending process that would “modify the statute’s impact” on Plaintiffs. 2. The Just Compensation Prong Consequently, at issue is whether Plaintiffs have satisfied the second, “just compensation” prong. The just compensation prong presents some difficulty for Plain tiffs, since Procedure No. 96 provides a procedure to reimburse the duplicate premiums, and Plaintiffs refuse to avail themselves of it. By their own admission, Plaintiffs have not “sought compensation through the procedures the State has provided for doing so.” Id. at 14 (citations omitted); see also Williamson County, 473 U.S. at 197, 105 S.Ct. 3108 (holding that the takings claim in that case was unripe “until [the plaintiff] has utilized th[e] procedure” for just compensation provided by the state). For that reason, the district court dismissed Plaintiffs’ claim as unripe. See García-Rubiera, 516 F.Supp.2d at 190. However, we have recognized exceptions to the just compensation prong. We have noted that facial challenges to a regulation “are generally ripe the moment the challenged regulation or ordinance is passed.” Flores Galarza, 484 F.3d at 14 (quoting Suitum, 520 U.S. at 736 n. 10, 117 S.Ct. 1659). Moreover, we have held that a plaintiff is relieved of the second prong if the procedure is “unavailable,” “inadequate,” or “futile.” See id. (noting that second prong does not apply when a procedure is “unavailable or inadequate” (quoting Williamson County, 473 U.S. at 197, 105 S.Ct. 3108)); see also Pascoag, 337 F.3d at 92-93 (noting that futility is an exception to this prong). Finally, we noted in Flores Galarza that the just compensation prong may not apply in certain circumstances to a “taking that involves the direct appropriation of funds.” See 484 F.3d at 19. On appeal, Plaintiffs argue that all three categories of exceptions apply. We agree as to the third category, and conclude that Plaintiffs’ claim for declaratory and injunctive relief is ripe because their claim “involves the direct appropriation of funds.” In Flores Galarza, we noted that the Supreme Court expressed doubt that a federal takings claim seeking declaratory and injunctive relief would require individuals to first seek compensation under the Tucker Act, which is “usually ... a step in a takings action against the federal government.” Id. (citing the plurality opinion in Eastern Enters. v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998)). Apfel concerned a challenge to the Coal Act, “which established a mechanism for funding health care benefits for coal industry retirees,” and which required private coal operators “to contribute to the payment of premiums to fund such benefits.” Id. {citing Apfel, 524 U.S. at 504, 118 S.Ct. 2131). Eastern, one such private coal operator, brought both facial and as-applied takings challenges, and sought a declaratory judgment and an injunction against enforcement of the act by the Commissioner of Social Security. Apfel, 524 U.S. at 520, 118 S.Ct. 2131. Eastern did not seek compensation. Id. A plurality concluded that the availability of Tucker Act compensation did not prevent Eastern from asserting its takings claim. It did so because to require Eastern to assert its claim would result in an “utterly pointless set of exercises,” since “Congress could not have contemplated that the Treasury would compensate coal operators for their liability under the Act, for ‘[ejvery dollar paid pursuant to a statute would be presumed to generate a dollar of Tucker Act compensation.’ ” Id. at 521, 118 S.Ct. 2131 (quoting In re Cha teaugay Corp., 53 F.3d 478, 493 (2d Cir.1995)). Instead, “the Declaratory Judgment Act allows individuals threatened with a taking to seek a declaration of the constitutionality of the disputed governmental action before potentially uneompensable damages are sustained.” Id. (quotation marks omitted). In Flores Galarza, we analogized the takings claim raised by JUA to the claim raised in Apfel. Although we recognized differences between the two contexts, we stated that “the nature of [JUA’s] claim— that Puerto Rico’s Secretary of the Treasury improperly withheld money belonging to the JUA so that it may be used for public purposes—strikes us as equivalent to the complaints against the ‘direct transfer of funds’ at issue in Apfel and the decisions its cites.” See Flores Galarza, 484 F.3d at 20. Here, even before the passage of Law 230, Plaintiffs have sought to enjoin the transfer of the duplicate premiums to the Secretary and a declaratory judgment that such a transfer was unlawful. In other words, Plaintiffs have consistently sought “a declaration of the constitutionality of the disputed governmental action before potentially uncompensable damages are sustained.” Apfel, 524 U.S. at 521, 118 S.Ct. 2131. Thus, to require Plaintiffs to seek compensation for property taken when it has continually sought to enjoin such takings in the first place “would entail an utterly pointless set of activities.” Flores Galarza, 484 F.3d at 20 (citations and quotation marks omitted). Since Plaintiffs’ takings claim for declaratory and injunctive relief mirrors the claims in Flores Galarza and Apfel in this crucial respect, we hold that they are ripe. For the above reasons, we reverse the district court and hold that Plaintiffs’ takings claim is ripe with respect to their requests for declaratory and injunctive relief. B. The Due Process Claim Plaintiffs also contend that Law 230 violates the Due Process Clause because it is a “spurious escheat statute” that transfers the duplicate premiums to the Commonwealth without providing notice of the transfers. Specifically, Plaintiffs challenge the transfer of the Reserve account from JUA every two years to balance the budget, which they contend effects an “es-cheat” of the premiums to the Commonwealth in violation of Puerto Rico law, which requires seven years of abandonment before the Commonwealth can take over the funds. See P.R. Laws Ann. tit. 26, § 2603; id. § 2612 (“The [general provision governing unclaimed funds] shall prevail over the provisions of any other chapter present or future which may be in conflict herewith.”). Plaintiffs argue that because Law 230 “did not provide any notice to the persons who might have an interest in” the transferred duplicate premiums, it violates their due process rights. As discussed in more detail below, although we agree with Plaintiffs that they have a sufficient property interest in the duplicate premiums for purposes of due process, we remand for further proceedings to determine whether the transfers to the Secretary constitutes a sufficient deprivation of that property interest to require notice under the Due Process Clause. 1. Relevant Procedural Background The district court did not directly address this specific due process challenge with respect to Plaintiffs’ claim for equitable relief. As background, the district court denied Plaintiffs’ motion for preliminary injunctive relief based on their due process claims because Plaintiffs failed to assert a likelihood of success on the merits. Garciar-Rubiera, 516 F.Supp.2d at 196. The district court found that Plaintiffs “have not shown that available remedies under the Commonwealth law are inadequate to redress any deprivation resulting from the transfer of the Duplicate Premiums to the Secretary;” specifically, Plaintiffs failed to “make [an] evidentiary proffer to support their allegations that Procedure No. 96 is onerous and ‘difficult if not impossible.’ ” Id. (citing Rumford Pharmacy, Inc. v. E. Providence, 970 F.2d 996, 999 (1st Cir.1992)). The district court further noted that since “Plaintiffs appear to have an adequate remedy at law which they have elected not to pursue,” they “will not ... suffer irreparable injury if denied equitable relief.” Id. The district court proceeded to enter a preliminary injunction, which it later made permanent, only as to Plaintiffs’ claims with respect to the interest earned by the duplicate premiums. Id. at 197. Left unaddressed was Plaintiffs’ due process claim with respect to notice. The district court instead focused on Plaintiffs’ claim that Procedure No. 96 was “onerous.” Id. at 196. In fact, although the district court denied preliminary injunctive relief with respect to the duplicate premiums, the court never explicitly disposed of Plaintiffs’ due process claim. After denying preliminary injunctive relief, the district court proceeded to enter a final judgment setting forth the terms of the permanent injunction as to the interest generated by the duplicate premiums, and further stated that “[¡judgment is also entered dismissing all claims against [Defendants] in their personal capacities.” 2. Analysis Since Plaintiffs challenge the district court’s denial of preliminary injunctive relief, “ ‘we scrutinize abstract legal matters de novo, findings of fact for clear error, and judgment calls with considerable deference to the trier.’ ” See Waterproofing Sys., Inc. v. Hydro-Stop, Inc., 440 F.3d 24, 28 (1st Cir.2006) (quoting Re-Ace, Inc. v. Wheeled Coach Indus., Inc., 363 F.3d 51, 55 (1st Cir.2004)). Moreover, based on the above, we construe the district court’s actions as denying Plaintiffs’ due process claim for equitable relief. Thus, we review the denial of declaratory relief “for something akin to abuse of discretion.” See Rossi v. Gemma, 489 F.3d 26, 38 & n. 21 (1st Cir.2007). Similarly, we review the denial of a permanent injunc tion for abuse of discretion, with any legal conclusions reviewed de novo and any factual findings reviewed for clear error. See Aponte v. Calderón, 284 F.3d 184, 191 (1st Cir.2002) (“Generally, we review a grant of a permanent injunction for abuse of discretion, but we always review questions of law de novo [and] factual findings for clear error.” (citations omitted)). To the extent that Plaintiffs are entitled to notice, they clearly lack it here. Due process requires “ ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Jones v. Flowers, 547 U.S. 220, 226, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)); see also Taylor v. Westly, 488 F.3d 1197, 1201 (9th Cir.2007) (same). In other words, “when notice is a person’s due ... [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Jones, 547 U.S. at 229,126 S.Ct. 1708 (quoting Mullane, 339 U.S. at 315, 70 S.Ct. 652). Here, Plaintiffs do not challenge the adequacy of the notice provided by Law 230. Plaintiffs instead claim that, on its face, Law 230 provides no notice of the transfer of the duplicate premiums from JUA to the Secretary every two years. Based upon our own review of Law 230 and Procedure No. 96, we agree. Law 230 makes no mention of notice. Instead, Law 230 only directs that the funds in the Reserve account be transferred to the Secretary. Procedure No. 96 also fails to provide notice. It provides that a reimbursement claim can be made “through the Public Insurance Area through Form SC-4601, Request for Reimbursement of Mandatory Insurance,” and that “[s]ame shall be available in the Internet or at Collector’s Offices.” Procedure No. 96 also sets forth the proof necessary to file a successful reimbursement claim. Despite all of these provisions, no mention of notice is made. The closest Procedure No. 96 comes to indicating notice is a direction that, upon transfer, JUA “shall forward an electronic file ... which shall contain the information which is indicated in Attachment 1, bearing those insureds that are entitled to such reimbursement.” Procedure No. 96, however, does not further direct that those named insureds receive notice of the transfer. In response, Defendants argue, without citing any supporting authority, that Plaintiffs had “plenty of notice” because they filed this action prior to the enactment of Law 230. However, Plaintiffs’ actual notice has no bearing in this case because Plaintiffs assert a facial challenge to Law 230. Plaintiffs argue that Law 230 is unconstitutional on its face because it fails to include a process whereby motor vehicle owners who paid duplicate premiums are provided notice that their premiums are going to be transferred to, and held by, the Secretary. Defendants do not dispute the absence of such a provision. Thus, actual notice cannot defeat Plaintiffs’ due process claim. Defendants also argue, again without citing supporting authority, that the mere passage and publication of Law 230 provided notice of the transfers of the duplicate premiums and the mechanism by which the payers of duplicate premiums could seek reimbursement. However, Plaintiffs’ argument is not that due process required them to receive notice of the available procedure for obtaining reimbursement. See City of West Covina v. Perkins, 525 U.S. 234, 241, 119 S.Ct. 678, 142 L.Ed.2d 636 (1999) (“Once the property owner is informed that his property has been seized, he can turn to [the state statute or case law] to learn about the remedial procedures available to him.”). Rather, their claim is that they are entitled to notice that the Commonwealth is about to assert a contrary property interest in their duplicate premiums. In such circumstances, mere publication of the law effectuating a seizure of a property interest does not constitute constitutionally adequate notice. See Mullane, 339 U.S. at 314, 70 S.Ct. 652 (“Th[e] right to be heard has little reality or worth unless one is informed that the matter [affecting one’s property rights] is pending and can choose for himself whether to appear or default, acquiesce or contest”); see also Covina, 525 U.S. at 240, 119 S.Ct. 678 (same, quoting Mullane). But Plaintiffs must first establish at least two threshold requirements before it is entitled to notice under the Due Process Clause. First, “[a] threshold requirement for a successful procedural due process claim is to demonstrate the implication of a constitutionally protected interest in life, liberty, or property.” Aponte, 284 F.3d at 191 (citing Romero-Barceló v. Hernández-Agosto, 75 F.3d 23, 32 (1st Cir.1996)). Plaintiffs have demonstrated such an interest. In general, we perform the same analysis in determining whether a property interest is sufficient under both the Takings Clause and the Due Process Clause. See Picard v. Members of Employee Ret. Bd. of Providence, 275 F.3d 139, 144 (1st Cir.2001) (noting that “[i]n evaluating whether a purported contract or property right is entitled to constitutional protection under the Takings Clause, Contract Clause, or Due Process Clause, this Court generally looks to state law as interpreted by the state’s highest court” (citing cases)); cf. Natl Educ. Ass’n-R.I. v. Ret. Bd. of the R.I. Employees’ Ret. Sys., 172 F.3d 22, 30 (1st Cir.1999) (“An expectation that is not ‘property’ for purposes of the Takings Clause may yet sometimes entitle the citizen to procedural protection ... before the expectation is cut off by government action.”). Since we hold that Plaintiffs have a sufficient interest in the duplicate premiums for Takings Clause purposes, we also hold that Plaintiffs have a sufficient interest in the duplicate premiums for Due Process Clause purposes. Once a property interest is established, Plaintiffs must then show that “the defendants, acting under color of state law, deprived [them] of that property interest without constitutionally adequate process.” See SFW Arecibo, Ltd. v. Rodriguez, 415 F.3d 135, 139 (1st Cir.2005) (quoting PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 30 (1st Cir.1991)) (emphasis added). In this case, the alleged deprivation caused by Law 230—the transfer of the duplicate premiums to the Secretary—does not cause a permanent escheat. Instead, the funds are to be held in trust by the Secretary until the escheat period set forth under Puerto Rico insurance law passes. The Supreme Court has held that “even the temporary or partial impairments to property rights that attachments, liens, and similar encumbrances entail are sufficient to merit due process protection.” See Connecticut v. Doehr, 501 U.S. 1, 12, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991). In Doehr, for example, a Connecticut statute permitted plaintiffs in civil suits to obtain ex parte attachments against defendants with a showing so minimal—an averment by the plaintiff that the defendant is liable—that it resulted in a “significant risk of erroneous deprivation.” Id. at 21, 111 S.Ct. 2105. Following Doehr, in Reardon v. United States, 947 F.2d 1509 (1st Cir.1991) (en banc), we held that filing a CERCLA lien without notice or a predeprivation proceeding constituted a sufficient deprivation of property since “[t]he EPA’s lien has substantially the same effect ... as the attachment had on the [property owner] in Doehr—clouding title, limiting alienability, [and] affecting current and potential mortgages.” Id. at 1518. The alleged deprivation caused by Law 230 has some similarities to the “temporary or partial” deprivations in Doehr and Reardon. Like a lien or attachment, the alleged deprivation in this case is “temporary or partial,” because Law 230 allows payers of the duplicate premiums to receive reimbursement. The deprivation here, like in Doehr and Reardon, only results in a “risk of erroneous deprivation.” Doehr, 501 U.S. at 21, 111 S.Ct. 2105. Moreover, like a lien or attachment, the Secretary, through operation of Puerto Rico’s general escheat statute, has a contingent interest in the duplicate premiums, one that poses a risk of complete deprivation should Plaintiffs fail to obtain reimbursement during the escheat period. But the alleged deprivation in this case differs from the deprivations in Doehr and Reardon in two important respects. First, unlike in Doehr or Reardon, Plaintiffs do not have use of the duplicate premiums prior to the transfer, as they are already held in trust by JUA. The transfers only result in a change of trustees. Second, the laws at issue in Doehr and Reardon created the liens or attachments at issue without adequate due process. In this case, however, the Secretary already has a contingent interest prior to the transfer, insofar as the escheat period had already begun to run prior to the transfer. The only change effected by the transfer, apart from the change in trustee, is the change in procedure to obtain reimbursement. In sum, the alleged deprivation here is not the creation of a lien or attachment without due process, as was the case in Doehr and Reardon, but the transfer of property held by one party to a different party and the imposition of a different (and allegedly more onerous) reimbursement procedure. In their takings claim, Plaintiffs claim that the procedure to obtain reimbursement, Procedure No. 96, is so onerous that the change in procedure is, in effect, a “spurious escheat.” Here, they also claim that the transfer constitutes a “spurious escheat,” but provide no briefing on whether the alleged deprivation (change in trustee plus a change in procedure) constitutes a sufficient deprivation for purposes of the Due Process Clause. Defendants also provide no briefing on whether the transfers here result in a deprivation of constitutional significance. They only argue that any notice here was adequate. Finally, as noted above, the district court did not reach the issue. Given the lack of briefing and the district court’s silence on this issue, we conclude that the more prudent course is to remand to the district court for further proceedings to determine whether the transfers of the duplicate premiums mandated by Law 230 constitute a sufficient deprivation for purposes of the Due Process Clause. C. The Equal Protection Claim In addition to their due process challenge, Plaintiffs contend that the district court erred with respect to their equal protection claim. The district court dismissed the claim in a footnote, stating that it “finds without merit Plaintiffs’ undeveloped arguments that the Secretary’s action ... violates their rights to equal protection.” García-Rubiera, 516 F.Supp.2d at 188 n. 10. Plaintiffs fare no better here. Plaintiffs claim that they were “singled out” as payers of the duplicate premiums to address the shortfalls in the Commonwealth’s budget. “When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude ... and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” City of Cle burne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (internal citations omitted). Accordingly, in cases that do not involve a protected class, “the Equal Protection Clause requires only a rational means to serve a legitimate end.” Id. at 442, 105 S.Ct. 3249. Neither Law 230 nor Law 414 is directed to a protected class, and the Commonwealth’s actions in transferring and using the funds, whatever their merit, is certainly rational, serving the legitimate end of balancing the budget. Thus, no equal protection violation occurred. D. Qualified Immunity Plaintiffs additionally claim that the district court erred in finding that Defendants were entitled to qualified immunity as to Plaintiffs’ claims for compensatory damages against the Defendants in their personal capacities under 42 U.S.C. § 1983. We review the district court’s allowance of qualified immunity de novo. Jennings v. Jones, 499 F.3d 2, 10 (1st Cir.2007). To determine qualified immunity, we have “typically applied ... a three part test in which we inquire:” (1) whether the claimant has alleged the deprivation of an actual constitutional right; (2) whether the right was clearly established at the time of the alleged action or inaction; and (3) if both of these questions are answered in the affirmative, whether an objectively reasonable official would have believed that the action taken violated that clearly established constitutional right. Id. (quoting Starlight Sugar, Inc. v. Soto, 253 F.3d 137, 141 (1st Cir.2001)). In its order the district court ultimately found that Defendants were entitled to qualified immunity. As to the first prong, the district court found that Plaintiffs’ amended complaint sufficiently alleged a due process claim and a takings claim with respect to the interest earned by the duplicate premiums, finding earlier that Plaintiffs’ takings claim with respect to the duplicate premiums was not ripe. García-Rubiera, 516 F.Supp.2d at 192-93. However, as to the second prong, the district court relied upon our finding in Flores Galarza that “after enactment of [Law 230], which specifically required the JUA to transfer to the Secretary all funds held in the Reserve as of December 31, 2001, the law did not clearly establish ... that withholding any of the designated Reserve ... [and the interest it generates] was an unconstitutional taking.” Id. at 193 (quoting Flores Galarza, 484 F.3d at 35) (emphasis in original). Moreover, the district court held that, “[regarding Plaintiffs’ procedural due process claim, the law was not clearly established that to the effect that the custodial transfer of funds pursuant to a Commonwealth statute and the provision of a compensation procedure did not comport with due process requirements.” Id. at 193-94. As to the third prong, the district court relied upon our finding in Flores Galarza that “a reasonable officer in [the Secretary’s] circumstances would have believed that he had a law mandate, stemming from [Law 230], to retain for use by the Department of Treasury the Reserve Fund recognized by JUA as of December 31, 2001. Any officer in his shoes would have acted as he did in immediately retaining the full Reserve Fund [and interest] without any compensation to the JUA [or Plaintiffs].” Id. at 194 (quoting Flores Galarza, 484 F.3d at 36) (alterations in the original). Accordingly, the district court concluded that “[t]he same rationale applies to the takings and procedural due process claims asserted in this case.” Id. Finally, the district court held that all of these findings applied equally to the Governor. Id. at 195. We identify no error in the district court’s analysis, and see no reason to revisit anything we previously determined in Flores Galarza. We only add that the conclusions we reached in Flores Galarza apply equally to Plaintiffs’ takings claims with respect to the duplicate premiums. See Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009) (establishment of constitutional violation unnecessary when other prongs are established in order to find qualified immunity). Accordingly, we affirm the district court with respect to its grant of qualified immunity to Defendants. E. Class Certification Plaintiffs finally challenge the denial of their motion to certify a class. We generally review the denial of class certification for abuse of discretion. See McKenna v. First Horizon Home Loan Corp., 475 F.3d 418, 422 (1st Cir.2007). Any legal rulings are reviewed de novo. Tardiff v. Knox County, 365 F.3d 1, 4 (1st Cir.2004). Below, Plaintiffs moved to certify a class of “all motor vehicle owners [sic] residents of the Commonwealth of Puerto Rico who during the years 1997 to 2007 have paid the compulsory motor vehicle insurance premiums and have also acquired traditional insurance and have not been reimbursed with the compulsory insurance premiums.” García-Rubiera, 516 F.Supp.2d at 198. The district court denied class certification because, having dismissed Plaintiffs’ damage claims, the remaining claims for injunctive relief, if granted, would “affect all commonwealth motor vehicle owners equally.” Id. Accordingly, the district court concluded that “[t]he class action device ... is not the superior method of adjudicating Plaintiffs’ claims,” since “[c]lass certification in this ease would serve no useful purpose.” Id. As an initial matter, although the district court did not directly address whether Plaintiffs satisfied the prerequisites of Rule 23(a), we note that they are easily satisfied here. As to numerosity, Plaintiffs estimate the class to be around 500,000, which they calculate based on the fact that JUA reserved amounts to reimburse on an estimate that 17% to 25% of all registered motor vehicle owners paid duplicate premiums, see Flores Galarza, 484 F.3d at 8-9, and that, according to Plaintiffs, there are three million registered motor vehicle owners. Although Plaintiffs do not provide a basis for their estimate of the total number of registered motor vehicle owners, we independently conclude that numerosity is satisfied. The money withheld by JUA for reimbursement ($20 million) as compared to the amount of the duplicate premiums ($99 or $148) paid by motor vehicle owners shows that the total number of individuals in the class far exceeds the low threshold for numerosity. See Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir.2001) (“No minimum number of plaintiffs is required to maintain a suit as a class action, but generally if the named plaintiff demonstrates that the potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.”) (citations omitted). Commonality and typicality are easily met as well, since there are “questions of law or fact common to the class,” see Fed. R.Civ.P. 23(a)(2), and Plaintiffs’ claims “arise[] from the same event or practice or course of conduct that gives rise to the claims of other class members, and ... are based on the same legal theory.” See In re Am. Med. Sys., Inc., 75 F.3d 1069, 1082 (6th Cir.1996) (discussing typicality under Rule 23(a)(3), quoting 1 Herbert B. New-berg & Alba Conte, Newberg on Class Actions § 3.13 (3d ed.1992)). And there is no reason to question the adequacy of representation in this case, see Fed. R.Civ.P. 23(a)(4) & 23(g), as Plaintiffs and counsel have diligently pursued their rights since enactment of Law 230. That said, the district court committed legal error in denying class certification. To obtain certification of a class, Plaintiffs must establish the prerequisites of Rule 23(a) and fall within one of the categories of Rule 23(b). See Fed.R.Civ.P. 23(a)(l)-(4) & 23(b)(l)-(3); see also Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 32, 38 (1st Cir.2003). In addressing Plaintiffs’ motion to certify a class, the district court applied Rule 23(b)(3), which requires Plaintiffs to show, among other things, that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). However, Rule 23(b)(3) applies to class actions solely asserting damage claims that do not otherwise fit within the other Rule 23(b) categories, see Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614-15, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), and all damages claims in this case were dismissed. Instead, class actions asserting injunctive relief, as the one here, fit under Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief ... is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2); see also Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 162 (2d Cir.2001) (Rule 23(b)(2) “is intended for cases where broad, class-wide injunctive or declaratory relief is necessary to redress a group-wide injury.”). Unlike Rule 23(b)(3), Rule 23(b)(2) has no superiority requirement. Because the district court denied Plaintiffs’ motion for class certification based on a requirement that did not apply, it committed reversible legal error. Accordingly, we reverse the district court’s denial of Plaintiffs’ motion for class certification and, having found that Plaintiffs have satisfied all of the requirements necessary to certify a class, we direct the district court to certify one consistent with this opinion. III. Conclusion In sum, we reverse the district court and hold that Plaintiffs’ takings claim for declaratory and injunctive relief is ripe. With respect to Plaintiffs’ due process claim, we remand for further proceedings consistent with this opinion. We affirm the denial of Plaintiffs’ equal protection claim. We affirm the district court’s dismissal of Plaintiffs’ compensatory damages claims on qualified immunity grounds. Finally, we reverse the district court’s denial of class certification and remand directing the district court to certify a class consistent with this opinion. Affirmed-in-part, reversed-in-part, and remanded for further proceedings consistent with this opinion. Each side shall bear their own costs. . At the time of the filing of this action, Juan Antonio Flores-Galarza was Secretary and Sila María Calderón was Governor, although they no longer hold those positions. Because they were sued in their personal capacities, they remain parties to this action. . Specifically, individuals who have "the requisite amount of traditional liability insurance" can "avoid paying the compulsory insurance premium to the Secretary” by presenting a "Certificate of Compliance” from their insurer. Id. at 7 n. 2. As noted in Flores Galarza, it is unclear whether all individuals who opt out by privately purchasing insurance can avoid paying the compulsory insurance premium at vehicle registration. That is because Puerto Rico law defines "[tjraditional liability insurance” as "insurance protecting against both personal and property damage 'resulting from or incident to ownership, maintenance, or use of any ... vehicle.’ ” Id. (citing Law 253 and P.R. Laws Ann. tit. 26, § 407(1)). Accordingly, those who buy less than "traditional liability insurance,” but insurance sufficient to opt out of the compulsory insurance scheme, do not appear to be able to avoid paying the compulsory insurance premium at registration. We so concluded in Flores Galarza, see id. at 7 n. 3, although we do not need to address the issue here. . In Flores Galarza JUA represented that from 1998 to 2001 it estimated that 25% "of all vehicles were covered by policies from private insurers, and, accordingly, set aside 25% of all premiums received” in the Reserve. See id. at 8. For fiscal year 2001, it reduced the amount reserved to approximately 17%. Id. at 8-9. But see id. at 11 n. 13 (noting discrepancy in percentages withheld). . In fact, the $73 million was never transferred to JUA in the first place. As discussed in more detail in Flores Galarza, beginning in 2002, the Secretary refused to transfer the premiums it collected to JUA, a practice that ended when the parties reached a settlement in November 2002. 484 F.3d at 9-10. Pursuant to the settlement, the Secretary transferred to JUA all but $73 million, which was the amount Law 230 required JUA to retransfer back to the Secretary. See generally id. at 9-10. . This conflicts with Flores Galarza, where the overstated amount was estimated to be between $8 million and $10 million. See id. at 8, 11 n. 13. The parties provide no explanation for this discrepancy, although Plaintiffs contend that the $8 million to $10 million amount is the correct one. . In 2001, Plaintiffs filed a class action in the Commonwealth Court of First Instance seeking reimbursement from JUA. The action was dismissed for lack of primary jurisdiction, and on June 11, 2008, the Puerto Rico Court of Appeals upheld the dismissal. See García Rubiera v. Asociación de Subscripción Conjunta del Seguro de Responsibilidad Obligatorio, No. KLAN200700327, 2007 WL 5377629 (P.R. Cir. Jun. 11, 2007) (translation provided by the parties). In its decision the Court of Appeals held that Law 230 placed exclusive primary jurisdiction for any claims for reimbursement with the Secretary. Thus, Plaintiffs' failure to utilize Procedure No. 96 deprived the Court of First Instance jurisdiction to address their claims. See id. slip. op. at 16-19. The Court of Appeals did not address the merits of Plaintiffs' constitutional claims. Id. slip op. at 21. . Plaintiffs amended the complaint on December 24, 2004 after the district court dismissed the original complaint without prejudice on February 9, 2004. The district court dismissed the complaint on standing and ripeness grounds. In essence, the district court found that Plaintiffs’ claims were premature because "it was uncertain” that Law 230, then known as Bill 2114, would pass "and the Commonwealth will in fact appropriate the funds for the 2002-2003 budget.” . Plaintiffs also seek reimbursement, but any claim for reimbursement against Defendants in their official capacities, to the extent that it is a claim for damages, is barred by the Eleventh Amendment. See Flores Galarza, 484 F.3d at 23-25 & n. 27. . We further note that Defendants do not appeal the injunction entered by the district court with respect to the interest generated by the duplicate premiums. Since the basis of Plaintiffs’ property interest in the interest is based on the maxim that " 'interest follows principal,’ " see Flores Galarza, 484 F.3d at 32 (quoting Phillips, 524 U.S. at 165-72, 118 S.Ct. 1925), it would be anomalous if Plaintiffs have a property interest in the interest generated by the duplicate premiums but not the premiums themselves. . It is unclear whether Plaintiffs limit their takings challenge to solely a facial challenge. Plaintiffs' takings claim is not well-presented, and at times in their brief suggest such a limitation while, at the same time, they state that they are entitled to "go to trial and present evidence that the procedure's net effect would have been to deprive the substantial majority of the owners of their reimbursement.” Given this lack of clarity, we construe Plaintiffs' argument as presenting both facial and as-applied takings challenges. . We note that Plaintiffs’ due process claim only goes to the lack of notice of the transfer of the duplicate premiums to the Secretary pursuant to Law 230. Plaintiffs do not challenge the sufficiency of the notice post-transfer but prior to escheat. We further note that Puerto Rico's insurance code requires ”[e]very insurer and every general agent, manager, or producer” to produce a report of all unclaimed premiums, see P.R. Laws Ann. tit. 26, § 2604(1), and "cause notices to be published based on the information contained in the reports.” Id. § 2605(1). Moreover, ”[s]uch notice must be published once a week for two (2) consecutive weeks in a newspaper of general circulation in Puerto Rico.” Id. Presumably, "general agent, manager, or producer” includes the Secretary, but we do not need to address the matter here. See id. § 2612 ("The provisions of this chapter shall prevail over the provisions of any other chapter present or future which may be in conflict herewith.”). . The district court dismissed Plaintiffs' due process claims for compensatory damages on qualified immunity grounds, and we address the dismissal of those claims separately below. . We speculate that one reason why the district court did not address this particular due process claim may be because Plaintiffs did not adequately present the claim below. However, Defendants do not assert waiver as a defense, and as both parties briefed the issue, we address it.

FAY, Circuit Judge: Peter R. Ginsberg and Peter R. Ginsberg, P.C. appeal the district court’s decision to affirm the bankruptcy court’s imposition of sanctions. The bankruptcy court awarded sanctions based on Ginsberg’s actions in conjunction with the filing of a Recusal Motion. Ginsberg asserts three issues on appeal: (1) the district court abused its discretion in affirming the bankruptcy court’s Sanctions Order and its imposition of sanctions; (2) the district court abused its discretion in affirming the bankruptcy court’s decision not to testify about or discuss the complaint of judicial misconduct; and (3) the district court abused its discretion in affirming the bankruptcy court’s denial of Ginsberg’s Ore Terms Motion to Transfer the Sanctions Motion. We affirm the district court which affirmed the bankruptcy court. I. FACTUAL BACKGROUND This appeal arises from the adversary proceeding instituted by Evergreen Security, Ltd. (“Evergreen”) in the Bankruptcy Court for the Middle District of Florida. Evergreen, deemed a “ponzi scheme,” filed a voluntary petition for Chapter 11 bankruptcy (“the main case”). Jon Knight and Anthony Huggins were principal actors in the scheme, both individually and through various corporate entities. R.W. Cuthill was appointed as the Chapter 11 trustee to recover funds belonging to Evergreen in order to pay Evergreen’s creditors. Cuthill instituted an adversary proceeding for $6.5 million fraudulently transferred from Evergreen Trust (an entity wholly owned by Evergreen) to Mataeka, and later to Knight, Huggins, and others. This action is referred to as the “Mataeka AP.” Judge Briskman served as the bankruptcy judge in the main case and the Mataeka AP. Peter Ginsberg, of Peter R. Ginsberg P.C. (collectively “Ginsberg”), represented Knight. GrayRobinson attorneys Scott Spradley and Maureen Vitucci served as local counsel for Ginsberg, as well as main counsel for Huggins, Mataeka and Atlantic Portfolio Analytics & Management, Inc. (“APAM”). R. Scott Shuker and his firm Latham Shuker Eden & Beaudine LLP (“Latham”) represented Cuthill and Evergreen. Cuthill prevailed in the Mataeka AP. The court issued a judgment against Knight, Huggins, and Mataeka jointly and severally for nearly $8 million, and against APAM for $2.5 million. In an effort to collect on the Mataeka AP Judgment, Evergreen (through Cuthill) filed three involuntary Chapter 7 bankruptcy petitions against Knight, Huggins and APAM and Judge Briskman appointed an interim trustee in both the Knight and Huggins involuntary actions. On July 26, 2006, the court began the final evidentiary hearing on the involuntary petitions, and Evergreen completed its prima facie case that day. The next day, on July 27, 2006, Knight, Huggins, Mataeka, and APAM, through counsel Ginsberg, filed a Motion for Recusal, Motion to Disqualify, Disclosure of all Ex-Parte Communications and Revocation of all Prior Orders (“Recusal Motion”) in the main case only. The parties requested the court recuse itself, disqualify Latham, disclose all ex parte communications and filings, and revoke all orders previously entered in this case and all other adversary proceedings. Less then a month later, Ginsberg filed a Petition for Writ of Mandamus with the district court asking for a stay of all pending proceedings until the resolution of the Recusal Motion. A Supplemental Petition for Writ of Mandamus was filed a week later, seeking Judge Briskman’s removal from ruling on the Recusal Motion and all related proceedings. Both of these writs were denied. On October 10, 2006 Evergreen filed a motion seeking sanctions against attorneys Spradley, Vitucci, and Ginsberg, and the law firms of GrayRobinson and Peter R. Ginsberg, P.C. (“Sanctions Motion”). Ginsberg then filed a third Petition for Writ of Mandamus requesting that the district court compel Judge Briskman to reconsider and reverse the decision to exclude himself as a witness. The district court denied the third Petition for Writ of Mandamus. Evidentiary hearings on the Recusal Motion were held on November 29, 2006, December 11, 2006 and January 29, 2007. On February 27, 2007 the bankruptcy court denied the Recusal Motion, and on August 17, 2007 Judge Briskman issued an Order to Show Cause whether sanctions should be imposed. On August 28, 2007 Judge Briskman conducted an evidentiary hearing on the Sanctions Motion. The court granted the Sanctions Motion on January 2, 2008. In the Sanctions Order, Judge Briskman imposed monetary sanctions of $371,517.69 against Ginsberg and barred him from practicing before the United States Bankruptcy Court for the Middle District of Florida for a period of five years. Ginsberg appealed both Or ders. On June 17, 2008, District Court Judge Anne C. Conway entered an order affirming, among other things, the bankruptcy court’s denial of the recusal motion and imposition of sanctions. II. LEGAL STANDARD Federal courts, including bankruptcy courts, possess inherent authority to impose sanctions against attorneys and their clients. In re Walker, 532 F.3d 1304, 1309 (11th Cir.2008). “This power is derived from the court’s need to manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases.” Sunshine Jr. Stores, Inc., 456 F.3d 1291, 1304 (11th Cir.2006) (internal citations omitted). Federal statute 11 U.S.C. § 105(a) also gives the court the authority to “sua sponte, tak[e] any action or mak[e] any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.” 11 U.S.C. § 105(a) (2005). We review the exercise of these powers for abuse of discretion. In re Sunshine Jr. Stores, Inc., 456 F.3d at 1304. Under this standard, “we ask whether [the court] ‘appliefd] the wrong legal standard or ma[de] findings of fact that are clearly erroneous.’ ” Id. (quoting Byrne v. Nezhat, 261 F.3d 1075, 1106 (11th Cir.2001)). III. DISCUSSION Ginsberg appeals the bankruptcy court’s imposition of sanctions for the drafting, filing and litigating of the Recusal Motion. Ginsberg alleges that the district court erred in affirming the sanctions because (1) the Recusal Motion was proper; (2) the bankruptcy court should have disclosed the existence of a complaint of judicial misconduct and testified to its contents; and (3) the bankruptcy court should not have presided over the Sanctions Motion. We address each contention below. A. Recusal Motion A party may file a Recusal Motion when a Judge’s impartiality may reasonably be questioned. See 28 U.S.C. § 455(a) (“Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”). “The inquiry of whether a judge’s impartiality might reasonably be questioned under § 455(a) is an objective standard designed to promote the public’s confidence in the impartiality and integrity of the judicial process.” Davis v. Jones, 506 F.3d 1325, 1332 n. 12 (11th Cir.2007) (internal citations omitted). Thus, the court looks to “the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.’” Cheney v. U.S. Dist. Court for Dist. of Columbia, 541 U.S. 913, 924, 124 S.Ct. 1391, 158 L.Ed.2d 225 (2004) (quoting Microsoft Corp. v. United States, 530 U.S. 1301, 1302, 121 S.Ct. 25, 147 L.Ed.2d 1048 (2000)); see also Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir.1988) (“Under this section, factual allegations need not be taken as true, and the test is whether ‘a reasonable person, knowing all the relevant facts, would harbor doubts about the judge’s impartiality.’ ” (quoting Hinman v. Rogers, 831 F.2d 937, 938 (10th Cir.1987))). Ginsberg essentially pled three bases for the appearance of impartiality: (1) the filing of a complaint of judicial misconduct against Judge Briskman in a previous matter involving Shuker; (2) the bankruptcy court’s acceptance and consideration of Shuker’s ex parte and oversized filing; and (3) Shuker’s violations of the Florida Rules of Professional Conduct. The bankruptcy court found that Ginsberg failed to establish any legal or factual support for these allegations and that the Motion was filed for an improper purpose. We find that the bankruptcy court was not clearly erroneous in its findings of fact and that it applied the correct legal standards. 1. Hudson’s Judicial Council Complaint On appeal, Ginsberg asserts that the filing of a complaint of judicial misconduct with the Judicial Council of the Eleventh Circuit was his main basis for filing the Recusal Motion. Ginsberg’s Recusal Motion repeatedly referenced this complaint of judicial misconduct (“the Complaint”), which was filed by Phil Hudson (“Hudson”) with the Judicial Council, regarding Judge Briskman’s conduct in the bankruptcy action Advanced Telecomm. Network, Inc. v. Daniel W. Allen (“ATN’). (Recusal Mot. at 2.) In ATN Shuker represented ATN, Hudson represented the defendants/creditors Daniel and David Allen, and Judge Brisk-man initially presided. Cuthill served as a witness in that case, but there is no overlap in the parties or the issues between ATN and the instant bankruptcy proceedings. According to the Recusal Motion, Shuker filed an ex parte motion in ATN, Judge Briskman held an ex parte hearing on that motion, and Judge Briskman ordered the ex parte motion be removed from the docket. These allegations are generally accurate. However, it is important to note the context. ATN was attempting to recover funds from the Allens. At the motion hearing, Shuker expressed ATN’s concern that the Allens would secret assets in other corporations to avoid turning them over. The Allens had already been ruled in contempt of two orders relating to the disclosure or repatriation of assets, so ATN did not want to give the Allens any advance warning of its attempt to have a temporary receiver appointed. At the hearing, Shuker and Judge Briskman also discussed the possibility of the Allens being arrested for contempt. Judge Brisk-man agreed to take the hearing off the docket sheet so that the Allens would not have advance warning of the matters discussed therein. A court reporter who transcribed the hearing was also present and a full record was made. Hudson later learned of the ex parte motion and hearing and filed an Emergency Motion to Disqualify Opposing Counsel. At some point ATN was transferred to Bankruptcy Judge Jenneman, who held a hearing on the Motion and denied it. In her Order denying the Motion, Judge Jenneman stated, “ex parte hearings, while discouraged, are sometimes appropriate. In this case, the decision to allow ATN to proceed with a hearing without notice to the Allens does not appear improper. Moreover, the hearing was held on the record.” (Am. Memo. Op. Den. Defs.’ Emergency Mot. to Disqualify at 8.) Thereafter, Hudson also filed the Complaint with the Judicial Council of the Eleventh Circuit. In this case, Ginsberg first learned of Hudson’s Complaint from Spradley on July 7, 2006. Spradley received an email from an attorney with his firm named John Anthony informing him that Hudson had filed a Complaint related to the ATN matter. Anthony heard this from another attorney (not Hudson). On the same day, Spradley spoke to Hudson about the Complaint, confirmed that Hudson had in fact filed one, and informed Ginsberg of what he had learned. (Sanctions Tr. Vol. II at 119.) On July 8, 2006 Ginsberg began researching the Recusal Motion. (Id. at 18.) Ginsberg himself never spoke to Hudson before filing the Recusal Motion (id. at 30), and neither Spradley nor Ginsberg asked Hudson for a copy of the Complaint or other proof of its filing (see id. at 30; 142,153-54). At the sanctions hearing Ginsberg testified that after reviewing the ATN docket he detected “parallels” between the ATN case and this one. (Sanctions Tr. Vol. I at 169.) Ginsberg said he was troubled by the appointment of an interim trustee in both cases. (Id.) Additionally, Ginsberg claimed that Shuker’s threats of imprisonment in ATN reminded Huggins and Knight of Shuker’s threats of imprisonment in this ease (discussed below), and they were concerned about the implication that Shuker would have Judge Briskman’s approval in doing so. (Id.) Ginsberg therefore filed the Recusal Motion. In the Motion, Ginsberg alleged that “Judge Briskman presiding here is, himself, under investigation by the 11th Circuit Court of Appeals following ex parte, allegedly inappropriate communications with Mr. R. Scott Shuker.” (Recusal Mot. at 2.) Ginsberg claimed that Judge Brisk-man’s failure to notify the parties of the ongoing investigation, as well as Shuker’s role as a future witness in the investigation, further bolstered the appearance of partiality. (Id. at 21, 27.) a. Lack of Factual Support We find that the bankruptcy court was not clearly erroneous in finding no factual support for Ginsberg’s assertion that the existence of the Complaint created an appearance of impropriety requiring recusal. The mere filing of a complaint of judicial misconduct is not grounds for recusal. As Shuker’s expert witness Lubet explained, it would be detrimental to the judicial system if a judge had to disqualify himself anytime someone filed a complaint about his conduct. A party would only have to file a complaint to get a different judge. Lubet testified that the Rules of the Judicial Council of the Eleventh Circuit Governing Complaints of Judicial Misconduct or Disability (“Judicial Council Rules”) allow lots of complaints to be filed, many of which are frivolous. (Recusal Tr. Vol. II at 13-14.) The Rules therefore create their own screening mechanism for these complaints; a stage one “limited inquiry” to determine whether a “formal investigation” into the validity of the complaint is necessary. (Id.); see also Judicial Council Rule 4(a) (“the Chief Judge may conduct a limited inquiry for the purpose of determining—(1) whether appropriate corrective action has been or can be taken without the necessity for a formal investigation; and (2) whether the facts stated in the complaint are plainly untrue or are incapable of being established through investigation.” (emphasis added)). This limited inquiry resolves 98% of all filed complaints; only 2% of all complaints ever proceed to the formal investigation stage. (Recusal Tr. Vol. II at 13-14.) It would create an absurd result to force a judge to recuse himself because of the 2% possibility that the complaint will become an investigation and the even smaller chance that an involved party will be called as a witness in that investigation. (Id.) Thus, the mere existence of a complaint of judicial misconduct does not create an appearance of impropriety. While a formal investigation into a complaint may trigger recusal, there is no evidence of an impending investigation here. Yet, the Recusal Motion referred to the Complaint as an “investigation” twelve times, made fourteen implications of the existence of a formal investigation, and referred to Shuker as a “key player in the investigation” and a “future witness.” (Recusal Mot. at 21.) During the Sanctions Hearing, Ginsberg testified that he assumed there was an “ongoing investigation” by virtue of the fact that Hudson’s Complaint had not been dismissed for a number of months. Yet, according to the Judicial Council Rules the length of time that a complaint remains pending is irrelevant. Ginsberg further asserted that Spradley used the term “investigation” when relating his conversations with Hudson (Sanctions Tr. Vol. II at 5) and Spradley testified that Hudson had used the term “investigation” when relating the events to him {id. at 136-37, 142). In Hudson’s deposition, however, he testified that he never used the term “investigation.” (Sanctions Order at 28.) Anthony’s deposition revealed he did use the term “investigation,” but Anthony admitted that he had no first hand knowledge of the Complaint. (Recusal Ex. II at 56-57, 62.) Anthony compared his knowledge of the Complaint to knowledge about “Britney Spears’ divorce ... a lot of people have heard a lot.” {Id. at 56-57.) Moreover, the Judicial Council Rules clearly state that if the Chief Judge was conducting a formal investigation, Hudson (the complainant) would be informed. See Judicial Council Rule 4(c) (“If the complaint is not dismissed ... the Chief Judge shall appoint a special committee ... to investigate the allegations of the complaint. ... The Chief Judge shall notify the complainant and the complained-of judge of the appointment of a special committee .... ” (emphasis added)). Hudson was never notified of such and never indicated to anyone that he had been. Spradley testified that Hudson’s only correspondence with the Judicial Council of the Eleventh Circuit was immediately after he filed his Complaint. (Sanctions Tr. Vol. II at 142.) Hudson received a letter confirming the Complaint was received and submitted to the Chief Judge. {Id.) Spradley further testified that he spoke with Hudson three or four times after that “with the expressed reason to ask if he had heard the result or an update, and he replied in the negative.” {Id. at 154.) Even though the Judicial Council Rules clearly state that Hudson would be informed if his Complaint was dismissed or moved to the investigation stage, Ginsberg relied only on the fact that Hudson was not informed of a change in status to deem it an “investigation.” This is clearly an unreasonable reliance and jump to an unsupported conclusion. Similarly, the mere existence of an ex parte hearing is not grounds for recusal. As Lubet explained there are many reasons judges properly hold ex parte hear ings, such as a temporary restraining order or bail revocation proceedings. Indeed, in ATN Judge Jenneman stated that ex parte hearings may be appropriate. (Am. Memo. Op. Den. Defs.’ Emergency Mot. to Disqualify at 9.) In fact, Judge Jenneman held that the ex parte hearing in ATN did not create the appearance of impropriety. (Id.) (“[T]he conversation [did] not rise to the level of a specifically identifiable impropriety.”). b. Lack of Legal Support The bankruptcy court also found that the Recusal Motion lacked legal support. We agree. The only case Ginsberg relied on for the proposition that a complaint of judicial misconduct (which Ginsberg equates with an investigation) requires recusal was United States v. Garrudo, 869 F.Supp. 1574 (S.D.Fla.1994). (Recusal Mot. at 20.) In Garrudo, a district court judge was under investigation by the United States Attorney’s Office “for accepting gratuities worth thousands of dollars.... ” Garrudo, 869 F.Supp. at 1576. While presiding over criminal cases, the judge was told he was the “subject” of a pending United States Attorney’s Office investigation. Id. The Judge was subsequently interviewed by federal agents and served with a grand jury subpoena duces tecum. Id. Once he was informed that his status was elevated to that of a “target” the judge recused himself from all pending criminal matters. Id. Criminal defendants convicted or sentenced by the judge while the investigation was pending, but before the judge recused himself, challenged their convictions. Id. The defendants claimed that the judge had an incentive to curry favor with the government. Id. The district court held that recusal was appropriate. Ginsberg argues that the criminal grand jury investigation in Garrudo and the present judicial misconduct complaint are analogous. (Recusal Mot. at 20) (“Fortunately there are few cases in which courts have had to apply the recusal statute to a circumstance in which a judge is under an investigation like the instant investigation. A notable exception is Garrudo.” (emphasis added)). However, there is no evidence that Judge Briskman was under investigation, let alone a criminal one. In our view, a civil complaint of judicial misconduct and a criminal grand jury investigation are not analogous. The facts at issue here are further distinguishable from Garrudo. Ginsberg relies on Garrudo for the principle that “an alignment of interests between the presiding judge and counsel in a position to influence the outcome of an investigation or inquiry affecting the judge would cause a reasonable objective observer to question the impartiality of the court.” (Initial Br. at 32.) In Garrudo, however, the party conducting the investigation (the United States Government) was actually before the court, so the court may have had an incentive to curry favor. Here, there was no investigation, only a complaint which had a 2% chance of becoming an investigation. Moreover, the existence of the investigation was well known in Garrudo and could therefore affect public confidence in the judiciary. The investigation was discussed in various newspapers and was printed on the front page of the Miami Daily Business Review. Garrudo, 869 F.Supp. at 1576. On the other hand, evidence of this Complaint was not in the public forum until Ginsberg filed the Recu sal Motion. A confidential complaint that the public is not aware of does not have any affect on the “public’s confidence in the impartiality and integrity of the judicial process.” See Davis, 506 F.3d at 1332 n. 12. In this regard, we agree with the rulings of the bankruptcy court and the district court. 2. Ex Parte Communications In the Recusal Motion Ginsberg cites to two allegedly inappropriate ex parte communications between Shuker and Judge Briskman in the Mataeka AP proceeding: a discovery motion and proposed findings of fact and conclusions of law (“FOF-COL”).* ******* a. Discovery Motion The bankruptcy court found that Ginsberg had no factual support for his assertion that Shuker “apparently” filed an ex parte emergency motion to compel production of documents (“Emergency Motion”) and that Judge Briskman’s subsequent order “was accomplished without a hearing” even though Spradley objected to the requested relief. The record supports the conclusion that such an assertion was groundless. The facts surrounding this showed that Shuker filed an Emergency Motion in the Knight proceeding on July 17, 2006, six days before the July 24, 2006 trial date. Upon receipt, Judge Briskman’s chambers called Spradley’s office to schedule a hearing, but Spradley was out of town and unavailable, and there was no offer to send someone else from his office. As the trial was set for six days after the Emergency Motion was filed, “[wjaiting to conduct a hearing upon Spradley’s return from vacation was not an option.” (Recusal Order at 28.) A hearing was therefore held and an Order was entered. There is no evidence, however, that the Emergency Motion was filed ex parte. Before filing the Emergency Motion Shuker emailed Spradley, requesting expedited discovery. Spradley copied Ginsberg on his response, denying Shuker’s request. Thus, both Spradley and Ginsberg were on notice that Shuker was seeking discovery and that a hearing was imminent. Moreover, both Spradley and Ginsberg were given formal notice of the filing of the Motion. The certificate of service attached to the Motion indicates that Gray-Robinson and Ginsberg were both served electronically, by fax and first-class mail. Finally, the Order entered was not Shuker’s proposed order, and in fact granted only some of the relief that Shuker requested. In our view, Judge Briskman appropriately addressed an evidentiary issue within the time constraints and there was in fact no basis for the allegations made in the Recusal Motion. b. Findings of Fact and Conclusions of Law The record also fully supports the finding of the bankruptcy court that Ginsberg’s contention that the court ordered the parties to file ex parte FOFCOL and relied on Shuker’s oversized FOFCOL was without any basis whatsoever. A June 20, 2005 email from Susan Coberly, Judge Briskman’s assistant, inviting the parties to file FOFCOL, not to exceed 15 pages, is the only written document Ginsberg presented to prove the filings were court ordered. The email did not discuss service. Both sides subsequently submitted FOFCOL to the court without serving each other. Shuker’s FOFCOL was 46 pages long. Months later in a deposition, Spradley and Ginsberg learned of this 46-page submission when the deponent referred to it. Spradley immediately sent Shuker an email expressing his concern about Evergreen’s failure to comply with the court’s 15-page limitation. (Email from Spradley to Shuker of 10/10/05.) Shuker responded to the email, stating “I understand that you called Susan about the page [length] and were informed the Judge has not yet looked at either proposed findings. Thus, it seems the simple solution is for me to cut mine down to 15 pages and replace the longer one.” (Email from Shuker to Spradley of 10/17/05.) On November 3, 2005 Shuker again emailed Spradley to inform him that he had submitted a revised, 15-page FOFCOL. “By the way, we submitted revised FOFCOL today which were 15 pages; the Judge never reviewed the longer one. Thus, I assume that is now a moot issue.” (Email from Shuker to Spradley of 11/03/05) (emphasis added). The next day Spradley responded in apparent understanding: “Thanks for the note re: findings and conclusions. I’ll call you in a while.” (Email from Spradley to Shuker of 11/04/05.) At the end of trial the court allowed the parties to file another set of FOFCOL. Shuker testified that Spradley and Ginsberg objected to his suggestion of not exchanging these submissions. An objection was filed and a hearing was scheduled but Spradley and Ginsberg opted out of the hearing and their objection was thereby withdrawn. Both sides then submitted FOFCOL to the court without serving each other. This time Shuker submitted a 15-page document. Spradley and Ginsberg, however, submitted a 23-page filing: a 15-page document entitled “Defendants’ Proposed Findings of Fact and Conclusions of Law” and an 8-page document entitled “Citations to the Record.” All of the submissions were manipulated to maximize word space: the parties used smaller font and margins than the local rules allow. i. Ex Parte Nature There is no evidence that the ex parte nature of the filings were court-ordered. Spradley testified that “I cannot state with certainty that [Ms. Coberly] said the Court specifically says you are not to give the other side the documents. But whatever words were said, I came away with the impression that’s what we were to do, and then the fact that the parties acted in conformity with that.” (Recusal Tr. Vol. IV at 133.) Ginsberg did not directly communicate with Ms. Coberly, but testified that he was told by Spradley the court had ordered ex parte filings. (Sanctions Tr. Vol. I at 95-96.) Ginsberg further testified that the court ordered the second FOFCOL be filed ex parte in open court and that he objected at that time. (Id.) However, Ginsberg could not locate a transcript or any other evidence of this di rective. (Sanctions Tr. Vol. II at 49-51.) Neither can we. On the other hand, Shuker testified that the FOFCOL were filed ex parte based on a mutual understanding between the lawyers; it was not based on a court order. (Id. at 185-86.) Shuker explained that during the first filing the trial was still ongoing and he did not want the opposition’s witnesses to read his clients’ FOF-COL and change their testimony. (Id.) For the second filing, Shuker testified that the trial had been so expensive that he did not want to add the costs of exchanging and objecting to each others submissions. (Id.) At best, Ginsberg presented evidence that the attorneys had some understanding about not serving each other. We find no evidence, however, that the court ordered the parties to submit the filings ex parte or that the court was aware that such was being done. ii. Reliance on f6-pa^e Filing We also find no evidence that Judge Briskman read, let alone relied on, Evergreen’s 46-page FOFCOL and Ginsberg has presented none. Due to the overlap between the court’s ultimate FOFCOL and Evergreen’s 46-page FOFCOL, Spradley and Ginsberg contended that Judge Briskman relied on the 46-page document. (See Recusal Tr. Vol. IV at 97; Sanctions Tr. Vol. I at 100.) Spradley and Ginsberg also felt it significant that the court never disclosed the 46-page submission or formally rejected the oversized filing. Yet, neither Spradley nor Ginsberg had any reason to believe Judge Briskman or his law clerk actually read the 46-page FOFCOL. (See, e.g., Recusal Tr. Vol. Ill at 67, 153; Sanctions Tr. Vol. I at 101.) The only evidence produced was the emails discussed above, which suggest that Judge Briskman did not read the 46-page FOF-COL and that it was a “moot issue.” Further, at the time the Motion was filed, neither Ginsberg nor Spradley had seen the 15-page replacement FOFCOL or the FOFCOL submitted at the conclusion of the trial. (Recusal Tr. Vol. Ill at 97.) At the recusal hearing Shuker testified that all of the facts and conclusions contained in the 46-page submission could be found in Evergreen’s two 15-page submissions or in the FOFCOL in the Kime opinion, a related case cited in Evergreen’s 15-page submission. Spradley and Ginsberg conceded that they had never reviewed either of Evergreen’s 15-page submissions or compared those documents with the court’s ultimate FOFCOL. Ginsberg says he assumed that Judge Briskman read the oversized FOFCOL. This is another unjustified position in the face of emails to the contrary. Moreover, Shuker’s expert witness Professor Lubet explained that even if the emails are incorrect and Judge Briskman actually read the 46-page submission, he could have easily disregarded it. Indeed, judges are asked to disregard evidence all of the time. Finally, we note that although Ginsberg and Spradley were quick to accuse Shuker of filing an oversized FOFCOL (“Mr. Shuker took advantage of the clandestine filings by blatantly flaunting the page limits imposed on Movants” (emphasis added)), their own FOFCOL was oversized and in violation of the Local Rules. (Recusal Mot. at 27.) Once again, the record supports the bankruptcy court’s findings. 3. Shuker’s Behavior Finally, the Recusal Motion complained of Shuker’s behavior and statements which allegedly violated Rules 4-3.4(g) and 4-3.4(h) of the Florida Rules of Professional Conduct. The Motion alleged Shuker made “unethical threats of seeking, and promises of obtaining, the incarceration of the individual Movants and similar threats directed at Movant’s Counsel.” (Recusal Mot. at 3.) The bankruptcy court found that Shuker’s behavior did not rise to the level of a disciplinary rule violation or create doubts about the bankruptcy court’s impartiality. The record supports this finding. a. Threats to Knight and Huggins After a court hearing in which Shuker sought orders directing Knight and Huggins to repatriate certain funds or be held in civil contempt, the Recusal Motion asserts that Shuker told Knight and Huggins they would end up in jail if they did not settle, and Huggins would “die in jail.” (Recusal Mot. at 9.) It is now clear that this never happened. Knight’s own testimony belies the facts as stated in the Recusal Motion. The Motion states that “Mr. Shuker approached [Knight and Huggins] outside the door of the Court and announced that ... [Knight and Huggins] would ‘end up in jail’ and that Mr. Huggins, 67-years old, ‘would die in jail.’” (Id.) According to Knight, however, Shuker did not approach either Knight or Huggins, his comments were made only to Spradley and Ginsberg. (Recusal Tr. Vol. IV at 162; Knight Aff. at 2.) Knight testified that while Spradley and Shuker were speaking in the hallway, Shuker told Spradley if he did not have a settlement on his desk soon, Spradley’s clients were going to go to jail and Huggins would die in jail. (Id.) Knight claims that although he was not part of the conversation, he was within earshot and overheard Shuker’s threats. (Id.) Huggins, however, was in the bathroom (out of earshot) at the time. (Id.) Being within earshot of two lawyers negotiating is much different than being approached by opposing counsel. Further, if Huggins was in the bathroom during Shuker’s alleged threats, Shuker could not have told Mr. Huggins that he “would die in jail.” Moreover, Shuker testified that this was a warning, not a threat. (Recusal Tr. Vol. IV at 196.) If Huggins and Knight did not make a settlement offer for the money already owed they risked being found in civil contempt and sent to jail. (Id.) Again, there is simply no support in the record for these allegations. Such misstatements reflect either a failure to investigate or a deliberate attempt to deceive. b. Threats to Spradley In another example of “Mr. Shuker threatening] to use what he apparently thought was his court-granted right to threaten imprisonment,” the Motion references an incident at Knight’s deposition. (Recusal Mot. at 9.) Shuker was allegedly enraged when he saw Spradley at the deposition. Shuker told Spradley to leave the room and threatened that he would be arrested for trespass if he did not leave. Spradley did not leave. Shuker then left the room, calmed down, and returned a few minutes later. The deposition was taken with Spradley present. Again, the Motion fails to put the incident in" context. Shuker testified that the Knight deposition at issue was not for the general Mataeka proceeding, but for the private purpose of accessing Knight’s funds in aid of execution of an existing judgment. Shuker did not believe that Spradley had a right to be at the deposition. Further, Huggins was to be deposed immediately after Knight. Thus, Shuker did not want Huggins’ counsel in the room for Knight’s deposition. He did not want Huggins to know what Knight was being questioned about or testifying to. Shuker himself acknowledged that his behavior was improper. Spradley emailed Shuker the next day outlining the inappropriate comment and Shuker responded with an apology email. The language used in the Recusal Motion fails to tell the whole story and thereby exaggerates what occurred. c. Threats to Ginsberg The Motion further mentioned that Shuker threatened to file a bar grievance against Ginsberg during the deposition of Charles Baron on August 9, 2005. In our view, Shuker’s conduct is understandable in context. At the recusal hearing, Shuker testified that during a previous deposition Ginsberg interrupted him on numerous occasions and even stopped the deposition mid-question to take Knight (the deponent) out of the room. Knight allegedly returned to the deposition and, without being asked a related question, immediately retracted a previous answer. During the Baron deposition Shuker testified that he threatened Ginsberg with the filing of a bar grievance if Ginsberg continued with the same conduct. Shuker did not want Ginsberg to further interfere with the deposition by telling Baron how to respond to questions. Shuker explained that he threatened a bar grievance to stop this unethical conduct. Ginsberg does not contest his alleged conduct. d. Appearance of Impropriety Finally, the Motion asserted that Judge Briskman’s apparent endorsement of Shuker’s behavior created the appearance of impropriety. {See, e.g., Recusal Mot. at 10) (“Mr. Shuker continued to craft his own set of procedures, as endorsed by the Court”); {id. at 28) (“The proceeding, and prior proceedings, so empowered Mr. Shuker that he felt able to threaten the individual Movants with incarceration ... ”) {id. at 26) (“Similarly, [Shuker] appears to have received a judicial nod to continue to ignore the automatic stay ... ”); {id. at 9) (“Mr. Shuker threatened to use what he apparently thought was his court-granted right to threaten imprisonment.”) (emphasis added). Spradley and Ginsberg also testified that they believed the court endorsed Shuker’s actions. During the recusal hearing, Spradley testified that he drew an inference from Shuker’s conduct—threatening imprisonment on two occasions—that Shuker believed he only had to call Judge Briskman to secure an arrest. (Recusal Tr. Yol. Ill at 103-07.) He testified that he was not aware of any additional facts that would support these allegations, but that the allegations reflected his “impression” based on Shuker’s behavior. {Id.) Ginsberg also testified that it seemed Shuker felt empowered by Judge Briskman to act as he wanted. (Sanctions Tr. Vol. I at 104-05.) He stated: In the context of reviewing the ATN matter, the idea that Mr. Shuker felt so comfortable with threatening people and so comfortable with doing what he was doing, that he was prepared to call Judge Briskman in for assistance and effectuate Mr. Spradley’s arrest raised additional red flags about what it was that caused Mr. Shuker apparently to feel so empowered in our proceedings. {Id.) Ginsberg later recanted this basis for the Recusal Motion (the court’s endorsement of Shuker’s behavior) in a letter to the court dated January 19, 2007. In the letter, Ginsberg stated: Other matters have been raised in the instant hearing, including actions by Mr. Shuker in relation to parties and counsel. However, we do not believe that any evidence has been entered regarding a relationship between your Honor and Mr. Shuker that show [sic] that you endorsed such actions, and thus believe that, although the activities were inappropriate, they do not serve as a basis for the relief requested by the Motion. We believe that Mr. Shuker was acting on his own at those times. (Letter from Ginsberg to Judge Briskman of 1/19/07.) Ginsberg testified at the sanctions hearing that the letter was only to clear up a misunderstanding, he never alleged “an illicit or an improper relationship between Mr. Shuker and Judge Brisk-man.” (Sanctions Tr. Vol. II at 14.) Ginsberg explained that for recusal he was only required to prove that the public might perceive impropriety from Shuker’s actions, not actual court endorsement. (Id; see also Sanctions Tr. Vol. I at 117.) In our view, however, even though Ginsberg presented no evidence of court endorsement, the Recusal Motion clearly accused the court of endorsing Shuker’s actions. Such an allegation under these circumstances is improper. We therefore find that the bankruptcy court was not clearly erroneous in its fact finding which is fully supported by the record. 4. Improper Purpose/Bad Faith On appeal, Ginsberg alleges that the filing of the Motion was not sanctionable; it was well justified in fact and law and was brought for a proper purpose. In our view, a court could reasonably conclude that the content, timing, and tone of the Recusal Motion indicate bad faith. a. Sanctions In this case, the bankruptcy court sanctioned Ginsberg under Federal Rule of Bankruptcy Procedure 9011, the court’s inherent sanctioning powers, and 11 U.S.C. § 105. On appeal to the district court, Ginsberg argued that the Sanctions Motion violated Rule 901 l’s twenty-one-day safe harbor provision. The district court found that it was not necessary to decide whether the safe harbor provision was violated because the sanctions imposed were clearly valid under 11 U.S.C. § 105. In re Evergreen, 391 B.R. at 188. We agree. Under Section 105(a) the court may take any action “necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.” 11 U.S.C. § 105(a). Thus, a court may impose sanctions if a party violates a court order or rule. See, e.g., Jove Eng’g, Inc. v. I.R.S., 92 F.3d 1539, 1542 (11th Cir.1996) (awarding sanctions under Section 105(a) for a violation of an automatic stay provision). Sanctions were also imposed under the bankruptcy court’s inherent power which is similarly not affected by the safe harbor provision of Rule 9011. To impose sanctions under the court’s inherent power, the court must find bad faith. In re Walker, 532 F.3d at 1309. “A finding of bad faith is warranted where an attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious claim for the purpose of harassing an opponent. A party also demonstrates bad faith by delaying or disrupting the litigation or hampering enforcement of a court order.” (Id.) (internal citations omitted). “If particularly egregious, the pursuit of a claim without reasonable inquiry into the underlying facts can be the basis for a finding of bad faith.” Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir.1998); see also Jones v. Int’l Riding Helmets, Ltd., 49 F.3d 692, 695-96 (11th Cir.1995) (finding that a court must determine whether a reasonable inquiry was conducted prior to the filing of a pleading); In the Matter of Med. One, Inc., 68 B.R. 150, 152 (Bankr. M.D.Fla.1986) (finding that failure to make a reasonable inquiry into whether a filing alleged valid claims was sanctionable). Further, continually advancing “groundless and patently frivolous litigation” is “tantamount to bad faith.” Glass, 849 F.2d at 1265. b. Challenges to Adverse Rulings The bankruptcy court was fully justified in finding that the Recusal Motion was filed and litigated as “an offensive litigation strategy.” (Sanctions Order at 68.) Challenges to adverse rulings are generally grounds for appeal, not recusal. In re Walker, 532 F.3d at 1311; see also Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir.2000) (“[E]xcept where pervasive bias is shown, a judge’s rulings in the same or a related case are not a sufficient basis for recusal.”). Nevertheless, a considerable portion of the Recusal Motion disputed rulings unfavorable to the debtors. (See, e.g., Recusal Mot. at 2) (referring to “a series of dubious judicial actions taken in conjunction with Mr. Shuker.”). The Recusal Motion criticizes the court for appointing an interim trustee; not sufficiently addressing the automatic stay; granting the discovery order; making incorrect FOFCOL in the Mataeka AP judgment; and miscalculating the damages award in the Mataeka AP judgment. Spradley even conceded in testimony that he was “really frustrated at that point, the fact that I felt relief was coming down in favor of the plaintiff and against the defendants in the case and in a fashion that didn’t appear to be just.” (Recusal Tr. Vol. Ill at 146.) Yet, a recusal motion is an improper vehicle to dispute disagreeable adverse rulings. It is a clear abuse of such a pleading. Additionally, Ginsberg requested the revocation of all orders previously entered in the Mataeka AP and related proceedings. In other words, Ginsberg sought the revocation of more than 250 orders all previously entered in the Evergreen case. Yet, Ginsberg presented no evidence that this was an extraordinary circumstance which required vacatur. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988) (noting that vacatur should only be applied in “extraordinary circumstances” (citation omitted)). In our view, requesting this kind of relief, while discussing numerous rulings adverse to the debtors, strongly suggests that the Motion was presented to hamper enforcement of the bankruptcy court’s orders. . c. Delay Tactic The bankruptcy court also did not err in concluding that Ginsberg filed the . Recusal Motion to postpone the involuntary bankruptcy proceedings against his client and the appeal from the Mataeka AP Judgment. Filing the Recusal Motion frustrated Evergreen’s collection efforts on an almost $8 million judgment. The Recusal Motion was filed the day after Evergreen finished its prima facie case on the involuntary bankruptcy proceedings and it apparently was clear to all concerned that Evergreen was going to prevail. The Motion was not filed until July 26th even though many of the incidents outlined in the Motion happened much earlier. Ginsberg further petitioned the district court to stay all related proceedings. Ginsberg also continually stalled the Recusal hearing. Two days before the scheduled pre-hearing conference, he sought a stay of the proceedings pending the resolution of his Petition for a Writ of Mandamus. Ginsberg then postponed the final evidentiary hearing for one month due to his availability constraints and those of his expert witness. Days before the trial, Ginsberg again sought to continue the trial for two weeks “in order to properly prepare for the depositions of the witnesses and to properly prepare for the final evidentiary hearing.” (Recusal Order at 14.) Finally, at the evidentiary hearing, after both parties finished presenting then-cases in chief, Ginsberg asked for a continuance to present his rebuttal case. The evidentiary hearing was continued almost two months, at which time Ginsberg sent a letter to the court saying he did not intend on presenting a rebuttal case. Moreover, the record shows Ginsberg tried to delay the filing of an appeal. After filing the Recusal Motion, Ginsberg filed a motion for extension of time to appeal the Mataeka AP Judgment. The district court found that “the stated reasons for wanting to put off filing an initial brief have varied with each filing seeking delay. Taken as a whole, the record is cause for concern.” (D. Ct. Case 06-cv-00837-JA, D.E. # 43.) These delaying tactics further support the bankruptcy court’s finding of Ginsberg’s bad faith. d. Disrespectful Tone Finally, the bankruptcy court did not err in finding that Ginsberg’s overzealous litigation tactics, use of factual inaccuracies, and disrespectful behavior demonstrate bad faith. Quoting Blackstone, the United States Supreme Court explained that “the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 820, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) (quoting 3 W. Blackstone, Commentaries at *361). That does not mean that a judge should never disqualify himself for personal bias or prejudice, but it should not be supposed. And as' to counsel, as the Ohio Supreme Court has put it, [t]he law demands that all counsel foster respect and dignity for those who administer and enforce the law. Conduct that is degrading and disrespectful to judges and fellow attorneys is neither zealous advocacy nor a legitimate trial tactic. Lying to a tribunal and making false accusations against judges and fellow attorneys can never be condoned. Columbus Bar Assn. v. Vogel, 117 Ohio St.3d 108, 881 N.E.2d 1244, 1249 (2008). Yet, the record shows Ginsberg indulged in disrespectful statements without legal or factual foundation. Ginsberg ignored all facts indicating that the court did not direct or engage in ex parte communications, rely on extra judicial materials, or endorse Shuker’s actions. Ginsberg knew about Judge Jenneman’s order, yet Ginsberg did not even mention that Judge Jenneman had held that the ex parte hearing was not improper. Instead of engaging in a reasonable fact finding investigation before making allegations, Ginsberg supposed bias and favor in all of Judge Briskman’s actions. For example, because the court did not denounce Shuker’s 46-page FOFCOL, Ginsberg claimed the oversized filing was intentional: “One can only reasonably conclude that neither the Court nor Mr. Shuker had any intention of Mr. Shuker being limited to filing the proposed findings within the page limit demanded of the Movants.” (Recusal Mot. at 27) (emphasis added). Ginsberg also assumed the court relied on the 46-page FOFCOL even though there was evidence to the contrary. Further, the Recusal Motion compared Judge Briskman’s conduct to criminal judicial misconduct even though Ginsberg had no actual, personal knowledge of the Complaint and no reason to believe that it alleged criminal misconduct. Indeed, Ginsberg did not speak directly to Hudson about the Complaint before calling it an “investigation” or try to contact any of the other people present at the relevant ATN proceeding. Ginsberg also testified that he was advised by his expert witness Justice Harding that “he had an ethical obligation to see this through” to convince the court that Ginsberg did not file the Recusal Motion for tactical purposes. (Sanctions Tr. Vol. I at 90-91.) However, the record refutes this contention. The record shows that Harding did not advise Ginsberg to file the Recusal Motion, as Harding was not engaged by GrayRobinson until after the Recusal Motion was filed. Justice Harding was also not given all of the evidence to develop his expert opinion. For example, Justice Harding was never told that Evergreen filed a subsequent 15-page FOFCOL, he was not shown the emails between Shuker and Spradley discussing whether the court had considered the 46-page submission, nor was he given the 15-page FOFCOL to compare with the court’s ultimate FOFCOL. (Sanctions Tr. Vol. I at 54-57.) Moreover, Ginsberg failed to re-evaluate his accusations after the evidentiary hearing on the Recusal Motion. Ginsberg repeated his claim of court-ordered ex parte filings even after the recusal hearing revealed no evidence of such a directive. Ginsberg continued to assert that Judge Briskman relied on the 46-page FOFCOL even though there were emails referencing the discussions of Spradley and Shuker with the court’s staff that the 46-page submission was not considered and all of the information in the ultimate FOFCOL could be found elsewhere. Additionally, Ginsberg continued to allege that the Judi cial Council had launched an “investigation” into Judge Briskman’s conduct even after he learned that Hudson would have been notified if an “investigation” was initiated. Further, after Knight testified that he merely overheard Shuker’s threats of imprisonment, Ginsberg still continued to assert that Shuker approached Knight and Huggins and threatened them with imprisonment. Similarly, even after Knight testified that Huggins was in the bathroom at the time of Shuker’s alleged threat, Ginsberg contended that Shuker told Huggins he would die in jail. The evidence produced at the hearing was sufficient for Spradley and GrayRobinson to pull out of the Recusal Motion. Yet, even with mounting evidence to the contrary, Ginsberg continued to argue the Recusal Motion. Further, Ginsberg was extremely difficult to deal with and disrespectful to the court. He refused to answer the court’s questions, treated the court as an adversary and continually made inflammatory statements. For example, Ginsberg exaggerated the implications of Judge Brisk-man’s actions, alleging that his conduct “relates directly to the judicial processes, namely the integrity of trial transcripts, and a party’s due process rights and liberty.” (Recusal Mot. at 19.) Ginsberg opened the Recusal Hearing by claiming: ‘Your honor has compromised my health, your Honor has compromised my immune system.” (Recusal Tr. Vol. I at 5.) Ginsberg also used accusatory, unsupported language in the three petitions for writ of mandamus; asserted that Judge Briskman faced “potential career ending punishment”; and accused him of trying to surreptitiously “brush the matter under the carpet” so he could “retain authority over these very important issues of judicial and professional conduct.” (Response Br. at 16.) Ginsberg also purposefully pursued recusal very publicly. After learning of Hudson’s Complaint, Ginsberg did not first request a private hearing with Judge Briskman and all counsel in these cases to address his concerns, nor did he file the Recusal Motion under seal (ignoring the preference for confidentiality inherent in the Judicial Council Rules discussed below). Instead, the first time Ginsberg raised the Complaint was in a 31-page accusatory motion which used the term “investigation” twelve times and referenced adverse rulings fifty-four times. Ginsberg also immediately brought the Recusal Motion to the attention of the district court. He filed three petitions for a writ of mandamus with the district court while the Recusal Motion was still pending. In our view, Ginsberg’s dogged pursuit of a frivolous claim indicates bad faith. B. Disclosure of the Complaint The bankruptcy court did not abuse its discretion by refusing to disclose the existence of the Complaint. The Judicial Council Rules have strict confidentiality requirements. Judicial Council Rule 16 requires that “complaints, records of investigations and proceedings relating to allegations of judicial misconduct or disability shall be maintained as confidential matters, and shall not be dis closed to the public.” Judicial Council Rule 15(f) does allow disclosure of a complaint “upon the written consent of both the complained-of judge and the Chief Judge,” but in our view the strict confidentiality requirements indicate the generally secretive nature of judicial complaints. This preference for confidentiality maintains public confidence in the judiciary. Keeping the existence of the Complaint confidential kept the Complaint from “affecting the public’s confidence in the impartiality and integrity of the judicial process.” Davis, 506 F.3d at 1332 n. 12 (internal citations omitted). It defies logic for Ginsberg to file a motion asserting harm to public confidence in the judiciary when his own actions in filing the Motion and attempting to make the Complaint public are creating such harm. Surely if he was so concerned, Ginsberg could have inquired about the Complaint out of the public eye. Yet, the first time Judge Briskman was asked to disclose information about the Complaint was in full public view. Indeed, Ginsberg was relentless in his attempts to force Judge Briskman to testify about the Complaint and make it public. First, Ginsberg listed Judge Briskman as a witness in the pretrial disclosures for the recusal hearing. When Judge Briskman entered an order excluding himself as a witness, Ginsberg sought to compel Judge Briskman to testify. After postponing his rebuttal ease during the Recusal Motion hearing, Ginsberg wrote a letter to Judge Briskman again requesting he make disclosures about the Complaint. Later, on August 8, 2007, Ginsberg filed another Motion Requesting the Honorable Arthur Briskman Make Certain Disclosures on the Record (“Disclosure Motion”) and before Judge Briskman ruled on the Disclosure Motion, at the commencement of the sanctions hearing, Ginsberg made an additional ore tenus motion to have Judge Briskman disclose his knowledge of the Complaint on the record. In addition to the Judicial Council Rules’ preference for confidentiality, Federal Rule of Evidence 605 also states that a judge cannot testify at a trial in which he is presiding. F.R.E. Rule 605. Moreover, a judge is not required to recuse himself so that he can testify. See, e.g., Cheeves v. So. Clays, Inc., 797 F.Supp. 1570, 1582-83 (M.D.Ga.1992) (having a judge testify is manipulated harassment, as it would cause an unjustified voluntary disqualification of the presiding judge or endless delays in the litigation); Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir.2004) (“a federal judge has a duty to sit where not disqualified which is equally as strong as its duty to not sit where disqualified”) (quoting Laird v. Tatum, 409 U.S. 824, 837, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972)). As Judge Briskman presided over both the recusal hearing and the sanctions hearing, he could not testify at either. Ginsberg argued that Judge Briskman should have recused himself from both hearings, but Section 455(a) places the burden to decide recusal on the judge who is the subject of the Motion. Section 455(a) states that “any justice, judge, or magistrate judge of the United States shall disqualify himself.” 28 U.S.C. § 455(a) (emphasis added). Further, judges routinely preside over motions for their own recusal. For example, Justice Scalia presided over a motion to recuse him in a case before the United States Supreme Court. Cheney, 541 U.S. at 913, 124 S.Ct. 1391. The Fifth Circuit also held in In re Corrugated Container Antitrust Litigation that “[i]t is for the judge who is the object of the affidavit (of bias) to pass on its sufficiency.” 614 F.2d 958, 963 n. 9 (5th Cir.1980) (quoting 13 Wright, Miller & Cooper § 3551 at 375). In the event that Judge Briskman erred in some rulings, Ginsberg should have waited to deal with these issues on appeal. In re Walker, 532 F.3d at 1311 (“Adverse rulings are grounds for appeal but rarely are grounds for recusal ... ”). The district court here (through Judge Antoon) advised Ginsberg as much in the denial of Ginsberg’s Third Petition for Writ of Mandamus, explaining that Ginsberg should wait until Judge Briskman issued a ruling on the Recusal Motion and then appeal it, but Ginsberg simply ignored this instruction. Further, Ginsberg’s dogged pursuit of Judge Briskman’s testimony supports the bankruptcy court’s finding of bad faith. See Indus. Risk Insurers v. M.A.N. Gutehoffhungshutte GmbH, 141 F.3d 1434, 1448 (11th Cir.1998) (“Improper purpose may be shown by excessive persistence in pursuing a claim or defense in the face of repeated adverse rulings.”). For all of these reasons we find that the bankruptcy court was not clearly erroneous in its fact finding and applied correct legal standards. C. Presiding over the Sanctions Hearing Finally, the bankruptcy court did not err in presiding over the Sanctions Motion. On appeal Ginsberg asserts that Judge Briskman was too emotionally involved in the matter and should have transferred the Sanctions Motion to the district court or another bankruptcy court judge. In certain circumstances “there are criticisms of judicial conduct which are so personal and so probably productive of bias that the judge must disqualify himself to avoid being the judge in his own case.” Ungar v. Sarafite, 376 U.S. 575, 583, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). However, that does not mean that every attack on a judge disqualifies him from sitting. Id.; see also Sensley, 385 F.3d at 599. “We cannot assume that judges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to their authority or with highly charged arguments about the soundness of their decisions.” Ungar, 376 U.S. at 584, 84 S.Ct. 841. Requiring recusal for all disruptive, recalcitrant and disagreeable commentary would undermine the judiciary. See Mayberry v. Pennsylvania, 400 U.S. 455, 463, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). “A judge cannot be driven out of a case.” Id. As we have found that Judge Briskman appropriately presided over the Recusal Motion hearing, we also find that Judge Briskman was in the best position to sanction Ginsberg for his conduct therein. We further agree with the district court that “[w]hile some of the Bankruptcy Judge’s remarks at the sanctions hearing were immoderate, they were not sufficiently egregious to ‘reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.’ ” Evergreen, 391 B.R. at 189 n. 6 (quoting Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)). In our view, Ginsberg’s egregious conduct—including interrupting Judge Briskman and grossly miseharacterizing the facts—warranted some of Judge Briskman’s admonishments. Our reading of the transcripts convinces us that for the most part Judge Briskman showed great patience and accommodated Ginsberg, who was experiencing health problems, over and over again. IV. CONCLUSION: REASONABLENESS OF SANCTIONS Ginsberg’s unfounded allegations and improper motive support a finding of bad faith. See In re Walker, 532 F.3d at 1310. We therefore believe the court did not abuse its discretion in imposing sanctions under either Section 105(a) or the court’s inherent authority to sanction improper conduct. “Civil penalties must either be compensatory or designed to coerce compliance.” In re Dyer, 322 F.3d 1178, 1192 (9th Cir.2003) (citing F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1137-38 (9th Cir.2001)). “On review, it is not necessary to psychoanalyze the [attorneys’ actions] to discover the smallest dollar value that would deter. Our task is to ensure that the district court did not abuse its discretion in crafting a sanction award reasonably calculated to deter litigation abuse.” Merriman v. Sec. Ins. Co. of Hartford, 100 F.3d 1187, 1194 (5th Cir.1996). The bankruptcy court did not abuse its discretion in imposing both compensatory sanctions (monetary sanctions) and sanctions designed to coerce compliance (suspension). In our view, Ginsberg’s relentless pursuit of the Recusal Motion, even after the evidentiary hearing revealed no factual support for Ginsberg’s contentions, demonstrates that a monetary sanction alone would be insufficient to deter Ginsberg from' similarly egregious behavior in the future. Therefore, the imposition of monetary sanctions and a suspension is justified. Moreover, because Ginsberg is a non-bankruptcy (by his admission), New York lawyer who appeared pro hoc vice before the Bankruptcy Court in the Middle District of Florida, we find that a five year suspension in that court is not too severe. Finally, the monetary sanctions imposed by the bankruptcy court were based upon the attorneys’ fees incurred by the appellees and were fully supported in the record. Based on the foregoing analysis we affirm the district court’s decision to affirm the bankruptcy court’s imposition of sanctions. AFFIRMED. . Knight and Huggins pled guilty to criminal charges arising from this theft. They were sentenced to probation and fined. . APAM was also a named party in the Mataeka AP proceeding. . Although Ginsberg and Spradley both had a hand in drafting the Recusal Motion, it appears that Ginsberg did the lion's share. (Sanctions Order at 61) (“The Tenor and content of the Recusal Motion and the Respondent's billing records establish Ginsberg was its principal drafter and driving force.’’). Since Spradley has not appealed the imposition of sanctions, we refer to Ginsberg as the author of the Recusal Motion. . Pursuant to an August 8, 2007 settlement agreement with Evergreen, GrayRobinson agreed to pay Evergreen $300,000 in resolution of the Sanctions Motion. The court found this settlement amount “an appropriate sanction to redress all wrongful acts of Gray-Robinson, Vitucci, and Spradley falling within the purview of the Sanctions Motions, Section 105(a) of the Bankruptcy Code, and the Court’s inherent powers to sanction wrongful conduct.” (Sanctions Order at 84-85.) . At the time the Recusal Motion was filed the Complaint had only been pending for five or six months. (Sanctions Tr. Vol. II at 162.) . Shulcer’s Expert Witness Lubet testified that the House Judiciary Committee has held a series of hearings about the length of time it has taken to handle these complaints. (Recusal Tr. Vol. II at 50.) . On appeal Ginsberg asserts that "a technical definition of investigation” was not suggested. (Initial Br. at 34.) Spradley also testified at the Sanctions Hearing that he looked up the term "investigation” in Webster's dictionary and believed it to apply to the present situation. (Sanctions Tr. Vol. II at 137.) Yet, at the same hearing Ginsberg testified that his "unequivocal understanding was that the complaint had passed through the first phase, that the chief judge had come to the conclusion there was merit to the complaint, and that whether it was the chief judge or the committee, witnesses were going to be contacted, information was to be gathered.” (Sanctions Tr. Vol. I at 80.) This is not the dictionary definition of "investigation,” but a definition in accordance with the procedure outlined by the Judicial Council Rules indicating that Ginsberg was asserting the technical definition of investigation in the Recusal Motion. . This decision was affirmed by an 11th Circuit panel. A subsequent en banc court split evenly on the question of recusal, thereby affirming the previous ruling by operation of law. . On appeal, Ginsberg asserts that these incidents "were not intended as separate instances of misconduct warranting recusal.” (Initial Br. at 34.) The incidents merely demonstrate that an objective observer would question the court's impartiality. (Id.) These allegations, however, lack factual support and therefore do not affect the appearance of partiality. See Cheney, 541 U.S. at 924, 124 S.Ct. 1391 (the decision to disqualify must be "made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” (citations omitted) (emphasis in original)). . Ginsberg testified that he hedged his allegations with the word "apparently” because Ginsberg was never given either Shuker’s motion or the Judge’s order. (Sanctions Tr. Vol. II at 43.) . Ginsberg’s allegation of lack of service is even more confusing because Ginsberg’s pro hac vice application listed GrayRobinson attorney Vitucci as the designated person to be served in the Mataeka Proceeding. Service to Ginsberg was not required. . On appeal Ginsberg does not address the allegations of Shuker’s improper conduct. Because Shuker's conduct was alleged as a basis for filing the Recusal Motion we still address it below. . The safe harbor provision allows attorneys to withdraw motions like this within twenty-one days from the date of filing. If a party so withdraws the motion, it is not sanctionable. Even though Ginsberg did not withdraw the Recusal Motion within twenty one days from the date of filing, he argued that the Sanctions Motion was still in violation of the safe harbor provision because it was filed before the expiration of the extra three days given for mailings. . At least twenty-seven paragraphs in the Recusal Motion disputed adverse rulings. . "Ignoring the absolute dearth of evidence justifying the appointment of an interim trustee, and without making a single finding of fact on the record or in his Order, Judge Briskman granted the appointment.” (Recusal Mot. at 9.) . Ginsberg argued that Shuker and Cuthill violated the automatic stay provisions in the bankruptcy code by seeking discovery on at least four occasions and that the court "refused” to enforce the automatic stay. (Recusal Mot. at 11-12.) . Ginsberg asserted that the expedited discovery motion discussed above was filed ex parte and granted without a hearing even though Spradley objected to the relief requested. . The Recusal Motion referenced the March 22, 2006 judgment in favor of Evergreen, claiming it was factually inaccurate and providing specific examples of the alleged inaccuracies. (Recusal Mot. at 13-14.) . The Recusal Motion criticized the amount of damages awarded to Evergreen, claiming they were erroneously calculated because of Judge Briskman’s reliance on Cuthill’s testimony and representations. (Recusal Mot. at 16-18.) . The Shuker/Ginsberg deposition skirmish happened almost a year before the Recusal Motion was filed, the 46-page FOFCOL was filed ten months before the Recusal Motion was filed and the issue appeared to be moot, and the Shuker/Spradley deposition skirmish occurred seven weeks prior to the filing of the Recusal Motion. . The Supreme Court has said: "Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. We do not doubt power in a proper case to issue such writs. But they have the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants before him. These remedies should be resorted to only where appeal is a clearly inadequate remedy. We are unwilling to utilize them as a substitute for appeal. As extraordinary remedies, they are reserved for really extraordinary causes.” Ex parte Fahey, 332 U.S. 258, 259-60, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947). . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) {en hanc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

LIPEZ, Circuit Judge. Arman Ter-Esayan appeals the 72-month sentence he received after pleading guilty, pursuant to a written plea agreement, to a two-count criminal information charging him with conspiracy to commit access device fraud and aggravated identity theft. The government asks us to dismiss this appeal because Ter-Esayan waived the right to appeal his sentence in the plea agreement. Ter-Esayan argues that we should disregard that waiver and proceed to examine his claim that the district court improperly construed the definition of “victim” under U.S.S.G. § 2B1.1, and thereby increased his sentence. We conclude that Ter-Esayan validly waived his right to appeal the guideline sentence imposed by the district court, and that enforcing the waiver would not work a “miscarriage of justice” in light of the decision filed today in the related case of United States v. Stepanian, 570 F.3d 51, 55-56, 2009 WL 1815420, *3 (1st Cir.2009). Therefore, we dismiss this appeal. I. Although we have recounted the undisputed facts of this case in Stepanian, 570 F.3d at 53-54, 2009 WL 1815420, **2-3, we repeat them here. Beginning in January 2007, appellant and three co-conspirators—Mikael Stepanian, Arutyun Shatarevyan, and Gevork Baltadjian—engaged in a plan to steal debit card numbers, personal identification numbers (“PINs”), and credit card numbers from the customers of 24-hour Stop & Shop grocery stores in Rhode Island. To accomplish this, they surreptitiously replaced the credit and de bit card payment terminals in Stop & Shop checkout aisles with altered terminals. The altered terminals were equipped with a device that recorded debit card numbers, PIN codes, and credit card numbers whenever customers swiped their cards to make a purchase. After returning to the targeted stores to retrieve a converted payment terminal and replacing it with the store’s original terminal, the co-conspirators possessed the private account information of every customer who had used the compromised terminal during the intervening period. The men were able to use the stolen information to make unauthorized transactions, including cash withdrawals from automatic teller machines (“ATMs”). Their unauthorized transactions totaled roughly $132,300. The scheme was discovered when one bank’s internal investigation of unauthorized ATM withdrawals revealed that many affected account holders had recently used their cards at Stop & Shop stores in Coventry and Cranston, Rhode Island. Stop & Shop security personnel soon located surveillance video showing appellant, Baltadjian, and Shatarevyan entering the Cranston store in the early hours of the morning on February 1, 2007. While Baltadjian engaged the night clerk in conversation, appellant and Shatarevyan approached the credit card terminal in a deserted checkout aisle. Shatarevyan quickly disconnected the original terminal from its cables and handed it to appellant, who concealed it in his coat. Shatarevyan then removed a second terminal from his own coat and connected it to the cables. Stop & Shop surveillance personnel located similar footage of the three men switching terminals in the Coventry and Providence, Rhode Island stores. As revealed by the surveillance video, the process of substitution only took about twelve seconds. On February 26, 2007, Stop & Shop employees at one of the targeted stores recognized the co-conspirators from the surveillance video and called the police. The responding officers arrested appellant, Baltadjian, and Shatarevyan inside the store. They also arrested Stepanian, who was sitting behind the wheel of a vehicle parked immediately outside the store’s exit. Police later searched a nearby hotel room that had been rented in Stepanian’s name, where they found materials used to alter the credit card terminals and a laptop containing the private account information of customers who had shopped at the Cranston and Coventry Stop & Shop stores. On May 21, 2007, appellant signed a written plea agreement in which he agreed to plead guilty to: 1) conspiracy to violate 18 U.S.C. § 1029(a)(2) by trafficking in and using one or more unauthorized access devices with intent to defraud, in violation of 18 U.S.C. § 371 (Count I), and 2) knowing transfer, possession, or use of other persons’ means of identification in relation to the felony offenses of access device fraud, 18 U.S.C. § 1029(a)(2) and (3), and conspiracy to commit access device fraud, 18 U.S.C. §§ 371, 1029(b)(2), constituting aggravated identity theft in violation of 18 U.S.C. § 1028A (Count II). The plea agreement contained a provision stating that Ter-Esayan understood that “the Court alone [would make] all sentencing decisions, including the application of the Guidelines and the sentence to be imposed,” and that appellant would not be able to withdraw his guilty plea even if the court’s sentence was not what he expected. The agreement also contained a waiver of appellant’s right to appeal his sentence, which read in pertinent part: “Defendant understands that Defendant may have the right to file a direct appeal from the sentence imposed by the Court. Defendant hereby waives Defendant’s right to file a direct appeal, if the sentence imposed by the Court is within the guideline range determined by the Court or lower.” In paragraph two of the written agreement, the government agreed to: 1) recommend a two- to three-level reduction in the appellant’s offense level, 2) recommend that the court impose a sentence at the low end of the guidelines range, and 3) not seek an adjustment based on Ter-Esayan having played an aggravating role in the offense. The agreement was silent about whether the government would suggest an enhancement for the number of victims of the offense, and further specified that, “[ejxcept as expressly provided in paragraph 2 above, there is no agreement as to which Offense Level and Criminal History Category applies in this case.” At a plea hearing on May 30, 2007, the district court questioned Ter-Esayan to ensure that he understood both the charges against him and the terms of the written plea agreement. The court confirmed that Ter-Esayan understood that any sentencing recommendations made by the government were not binding and that, if the court chose not to accept the recommendations, he would not be able to change his plea. The court also inquired about Ter-Esayan’s waiver of appeal: The Court: I also want to draw your attention to paragraph 13 of your plea agreement, which provides that you may and normally have a right to appeal a sentence imposed by the Court, but you are agreeing to waive your right to appeal if the sentence I impose is within the guideline range or lower. Now, you ... understand that? Mr. Ter-Esayan: Yes, your honor. After finding that he was competent to enter a plea and that his plea was knowing and voluntary, the district court accepted appellant’s guilty plea. A presentence report (“PSR”) prepared by the Probation Office stated that the guideline total offense level (“TOL”) for Count I, access device fraud, was 23. This calculation included a base offense level of 6, a ten-level upward adjustment for crimes involving a loss of more than $120,000 but less than $200,000, a six-level upward adjustment for crimes involving 250 or more victims, a two-level upward adjustment for use of sophisticated means, a two-level upward adjustment for the production or trafficking of an unauthorized access device, and a three-level downward adjustment for acceptance of responsibility. In conjunction with appellant’s criminal history of Category I, this TOL produced a guideline sentencing range of 46 to 57 months. As for Count II, aggravated identity theft, the PSR noted that a two-year consecutive sentence was prescribed by statute. At his sentence hearing, appellant objected to the PSR’s calculation of the number of victims of the offense. He argued that the six-level increase for crimes against more than 250 victims was inappropriate because only Stop & Shop and the 26 financial institutions that had ultimately reimbursed the defrauded bank account holders were “victims” for the purpose of the multiple victim enhancement. According to Ter-Esayan, account holders who had been reimbursed by their banks could not be victims under the relevant guideline provision because it defines the term to include only those who have sustained foreseeable economic loss and spe cifically excludes those who have suffered only “emotional distress, harm to reputation, or other non-economic harm.” U.S.S.G. § 2B1.1, cmt. nn. 1, 3(A). Appellant therefore urged the court to impose only the two-level multiple victim enhancement applicable to crimes involving 10 to 50 victims. He pointed to a Sixth Circuit decision, United States v. Yagar, 404 F.3d 967 (6th Cir.2005), to support his position. In response to appellant’s objection, the government countered that some account owners had reported serious financial consequences from the unauthorized withdrawals even though they were ultimately reimbursed by their banks. The government described one account owner who temporarily did not have enough money to buy food and gas for his family, and another who had been forced to borrow $500 from a family member to make ends meet. The government cited an Eleventh Circuit case, United States v. Lee, 427 F.3d 881 (11th Cir.2005), in support of its reading of “victims” as including the individual account holders even if they only sustained temporary financial loss. Acknowledging a circuit split on the issue, the district court agreed with the Sixth Circuit’s decision in Lee, and found that the victims included 238 individuals, 26 banks, and the Stop & Shop chain. Those numbers resulted in a six-level multiple victim enhancement. The court adopted the PSR’s guideline calculation and sentenced Ter-Esayan to the low end of the guideline range for Count I, 48 months, with a consecutive 24-month sentence on Count II. Ter-Esayan now appeals his sentence, arguing that his appeal waiver should not be enforced and that his sentence must be vacated because the district court misunderstood the term “victim” under section 2B1.1. II. Our initial inquiry must be whether to enforce appellant’s waiver of the right to bring this appeal. In determining whether to enforce a waiver of the right to appeal, we use the three-tiered analysis set forth in United States v. Teeter, 257 F.3d 14 (1st Cir.2001). See, e.g., United States v. Chandler, 534 F.3d 45 (1st Cir.2008); United States v. Edelen, 539 F.3d 83 (1st Cir.2008). First, we consider whether the written plea agreement “contains a clear statement elucidating the waiver and delineating its scope.” Teeter, 257 F.3d at 24. Next, we examine the transcript of the plea hearing to determine whether the trial court specifically inquired into the waiver of appellate rights to ensure that the defendant “freely and intelligently” waived his right to appeal. Id. Finally, we consider whether enforcing the waiver would “work a miscarriage of justice.” Id. at 25. Appellant argued in his brief that the language of his plea agreement did not clearly delineate the scope of the waiver. The written plea agreement stated that appellant waived his right to appeal the sentence imposed by the court if it was “within the guideline range determined by the Court or lower.” After the submission of appellant’s brief and before oral argument in this case, we decided in Chandler, 534 F.3d at 49, that language nearly identical to that in appellant’s plea agreement sufficiently delineated the scope of a waiv er of appellate rights and therefore passed the first stage of the Teeter inquiry. As a result, appellant conceded at oral argument that the language of his plea agreement had adequately delineated the scope of the waiver. Therefore, the first prong of the Teeter test is not at issue. The waiver also passes the second prong of the Teeter inquiry. At the change-of-plea hearing the district court ensured appellant’s waiver was made “freely and intelligently” by inquiring into whether appellant was aware that he would otherwise have had the right to appeal and that he was waiving that right. Appellant responded, ‘Tes, your Honor.” Thus, appellant’s only argument for the unenforeeability of his waiver of the right to appeal is that enforcing the waiver would constitute a miscarriage of justice. He argues that the district court’s inclusion of reimbursed bank account holders in the tally of victims is an error that amounts to a miscarriage of justice. That argument is now precluded by the decision we have issued today in Stepanian, 570 F.3d at 56-59, 2009 WL 1815420, **4-6. In that case, which is based on the same facts as this one, we conclude that the district court was correct to count the reimbursed account holders as victims for purposes of the multiple victim enhancement. Given the absence of any error in the court’s application of the guidelines, there can be no miscarriage of justice caused by enforcing appellant’s waiver of the right to appeal. Hence, we dismiss his appeal. So ordered. . The investigation was also aided when one of the altered terminals malfunctioned and was sent out of the store for servicing. When it was opened for repairs on February 13, 2007, it was discovered that card-skimming equipment had been placed inside the terminal. . Appellant's calculation of the number of victims would result in an offense level of 19 for Count I, which, in conjunction with his criminal history of Category I, would yield a sentencing range of 30-37 months. . At sentencing, appellant argued that only seven individual bank account holders had reported suffering any kind of temporary financial hardship.

MURPHY, Circuit Judge. Daniel Binion was charged with two drug offenses involving crack cocaine and with conspiracy to commit money laundering. After the district court denied his motion to suppress, he entered conditional pleas of guilty and was sentenced to 400 months, He appeals the denial of his motion to suppress, and we affirm. At approximately 2 a.m. on August 1, 2006, Illinois State Police Sergeant Jeanette Beck pulled over a speeding car which was driven by Christopher Montgomery and occupied by two other men, including Daniel Binion. The car was traveling approximately 61 miles per hour in a 45 mile zone on Interstate 80 near Joliet, Illinois. As she stopped, the car, Beck observed Montgomery making what she considered to be furtive movements to hide something under his seat. When Montgomery rolled down his window, a cloud of -smoke billowed out of the car smelling of burnt marijuana. . An electronic check of Montgomery’s driver license revealed an outstanding arrest warrant for possession of stolen property. Montgomery was arrested and placed in the state patrol car. Beck then asked Binion to get out of the stopped ear. She smelled burnt marijuana on him and observed that he was lethargic, extremely nervous, and shaky. He was smoking a cigarette, which he refused to extinguish until ordered to do so several times. Beck placed Binion in handcuffs and conducted a protective frisk. She felt several bulges in his crotch area which she suspected were marijuana, but Binion claimed that the bulges were only part of his body. Beck laughed and asked Special Agent Ray Rodriguez, who had arrived on the scene as backup, to conduct a second frisk of Binion. After Rodriguez agreed that the bulges were likely marijuana, Bin-ion told the troopers that he had an ounce of marijuana in his pants. He was arrested and transported to a nearby state patrol headquarters. When Binion stepped out of the patrol car at headquarters a plastic bag of marijuana fell out of his pant leg. A full search revealed a bag of cocaine in his front pocket and a second bag of marijuana in the crotch area of his pants. Special Agent Rodriguez and Sergeant Tim Zych then read Binion the Illinois State Police Statement of Constitutional Rights, which included Miranda warnings. Binion responded that he understood his rights, but he declined to sign a waiver form. The troopers asked Binion if there was anything else he wanted to say, and he responded: “I’m booked, I’ll be back in 10 to 15 [years]. Did you see what they took off me?” After this statement, the troopers asked Binion about his personal history in order to fill out an administrative form. He was generally uncooperative and fell asleep intermittently during the questioning. ■ ■ Binion was charged with conspiracy to distribute more than 50 grams of crack cocaine after having been previously convicted of two or more felony drug offenses, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 & 851; possession with intent to distribute more than 50 grams of crack cocaine after having two previous such convictions, id. §§ 841(a)(1), (b)(1)(A) & 851; and conspiracy to conduct financial transactions involving the proceeds of drug sales, 18 U.S.C. § 1956(a)(1)(A)®, (h). Binion moved to suppress the drug evidence, arguing that there was not probable cause for the traffic stop, that there was no reasonable suspicion to justify detaining and frisking him, and that the investigation was unduly prolonged. He also contended that the troopers had questioned him after he invoked his privilege against self incrimination and that his post arrest statements should therefore be suppressed. United States Magistrate Judge Jon Scoles held an evidentiary hearing, and the district court adopted his findings and denied the motion to suppress. Pursuant to a plea agreement, Binion entered conditional guilty pleas to the two conspiracy counts in the indictment, reserving the right to appeal the denial of his pretrial motion. See Fed.R.Crim.P. 11(a)(2). On his appeal, Binion argues that the seizure of the drug evidence violated his Fourth Amendment right to be free from unreasonable searches and seizures because there was not probable cause to stop the car in which he was a passenger, no reasonable suspicion to detain him, and no officer safety concerns to justify frisking him. He also contends that the permissible scope of his detention was exceeded and that his statements to the officers should have been suppressed. We review de novo the denial of a motion to suppress and review the district court’s underlying factual determinations for clear error. United States v. Banks, 553 F.3d 1101, 1104 (8th Cir.2009). We will reverse “only if the district court’s decision is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.” United States v. Harper, 466 F.3d 634, 643 (8th Cir.2006) (quotation omitted). Although Binion asserts there was not probable cause for his traffic stop, he does not contest that the speed limit in the area was 45 miles per hour nor that Montgomery was driving in excess of that speed. Any traffic violation creates probable cause to stop a vehicle, and Beck had an objectively reasonable belief that Montgomery was speeding. See United States v. Sallis, 507 F.3d 646, 649 (8th Cir.2007). The district court found Beck’s explanation for why she stopped the car to be credible, and such assessments are “virtually unassailable on appeal.” United States v. Rodriguez, 414 F.3d 837, 845 (8th Cir.2005). Binion charges nevertheless that Beck’s explanation for why she stopped the car is not credible because she could not say on cross examination what percentage of Interstate 80 in Illinois has a speed limit of 65 miles per hour. That question is irrelevant to the issue of probable cause since the car was admittedly stopped in a 45 mile zone. Also of little effect were Bin-ion’s efforts to impeach Beck by arguing that she could not have observed the driver hiding something under the seat from her vantage point and that she failed to detect the crack cocaine in his front pocket when she frisked him. Binion further contends that Beck violated the Fourth Amendment by expanding her investigation beyond the scope of the traffic stop and detaining him. An officer may question a person if she has a reasonable, articulable suspicion that the person is engaged in criminal activity. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Long, 320 F.3d 795, 800 (8th Cir.2003) (investigative detention “can grow out of a traffic stop so long as the officer has reasonable suspicion to expand his investigation”). The officer must have a “particularized and objective basis for suspecting the particular person stopped of criminal activity” in light of all the circumstances from which “a trained officer draws inferences and makes deductions ... that might well elude an untrained person.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Beck, who had thirteen years of experience as a highway patrol officer, explained that she was suspicious that Binion was involved in criminal activity because of the strong odor of marijuana emanating from the car and his person, as well as his lethargy, nervousness, and shakiness. See United States v. Caves, 890 F.2d 87, 90 (8th Cir.1989) (smell of burnt marijuana created probable cause for vehicle search). Binion argues that the odor could be explained by the fact that he was sitting in a car in which others had been smoking and that Beck “had no baseline against which to evaluate [his] level of functioning.” Even if Binion’s individual actions “could be susceptible to innocent explanation, [his] behavior must be considered as a whole and in the light of the officers’ experience and specialized training.” United States v. Ameling, 328 F.3d 443, 448 (8th Cir.2003) (quotation omitted); see also United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (rejecting “divide and conquer” analysis in which each suspicious observation is considered alone and found susceptible to innocent explanation). We conclude that Beck had a reasonable suspicion that Bin-ion was involved in criminal activity and was therefore justified in investigating .him. Binion also argues that Beck was not justified in conducting a protective frisk or “pat down.” Officers conducting investigative stops “may take steps reasonably necessary to protect their personal safety.” United States v. Stachowiak, 521 F.3d 852, 855 (8th Cir.2008) (quoting United States v. Shranklen, 315 F.3d 959, 961 (8th Cir.2003)). A protective frisk is warranted if “specific articulable facts taken together with rational inferences support the reasonable suspicion that a party was potentially armed and dangerous.” United States v. Ellis, 501 F.3d 958, 961 (8th Cir.2007) (quotation omitted). The question is an objective one: “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. 1868. Whether a frisk was supported by reasonable suspicion is a mixed question of law and fact which we review de novo. United States v. Roggeman, 279 F.3d 573, 577 (8th Cir.2002). From the facts she had observed, Beck could reasonably have suspected that drugs were being transported in the car. Someone in the car had recently been smoking marijuana, and the driver had been apparently trying to hide something under the front seat. The driver also had an outstanding warrant for his arrest and had been exceeding the speed limit at 2 a.m. An officer’s reasonable belief that someone is involved in drug dealing can support a suspicion that the person is armed since weapons are often present incident to the drug business. See United States v. Robinson, 119 F.3d 663, 667 (8th Cir.1997). By the time Binion was frisked, he had refused to cooperate by extinguishing his cigarette, see Stachowiak, 521 F.3d at 856-57, and he had reached for his back pocket after he was handcuffed, see Robinson, 119 F.3d at 667 (officer safety in doubt where suspect moved his hands towards his waist and appeared nervous). Binion objects that Beck did not mention all of these factors in her police report or testimony, but the objective Terry standard does not require that an officer have verbalized all the reasons “justifying the search articulately, only that such reasons be articulable.” Roggeman, 279 F.3d at 583-84. Under the circumstances Beck’s suspicion that Binion might be armed was reasonable and the protective frisk therefore justified. If an officer detects apparent contraband during a valid protective frisk, the officer may seize the item. Minnesota v. Dickerson, 508 U.S. 366, 376-77, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (plain feel doctrine); see also Stachowiak, 521 F.3d at 855 (so long as the frisk is supported by an objectively reasonable belief that the suspect was dangerous, the fact that an officer finds drugs rather than a weapon does not require suppression of the drug evidence). Beck stated that she immediately suspected that the bulges in Binioris crotch were plastic bags of marijuana, but Binion contends that the bulges did not create probable cause because marijuana “would have been indistinguishable in a tactile sense from [his] genitalia.” Whether the bulges that Beck detected created probable cause to seize the contraband is irrelevant because nothing was seized from Binion until after his arrest. Binion’s admission to the troopers that he had an ounce of marijuana in his pants created probable cause for his arrest. When he arrived at the state patrol headquarters after his arrest, a bag of marijuana fell out of the leg of his pants and was seized as contraband in plain view. Two additional bags of drugs were seized when Binion was searched during booking after his arrest. See United States v. Davis, 457 F.3d 817, 823 (8th Cir.2006) (allowing use of drug evidence seized at police station after officer detected contraband during frisk, arrested suspect, and searched him incident to arrest). None of these seizures relied solely on what Beck felt inside Binioris pants, and we conclude they were all constitutional. Binion contends that his detention lasted longer than was necessary because the troopers transported him to headquarters rather than investigating further by the highway. While an investigative detention “must be temporary and last no longer than is necessary to effectuate the purpose of the stop,” Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), Binion had been arrested by the time the troopers transported him. His detention was then supported by probable cause so the requirement that the detention be minimally intrusive no longer applied. Moreover, it appears that the troopers acted diligently because only a half hour elapsed between the traffic stop and when he was taken into custody. We conclude that the district court did not err in denying his motion to suppress the physical evidence. Binion also moved to suppress the statements he made at the police station, arguing that they were obtained in violation of his Fifth Amendment privilege against self incrimination. Under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), statements made by a custodial suspect in response to interrogation are inadmissible unless the suspect has voluntarily, knowingly, and intelligently waived his right against self incrimination. The district court found that Binion’s statements were voluntary rather than the result of interrogation and that he had not invoked his right to remain silent. We review de novo the legal conclusions underlying the denial of a motion to suppress on Fifth Amendment grounds, while the factual findings are reviewed for clear error. United States v. Aldaco, 477 F.3d 1008, 1013 (8th Cir.2007). After Binion was searched at headquarters, Sergeant Tim Zych and Special Agent Rodriguez explained his constitutional rights, including those required by Miranda. Binion stated that he understood those rights, but he refused to sign a waiver form. When he was asked whether he had anything else to say, he responded: “I’m booked, I’ll be back in 10 to 15 [years]. Did you see what they took off me?” Binion argues that these statements are inadmissible because they were made in response to interrogation. Interrogation includes both express questioning and “words or actions that officers should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Refusing to sign a written waiver of the privilege against self incrimination does not itself invoke that privilege and does not preclude a subsequent oral waiver. See United States v. House, 939 F.2d 659, 662 (8th Cir.1991) (citing North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)); United States v. Zamarripa, 544 F.2d 978, 981 (8th Cir.1976). The troopers did not question Bin-ion about the evidence seized, the potential charges he faced, or any other matter reasonably likely to elicit an incriminating response. See United States v. Mendoza-Gonzalez, 363 F.3d 788, 795 (8th Cir.2004) (not interrogation to ask a detained person why he had requested to make a phone call). Since Binion had been informed of his rights and had neither invoked his Fifth Amendment privilege nor requested an attorney, his decision to volunteer an incriminating response was an intelligent waiver of that right. See House, 939 F.2d at 662 (waiver “may be inferred from the fact that the defendant responded to questions posed by the interviewer after being advised of his rights”); Aldaco, 477 F.3d at 1016 (Fifth Amendment does not bar a voluntary statement made by a suspect). We conclude that Binion’s statements were voluntary and therefore admissible under the Fifth Amendment and Miranda. Accordingly, we affirm the judgment of the district court. . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.

LESLIE H. SOUTHWICK, Circuit Judge: The owners of the lease on which over twenty oil and gas wells were producing were sued by the mineral owners in those wells. The wells were scattered over a three square mile tract, which was all that was still subject to the oil and gas lease that had been executed over eighty years ago on more than 10,000 acres. The longevity of the lease has led to disagreements and to litigation. In 2002, earlier litigation was settled that left covered by the lease only the three square miles involved in the current suit. The parties’ 2002 agreement provided for the release of any of that remaining acreage that was not in producing units at the three-year anniversary of the settlement. In 2005, the mineral owners brought a new suit that alleged that the lease on all but one part of the three square miles had expired. The district court agreed, granting a summary judgment that canceled all of the lease except for one small part. The well operator, unsurprisingly, appealed. We conclude that the fulcrum on which the outcome of this dispute turns is neither on the meaning of “producing unit” nor on whether the boundaries for each unit had to be established by the three-year anniversary of the settlement. Instead, the obligation under the 2002 settlement agreement for all parties first to negotiate in good faith on forming producing units, then to seek a state regulatory order if negotiations failed, simply needs to be enforced. No forfeiture of the producing wells has occurred. We therefore REVERSE and REMAND for further proceedings. I. BACKGROUND In 1927, landowner Cameron Meadows Land Company granted an oil, gas, and mineral lease to H.M. Henshaw on land located in Cameron Parish, Louisiana. Originally, 11,540 acres were covered by the lease. At the most, three square miles, or about 1,920 acres, are still subject to the lease. At the least, which is what the district court found, only about 160 acres still are. Soon after receiving the 1927 lease, Henshaw executed what is usually called an assignment to Vacuum Oil Company, retaining an overriding royalty interest in the lease. We will discuss below that in Louisiana this kind of conveyance may be characterized as a “sublease.” Henshaw’s overriding royalty interest is now held by 115 individuals, approximately 30 of whom are Louisiana citizens. Through what used to be called mesne conveyances, as well as assignments and mergers, the leasehold or lessee rights became owned in 1999 by the Defendants, Prospective Investment & Trading Company and the Atlantic and Gulf Petroleum Company. Prospective is the operator of the wells at issue. We will refer to both Defendants as the lessees or lease owners. In 1995, Plaintiff Doré Energy Corporation purchased the land and mineral rights in Cameron Parish. Doré thereby acquired the lessor’s rights, those initially owned by Cameron Meadows, under the 1927 lease. The oil and gas lease provided for an initial term of years for exploration, but also provided that it would continue as long as oil and gas were produced in paying quantities from anywhere on the land. That long-ago lease did not contain the later common limitation that after an initial primary term, the lease would continue only as to the leased acreage within units surrounding producing wells. Even in the absence of a specific lease term, obligations of basic fairness have been imposed on the holders of oil and gas leases, including a covenant of further exploration after an original productive well is drilled. 5 Howard R. Williams & Charles J. Meyers, Oil and Gas Law § 841 (2006). When Doré purchased the land in Cameron Parish, much of it was not producing oil and gas. It is alleged and perhaps conceded that no new wells on the leasehold had been drilled for many years. Under Louisiana law, “the main consideration of a mineral lease is the development of the leased premises for minerals, and that the lessee must develop with reasonable diligence or give up the contract .... ” Carter v. Ark. La. Gas Co., 213 La. 1028, 36 So.2d 26, 28 (1948). Relying on such principles, Doré filed suit in 2000 against the lease owners seeking cancellation of undeveloped portions of the lease. That earlier suit was removed to federal court on diversity grounds. An argument made now was not raised by the lease owners then, namely, that the overriding royalty interest owners were indispensable parties. On January 28, 2002, Doré and the lease owners entered into a settlement agreement. As part of the settlement, the lease owners agreed to release their interest in all of the land except for the part covering three specific sections of land down to a depth of 10,500 feet. This excepted property is referred to as the “Retained Area,” and it is the subject of the current dispute. We have earlier referred to the acreage as being three square miles. The settlement agreement provided that three years later, those parts of the Retained Area that were not then in “producing units” would be released: 11. [Prospective] and Atlantic agree: To execute a Partial Release (i) as to all acreage within the Retained Area which is not at that time in producing units three years from the effective date of this Agreement, and (ii) as to all depths below the deepest producing horizon as of three years from the effective date of this Agreement. Doré and [Prospective] shall, in good faith, attempt to negotiate the size and extent of such producing unit or units before instituting a proceeding before the Louisiana Commissioner of Conservation. Doré, [Prospective], and Atlantic agree that under no circumstances shall any unit around any producing well bore in the Retained Area be less than 160 acres. As part of the settlement, Doré agreed to dismiss its lawsuit with prejudice. The lease owners released the non-Retained Lands. In 2002, when the settlement agreement was executed, there were 25 producing wells in the Retained Area that at some point in their past had been in units designated by the Louisiana Commissioner of Conservation. Some of those wells apparently were still producing from such units. On January 28, 2005, three years after the effective date of the settlement agreement, 25 producing wells existed in the Retained Area. Each well was still producing from the same well bore as it had been in 2002, but not all were producing at the same depth. Neither party has alleged it to be significant, and thus we have not determined from the record how many of the 25 wells producing in 2002 had by that date already been recompleted into shallower zones than those specified in the Commissioner of Conservation’s unit designations. It does not appear that many of those recompletions occurred in the 2002-2005 period. What is supported by the record is that only one well on January 28, 2005, was still producing from the depth identified in its unit designation; 24 were not. According to one of the exhibits, much of the Retained Area contains no wells at all. The settlement agreement set 160 acres as the minimum size for a unit, which is one fourth of a standard governmental section of land. One of the sections of land in the Retained Area has wells on only one half of its territory; another section contains only one well; the final section has wells in only one of its quarter sections. In March 2005, Doré sent letters to the lease owners demanding that they surrender the lease to all acreage that was not in producing units. This included the land containing the 24 wells that were no longer producing from the same depth as the respective units specified by the Commissioner of Conservation. The lease owners refused. They offered to negotiate with Doré regarding the shape and configuration of units around the producing wells. Instead of pursuing negotiations, Doré filed suit in Louisiana state court in September 2005 seeking enforcement of the 2002 settlement agreement. The case was removed to federal court. After discovery, Doré filed a motion for partial summary judgment seeking termination of the lease except for the one unit established by the Commissioner of Conservation that was still producing. The lease owners filed a cross-motion for summary judgment arguing that they were entitled to retain their producing wells and at least 160 acres around each producing well bore. In September 2007, the district court granted partial summary judgment in favor of Doré. It found that Doré and the lease owners had not formed any voluntary units between 2002 and 2005, and neither party had requested that the Commissioner of Conservation form new units. Therefore, the only unit that satisfied the terms of the 2002 settlement was the one still producing under the earlier unit designated by the Commissioner of Conservation. The district court canceled the lease on the rest of the Retained Area, effective January 28, 2005. Shortly after the district court granted partial summary judgment to Doré, the lease owners filed a motion to dismiss for failure to join indispensable parties. This was the first time the argument was made that indispensable parties were absent. The lease owners argued that the overriding royalty interest owners were indispensable. Because some of the royalty owners are Louisiana citizens, this would destroy diversity. The district court denied the motion. On the day this motion was argued, Doré entered an agreement with the existing overriding royalty interest owners that, should their interests under the 1927 lease be canceled, they would be granted identical rights under any new lease on the same property. The district court certified for interlocutory review the partial summary judgment and the order denying the motion to dismiss for failure to join indispensable parties. We granted review of both under 28 U.S.C. § 1292(b). II. DISCUSSION A. Summary Judgment Motion We review a district court’s grant of summary judgment de novo. Mahaffey v. Gen. Sec. Ins. Co., 543 F.3d 738, 740 (5th Cir.2008). Summary judgment is proper when the evidence shows that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). “In determining whether there is a genuine issue of material fact, we view facts and inferences in the light most favorable to the nonmoving party.” Mahaffey, 543 F.3d at 740. The parties do not dispute that Louisiana law applies to this diversity action. 1. Section 11 of Settlement Agreement The district court canceled almost all the remaining portions of the lease. In making that judgment, the court relied on section 11 of the 2002 settlement agreement, finding it unambiguously to require that result. All parties begin with the argument that section 11 is unambiguous and should be construed in their favor. The lease owners argue in the alternative, though, that section 11 is ambiguous, and the case should be remanded because of fact questions. We restate the settlement language that is at the core of our dispute. The 2002 agreement required the lease owners to release that “acreage within the Retained Area which is not at that time in producing units three years from the effective date of this Agreement,” including releasing all “depths below the deepest producing horizon as of three years from the effective date of this Agreement.” Whatever might be ambiguous, the rights to maintain the lease as to acreage and depths were certainly to be set by production on the third anniversary of the settlement. The date of January 28, 2005, was the invariable point at which production from wells had to be occurring. There are other relevant statements in the settlement. Before we add them to the analytical mix, we seek an understanding of the contract interpreta tion rules under Louisiana law that we are to apply. A settlement agreement is a contract. The rules of construction applicable to contracts are therefore used. Trahan v. Coca Cola Bottling Co. United, Inc., 894 So.2d 1096, 1106 (La.2005); see also La. Civ.Code Ann. art. 3071. The ambiguity of a contract is a legal question. Sims v. Mulheam Funeral Home, Inc., 956 So.2d 583, 590 (La.2007). If the answer to the legal question of ambiguity is in the negative, then interpreting that unambiguous contract is also a legal issue for the court. Tex. E. Transmission Corp. v. Amerada Hess Corp., 145 F.3d 737, 741 (5th Cir.1998). Louisiana had adopted several statutory rules for interpretation of contracts. We find some relevant guidance in each of the following sections of the Louisiana Civil Code: Art. 2045. Determination of the intent of the parties Interpretation of a contract is the determination of the common intent of the parties. Art. 2047. Meaning of words The words of a contract must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the contract involves a technical matter. Art. 2048. Words susceptible of different meanings Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract. Art.2049. Provision susceptible of different meanings A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective. Art. 2050. Provisions interpreted in light of each other Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. Art. 2053. Nature of contract, equity, usages, conduct of the parties, and other contracts between same parties A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties. In summary, we are seeking the parties’ intent. Technical words are given their technical meaning, but choices among doubtful definitions are resolved by applying the one that renders the contract effective and best conforms to its object. An outer boundary in interpretation is to avoid “unreasonable consequences or inequitable or absurd results even when the words used in the contract are fairly explicit.” Tex. E. Transmission Corp., 145 F.3d at 742. We now turn to a key phrase in the settlement agreement, “producing unit.” That term is not defined in the agreement or under Louisiana law. However, “producing” usually means the actual production of minerals in paying quantities. See Menoah Petroleum, Inc. v. McKinney, 545 So.2d 1216, 1220 (La.Ct.App.1989). A “unit” is the area defined by acreage and perhaps by depth to which the obligations and benefits of oil and gas exploration will be shared among the owners of the relevant interests: an area of land, deposit, or deposits of minerals, stratum or strata, or pool or pools, or a part or parts thereof, as to which parties with interests therein are bound to share minerals produced on a specified basis and as to which those having the right to conduct drilling or mining operations therein are bound to share investment and operating costs on a specified basis. A unit may be formed by convention or by order of an agency of the state or federal government empowered to do so. A unit formed by order of a governmental agency is termed a “compulsory unit.” La.Rev.Stat. Ann. § 31:213(6). The district court combined these two definitions. It held that producing unit unambiguously means “an area of land formed voluntarily or with the Louisiana Department of Conservation that produces minerals in paying quantities.” Doré accepts the district court’s definition. It also accepts the result the district court reached using that meaning. Apparently every producing well would initially have complied with the district court’s definition. It is our understanding, though, that all but one of the wells had through the years been recompleted at a shallower depth, allowing production to resume but without new unit designations being made. Doré asserts that a unit formed in Louisiana by convention or by government order would designate a depth to which the well would produce. Though the same well bores were producing from the same surface sites, only one well was producing from the depth identified in an approved unit. The failure to make the production units conform to the producing depths is what the district court relied upon in finding that by operation of the settlement, all but the one well had been forfeited. The lease owners object. They argue that the prevailing industry definition of unit is “the acreage allocated to a specific well.” See 8 Williams & Meyers, supra, at 1107 (definition of “unit”). Ironically, the definition the lease owners pull out of the treatise is the second one listed. The first is taken from the Louisiana statute we already quoted, Section 31:213. Id. The lease owners also draw from the remainder of section 11 of the settlement agreement to explain the effect of the obligation to designate units: Doré and [Prospective] shall, in good faith, attempt to negotiate the size and extent of such producing unit or units before instituting a proceeding before the Louisiana Commissioner of Conservation. Doré, [Prospective], and Atlantic agree that under no circumstances shall any unit around any producing well bore in the Retained Area be less than 160 acres. The lease owners argue that section 11 of the settlement agreement gives them at a minimum a lease to 160 acres around each of the 25 wells that was producing at any level above 10,500 feet on January 28, 2005. We agree with the district court that producing units are those that produce minerals in paying quantities. We also agree that the settlement agreement does not distinguish between units created voluntarily or those formed by the Louisiana Conservation Commission. More uncertain is the district court’s additional requirement that for any unit that once had a well producing from one depth, then was recompleted and was now producing at a different depth from the same well bore, a new unit designation reflecting the new depth had to be obtained. There has been little effort by Doré to demonstrate that the designation by depth is legally required, but the lease owners have not shown the opposite. Based on this record and the parties’ arguments, which do not direct us to clear legal authority on this point, we find it reasonable to define “producing unit” to include a designation of the depth of the formation into which the well is completed. After defining the term, the district court concluded that because successor units had not been created by agreement or governmental order to reflect the new depths from which production was occurring, there was only one producing unit remaining on the lease on the third anniversary of the settlement. Therefore, the lease on all but one unit in the Retained Area was canceled, and the producing wells were forfeited. Our judgment of where to proceed from the definition differs from that of the district court. It is true that the settlement agreement set January 28, 2005, as the point in time at which to determine what parts of the lease would continue. As to any acreage outside and the geological formations below a producing unit, a release was to be executed. The history of this and predecessor litigation indicates the importance to the mineral owner of those releases, as freeing land from the hoary hand of the 1927 oil and gas lease and its outdated terms is likely what has driven all this controversy. How that deadline and the requirement of unit designations relate is our next issue. We move back one step to gain perspective. All the parties and the district court state that these terms in the settlement were unambiguous. Doré and the district court concur that the agreement unambiguously required reformed units on the long-producing wells as of the third anniversary. The lease owners allege the agreement did no such thing. Instead, it unambiguously allowed the producing wells to hold at least 160 acres per well even after the deadline. The lease owners stand ready to enter into such negotiations now. Our problem with these inconsistent notions of unambiguous meaning is that they rely on dueling versions of what the three-year deadline covers. Doré says it applies to everything. There needed to be production from wells, negotiations concluded or governmental orders obtained on the configuration of the producing units, and releases executed. As to the lease owners, they argue that the lease is continued as to 160 acres around each well that was producing in paying quantities on January 28, 2005. The configuration of those 160-acre units is something that remains susceptible to negotiation or governmental order. After considering all that we have discussed, we conclude that no relevant term in the 2002 agreement was legally ambiguous. There was, though, an important indefinite term. The indefiniteness concerned the deadline for when the formal unit designations had to be made. Louisiana law gives definition by presuming a reasonable time for a party to act. We explain our reasoning by examining different segments of the three sentences. The first sentence of the relevant paragraph of the settlement required a partial release to be executed as to all acreage outside and depths below the units that were producing on the designated 2005 date. In the second sentence, Doré and Prospective (but not Atlantic, who was not the operator of the wells) agreed to attempt to negotiate the configuration of the producing units and, failing that, would institute a proceeding before the relevant state official. Though both parties have the good faith obligation, we find merit to Doré’s argument that the lease owners would have been the ones expected to initiate the negotiations. We also know from the agreement that the necessary units would consist of at least 160 surface acres and extend down to just below the producing formation. The parties also agreed to “execute a Partial Release (i) as to all acreage within the Retained Area which is not at that time in producing units three years from the effective date of this Agreement, and (ii) as to all depths below the deepest producing horizon as of three years from the effective date of this Agreement.” This provision sets a date certain by which to determine if there was production in a unit. Because of the next sentence, we do not find that it clearly sets a date certain for when the unit had to be officially formed. “Doré and [Prospective] shall, in good faith, attempt to negotiate the size and extent of such producing unit or units before instituting a proceeding before the Louisiana Commissioner of Conservation.” Both parties had an obligation to resolve their differences. The earlier litigation had been settled. All of the non-Retained Area acreage under the 1927 lease was relinquished by the lease owners. In the three sections of land that remained, all parties knew there were producing wells. Whether they knew that the formalities of the unit designations might be imperfect, it seems difficult to see from the language of the settlement that the lease owners were agreeing to abandon all producing wells for which some flaw in the unit designation might exist. Not given was any date by which the negotiations in good faith, which were to occur first, and any necessary turn to the regulatory authority if negotiations failed, were to be completed. Doré’s argument is that the three-year mark must be the date. We see the agreement differently. The fact that production had to be occurring on the third anniversary of the lease to hold acreage has to be read together with the obligation of the parties to attempt an agreement on the unit boundaries. There is no direct language that the acreage that would be held by each well would by the three-year mark have been agreed or imposed. Under Louisiana law, when the period for performance of some provision in a contract is indefinite, the obligation must be performed “within a reasonable time.” La. Civ.Code Ann. art. 1778. We conclude that a reasonable time is what the parties, not just the operator of the wells, had to resolve any necessary reconfiguration of the unit designations. The last sentence in the paragraph was that “Doré, [Prospective], and Atlantic agree that under no circumstances shall any unit around any producing well bore in the Retained Area be less than 160 acres.” What is unambiguous from this is that no well would hold a smaller segment of the lease than 160 acres. Thus the lease owners were entitled for every well producing in paying quantities on the applicable date, to hold at least 160 acres of the lease down to the depth of production—no ifs, ands, or buts. The spacing of the wells was such that apparently many of such 160-acre units would overlap in whole or in part. There were also, from our view of the evidence, large segments of those three sections that would not be held by 160-acre units. If the units that would be formed by agreement or by the Commissioner of Conservation were larger than 160 acres, then a higher percentage of those three sections would be held. The district court found that despite this undisputable right, the lease owners forfeited all but one 160-acre unit. There is no ambiguity to any of this. The parties agreed that the lease owners would for three years retain the nonproductive acreage under the lease in the three sections of land, but at that anniversary date, the acreage would be lost. We find no agreement that the lease owners were taking the risk that if they had not taken the formal steps to reform old producing units into ones that identified the proper depth of production, they also would forfeit the portions of the lease being held by such wells. Particularly useful here is the Louisiana Civil Code Article 2053, which provides that any questionable “provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties.” The purpose of the contract, and the equity behind it, both compel an interpretation that the settlement agreement was not a well-forfeiture agreement. It was an agreement to reduce the effect of the then-seventy-five-year-old lease to just that acreage and those depths that were producing. There is no support that another object was to make formal unit designations override the fact of actual production. For these reasons, we reverse the district court’s order that the lease, except for that held by the one well, had been relinquished effective on January 28, 2005. The settlement agreement does not unambiguously or even with a little uncertainty lead to that result. As we point out later, any lingering doubt is removed by Louisiana law that forfeiture is to be avoided. Of course, the lease owners not only failed to complete the steps needed for reforming units, they did not even begin them. Both parties had a good faith obligation to attempt to negotiate the size and extent of the producing units before taking the dispute over units to the Commissioner of Conservation. When the lease owners took no initiative to do that, they allowed the entirety of the three sections of land to remain under their control and not available for Doré’s possible attempts to lease some acreage anew. We indicated previously that the time to pursue negotiations or to turn to the Conservation Commissioner would be measured by reasonableness. Two months after the third anniversary date of the settlement, Doré demanded that the lease owners release all but the one well. We would ascribe largely but not completely to the lease owners the failure to initiate negotiations prior to the anniversary date, or even after that until the March 2005 demand from Doré. On the other hand, the fact that today, four more years have passed without any negotiations could be seen primarily as the result of Doré’s insistence that the lease and the producing wells have largely been forfeited. We now turn to what the district court should do on remand. 2. Proper Remedy We are deciding today that cancellation of the portions of the lease covering acreage on which a producing well was located was error. It is true that there is not complete clarity as to what land was held, because the unit designations are not synchronized with the new producing depths. What is now uncertain can be made certain, though, and the effective date of the release of remaining acreage would be January 28, 2005. If the lease owners breached the settlement, it was for the failure to commence negotiations within a reasonable time. If they committed that breach, the cancellation of the lease for that default is disfavored under Louisiana law. See, e.g., Tolar v. Spillers, 2 So.3d 560, 563-64 (La.Ct.App.2009); Atkinson v. Richeson, 393 So.2d 801, 803 (La.Ct.App.1981). In Louisiana, “a lease will be dissolved only when it has been shown that the lessor is undoubtedly entitled to such a cancellation.” Atkinson, 393 So.2d at 803. Moreover, the breach must be shown to be substantial to dissolve a mineral lease. Taussig v. Goldking Props. Co., 495 So.2d 1008, 1018 (La.Ct.App.1986). Under Louisiana law, “specific performance is the preferred remedy for breach of contract.” J. Weingarten, Inc. v. Northgate Mall, Inc., 404 So.2d 896, 897 (La.1981); see also Bourgeois v. Dunn, 822 So.2d 708, 711 (La.Ct.App.2002). Indeed, specific performance may be mandated unless it is impracticable. When an obligor fails to perform an obligation to “deliver a thing” in Louisiana, “the court shall grant specific performance plus damages for delay if the obligee so demands.” La. Civ. Code Ann. art. 1986. Though the lease owners have not used the phrase “specific performance,” they have continually maintained that they are willing to negotiate with Doré regarding the shape of the units around each well. The lease owners contend that they should retain each producing well plus 160 acres surrounding each producing well, but they do not argue that they should retain any nonproducing acreage. We find that the lease owners have recognized that enforcing the agreement to designate units is the proper relief. Indeed, the lease owners recognized as much when they stated in their reply brief that a proper award enforcing the settlement agreement would be an order forcing the parties to negotiate the extent of the producing units or to initiate proceeding before the Commissioner of Conservation. There are no doubt various issues for the district court to consider in the remand. We identify a few to indicate what we are not resolving. We are not finding that the settlement agreement was breached by the failure of the lease owners to commence good faith negotiations before suit was filed. It is of some importance that Doré also was to “attempt to negotiate the size and extent of such producing unit,” which suggests that having the configurations set was to the parties’ mutual advantage. Doré has argued that not having the units was to their advantage, since they would—and the district court agreed—gain these producing wells and the chance to enter new leases on extraordinarily favorable terms. Yet we find nothing in the agreement to suggest that the usual Louisiana rules for not ordering lease cancellations or forfeitures of such valuable property as producing wells was being overridden. Instead, the obligation on the mineral owners also to negotiate is a recognition that establishing the units would benefit them by allowing nonproductive acreage and depths to be released. On remand, the district judge should consider whether the failure to begin negotiations for reforming any producing units before the suit was filed was a failure to act within a reasonable time under the settlement, and if so, whether the lease owners alone are responsible. The remedies available under Louisiana law and by these pleadings for such a breach do not include forfeiture. The court can determine the best means to enforce the obligations under the settlement to form the new units. B. Indispensable Parties Motion In the district court, the lease owners moved to dismiss Doré’s complaint for failure to join indispensable parties. See Fed. R.Civ.P. 12(b)(7). These allegedly necessary parties are the overriding royalty interest owners whose rights to payment from production is derived from the lease that the suit would largely cancel. Federal Rule of Civil Procedure 19 allows both for the joinder of parties who should be present in order to have a “fair and complete resolution of the dispute,” and for the dismissal of lawsuits “that should not pro ceed in the absence of parties that cannot be joined.” HS Res., Inc. v. Wingate, 327 F.3d 432, 438 (5th Cir.2003) (citations omitted). The lease owners argued that the overriding royalty interest owners are indispensable and acknowledged that because many are Louisiana residents, diversity jurisdiction would be at an end. The motion was denied. We review the denial of such a motion for possible abuse of discretion. Brown v. Pac. Life Ins. Co., 462 F.3d 384, 393 (5th Cir.2006). Because this suit is in federal court based on diversity jurisdiction, we apply Louisiana substantive law and federal procedural law. The district judge issued a separate memorandum ruling on the indispensable parties motion. The initial and fairly brief finding was that the only indispensable parties in this suit over the meaning of the settlement agreement were those who executed it. It was not put in these terms by the district judge, but the point could be extended by noting that the settlement agreement had already affected the overriding royalty owners by releasing substantial acreage from the lease in 2002, and setting up a process to release more in 2005. It did seem a bit late in the day to become aware of their interests. The district court spent much more time in the ruling on the delay in bringing this issue before the court. The court found that discretion existed in ruling on the motion. Unreasonable delay and even bad faith were found to exist in the lease owners’ filing of the motion only after partial summary judgment was entered against them. On appeal, there are lengthy discussions in the briefs on various facets of this issue. We find most of them unnecessary to engage. The basic question is whether this suit affects any rights of the overriding royalty owners. Their interests have been similarly affected by every cancellation of parts of the lease through the years. In previous litigation, the right of the lease owner to release acreage without the consent of the overriding royalty owners was contested. Cameron Meadows Land Co. v. Bullard, 348 So.2d 193 (La.Ct.App.1977). In analyzing the issue, the court concluded that the assignment of the lease and retention of an overriding royalty was a sublease under Louisiana law. Id. at 198. Nonetheless, the court found that the “sublease” from Henshaw in 1927, shortly after the oil and gas lease was executed, granted to the sublessors/assignees the right to release acreage without the approval of Henshaw or his successor owners of the overriding royalty interests: We construe the 1927 sublease agreement, in light of its provisions and the actions of the parties thereunder for a period in excess of 43 years, and conclude that it was clearly the intention of the parties thereto that the Sub-lessee, its successors or assigns, was granted the right thereunder to effectively release all or any part of the leased acreage. Id. at 199. The court went on to hold that any overriding royalty interests in the released portions of the land were terminated. Id. at 200. Another much more recent case cited to us also concerns this same lease. See Doré Energy Corp. v. Carter-Langham, Inc., 997 So.2d 826 (La.Ct.App.2008). The court found that a jury could have reasonably concluded that the predecessors to the current lease owners held an assignment, not a sublease. Under the 1977 Bullard decision we just discussed, the court had already held that a sublessee under this lease could release land without the overriding royalty owners’ consent. Under Louisiana law, an assignee acquires all the rights of the lessee, which would include the right to surrender parts of the lease. See La.Rev.Stat. Ann. § 31:128. Therefore, regardless of whether this is a sublease or an assignment, the lease owners can surrender the leased land without it reverting back to the overriding royalty-interest owners. Such a ruling certainly suggests that the overriding royalty interest owners, subject to the unchallengeable decision making by the lease owners on whether to release or not, could not sue to block enforcement of a settlement agreement by the lease owners to execute releases. The somewhat different question here is whether, when the lease owners are being sued by the mineral owners to cancel most of the remaining portion of the lease, the overriding royalty owners have a right to participate in presenting the argument that the lease is still in effect to the maximum defensible degree. Such a role is not challenging the discretion of the lease owners. It is a participation alongside them in defending the lease. Such nice points of distinction will not affect our resolution. Regardless of whether there is some legitimacy to the lease owners’ argument, the reality is that joinder of the overriding royalty interest owners would deprive the federal court of diversity jurisdiction. See Fed.R.Civ.P. 19(a)(1). When joinder of a required party is not feasible, the district court must consider “whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed.” Id. at 19(b). Among the factors listed in the rule for consideration are whether the absence of the identified parties would prejudice either them or the litigants, and whether a judgment entered with the existing cast of parties would be adequate. Id. at 19(b)(1), (3). Apparently in an effort to remove this issue, Doré entered an agreement that purports to be with all the overriding royalty interest owners. It provides that should any additional acreage under the 1927 be released, Doré agreed that the current overriding royalty interest owners would continue to be entitled to the same payments out of production. In effect, the overriding royalty interest owners no longer even have a stake in the outcome of this litigation, regardless of whether they have a legal right to participate. The lease owners argue that Doré has attempted to “paper over” a defect in federal jurisdiction arising from the absence of the overriding royalty interest owners in the case. We find no bar to a party’s eliminating, even with paper, an issue such as this. The factors under Rule 19(b) are concerned with whether actual harm to anyone’s interests will occur if the case proceeds absent certain parties. This papering over removed any possible actual financial impact on the overriding interest owners. We find no abuse of discretion in denying the motion to join these parties. III. CONCLUSION We reverse the lease cancellation and the award of production from the wells subject to that cancellation. We affirm the denial of the motion to join other parties. On remand, the district court should determine whether the lease owners breached the obligation in the settlement agreement to negotiate the new unit configurations in good faith. Regardless, the court should address with the parties the best means to assure performance under the settlement of the obligation to create formal units appropriate to the producing wells. The district court’s grant of partial summary judgment is REVERSED, and the case is REMANDED for proceedings consistent with this opinion. . Because of our later determination that the proper remedy for any breach is the specific performance of the settlement agreement, it ultimately does not much matter whether the agreement required the unit reconfigurations to be accomplished by the 2005 date.

BENTON, Circuit Judge. A jury found Glen Thomas Dotson guilty of conspiracy to commit murder-for-hire, in violation of 18 U.S.C. § 1958, and conspiracy to deliver a firearm to a convicted felon, in violation of 18 U.S.C. §§ 922(d)(1) and 371. The district court sentenced Dotson to 120 months imprisonment on each count, to run consecutively. Dotson appeals. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms. I. Dotson claims there was insufficient evidence for both convictions. This court reviews the sufficiency of evidence de novo, viewing the evidence in the light most favorable to the verdict. United, States v. Bower, 484 F.3d 1021, 1025 (8th Cir.2007). This court will reverse only if it concludes that no reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Santana, 524 F.3d 851, 853 (8th Cir.2008). First, Dotson argues that there was insufficient evidence to sustain his conviction for conspiracy to commit murder-for-hire. To prove a conspiracy to commit murder-for-hire, the government must prove that there was an agreement to kill Cox, Dotson knew of the agreement, and Dotson intentionally joined the agreement. See United States v. Hyles, 521 F.3d 946, 954 (8th Cir.2008). Circumstantial evidence alone can prove the elements of conspiracy. Id. Evidence that a co- conspirator participated in acts that furthered the conspiracy is substantive evidence of the conspiracy’s existence. United States v. Titlbach, 339 F.3d 692, 697 (8th Cir.2003). The government presented evidence that Dotson was aware of Jackson’s desire to kill Cox, procured and delivered á firearm at Jackson’s direction, and knew the ultimate purpose for the firearm. A reasonable jury could conclude: • Dotson was the “right hand, man” of bail bondsman Virgil Lee Jackson. • Jackson, a convicted felon, had a grudge against Gerald Cox for opposing a Missouri Senate Bill that would permit convicted felons to apply for bail-bond licenses. • Jackson hired another bail bondsman to kill Cox. • Dotson conspired with Jackson to -procure a weapon for the shooter. • Dotson acquired a firearm and delivered it to Jackson. There was sufficient evidence that Dotson conspired to commit murder-for-hire. Next, as to the conspiracy to deliver a firearm to a convicted felon, Dotson contends that there was insufficient evidence that the weapon at issue was a “firearm” for purposes of 18 U.S.C. § 922(d)(1), and not an “antique firearm.” A firearm manufactured in or before 1898 is an antique firearm. 18 U.S.C. § 921(a)(16)(A). A government expert testified that the firearm was manufactured in 1900. In addition, an ATF firearms examiner determined that it was likely that the firearm was manufactured in 1900. There was ample evidence that the weapon was not an antique. H. Dotson claims the district court procedurally erred in calculating his advisory sentencing range for the murder-for-hire conviction. ■ Since Dotson failed to make this objection below, this court reviews for plain error. See United States v. Burnette, 518 F.3d 942, 946 (8th Cir.2008). Dotson was convicted of violating 18 U.S.C. § 1958. The Statutory Index, Appendix A of the Sentencing Guidelines, says that for § 1958 convictions, the corresponding guideline is U.S.S.G. § 2E1.4, which states: (a) Base Offense Level (Apply the greater): (1) 32; or (2) the offense level applicable to the underlying unlawful conduct. Under subsection (2), the district court cross-applied U.S.S.G. § 2A1.5 for Conspiracy or Solicitation to Commit Murder, which has a base offense level of 33, and a 4-level increase if the offense involved the offer or receipt of anything of pecuniary value for undertaking the murder. The consideration for the proposed murder was additional bail-bond business, which has pecuniary value, bringing the offense level to 37. As 37 is greater than 32, the appropriate base offense level was 37 under § 2E1.4. Dotson argues that subsection (2) should be applied only if the crime encompassed “underlying unlawful conduct” in addition to that required to violate 18 U.S.C. § 1958. Dotson’s argument is contrary to the plain language of § 2E1.4(a), which does not contain an additional conduct requirement. As part of an exhaustive analysis of § 1958 cases, Dotson relies on United States v. Smith, 232 F.3d 650, 651 (8th Cir.2000) (per curiam). Smith was also charged with violating 18 U.S.C. § 1958. Id. Unlike Dotson, Smith aided a murder-for-hire that resulted in a murder. Id. This court determined that first degree murder was the underlying unlawful conduct for purposes of § 2E1.4(a)(2), and affirmed Smith’s life sentence. Id. at 651-52. Smith does not address an “additional conduct” requirement, and like this case, cross-applied the guideline for the underlying unlawful conduct. There is no additional unlawful conduct requirement for applying § 2E1.4(a)(2). The district court did not err in its calculation of Dotson’s advisory sentencing range. III. The judgment of the district court is affirmed. . The Honorable Hemy E. Autrey, United States District Judge for the Eastern District of Missouri.

MEMORANDUM Claudette Sharon Tablada, a native and citizen of Belize, petitions for review of an order of the Board of Immigration Appeals summarily affirming an order of an immigration judge (“IJ”) denying her motion to reopen proceedings in which she was ordered removed in absentia, so as to pursue her application for adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir.2002). We deny the petition for review. The IJ did not abuse his discretion in denying Tablada’s motion to reopen. Tablada’s claim that she did not receive oral warnings regarding the consequences of failing to attend her removal hearing is unavailing. The record demonstrates that the former Immigration and Naturalization Service personally served Tablada with the Notice to Appear required under 8 U.S.C. § 1229(a)(1), which contained Tablada’s signed acknowledgment she received oral notice of the consequences of failing to appear. Because the evidence shows that Tablada received these oral warnings, and because Tablada did not argue or demonstrate that exceptional circumstances prevented her from attending the hearing, the statutory ten-year bar to adjustment of status applies. See 8 U.S.C. § 1229a(b)(7). PETITION FOR REVIEW DENIED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

PER CURIAM. John M. Jeffords appeals from the final judgment entered in the District Court for the District of South Dakota affirming the denial of his request that his disabled child’s benefits be paid directly to him, not through a representative payee. For reversal, Jeffords asserts that he is able to manage his benefit payments because his disability has healed. For the reasons discussed below, we affirm the judgment of the district court. The Social Security Administration (SSA) will make direct payments to a beneficiary if the beneficiary shows that he is mentally and physically able to manage, or direct the management of, benefit payments. See 20 C.F.R. § 416.655 (2005). To support a request for direct payment, a beneficiary may provide a physician’s statement or other evidence, showing that the beneficiary is able to manage or direct the management of his funds. See id. Other than Jeffords’s unsupported assertions, we find no evidence in the record that Jeffords is mentally and physically able to manage his benefit payments. Rather, the evidence reflects the opposite: for example, his treating physician refused to certify that Jeffords could manage his own affairs; his representative payee did not consider Jeffords capable of managing his affairs because he desired to spend more money than he had and frequently pawned items; he accrued credit card debt and had two credit cards cancelled; and he threatened SSA employees and was arrested for an encounter with a previous representative payee. Thus, we conclude the Administrative Law Judge’s decision to deny Jeffords’s request for direct payment is supported by substantial evidence. See Neal v. Barnhart, 405 F.3d 685, 688 (8th Cir.2005) (standard of review). Accordingly, we affirm. . The Honorable Lawrence L. Piersol, Chief Judge, United States District Court for the District of South Dakota, adopting the report and recommendations of the Honorable John E. Simko, United States Magistrate Judge for the District of South Dakota.

PER CURIAM. Mickeal White appeals the district court’s adverse grant of summary judgment in his race-based discrimination lawsuit brought under Title VII, 42 U.S.C. § 1981, and state law. Having reviewed the record de novo, see Sallis v. Univ. of Minn., 408 F.3d 470, 474 (8th Cir.2005) (8th Cir.2005) (standard of review), we affirm. Assuming as did the district court that White established a prima facie case of a racially discriminatory suspension and termination, see Shanklin v. Fitzgerald, 397 F.3d 596, 602 (8th Cir.2005) (elements of prima facie case), petition for cert. filed, (U.S. June 13, 2005) (No. 05-9608), we agree with the district court that nothing in the record indicates the legitimate, nondiscriminatory reason for suspending and then terminating White — his insubordination — was pretextual, see Putman v. Unity Health Sys., 348 F.3d 732, 736 (8th Cir. 2003) (this court has repeatedly held that insubordination is legitimate reason for termination). Likewise, we agree with the district court that White did not create any trialworthy issues on his hostile-work-environment claim, as the conduct he described was not sufficiently severe or pervasive to alter a term, condition, or privilege of his employment. See Gilooly v. Mo. Dep’t of Health & Senior Servs., 421 F.3d 734, 738 (8th Cir.2005). Summary judgment was also properly granted on the failure-to-promote, denial-of-overtime, and retaliation claims. There was no evidence in the record that any Caucasian employee who was similarly situated to White was promoted to the technician position White claims he should have received. See Pope v. ESA Servs., Inc., 406 F.3d 1001, 1007 (8th Cir. 2005). Further, White failed to rebut defendant’s evidence showing that the union had found no violation of the collective bargaining agreement overtime provisions, and that White had consistently been awarded more overtime than his Caucasian coworkers. Finally, White testified that he was retaliated against (by being denied overtime) for complaining about promotions, but he admitted he had made no complaints and filed no grievances about promotions, and thus he did not engage in the statutorily protected activity he claims was the impetus for the alleged retaliation. See Gilooly, 421 F.3d at 739 (elements of retaliation claim). White’s remaining arguments provide no basis for reversal. Accordingly, we affirm. See 8th Cir. R. 47B. We deny as moot appellee’s motion to strike appellant’s reply brief. . The Honorable Harry F. Barnes, United States District Judge for the Western District of Arkansas.

JUDGMENT PER CURIAM. This CAUSE having been heard and considered, it is ORDERED and AD JUDGED: AFFIRMED. See Fed. Cir. R. 86

OPINION GRIFFIN, Circuit Judge. Petitioner Sarai Martinez King, a native and citizen of Mexico, seeks review of a decision of the Board of Immigration Appeals (“BIA” or “Board”) affirming an immigration judge’s (“IJ”) order that she be removed and deported to Mexico. Because sufficient evidence supports the IJ’s ruling that petitioner entered into a fraudulent marriage for the purpose of gaining lawful admission to the United States, we deny her petition for review. I. In 1993, petitioner entered the United States on a tourist visa. She remained in the country after the temporary visa expired and married Jeffrey King, a United States citizen, in December 1995. Because of the marriage, petitioner was granted permanent resident status on a conditional basis in June 1996. See 8 U.S.C. § 1186a. The conditions were removed in October 1998. See 8 U.S.C. § 1186a(c); Almario v. Attorney General, 872 F.2d 147 (6th Cir.1989). Eight months later, Jeffrey King filed a complaint for divorce, and the couple was divorced in September 1999. In July 2002 and December 2005, the former Immigration and Naturalization Service (now the Department of Homeland Security) initiated removal proceedings against petitioner, charging her with fraudulently entering into a marriage for the purpose of procuring admission as an immigrant and willfully misrepresenting in her petition to remove conditions that she and Jeffrey King lived together as husband and wife. See 8 U.S.C. § 1227(a)(1)(A) & (a)(l)(G)(ii); § 1182(a)(6)(C)(i). In October 2006, fol lowing an evidentiary hearing, the IJ entered a written opinion sustaining all charges and finding that “this marriage was a sham from inception” and that “[t]he parties married for the sole purpose of permitting [petitioner] to remain lawfully in the United States.” The IJ ordered that petitioner be removed and deported to Mexico. In September 2008, the BIA affirmed, without opinion, the IJ’s ruling. On November 24, 2008, we denied her request for a stay of removal. Sarai Martinez King timely petitions for review. II. A. When the BIA affirms the IJ’s decision without an opinion, as it did here, we review the IJ’s ruling directly. Huang v. Mukasey, 523 F.3d 640, 649 (6th Cir.2008). The order is valid only if “it is based upon reasonable, substantial, and probative evidence.” 8 U.S.C. § 1229a(e)(3)(A). The IJ’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Huang, 523 F.3d at 649. “Under this deferential standard, we may not reverse the Board’s determination simply because we would have decided the matter differently.” Koliada v. INS, 259 F.3d 482, 486 (6th Cir.2001). The deferential “substantial evidence” standard also applies to the. IJ’s determinations about witness credibility. Sylla v. INS, 388 F.3d 924, 925 (6th Cir.2004). In other words, “[w]e cannot reverse the IJ’s credibility determination ... unless the evidence compels a different conclusion.” Ndrecaj v. Mukasey, 522 F.3d 667, 675 (6th Cir.2008) (emphasis added). In assessing a witness’s credibility in a. removal proceeding, the IJ, by statute, may consider “all relevant factors.” 8 U.S.C. § 1229a(c)(4)(C). “[H]owever, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.” Id. In a removal proceeding for a previously admitted alien, the Department of Homeland Security bears the burden of establishing that the alien is deportable by “clear and convincing” evidence. 8 U.S.C. § 1229a(c)(3)(A). An alien is deportable if she committed “[m]arriage fraud,” which includes “failing] or refusing] to fulfill the alien’s marital agreement which in the opinion of the Attorney General was made for the purpose of procuring the alien's admission as an immigrant.” 8 U.S.C. § 1227(a)(l)(G)(ii). A “marriage was a sham if the bride and groom did not intend to establish a life together at the time they were married.” Bark v. INS, 511 F.2d 1200, 1201 (9th Cir.1975); Acheampong v. Keisler, 250 F.App’x 158, 161 (6th Cir.2007) (unpublished). The parties’ intent may be assessed by circumstantial evidence about the amount of commitment to the marital relationship, including whether assets and liabilities were combined, the duration of cohabitation, whether children were born to the marriage, and other pertinent evidence. 8 C.F.R. § 216.5(e)(2)(i)-(iv); Bark, 511 F.2d at 1202; Acheampong, 250 F.App’x at 161. B. Although petitioner separates her petition for review into several issues, they can be reduced to a single question: Does substantial evidence support the IJ’s ruling that petitioner entered into a fraudulent marriage for the purpose of permitting her to remain lawfully in the United States? The evidence overwhelmingly supports the IJ’s decision that she did. Jeffrey King is homosexual and testified that he married petitioner as a favor to his “very good friend[,]” Judi Haynes. Haynes, who is paraplegic and blind, employed petitioner’s mother as her caregiver. Jeffrey explained that he married petitioner because he believed that the marriage would allow her to become a citizen and “sponsor” her mother to obtain citizenship as well. In this way, petitioner’s mother, whom Jeffrey characterized as a “wonderful caregiver,” could remain in the United States and continue caring for his friend. Jeffrey testified that he and petitioner had no discussions about living a life together and did not consummate the marriage, cohabitate, or jointly own property or accounts, although they were friendly and socialized frequently. He explained that the marriage was for legal purposes only and that on their wedding date, the couple executed an antenuptial agreement relinquishing all rights to the other’s property. According to Jeffrey, he has lived with David King, whom he describes as his “life partner,” since 1997 (when Jeffrey and petitioner were still married and more than a year before petitioner claims she moved out of his home permanently). Jeffrey has three adopted daughters, the first of whom was born in 1997, and he explained that he identified himself as “unmarried” on her adoption application because “[i]n my mind ... I was a single person.” When asked on cross-examination why he should be believed after having entered into an admittedly fraudulent marriage and having made false statements previously, Jeffrey responded that he thought he was doing a “good thing” by “trying to help somebody.” David King corroborated Jeffrey’s testimony, lending further support to the IJ’s ruling. David testified that he is homosexual, has had a monogamous sexual relationship with Jeffrey since August 1996, and considers their relationship akin to a marriage. When David met Jeffrey in 1996, Jeffrey was the sole occupant of his home, and David moved into Jeffrey’s home in August 1997. In 1998, David legally changed his last name to “King.” David has credit cards in Jeffrey’s name, medical insurance through Jeffrey’s work, and shares a savings account with Jeffrey. David is a stay-at-home caregiver for the couple’s three adopted daughters. He testified that their first daughter was born in August 1997, and that the process to adopt her, which included home studies by the adoption agency, began in early 1997. David was aware of the marriage between Jeffrey and petitioner and testified that Jeffrey told him that he married her as a favor to Haynes, whom David characterized as Jeffrey’s “best friend.” When confronted with a July 1998 letter he wrote vouching for the validity of the marriage between Jeffrey and petitioner, David admitted that the letter was untruthful and explained that he wrote it because he loved Jeffrey and thought he was doing the “right thing” by helping petitioner obtain citizenship. The testimony of Special Agent Bernadette Cundiff of the fraud unit of the U.S. Immigration and Customs Enforcement independently confirmed Jeffrey’s and David’s testimony, thereby providing additional support for the IJ’s ruling that the marriage was fraudulent. Cundiff was tasked with determining the validity of the marriage. During her investigation, Cundiff discovered that both petitioner and David simultaneously listed Jeffrey’s home as their addresses but found that petitioner resided at other locations as well. When Cundiff interviewed Jeffrey’s next door neighbor who had previously attested to the validity of the marriage, the neighbor conceded that she did not recognize Sarai Martinez King’s name (although she was familiar with her face because she met Sarai Martinez King at a birthday party for Jeffrey’s daughter). The neighbor also confirmed that Jeffrey was homosexual and lived with David. Cundiff interviewed Jeffrey and David. David informed Cundiff that he neither resided at the address he listed in his previous letter on behalf of Jeffrey and petitioner, nor was he “just a neighbor” of Jeffrey’s as he initially claimed. Jeffrey’s story to Cundiff about why he married petitioner was consistent with his testimony to the IJ. Based on her investigation, Cundiff concluded that the marriage was not viable. The primary basis for Sarai Martinez King’s petition is that she was blinded by love. She asserts and so testified that she married Jeffrey because she loved him, and she thought Jeffrey loved her too. According to petitioner, she met Jeffrey at a Christmas party, dated him for several months, and was sexually intimate with him. “[H]e was like a God to me,” she explained. Petitioner contends that Jeffrey’s (and David’s) testimony to the contrary should not be believed because it was inconsistent with their prior statements during the immigration and adoption processes and with the documentary evidence. However, petitioner’s “once a liar, always a liar” argument merely begs the question because the charge levied against her was fraud, more specifically marriage fraud, which requires at least two people allegedly engaging in a dishonest act. Because petitioner’s story and that of all other witnesses are polar opposites, one by default is untrue. We conclude that the IJ skillfully ferreted fact from fiction. She prudently acknowledged that petitioner’s opposing witnesses, Jeffrey and David, made false statements in the past. In particular, she noted that Jeffrey and David admitted that they previously vouched untruthfully for the validity of the marriage. Nevertheless, the IJ determined that their testimony was credible, basing her finding on several key discrepancies. Most prominent was petitioner’s testimony that she had “no idea” Jeffrey adopted a child while she purportedly was living in his home as his wife. While petitioner agreed that she was aware of the child’s presence in the home, she testified that she never asked her husband about the child. The IJ’s characterization of petitioner’s testimony as “disingenuous” and “implausible” was accurate. Indeed, it would be extraordinary for a spouse not only to be unaware that her husband has adopted a newborn (particularly in light of the home studies that were conducted by the adoption agency in the months prior), but also to make no inquiry about a child who is living and being cared for by her husband in her own home. In addition, the IJ observed that petitioner’s representation that she resided with Jeffrey in his home continuously (with the exception of a one-month gap) from August 1997 until November 1998 contradicted the complaint for divorce, which alleged that the couple ceased cohabiting as marital partners in June 1997. Although petitioner attributes that finding to a typographical error in the divorce complaint, she provides no rational explanation for her alleged naiveté concerning her husband’s simultaneous romantic relationship and cohabitation with David. In fact, petitioner all but conceded her case when she testified that she was aware David moved in but thought he was “just a friend.” Further, the IJ found it significant that the couple shared no assets or liabilities. Petitioner’s testimony that she and Jeffrey owned no property together, held no joint bank accounts (checking or savings) or credit cards, had separate medical insurance, and shared no financial obligations supports that finding. Finally, the IJ credited David’s and Jeffrey’s testimony, finding that David realized the criminal nature of his prior misrepresentations and that Jeffrey contacted the State of Michigan to insure that his prior false statements would not negatively impact his daughters’ adoptions. The consistent explanations provided by David and Jeffrey for their initial deceptions and later recantations, as well as their desire to help their disabled friend, supports the I J’s finding that they told the truth. The evidence of record does not compel a contrary conclusion. Petitioner offered no witnesses to corroborate her testimony. Although she contends that her credibility must be presumed because the IJ failed to make an express finding to the contrary, that argument is factually inaccurate and, in fact, frivolous. The IJ characterized petitioner’s testimony unambiguously as “disingenuous,” “implausible,” and “not persuasive.” In denying petitioner’s request for voluntary departure, the IJ stated: “[Petitioner’s] testimony in this case not only lacked credibility, but was completely implausible. Indeed, the Court would find that [petitioner] did not testify truthfully concerning her residence and the relationship between herself and Jeffrey King.” Compare Ndrecaj, 522 F.3d at 671, 674-75 (an immigration judge’s statement that “the respondent has not demonstrated to be a credible person” constituted an adverse credibility determination). Even in the absence of this adverse credibility determination, the IJ certainly was not compelled to believe petitioner’s implausible account based on her solitary testimony. III. Petitioner’s removability was established by clear and convincing evidence, sufficient evidence supports the IJ’s ruling that petitioner entered into a fraudulent marriage for the purpose of gaining lawful admission into the United States, and the record does not compel a contrary conclusion. For these reasons, we deny her petition for review. . In Almario, we explained conditional status and removal of conditions as follows: In enacting the [Immigration Marriage Fraud Amendments of 1986], Congress sought to limit the potential abuse of "immediate relative" status by postponing the receipt of the many benefits afforded an alien married to a citizen.... [A]n alien spouse is only entitled to a two year conditional status as a lawful permanent resident. At the end of the two year probationary period, the condition is removed ... so long as the marriage is bona fide and has not been terminated. 872 F.2d at 149. . 8 U.S.C. § 1229a(c)(4)(C) provides: Considering the totality of the circumstances, and all relevant factors, the immigration judge may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor. ... . In her first issue raised in this appeal, petitioner argues that the applicable evidentiary standard was “clear, unequivocal, and convincing” and that the IJ erred in applying a “clear and convincing” standard. However, petitioner ignores a 1996 statutory amendment to the Immigration and Nationality Act that eliminated the word “unequivocal” from the standard, and she erroneously relies upon two post-1996 cases from this court that apparently conflated, albeit inadvertently, both standards. See Pickering v. Gonzales, 465 F.3d 263, 269 n. 3 (6th Cir.2006) (“[T]he current standard is ‘clear and convincing evidence.' ") (citing 8 U.S.C. § 1229a(c)(3) and 8 C.F.R. § 1240.8(a)). . The second and third issues raised in petitioner’s appellate brief—that she did not enter the United States following a misrepresentation and that any misrepresentation she made about her residence on the form 1-751 was not material—relate to the charge alleging that petitioner "willfully misrepresented] a material fact” under 8 U.S.C. § 1182(a)(6)(C)(i). However, these issues were neither raised nor considered on their merits in petitioner’s appeal to the BIA. Therefore, we lack jurisdiction to consider them. See 8 U.S.C. § 1252(d)(1) ("A court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right.”); Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir.2006) (holding that we lack jurisdiction to consider all claims not “properly presented to the BIA and considered on their merits ....”) (quoting Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir.2004)). Even if we could consider them, the outcome would be unaltered because the IJ’s ruling on the remaining charge—marriage fraud—renders petitioner deportable. 8 U.S.C. § 1227(a)(l)(G)(ii).

CARNES, Circuit Judge: This appeal turns on whether the transfer of a pollutant from one navigable body of water to another is a “discharge of a pollutant” within the meaning of the Clean Water Act, 33 U.S.C. § 1362(12). If it is, a National Pollution Discharge Elimination System permit is required. 33 U.S.C. §§ 1311(a), 1342(a). The Act defines “discharge of a pollutant,” but the meaning of that definition is itself disputed. During the course of this litigation, the Environmental Protection Agency adopted a regulation addressing this specific matter. The issue we face, after we dispose of a preliminary Eleventh Amendment question, is whether we owe that EPA regulation deference under Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). I. The unique geography of South Florida is once again before us. See Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1261-62 (11th Cir.2009). Lake Okeechobee is part of that geography. Historically, the lake had an ill-defined southern shoreline because during rainy seasons it overflowed, spilling a wide, shallow sheet of water overland to the Florida Bay. “But progress came and took its toll, and in the name of flood control, they made their plans and they drained the land.” In the 1930s the Herbert Hoover Dike was built along the southern shore of Lake Okeechobee. It was intended to control flooding but failed during the hurricanes of 1947 and 1948. Congress then authorized the Central and Southern Florida Flood Project; as part of it the Army Corps of Engineers expanded the Hoover Dike and built pump stations including S-2, S-3, and S—4. Under the modern version of that project, nearly all water flow in South Florida is controlled by a complex system of gates, dikes, canals, and pump stations. The area south of Lake Okeechobee’s shoreline was designated the Everglades Agricultural Area. The Corps dug canals there to collect rainwater and runoff from the sugar cane fields and the surrounding industrial and residential areas. Not surprisingly, those canals contain a loathsome concoction of chemical contaminants including nitrogen, phosphorous, and unionized ammonia. The water in the canals is full of suspended and dissolved solids and has a low oxygen content. Those polluted canals connect to Lake Okeechobee, which is now virtually surrounded by the Hoover Dike. The S-2, S-3, and S-4 pump stations are built into the dike and pump water from the lower levels in the canals outside the dike into the higher lake water. They do that by spewing water through the dike and into “rim canals” open to the lake. This process moves the water containing Agricultural Area contaminants uphill into Lake Okeechobee, a distance of some sixty feet. The pumps do not add anything to the canal water; they simply move it through pipes. At full capacity, the pumps within the S-2, S-3, and S^l stations can each move 900 cubic feet of water per second—more than 400,000 gallons per minute. The South Florida Water Management District operates the pumping stations. Two organizations, the Friends of the Everglades and the Fishermen Against the Destruction of the Environment, filed this lawsuit against the Water District in 2002. The plaintiffs (whom we will call collectively the Friends of the Everglades) sought an injunction to force the Water District to get a permit under the Clean Water Act’s National Pollution Discharge Elimination System (NPDES) program before pumping the polluted canal water into the lake. The court allowed a number of interveners to enter the lawsuit. Asserting that the pollution of Lake Okeechobee threatens its way of life, the Miccosukee Tribe joined on the plaintiffs’ side. The United States, “on behalf of’ the EPA and the Corps, joined on the defense side, as did the U.S. Sugar Corporation. In an amended complaint, the plaintiffs added the Water District’s executive director as a defendant. In early 2006 there was a two-month bench trial in the United States District Court for the Southern District of Florida. See Miccosukee Tribe v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191, 1192-94 (11th Cir.2009) (describing that trial). After the trial, the district court decided that the Water District was immune under the Eleventh Amendment and dismissed it from the case, but the court kept the executive director in the lawsuit under the Ex parte Young doctrine. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). It concluded that operating the S-2, S-3, and S-4 pump stations without an NPDES permit violated the Clean Water Act. In June 2007 the court granted an injunction against the executive director of the Water District that required her to “apply ... for a NPDES permit forthwith.” All of the defendants except the Water District appealed the part of the final judgment that enjoined the executive director, while the plaintiffs cross-appealed the part dismissing the Water District under the Eleventh Amendment. II. We begin with the cross-appeal, which contests the dismissal of the Water District on Eleventh Amendment immunity grounds. The parties disagree mightily about this issue and had gotten so wrapped up in the arguments about it that none of them had stepped back to ask why it matters. We asked that question of the attorneys at oral argument, and once they got past the deer-in-the-headlights moment they could offer no good reason why we, or they, should care if the Water District is in or out of this lawsuit. We believe that it does not matter at all. No party disputes that the executive director of the Water District has been properly sued under the Ex parte Young doctrine. That doctrine provides an exception to Eleventh Amendment immunity for lawsuits against state officials as long as the plaintiffs seek only prospective injunctive relief to stop ongoing violations of federal law. See Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dept. of Health & Rehab. Servs., 225 F.3d 1208, 1219 (11th Cir.2000). And that is all the plaintiffs in this case seek. That relief can be obtained as readily by enjoining the real-person executive director as it could be by enjoining both her and the Water District. See Fed.R.Civ.P. 25 (providing for automatic substitution of successors upon the death or end of term of the officer named as the original party). If anything, injunctions against real people are more easily enforced than those against corporate or government entities because real people can be put in jail. At one time it appeared that the Eleventh Amendment issue might matter because the executive director had initially argued that some of the relief requested by the Friends of the Everglades was beyond the proper scope of the Ex parte Young doctrine. If true, that part of the requested relief would have been unavailable unless the Water District itself could be sued. But Jonathan Glogau, the attorney representing the Water District, conceded at oral argument that if the plaintiffs are entitled to the relief they seek, all of that relief can be obtained by enjoining the executive director. We are entitled to rely on that concession because James Nutt, the attorney representing the executive director, assured us at the beginning of the arguments that Glogau would speak on the Eleventh Amendment issue for the executive director as well as for the Water District. Two-and-a-half weeks after oral argument, however, we received a supplemental letter from attorney Nutt in which, referring to himself in the third person, he stated: “The Executive Director’s counsel did not have an opportunity to address the Court’s question, posed at the very end, whether the remedies available against the Executive Director through the fiction of Young are the same as the remedies available as [sic] against the District were it not immune. They are not.” The belated letter is not helpful. As a general matter it is conceivable that remedies available against the executive director might not match those available against the Water District, if it is not protected by the Eleventh Amendment. But we are not dealing with a general matter. We are dealing with this particular case. The only remedies sought are prospective injunctive relief of the sort which, if granted, would be obtained through judicial process applied against the executive director, who is responsible for the operation of the Water District. See Fla. Stat. § 373.083. The plaintiffs have the greatest interest in the availability of remedies. They are satisfied that, as the attorney for the Water District assured us at oral argument, “the remedies sought by Plaintiffs can be obtained against the Executive Director of the District.” We are, too. To enjoin the executive director of the Water District is for all practical purposes to enjoin the Water District. And equity is practical. An issue is moot “when it no longer presents a live controversy with respect to which the court can give meaningful relief.” Fla. Ass’n of Rehab. Facilities, Inc., 225 F.3d at 1217; see also Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). To decide a moot issue is to issue an advisory opinion, one unnecessary to the judicial business at hand and outside the authority of Article III courts. Fla. Ass’n of Rehab. Facilities, 225 F.3d at 1216-17; see also B&B Chem. Co. v. EPA, 806 F.2d 987, 989 (11th Cir.1986) (“A justiciable controversy is thus distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot.”). To decide questions that do not matter to the disposition of a case is to separate Lady Justice’s scales from her sword. That we will not do. Cf. George E. Allen, The Law as a Way of Life, 27 (1969) (“The scales of justice without the sword is the impotence of law.”). III. Having disposed of the Eleventh Amendment issue, we turn now to whether the S-2, S-3, and S-4 pumps require NPDES permits. The Clean Water Act bans the “discharge of any pollutant” without a permit. 33 U.S.C. §§ 1311, 1342(a)(1). “Discharge” is defined as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). It is undisputed that the agricultural and industrial runoff in the canals contains “pollutants,” that Lake Okeechobee and the canals are “navigable waters,” and that these three pump stations are “point sources” even though they add nothing to the water as they move it along. See S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 102, 105, 124 S.Ct. 1537, 1542—13, 158 L.Ed.2d 264 (2004). The question is whether moving an existing pollutant from one navigable water body to another is an “addition ... to navigable waters” of that pollutant. The district court decided that it is, but that decision came before the EPA adopted its regulation. Our review is de novo. United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th Cir.1999). A. The Water District’s central argument is based on the “unitary waters” theory. That theory is derived from the dictionary definition of the word “addition,” which is not defined in the Act. See generally S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 376, 126 S.Ct. 1843, 1847, 164 L.Ed.2d 625 (2006) (stating that an undefined statutory term is to be read “in accordance with its ordinary or natural meaning” (quotation omitted)). The dictionary definition of “addition” is “to join, annex, or unite” so as to increase the overall number or amount of something. Webster’s Third New International Dictionary 24 (1993). The unitary waters theory holds that it is not an “addition ... to navigable waters” to move existing pollutants from one navigable water to another. An addition occurs, under this theory, only when pollutants first enter navigable waters from a point source, not when they are moved between navigable waters. The metaphor the Supreme Court has adopted to explain the unitary waters theory is: “If one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not ‘added’ soup or anything else to the pot.” Miccosukee, 541 U.S. at 110, 124 S.Ct. at 1545-46 (alteration and quotation marks omitted). Under that metaphor the navigable waters of the United States are not a multitude of different pots, but one pot. Ladling pollution from one navigable water to another does not add anything to the pot. So no NPDES permit is required to do that. The unitary waters theory has a low batting average. In fact, it has struck out in every court of appeals where it has come up to the plate. See, e.g., Catskill Mountains Ch. of Trout Unlimited, Inc. v. City of New York (Catskills I), 273 F.3d 481, 491 (2d Cir.2001) (“[T]he transfer of water containing pollutants from one body of water to another, distinct body of water is plainly an addition and thus a ‘discharge’ that demands an NPDES permit.”); Catskill Mountains Ch. of Trout Unlimited, Inc. v. City of New York (Catskills II), 451 F.3d 77, 83 (2d Cir.2006) (concluding that “[t]he City also reasserts the unitary-water theory of navigable waters. Our rejection of this theory in Catskills I, however, is ... not undermined” by Miccosukee, 541 U.S. 95, 124 S.Ct. 1537, 158 L.Ed.2d 264); Dague v. City of Burlington, 935 F.2d 1343, 1354-55 (2d Cir.1991) (rejecting the idea that pollutants are “added” only on first entry into any navigable water); Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273, 1296 (1st Cir.1996) (“[Tjhere is no basis in law or fact for the district court’s ‘singular entity’ [unitary waters] theory.”); N. Plains Res. Council v. Fidelity Exploration and Dev., 325 F.3d 1155, 1163 (9th Cir.2003). Even the Supreme Court has called a strike or two on the theory, stating in Miccosukee that “several NPDES provisions might be read to suggest a view contrary to the unitary waters approach.” 541 U.S. at 107, 124 S.Ct. at 1544. The Court has not, however, called the theory out yet. We have no controlling circuit precedent on the unitary waters theory. We did at one time decide to reject it, but that decision was vacated. See Miccosukee Tribe v. S. Fla. Water Mgmt. Dist., 280 F.3d 1364, 1368 (11th Cir.2002) (concluding that “addition ... to navigable waters” includes pumping polluted water from one navigable water body into another), vacated, Miccosukee, 541 U.S. at 112, 124 S.Ct. at 1547. Parts of decisions that are vacated and have not been reinstated “have no legal effect whatever. They are void.” United States v. Sigma Int’l, Inc., 300 F.3d 1278, 1280 (11th Cir.2002) (en banc). We are free to give statements in a vacated opinion persuasive value if we think they deserve it. See Tallahassee NAACP v. Leon County, 827 F.2d 1436, 1440 (11th Cir.1987). In Miccosukee, we addressed whether the law required an NPDES permit before polluted water could be moved through the S-9 pump from some particular Everglades canals into a water conservation area. 280 F.3d at 1367. In a footnote, we declined to adopt the unitary waters theory. Id. at 1368 n. 5 (“We reject the Water District’s argument that no addition of pollutants can occur unless pollutants are added from the outside world insofar as the Water District contends the outside world cannot include another body of navigable waters.”). Instead we said that “the receiving body of water is the relevant body of navigable water” and that “the relevant inquiry is whether—but for the point source—the pollutants would have been added to the receiving body of water.” Id. at 1368. For that proposition we cited Catskills I, a Second Circuit decision rejecting the unitary waters theory. Because the polluted canal water would not have flowed into the conservation area but for S-9’s pumping, we concluded that S-9 was adding pollutants to a meaningfully distinct water body, so an NPDES permit was required. Id. at 1368-69. The Supreme Court vacated our decision and remanded for further factfindings, however, because the existing record did not convince it that the canals and the water conservation area were meaningfully distinct water bodies. Miccosukee, 541 U.S. at 112, 124 S.Ct. at 1547. The Court also stated that the Water District’s unitary waters argument was to be available on remand. Id. at 112, 124 S.Ct. at 1547. In sum, all of the existing precedent and the statements in our own vacated decision are against the unitary waters theory. That precedent and those statements take the view that the transfer of pollutants from one meaningfully distinct navigable body of water to another is an “addition ... to navigable waters” for Clean Water Act permitting purposes. If nothing had changed, we might make it unanimous. But there has been a change. An important one. Under its regulatory authority, the EPA has recently issued a regulation adopting a final rule specifically addressing this very question. Because that regulation was not available at the time of the earlier decisions, they are not precedent against it. We are the first court to address the “addition ... to navigable waters” issue in light of the regulation—to decide whether the regulation is due Chevron deference. B. The EPA’s new regulation, which became final on June 13, 2008, explains that it was adopted to: clarify that water transfers are not subject to regulation under the National Pollution Discharge Elimination System (NPDES) permitting program. This rule defines water transfers as an activity that conveys or connects waters of the United States without subjecting the transferred water to intervening industrial, municipal, or commercial use. NPDES Water Transfers Rule, 73 Fed. Reg. 33,697-708 (June 13, 2008) (codified at 40 C.F.R. § 122.3(D). Everyone agrees that the EPA’s regulation is entitled to Chevron deference if it is a reasonable construction of an ambiguous statute. Under Smiley v. Citibank, 517 U.S. 735, 740-41, 116 S.Ct. 1730, 1734, 135 L.Ed.2d 25 (1996), and United States v. Morton, 467 U.S. 822, 835 n. 21, 104 S.Ct. 2769, 2776 n. 21, 81 L.Ed.2d 680 (1984), it does not matter that the regulation was proposed and issued well after the beginning of this lawsuit. Neither does it matter if it was done in response to this or similar lawsuits. See Barnhart v. Walton, 535 U.S. 212, 221, 122 S.Ct. 1265, 1271, 152 L.Ed.2d 330 (2002). Nor does it matter whether the new regulation is a dramatic shift in EPA policy. Natl. Cable & Telecomm. Assoc. v. Brand X Internet Servs., 545 U.S. 967, 981, 125 S.Ct. 2688, 2699, 162 L.Ed.2d 820 (2005) (“Agency inconsistency is not a basis for declining to analyze the agency’s interpretation under the Chevron framework.”). All that matters is whether the regulation is a reasonable construction of an ambiguous statute. Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781 (“If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.”); id. at 844, 104 S.Ct. at 2782 (“[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”); Sierra Club v. Johnson, 541 F.3d 1257, 1265 n. 3 (11th Cir.2008) (“[A] court must give effect to an agency’s reasonable interpretation of an ambiguous statute.”). In other words, there must be two or more reasonable ways to interpret the statute, and the regulation must adopt one of those ways. Those two requirements are obviously intertwined. See Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 Va. L.Rev. 597 (2009); Orin S. Kerr, Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals, 15 Yale J. on Reg. 1, 30 (1998) (examining 200 court of appeals cases applying Chevron and finding that in 28 percent of them the inquiry was collapsed into the single question of whether the interpretation was reasonable). The Friends of the Everglades’ position is that the EPA’s regulation does not warrant Chevron deference because the meaning of the “addition ... to navigable waters” language is clear and its lack of ambiguity forecloses the unitary waters theory. Cf, e.g., Ala. Power Co. v. U.S. Dep’t of Energy,, 307 F.3d 1300, 1312 (11th Cir.2002) (finding that, because “using traditional tools of statutory construction,” the Nuclear Waste Policy Act provision in question was clear, no level of deference applied to the agency’s contrary interpretation); Brand X, 545 U.S. at 982-83, 125 S.Ct. at 2700 (“Only a judicial precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction.”). The defendants have two alternative positions. Their bolder position is that the EPA’s regulation mirrors the unambiguous meaning of the statute. Their more modest one is that even if the statute is ambiguous, the regulation is one reasonable interpretation of it. The true conflict, and most of our discussion, centers on whether there is ambiguity. C. Both sides pitch several decisions to us. The Water District, arguing for ambiguity, throws us National Wildlife Federation v. Consumers Power Co., 862 F.2d 580 (6th Cir.1988), and National Wildlife Federation v. Gorsuch, 693 F.2d 156 (D.C.Cir.1982). In those cases the courts concluded that the “discharge of a pollutant” language in the Clean Water Act was ambiguous and deferred to the EPA’s view that dams did not add pollutants, which meant that no NPDES permits were necessary. 862 F.2d at 584-85; 693 F.2d at 183. The issues those cases addressed, however, were different from the one before us. In Gorsuch the National Wildlife Federation sued the EPA for failing to require NPDES permits for dams. 693 F.2d at 161. The man-made dams and their reservoirs caused changes in the water’s temperature, nutrient loads, and oxygen content, and the affected water was then released through the dams into the rivers below. Id. The EPA gave two reasons why no permit was required: (1) the changes caused by the dams were not pollutants; and (2) even if they were, releasing water through a dam did not add those pollutants to the water because the water would have reached the downstream river anyway, and its passage through the dam did not change it. Id. at 165. The D.C. Circuit concluded that neither the language of the statute nor its legislative history conclusively supported either side’s position about what “discharge of a pollutant” meant under the circumstances of that case, so the court deferred to the EPA’s position. Id. at 175, 183. In doing so, the Gorsuch court accepted the EPA’s position that colder water and changes in oxygen and dissolved nutrient content were not pollutants at all. Id. at 174. That rendered irrelevant whether the changed water was being “added” to navigable water by its movement through a dam. In any event, the water was moving from a river above a dam to the same river below it. Because the facts of the case did not present the issue of whether the transfer of pollutants from one body of water to a different body of water adds pollutants to the navigable waters, the Gorsuch court could not have decided that issue. Watts v. BellSouth Telecomms., Inc., 316 F.3d 1203, 1207 (11th Cir.2003) (“Whatever their opinions say, judicial decisions cannot make law beyond the facts of the cases in which those decisions are announced.”); United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir.2000) (same). It follows that the court also could not have decided whether the statutory language was ambiguous regarding that issue, which is the one before us. Language can be ambiguous in some respects but not in others. The other decision the Water District pitches us is Consumers Power. In that case a power plant sucked water containing some unlucky fish out of Lake Michigan, pumped the water uphill, and then directed it and the fish back downhill through turbines that generated electricity. 862 F.2d at 581. In the process the turbines pureed some of the fish and spewed the fish puree back into Lake Michigan. Id. at 581-82. The plant was a “dam” for permitting purposes because part of the generating process involved impounding water. Id. at 589-90. Deferring to the EPA’s position, the Sixth Cir cuit concluded that “any entrained fish released with the ... facility’s turbine generating water originate in Lake Michigan and do not enter the Lake from the outside world.” Id. at 585. Fish, living or dead, are biological material under the Clean Water Act, and the fish in Consumers Power had always existed in the same lake to which the power plant returned them. See id. Accordingly, the court did not have before it, and so could not have decided, whether moving pollutants between different bodies of navigable water constitutes an addition of pollutants to navigable waters. See Watts, 316 F.3d at 1207. Gorsuch and Consumers Power involved water that wound up where it would have gone anyway. That is not the case here. Water from the agricultural canals would not flow upstream into Lake Okeechobee if the S-2, S-3, and S-4 pumps did not move it there. Here, unlike in Gorsuch and Consumers Power, pollutants are being moved between meaningfully distinct water bodies. The fact that those decisions found the statute ambiguous as applied to different factual situations is of little help to the Water District. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 950, 151 L.Ed.2d 908 (2002) (explaining that the inquiry as to whether a statute is ambiguous is undertaken “with regard to the particular dispute in the case”); United States v. Santos, — U.S. -, 128 S.Ct. 2020, 2024, 170 L.Ed.2d 912 (2008) (noting that “context gives meaning” with regard to the circumstances under which a statute is ambiguous). Context means a lot. The Friends of the Everglades, arguing against ambiguity, pitch us other decisions. See, e.g., Catskills I, 273 F.3d at 481; Catskills II, 451 F.3d at 77; Miccosukee, 280 F.3d at 1367, vacated, 541 U.S. at 112, 124 S.Ct. at 1547; Dubois, 102 F.3d at 1273. They argue that all of the courts of appeals that have addressed the issue have found that “any addition of any pollutant to navigable waters” includes moving polluted water between meaningfully distinct water bodies. That statement depends, however, on what one means by “the issue.” Each decision the Friends of the Everglades rely on addressed which interpretation of the statutory language was most plausible or preferable. Because they all came out before the EPA’s new regulation went into effect, none of those decisions addressed the issue before us, which is whether the EPA’s interpretation of the statutory language is reasonable, even if we might prefer another one. Deciding how best to construe statutory language is not the same thing as deciding whether a particular construction is within the ballpark of reasonableness. See Brand X, 545 U.S. at 980,125 S.Ct. at 2699 (“Chevron requires a federal court to accept the agency’s construction of the statute, even if the agency’s reading differs from what the court believes is the best statutory interpretation.”); Shotz v. City of Plantation, 344 F.3d 1161, 1178 (11th Cir.2003) (observing that “in the absence of an administrative interpretation,” a court must impose its own construction on the statute). Still, the Friends of the Everglades urge us to infer from the opinions in those other cases that the courts believed the Act’s language unambiguously requires a permit in these circumstances, and they argue that we should be persuaded by that inference. In the Catskills cases, the Second Circuit held that pumping polluted water from the Schoharie Reservoir into the Esopus Creek required an NPDES permit. Catskills I, 273 F.3d at 489. Those water bodies were hydrologically connected; they both flowed into the Hudson River. But because of directional flow and gravity, waters from the reservoir “under natural conditions ... would never reach Esopus Creek.” Id. at 484. The Second Circuit stated that “[n]o one can reasonably argue that the water in the Reservoir and the Esopus are in any sense the ‘same.’ ” Id. at 492. The Second Circuit then brushed aside the EPA’s informal opinion that no permit was required. The court cited the “ordinary meaning” of the statutory text, especially the word “addition,” and called the “ ‘singular entity’ theory of navigable waters ... inconsistent with the ordinary meaning of the word ‘addition.’” Id. at 493. It concluded that “none of the statute’s broad purposes sways us from what we find to be the plain meaning of its text .... We find that the textual requirements of the ... definition of ‘discharge of a pollutant’ in § 1362(12) are met here.” Id. at 494. In Catskills II that court confirmed its holding. In doing so, it found unpersuasive the EPA’s 2005 guidance letter, which reiterated the EPA’s view that a permit was not required. That letter, the court explained, “simply overlooked [the] plain language [of the statute].” 451 F.3d at 84. The letter was not entitled to, and did not receive, Chevron-level deference. Id. at 82. It only warranted and received Skidmore consideration for persuasive value, which is a significantly less deferential standard. Id. Importantly, the Second Circuit explicitly refused to foreclose the possibility that its decision might be different if Chevron deference applied. Catskills I, 273 F.3d at 490 (“If the EPA’s position had been adopted in a rulemaking or other formal proceeding, deference of the sort applied by the Gorsuch and Consumers Power courts might be appropriate.”). That is the situation we have here. Our opinion in Miccosukee followed the same line of reasoning as the Second Circuit in the Catskills cases and reserved the same question, which is the question before us now. Miccosukee, 280 F.3d at 1367, vacated, 541 U.S. at 112, 124 S.Ct. at 1547. In Miccosukee we stated our belief that the Clean Water Act required an NPDES permit for transfers of polluted water between meaningfully distinct water bodies, but we qualified that conclusion. Id. at 1369. We pointed out that we could “ascertain no EPA position applicable to S-9 to which to give any deference, much less Chevron deference.” Id. at 1368 n. 4. Now there is an EPA regulation that poses the Chevron issue missing from the Miccosukee case. None of the decisions the parties have thrown our way helps either side much. The Water District’s decisions found ambiguity in the relevant provision of the Clean Water Act as it applied to dams involving the same bodies of water, not to pumps transferring pollutants between meaningfully distinct bodies of water. The Friends of the Everglades’ decisions, though involving the same factual context, decided only how best to construe the statutory language—not whether that language is ambiguous and could reasonably be construed another way. We turn to that issue now. IV. In the first step of Chevron analysis we apply the traditional tools of statu tory construction to ascertain whether Congress had a specific intent on the precise question before us. See Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. at 2782 n. 9 (“If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.”). If Congress did, then the statute is not ambiguous and Chevron has no role to play. The traditional tools of statutory construction include “examination of the text of the statute, its structure, and its stated purpose.” Miami-Dade County v. EPA 529 F.3d 1049, 1063 (11th Cir.2008); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.”). A. The Clean Water Act outlaws “the discharge of any pollutant” subject to several exceptions, one of which is where an NPDES permit is obtained. 33 U.S.C. §§ 1311, 1342(a)(1). “Discharge” includes “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). “Navigable waters,” in turn, is defined as “the waters of the United States.” 33 U.S.C. § 1362(7). The Supreme Court has recently instructed that the term “discharge of pollutants” and its definition is “of particular significance” within a “complicated statute.” S.D. Warren Co., 547 U.S. at 380, 126 S.Ct. at 1850. The question is whether “addition ... to navigable waters”—meaning addition to “the waters of the United States”—refers to waters in the individual sense or as one unitary whole. Under the Water District’s unitary waters theory, “to navigable waters” means to all navigable waters as a singular whole. As a result, pollutants can be added to navigable waters only once, and pollutants that are already in navigable waters are not added to navigable waters again when moved between water bodies. Conversely, the Friends of the Everglades’ position is that “to navigable waters” refers to each individual water body. As a result, the statute means “any addition of any pollutant to any navigable waters,” even though those are not the words the statute uses. Under the Friends of the Everglades’ reading, pollutants existing in one navigable water, like the agricultural canals, are “added ... to navigable waters” when they are transferred into another navigable water, like Lake Okeechobee. The common meaning of the term “waters” is not helpful. In ordinary usage “waters” can collectively refer to several different bodies of water such as “the waters of the Gulf coast,” or can refer to any one body of water such as “the waters of Mobile Bay.” An “addition ... to navigable waters” could encompass any addition to a single body of navigable water regardless of source (like water pumped from one navigable body of water to another), or it could mean only an addition to the total navigable waters from outside of them (like a factory pumping pollutants into a navigable stream). Because the statutory language could be used either way, we turn next to its immediate context. B. The context in which language is used is important. See Robinson, 519 U.S. at 341, 117 S.Ct. at 846; Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60, 125 S.Ct. 460, 467, 160 L.Ed.2d 389 (2004) (“A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme ... because the same terminology is used elsewhere in a context that makes its meaning clear----”); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 1300-01, 146 L.Ed.2d 121 (2000) (“The meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.”). The Water District argues that the context of 33 U.S.C. § 1362(12) demonstrates that Congress intentionally selected each word in the definition of “discharge” to deliver a specific meaning. It asserts that the Friends of the Everglades’ reading of the statute would require us to add words to the law, which is impermissible. “Discharge” is defined in the Act as “[a]ny addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). According to the Water District, the conspicuous absence of “any” before “navigable waters” in § 1362(12) supports the unitary waters theory because it implies that Congress was not talking about any navigable water, but about all navigable waters as a whole. The Friends of the Everglades’ reading effectively asks us to add a fourth “any” to the statute so that it would read: “Any addition of any pollutant to any navigable waters from any point source.” But we are not allowed to add or subtract words from a statute; we cannot rewrite it. See 62 Cases, More or Less, Each Containing Six Jars of Jam v. United States, 340 U.S. 593, 596, 71 S.Ct. 515, 518, 95 L.Ed. 566 (1951) (we are not “to add nor to subtract, neither to delete nor to distort [the words]” Congress has used); Blount v. Rizzi, 400 U.S. 410, 419, 91 S.Ct. 423, 429, 27 L.Ed.2d 498 (1971) (“[I]t is for Congress, not this Court, to rewrite the statute.”); Nguyen v. United States, 556 F.3d 1244, 1256 (11th Cir.2009) (“We are not authorized to rewrite, revise, modify, or amend statutory language in the guise of interpreting it....”); Albritton v. Cagle’s, Inc., 508 F.3d 1012, 1017 (11th Cir.2007) (“We are not empowered to rewrite statutes.”). Besides, if the meaning of language is plain, no alteration should be necessary to clarify it. The addition or subtraction of words indicates that the unaltered language is not plain. There is also the fact that Congress knows how to use the term “any navigable waterfs]” when it wants to protect individual water bodies instead of navigable waters as a collective whole. Within the Clean Water Act itself, Congress authorized the EPA to investigate “the pollution of any navigable waters,” 33 U.S.C. § 1254(a)(3), and referred to the EPA’s dissemination of information about changes in the flow “of any navigable waters.” 33 U.S.C. § 1314(f)(2)(F). Other water protection statutes also use the term “any navigable water[s].” See, e.g., 33 U.S.C. § 407 (“It shall not be lawful to throw, discharge, or deposit ... any refuse matter ... into any navigable water of the United States ....”); 33 U.S.C. §419 (“The Secretary of the Army is authorized ... to govern the transportation and dumping into any navigable water, or waters adjacent thereto, of dredgings, earth, garbage, and other refuse materials ....”); 33 U.S.C. § 512 (“No bridge shall at any time unreasonably obstruct the free navigation of any navigable waters of the United States.”). The common use by Congress of “any navigable water” or “any navigable waters” when it intends to protect each individual water body supports the conclusion that the use of the unmodified term “navigable waters” in § 1362(12) (or the use in its definition, “the waters of the United States,” at § 1362(7)) means the waters collectively. See Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir.2007) (“[Wjhere Congress knows how to say something but chooses not to, its silence is controlling.” (quotation marks omitted)); DIRECTV, Inc. v. Brown, 371 F.3d 814, 818 (11th Cir.2004) (“[W]hen Congress uses different language in similar sections, it intends different meanings.” (quoting Iraola & CIA, S.A. v. Kimberly-Clark Corp., 232 F.3d 854, 859 (11th Cir.2000))). That context does not, however, establish that the meaning of the statutory language is clear. Although Congress did use the term “any navigable waters” in the Clean Water Act to protect individual water bodies, it also used the unmodified “navigable waters” to mean the same thing. For example, as the Supreme Court noted in Miccosukee, 541 U.S. at 107, 124 S.Ct. at 1544, the Act discusses the states’ creation of water-body-specific quality standards based on “the designated uses of the navigable waters involved.” 33 U.S.C. § 1313(c)(2). In that context “the navigable waters” must refer to many individual water bodies—exactly what the Friends of the Everglades contend that it means in 33 U.S.C. § 1362(12). Id. (“Any addition of any pollutant to navigable waters ...”); See also Miccosukee, 541 U.S. at 106-07, 124 S.Ct. at 1544 (citing § 1313(c)(2) and stating that “several NPDES provisions might be read to suggest a view contrary to the unitary waters approach”). The result so far is that we are not persuaded that the meaning of the statutory provision at issue, read either in isolation or in conjunction with similar provisions, is plain one way or the other. The statutory context indicates that sometimes the term “navigable waters” was used in one sense and sometimes in the other sense. C. The “broader context of the statute as a whole” does not resolve the ambiguity. Robinson, 519 U.S. at 341, 117 S.Ct. at 846; see also Koons Buick, 543 U.S. at 60, 125 S.Ct. at 467 (explaining that a seemingly ambiguous provision may be clarified by the broad context of the statute if “only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law”). The general purpose of the Clean Water Act is broad and ambitious: The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter—(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.... 33 U.S.C. § 1251(a). The NPDES permitting program is the centerpiece of the Clean Water Act. See, e.g., Am. Iron & Steel Inst. v. EPA 115 F.3d 979, 990 (D.C.Cir.1997); Gorsuch, 693 F.2d at 175-76 (“There is indeed some basis in the legislative history for the position that Congress viewed the NPDES program as its most effective weapon against pollution.”). In light of the sweeping goals of the Act, the Senate Conference Report states that the “conferees fully intend that the term ‘navigable waters’ be given the broadest possible constitutional interpretation ...” S. Rep. No. 92-1236 (1972) (Conf. Rep.), reprinted in 1972 U.S.C.C.A.N. 3776, 3822. The Friends of the Everglades argue that, for two reasons, the Clean Water Act’s ambitious anti-pollution goals make it absurd to read the Act as implicitly creating a sizeable exception to the NPDES permitting program for pollutants that come from other navigable waters. First, they assert that the permitting program itself is designed to protect individual water bodies. State water quality standards, which are specific to individual water bodies, are intertwined with the NPDES permitting process. If a water body fails to meet the state water quality standards, the government alters the terms of the NPDES permits held by contributing point sources in order to ratchet down the load of pollutants that may be pumped into that water body. Miccosukee, 541 U.S. at 107, 124 S.Ct. at 1544; see also 33 U.S.C. § 1313(d). Given the permitting requirement’s role in maintaining individualized water quality standards, the Friends of the Everglades argue that it would make little sense to allow uncontrolled, un-permitted pumping between navigable waters that could have different quality standards. Lake Okeechobee, for example, is classified as drinking water under the state water quality standards. Pumping dirty agricultural canal water into the lake makes it more difficult to meet the lake’s quality standards. To allow such pumping without a permit tends to undermine the goals of the NPDES program. The Friends of the Everglades argue that the unitary waters theory, which would 'exclude from the permitting requirement the pumping of pollutants into the lake, is an unreasonably narrow reading of the Act. Second, the Friends of the Everglades argue that reading the statute to protect only the navigable waters as one unitary whole could lead to results even more absurd than pumping dirty canal water into a reservoir of drinking water. If an “addition ... to navigable waters” occurs only at a pollutant’s first entry into navigable waters, and not when it is transferred to a different water body, then the NPDES program—the centerpiece of the Clean Water Act—would require no permit to pump the most loathsome navigable water in the country into the most pristine one. These horrible hypotheticals are frightening enough that we might agree with the Friends of the Everglades that the unitary waters theory does not comport with the broad, general goals of the Clean Water Act. See generally 33 U.S.C. § 1251(a) (“stating the Act’s goal to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”). But we “interpret and apply statutes, not congressional purposes.” In re Hedrick, 524 F.3d 1175, 1188 (11th Cir.2008); see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998) (“[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”); Norfolk S. R. Co. v. Sorrell, 549 U.S. 158, 171, 127 S.Ct. 799, 166 L.Ed.2d 638 (2007) (“[I]t frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.” (citation omitted)). And there are other provisions of the Clean Water Act that do not comport with its broad purpose of restoring and maintaining the chemical, physical and biological integrity of the Nation’s waters. (Which may help explain why the Act’s express goal of completely eliminating all discharge of pollutants into the navigable waters by 1985 was not met.) No one disputes that the NPDES program is restricted to point sources. Non-point source pollution, chiefly runoff, is widely recognized as a serious water quality problem, but the NPDES program does not even address it. See generally Rapanos, 547 U.S. at 777, 126 S.Ct. at 2247 (Kennedy, J., concurring) (observing that agricultural runoff from farms along the Mississippi River creates an annual hypoxic “dead zone” in the Gulf of Mexico that is nearly the size of New Jersey); Or. Natural Desert Ass’n v. U.S. Forest Serv., 550 F.3d 778, 780 (9th Cir.2008) (stating that the “disparate treatment of discharges from point sources and nonpoint sources is an organizational paradigm of the [Clean Water] Act”). Not only are ordinary non-point sources outside the NPDES program, but Congress even created a special exception to the definition of “point source” to exclude agricultural storm water discharges and return flows from irrigation, despite their known, substantially harmful impact on water quality. 33 U.S.C. § 1362(14). The point is that it may seem inconsistent with the lofty goals of the Clean Water Act to leave out of the permitting process the transfer of pollutants from one navigable body of water to another, but it is no more so than to leave out all non-point sources, allowing agricultural runoffs to create a huge “dead zone” in the Gulf of Mexico. Yet we know the Act does that. What this illustrates is that even when the preamble to legislation speaks single-mindedly and espouses lofty goals, the legislative process serves as a melting pot of competing interests and a face-off of battling factions. What emerges from the conflict to become the enactment is often less pure than the preamble promises. The provisions of legislation reflect compromises cobbled together by competing political forces, and compromise is the enemy of single-mindedness. It is not difficult to believe that the legislative process resulted in a Clean Water Act that leaves more than one gap in the permitting requirements it enacts. Wyeth v. Levine, — U.S.-, 129 S.Ct. 1187, 1215-16, 173 L.Ed.2d 51 (2009) (Thomas, J., concurring) (“Legislators may compromise on a statute that does not fully address a perceived mischief, accepting half a loaf to facilitate a law’s enactment.” (quotation omitted)); Bd. of Governors v. Dimension Fin. Corp., 474 U.S. 361, 373-74, 106 S.Ct. 681, 688-89, 88 L.Ed.2d 691 (1986) (“Application of ‘broad purposes’ of legislation at the expense of specific provisions ignores the complexity of the problems Congress is called upon to address and the dynamics of legislative action____[T]he final language of the legislation may reflect hard-fought compromises.”). As the Supreme Court once said, “[a]fter seizing every thing from which aid can be derived we are left with an ambiguous statute.” United States v. Bass, 404 U.S. 336, 347, 92 S.Ct. 515, 522, 30 L.Ed.2d 488 (1971) (internal alteration and citation omitted). There are two reasonable ways to read the § 1361(12) language “any addition of any pollutant to navigable waters from any point source.” One is that it means “any addition ... to [any] navigable waters;” the other is that it means “any addition ... to navigable waters [as a whole].” As we have held before, “the existence of two reasonable, competing interpretations is the very definition of ambiguity.” United States v. Acosta, 363 F.3d 1141, 1155 (11th Cir.2004) (quotation marks omitted). D. Having concluded that the statutory language is ambiguous, our final issue is whether the EPA’s regulation, which accepts the unitary waters theory that transferring pollutants between navigable waters is not an “addition ... to navigable waters,” is a permissible construction of that language. Chevron, 467 U.S. at 843, 104 S.Ct. at 2782. In making that determination, we “need not conclude that the agency construction was ... the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Id. at 837, 843 n. 11, 104 S.Ct. at 2782 n. 11; see also id. at 844, 104 S.Ct. at 2782 (“[A] court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”). Because the EPA’s construction is one of the two readings we have found is reasonable, we cannot say that it is “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844,104 S.Ct. at 2782. Sometimes it is helpful to strip a legal question of the contentious policy interests attached to it and think about it in the abstract using a hypothetical. Consider the issue this way: Two buckets sit side by side, one with four marbles in it and the other with none. There is a rule prohibiting “any addition of any marbles to buckets by any person.” A person comes along, picks up two marbles from the first bucket, and drops them into the second bucket. Has the marble-mover “add[ed] any marbles to buckets”? On one hand, as the Friends of the Everglades might argue, there are now two marbles in a bucket where there were none before, so an addition of marbles has occurred. On the other hand, as the Water District might argue and as the EPA would decide, there were four marbles in buckets before, and there are still four marbles in buckets, so no addition of marbles has occurred. Whatever position we might take if we had to pick one side or the other we cannot say that either side is unreasonable. Like the marbles rule, the Clean Water Act’s language about “any addition of any pollutant to navigable waters from any point source,” 33 U.S.C. § 1362(12), is ambiguous. The EPA’s regulation adopting the unitary waters theory is a reasonable, and therefore permissible, construction of the language. Unless and until the EPA rescinds or Congress overrides the regulation, we must give effect to it. In the defendants’ appeal, we REVERSE the district court’s judgment that the operation of the S-2, S-3, and S-4 pumps without NPDES permits violates the Clean Water Act. We DISMISS AS MOOT the plaintiffs’ cross-appeal from the dismissal of the Water District on Eleventh Amendment grounds. REVERSED in part and DISMISSED in part. . John Anderson, Seminole Wind, on Seminole Wind (BMG Records 1992). . The canals are commonly called the EAA canals, and we will refer to them as the agricultural canals, although they also contain industrial and residential runoff. . Counsel: In this case, all of the relief that [the plaintiffs] wanted, they got. Court: Alright, let me ask you this: Are you now conceding to this Court that under Ex parte Young, with the Director in, all of the relief that they are now seeking they can obtain through the Director? Counsel: Yes. Court: Okay. (OA Trans., Jan. 16, 2009) . The permitting requirement does not apply unless the bodies of water are meaningfully distinct. Miccosukee, 541 U.S. at 112, 124 S.Ct. at 1547. The district court concluded that Lake Okeechobee and the agricultural canals are meaningfully distinct based on ten fact findings that it detailed at considerable length. Our review of those findings is limited to looking for clear error, see Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985), and the defendants do not even challenge them as clearly erroneous. Given the fact findings the district court made, we are satisfied that the agricultural canals and Lake Okeechobee are meaningfully distinct water bodies. The EPA wrote an opinion letter that attempted to build a case for the waters not being meaningfully distinct. That letter is not entitled to Chevron deference. See Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) ("Interpretations such as those in opinion letters ... do not warrant Chevron-style deference.”). Applying Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), we find the EPA’s informal view of the term "meaningfully distinct” unpersüasively narrow. . Gorsuch predates Chevron but applied a substantially similar level of deference. See 693 F.2d at 181 ("We hold merely that EPA's interpretation is reasonable, not inconsistent with congressional intent, and entitled to great deference; therefore, it must be upheld.”). . See supra note 2. . The Dubois case is similar to Miccosukee and the Catskills cases. In Dubois the First Circuit held that transferring pollutants from a river to a pond required an NPDES permit because the court wanted to avoid “a watering down of Congress’ clear statutory protections.” 102 F.3d at 1299. However, the court did not apply Chevron deference, id. at 1285 n. 15, and it does not appear that the Forest Service had promulgated a regulation that the court could have deferred to even if it had desired to do so. Id. at 1296-99. . Recently, we reluctantly concluded that in determining for Chevron purposes whether Congress had an intent on the issue at hand, we also look to legislative history. Miccosukee, 566 F.3d at 1273-74. We do that on page 1226, infra. . That statement appears intended to extend the application of the Clean Water Act to cover as much water as the Commerce Clause would allow. See generally Rápanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2206). The question before us is not the constitutional reach of the Act but the meaning of specific statutory language where the Act does apply.

ORDER Dennis Coles was convicted, after a 2002 jury trial, of having possessed a firearm as a convicted felon, 18 U.S.C. § 922(g). His record of five felony convictions made him an armed career criminal under 18 U.S.C. § 924(e). He was sentenced in 2003 to a term of 293 months imprisonment. On appeal, Coles’ lawyer sought to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he was unable to find a nonfrivolous issue to pursue. On May 3, 2004, we entered an order concluding that the potential appeal issues identified by defense counsel were frivolous. We then granted counsel’s motion to withdraw and dismissed Coles’ appeal. Coles petitioned for a rehearing (and rehearing en bane) and requested and received permission to file supplemental briefs. His petition was pending when the Supreme Court issued its decision in United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). On May 19, 2005, we retained jurisdiction in the case and ordered a limited remand, pursuant to the procedures set forth in United States v. Paladino, 401 F.3d 471 (7th Cir.2005). We directed the sentencing judge to consider whether he “would (if required to resentence) reimpose his original sentence.” We explained that “if the district court would reimpose the same sentence, we will affirm that sentence so long as it is reasonable. If the court would impose a different sentence, we will vacate and remand for resentencing.” On limited remand, consistent with the procedures set forth in Paladino, the parties submitted written statements on the question whether the court would adhere to the original sentence in light of the now-advisory nature of the sentencing guidelines. The district court considered those positions, as well as a letter from the defendant and the defendant’s daughter, “the arguments of counsel, the defendant’s arguments, the advisory Sentencing Guidelines, the reasons for the original sentence, and the factors set forth in 18 U.S.C. § 3553(a).” The district court concluded that, if given the opportunity, it would impose the same 293-month sentence under the now-advisory sentencing guidelines based on the defendant’s criminal history and the nature of the offense. As District Judge McCuskey explained: This court notes that it imposed the maximum guidelines sentence in his case. In imposing this sentence, this court considered the number of firearms involved in the offense and the evidence which showed that Defendant was an organizer, leader or manager because he directed Sabrina Hall to obtain the firearms. This court also considered the fact that Defendant testified falsely both at the hearing on Defendant’s Motion to Suppress and at trial, resulting in an obstruction of justice. This court still believes that the sentence imposed was warranted under the facts of this case, considering all of the factors set out in 18 U.S.C. 3553(a). This court would, therefore, adhere to its original sentence in this case. (App.4) In an order dated August 9, 2005, we invited the parties to submit arguments concerning the appropriate disposition of this appeal in light of the district court’s decision. Having now considered the submissions, we affirm Coles’ sentence. The 293-month sentence was, we conclude, reasonable. Coles’ petition for rehearing is DENIED. No judge called for a vote on the petition for rehearing en banc, so that petition is also DENIED.

OPINION PER CURIAM Brian Thomas appeals the orders of the United States District Court for the Middle District of Pennsylvania granting the defendants’ motions to dismiss his Freedom of Information Act (“FOIA”) complaint for lack of subject matter jurisdiction, and denying Thomas’s motions for reconsideration, for Rule 60(b) relief, and for recusal. The underlying facts are well-known to the parties and are fully set forth in the District Court’s Memorandum Opinion. We need only provide a summary here. In November 2003, Thomas filed a FOIA complaint against the IRS seeking to compel the production of certain records and tapes pertaining to him. The IRS moved to dismiss the complaint claiming, among other things, that the District Court lacked subject matter jurisdiction due to Thomas’s failure to exhaust his administrative remedies. On November 2, 2004, the District Court granted the dismissal motion and dismissed the case for lack of subject matter jurisdiction. On November 10, 2004, Thomas filed a motion for reconsideration, which the District Court denied on November 16, 2004. Undeterred, Thomas filed a motion for relief from judgment on December 15, 2004, seeking to vacate the District Court’s order dismissing the complaint. The District Court denied the motion on December 16, 2004, ruling that Thomas presented no new evidence and pointed to no intervening change in the law requiring relief from judgment under Rule 60(b). Specifically, the District Court held that the dismissal of Thomas’s FOIA complaint for failure to exhaust administrative remedies did not infringe upon Thomas’s First Amendment right to petition the Government for redress of grievances. On January 3, 2005, Thomas filed a motion seeking the District Court judge’s recusal. The District Court denied the motion on January 14, 2005, finding that a history of rulings adverse to Thomas was insufficient grounds for recusal. Thomas filed a notice of appeal on February 4, 2005. The Appellees raise the threshold question of jurisdiction to consider the orders entered November 2 and November 16, 2004. Our review of the record reveals that Thomas’s notice of appeal from the order dismissing the petition for removal is clearly untimely under Fed. R.App. P. 4(a)(1), as it was filed almost one month too late. The time-period prescribed for filing a notice of appeal is “mandatory and jurisdictional.” Browder v. Director of Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). In a civil case in which the United States is a party, a notice of appeal must be filed within sixty (60) days of the date of entry of the final judgment or order appealed. Fed. R.App. P. 3(A), 4(a)(1); 28 U.S.C. § 2107. On November 2, 2004, the District Court dismissed Thomas’s FOIA complaint for lack of jurisdiction. Appellant’s timely filed reconsideration motion tolled the appeals period until November 16, 2004, when the District Court denied reconsideration. See Fed. R.App. P. 4(a)(4). Appellant had until January 18, 2005, to file a timely notice of appeal. Appellant did not file a notice of appeal until February 4, 2005, about 26 days after entry of judgment. Accordingly, given the absence of a timely filed notice of appeal, the appeal of the District Court’s November 2 and November 16, 2004 orders is dismissed for lack of jurisdiction. Thomas’s appeal of the denial of the motions to vacate and for recusal is timely, however, and thus, we have jurisdiction to consider the appeal of these orders. We have jurisdiction pursuant to 28 U.S.C. § 1291, and our review of the District Court’s order denying Thomas’s Rule 60(b) on constitutional grounds is plenary. Koshatka v. Philadelphia Newspapers, Inc., 762 F.2d 329, 333 (3d Cir.1985). Our review of the order denying recusal is for abuse of discretion. Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir.2000). After a careful and independent review of the record, we will affirm the District Court order denying Rule 60(b) relief for the reasons stated by the District Court in its memorandum opinion. As for Thomas’s motion to recuse, we find nothing in the record to indicate that the District Judge in Thomas’s case was biased against him because he was pro se. As the District Court correctly noted, mere disagreement with the District Court’s adverse rulings does not form a sufficient basis for recusal. See Securacomm, 224 F.3d at 278. For the foregoing reasons, we will affirm the District Court’s orders entered December 16, 2004, and January 14, 2005.

PER CURIAM: Wister Patrick Gates pled guilty to conspiracy to distribute and to possess with intent to distribute fifty grams or more of cocaine base and cocaine, 21 U.S.C. § 846 (2000); possession with intent to distribute fifty grams or more of cocaine base and cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(l)(C)(2000); using and carrying firearms in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1); and possession of a firearm by a convicted felon, 18 U.S.C. §§ 922(g), 924(a)(2) (2000). He was sentenced to 276 months of imprisonment. Gates’ attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), raising the issue of whether the district court imposed a reasonable sentence, but asserting that, in her view, there are no meritorious issues for appeal. Gates has filed a pro se supplemental brief. On appeal, Gates argues that he should have received a shorter sentence. Our review of the record convinces us that the district court correctly determined the applicable sentencing range under the Federal Sentencing Guidelines. To the extent Gates asserts error in the district court’s decision to sentence him to a particular term of imprisonment within the properly calculated Guidelines range, such an exercise of discretion by the district court is not reviewable. United States v. Porter, 909 F.2d 789, 794 (4th Cir.1990). Furthermore, it is well established that this court does not review the extent of a downward departure unless the departure resulted in an illegal sentence or resulted from an incorrect application of the Guidelines. United States v. Hill 70 F.3d 321, 324 (4th Cir.1995). Pursuant to Anders, we have reviewed the record for reversible error and found none. We further find no merit to the arguments raised in Gates’ pro se supplemental brief. We therefore affirm his convictions and sentence. This court requires that counsel inform her client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on the client. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED

PER CURIAM: Roland Willis Frederick Marpoe, II, appeals his conviction for conspiracy to manufacture and possess with intent to distribute 100 or more marijuana plants, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B). On appeal, Marpoe argues that § 841 is facially unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny. He contends that, prior to the Supreme Court’s decisions in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi, we considered the provisions in § 841(b) to be sentencing factors and not elements of the offense. He argues that our approach in United States v. Sanchez, 269 F.3d 1250 (11th Cir.2001) (en banc), abrogated in part, United States v. Duncan, 400 F.3d 1297, 1308 (11th Cir.2005), where we limited the scope of Apprendi to when judge-decided facts increase a sentence above the statutory maximum, would not survive a constitutional challenge, and contends that it is unclear whether, under Sanchez, § 841(b) contains elements or sentencing factors. He further argues that, in light of Apprendi 530 U.S. at 490, 120 S.Ct. at 2362-63, which held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,” there are only three ways to preserve the constitutionality of § 841:(1) sever the unconstitutional section— § 841(b); (2) reinterpet the § 841(b) factors as elements of the offense; or (3) declare § 841 and § 846 unconstitutional in their entirety. Marpoe argues that only the third option is appropriate, and therefore, his conviction should be reversed. Ordinarily, we review constitutional issues de novo. United States v. Wright, 392 F.3d 1269, 1280 (11th Cir.2004), cert. denied, — U.S.-, 125 S.Ct. 1751, 161 L.Ed.2d 615 (2005). However, because Marpoe did not assert his constitutional claim in the district court, it is within our discretion whether to address the issue. Id. Where a defendant fails to raise his constitutional claim in the district court, we review his claim only for plain error. United States v. Walker, 59 F.3d 1196, 1198 (11th Cir.1995). In United States v. Tinoco, 304 F.3d 1088, 1098-99 (11th Cir.2002), we relied on Sanchez in rejecting a facial challenge to 21 U.S.C. § 960 similar to the one that Marpoe now makes to § 841. In Sanchez, we held that § 841 “is impacted by Apprendi but only to the limited extent that judge-decided facts actually increase a defendant’s sentence above the prescribed statutory maximum.” 269 F.3d at 1268. As a result of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005), the requirements for a successful Apprendi facial challenge have changed since Sanchez and Tinoco, but Marpoe still must satisfy the requirements as they exist currently. Therefore, in the words of Booker, Sanchez now stands for the proposition that Apprendi does not apply where a defendant’s actual sentence falls within the range “authorized by the facts established by a plea of guilty ... [which] must be admitted by the defendant.” See Booker, 125 S.Ct. at 756; Sanchez, 269 F.3d at 1268. In this case, Marpoe’s sentence fell within the maximum authorized by the facts established by his guilty plea. Marpoe signed a written plea agreement, admitting that the 125 marijuana plants recovered on his property belonged to him, and during the plea colloquy, he admitted that the government’s proffer — namely, possession with intent to distribute 125 marijuana plants with his wife — was true. Furthermore, Marpoe did not object to the Presentence Investigation Report, which stated that he possessed, with intent to distribute, 125 marijuana plants with his wife. Pursuant to § 841, and given these admitted facts, the minimum sentence that he could have received was five years’ imprisonment, and the maximum was 40 years’ imprisonment. Because Marpoe’s sentence fell within the range authorized by the facts established by a plea of guilty, Apprendi does not apply. Booker, 125 S.Ct. at 756; Sanchez, 269 F.3d at 1268. Accordingly, Marpoe’s facial challenge fails because he “cannot demonstrate that no set of circumstances exist under which [§ 841] would be valid,” primarily because, under the circumstances of his own case, § 841(b) is constitutionally valid. See Tinoco, 304 F.3d at 1101 (internal quotation omitted). Therefore, the district court did not plainly err in not finding that § 841 facially violates the Constitution, and we affirm Marpoe’s conviction. Upon review of the record, and upon consideration of the briefs of the parties, we discern no reversible error. Accordingly, we affirm. AFFIRMED.

EASTERBROOK, Chief Judge. Curtis Lusby was an engineer for Rolls-Royce from 1992 through 2001. (He started at Allison Engine Co., which Rolls-Royce acquired in 1995.) Lusby worked on the T56 turboprop engine, which Rolls-Royce has sold to both military and civilian customers since 1954. He came to believe that Rolls-Royce was not making the parts properly and was falsely telling the United States that the engines conformed to the government’s specifications. The Air Force rejected some T56 turbine blades in 1991 as substandard; Lusby concluded that Rolls-Royce had not fixed the problem. He raised this subject within the corporate hierarchy—which responded by firing him. (This is Lusby’s version; Rolls-Royce sees matters otherwise.) Lusby filed suit in 2002, contending that his discharge violated 31 U.S.C. § 3730(h), part of the False Claims Act, because Rolls-Royce had penalized him for preparing to bring or support litigation under that statute. The next year Lusby and Rolls-Royce filed a joint stipulation for dismissal. In May 2003, two months before dismissing the first suit, Lusby filed another—this one a qui tam action on behalf of the United States. As § 3730(b)(2) requires, that filing was under seal. After considering its options for 27 months, the United States declined to intervene in the qui tam action, which was unsealed and served on Rolls-Royce in December 2006, after a further 16 months had passed. (The record does not reveal a justification for that additional delay, but Rolls-Royce does not contend that it requires the complaint’s dismissal.) Unhappy that Lusby was still' its adversary, Rolls-Royce moved to dismiss the qui tam action. The district court granted this motion on the ground that the complaint did not plead fraud with the particularity required by Fed.R.Civ.P. 9(b). U.S. ex rel Curtis J. Lusby v. Rolls-Royce Corp., 2007 WL 4557773, 2007 U.S. Dist. Lexis 94144 (S.D.Ind. Dec. 20, 2007). Lusby’s lawyer drafted a new complaint in an attempt to supply the information that the judge thought necessary. But the court declined to allow the complaint’s amendment, ruling- that the qui tam action is barred by the claim preclusion (res judicata) effect of Lusby’s employment suit. U.S. ex rel Curtis J. Lusby v. Rolls-Royce Corp., 2008 WL 4247689, 2008 U.S. Dist. Lexis 69300 (S.D.Ind. Sept. 10, 2008). The judge added that the revised complaint also flunked the test of particularity, so an amendment would have been futile. The district court’s ruling on preclusion has the support of Cole v. University of Illinois, 497 F.3d 770 (7th Cir.2007). Cole filed suit under Title VII of the Civil Rights Act of 1964 and state law, alleging that her race and whistleblowing jointly led to her discharge. After that suit was dismissed with prejudice, Cole tried again under the False Claims Act, presenting both a personal claim under § 3730(h) and a qui tam claim. We concluded that the first and second suits arose from the same “nucleus of operative fact” (the catchphrase for claim preclusion under federal law). Accord, Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235 (11th Cir.1999). Rolls-Royce contends that the same result is appropriate here. Things are not quite so simple, however. Lusby denies a crucial point that Cole conceded: that the two suits involve the same litigants. Claim preclusion under federal law has three ingredients: a final decision in the first suit; a dispute arising from the same transaction (identified by its “operative facts,” see Herrmann v. Cencom Cable Associates, Inc., 999 F.2d 223 (7th Cir.1993)); and the same litigants (directly or through privity of interest). See Taylor v. Sturgell, — U.S.-, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008); cf. Bobby v. Bies, — U.S.-, 129 S.Ct. 2145, 173 L.Ed.2d 1173 (2009) (defining the elements of issue preclusion in federal litigation). Cole does not discuss the “same party” requirement; given Cole’s concession, there was no need to. Nor does Cole mention United States ex rel. Laird v. Lockheed Martin Engineering & Science Services Co., 336 F.3d 346, 357-60 (5th Cir.2003), which noted the difference in the real parties in interest when holding that a personal employment suit does not preclude qui tam litigation. Ragsdale is the same as Cole in this respect: neither our court nor the eleventh circuit discussed the effect of the United States’ financial interest. Now that the question has been squarely presented, we join the fifth circuit in concluding that the resolution of personal employment litigation does not preclude a qui tam action, in which the relator acts as a representative of the public. The special status of the United States counsels against reflexive transfer of rules of preclusion from private to public litigation. See United States v. Mendoza, 464 U.S. 154, 104 S.Ct. 568, 78 L.Ed.2d 379 (1984) (non-mutual issue preclusion does not apply to suits involving the United States). Cf. EEOC v. Waffle House, Inc., 534 U.S. 279, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (an employee’s private disposition, via arbitration, of a claim against an employer does not diminish the federal government’s ability to pursue judicial relief independently); EEOC v. Sidley Austin LLP, 437 F.3d 695 (7th Cir.2006) (employee’s failure to make a timely charge of discrimination does not prevent EEOC from suing to vindicate interest in law enforcement). Two principal considerations influence our decision. First, although the United States is not a “party” to a qui tam suit unless it intervenes, it is nonetheless a real party in interest—which is to say that its financial interests are at stake. See United States ex rel. Eisenstein v. New York City, — U.S. -, 129 S.Ct. 2230, 2235-36, 173 L.Ed.2d 1255 (2009). The United States is entitled to at least 70% of any recovery, even when it does not intervene. 31 U.S.C. § 3730(d)(2). It would be inappropriate to snuff out that federal interest just because a potential relator thoughtlessly omitted a qui tam claim from a personal suit. Second, qui tam litigation is subject to requirements that make combining it with a personal damages suit awkward. As we have mentioned, a qui tam proceeding begins in camera and cannot be served on the defendant until the United States has decided whether to intervene. A personal suit, by contrast, must be served on the defendant within 120 days. See Fed. R.Civ.P. 4(m). If the United States does intervene, it may settle or dismiss the action notwithstanding the relator’s objection, see § 3730(c)(2). Whether or not the United States intervenes, the relator can’t dismiss the suit without permission of the United States and the court, see § 3730(b)(1). These rules reflect a legislative view that the United States needs protection from bumbling relators. In an employment suit under Title VII or § 3730(h), by contrast, the aggrieved employee is in charge and may pursue, settle, or dismiss the litigation; the plaintiffs errors affect only himself. An ex-employee is free to represent himself in retaliatory-discharge litigation, 28 U.S.C. § 1654, but a relator in a qui tam action may proceed only through counsel. See United States ex rel. Lu v. Ou, 368 F.3d 773 (7th Cir.2004). Again this difference reflects the need to protect the interests of the United States. And the United States needs protection not only from pro se litigants but also from lawyers whose expertise lies in employment cases, and who without thinking omit qui tam claims from their clients’ personal suits. The procedural differences between personal and qui tam litigation are so great that it is often impractical to pursue both claims in one suit—and sometimes impossible, as when the United States takes more than 120 days to decide whether to intervene, or the plaintiff wants to proceed pro se. As the fifth circuit put it in Laird, 336 F.3d at 360, “we do not see convenience in trying the two [claims] together”. If joined in a single complaint, they often should be severed under Fed.R.Civ.P. 20(b). And a conclusion that the personal and representative actions ought to be conducted separately means that a voluntary decision to file separate suits, as Lusby did, should be respected. Claim preclusion is, after all, a doctrine that has the effect of compelling joinder. A conclusion that joinder usually is not sensible implies a lack of preclusion with respect to claims omitted from the first suit. The district court sought to protect the-public’s interest in a different way. After holding that Lusby is precluded from pursuing a qui tam action, the court entered an order stating that the dismissal, though with prejudice to Lusby, is without prejudice to the United States. In other words, the district court held, the United States may pursue a suit under the False Claims Act even if a qui tam suit has been filed and lost, and even if that loss blocks actions by other relators (who might have been able to sue as original sources of the information, see 31 U.S.C. § 3730(e)(4)(a)). The Supreme Court thought otherwise in Eisenstein. The Justices stated that “the United States is bound by the judgment in all FCA actions regardless of its participation in the case.” 129 S.Ct. at 2236. That the United States is bound is why it is a real party in interest. If Lusby had litigated a qui tam action to the gills and lost, neither another relator nor the United States could start afresh. The district court deemed this action precluded because, on its view, Lusby’s first action presented the same claim as this qui tam suit—so, when the judge dismissed the qui tam suit with prejudice, Lusby, the United States, and all other potential relators were bound. The United States must protect its interest by intervening in a qui tam action rather than by asserting a right to file a False Claims Act suit after the defendant has prevailed. But the United States could not have intervened in Lusby’s personal employment suit; it didn’t get the statutory notice, and the suit after all did not advance a qui tam claim. This is why we think it best to hold that a private employment suit under § 3730(h) does not preclude a suit under § 3730(a) or (b); then the options of all potential relators and the United States are protected. This conclusion does not technically overrule Cole, which considered only whether a personal and a qui tam claim arise from the same transaction. But as a practical matter our decision means that the outcome of a private employment suit never precludes a qui tam action (or a False Claims Act suit directly by the United States). We therefore circulated this opinion before release to all active judges under Circuit Rule 40(e). No judge favored a hearing en banc. Thus we arrive at the question whether Lusby’s latest proposed complaint alleged fraud with particularity—which “means the who, what, when, where, and how: the first paragraph of any newspaper story.” DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990). See also United States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374 (7th Cir.2003). Lusby contends that Rolls-Royce defrauded the United States about the quality of the turbine blades in the T56 engine. The complaint alleges that five contracts between Rolls-Royce and the United States require all of the engine’s parts to meet particular specifications; that the parts did not do so (and the complaint describes tests said to prove this deficiency); that Rolls-Royce knew that the parts were non-compliant (not only because Lusby told his supervisors this but also because audits by Rolls-Royce’s design and quality-assurance departments confirmed Lusby’s conclusions); and that Rolls-Royce nonetheless certified that the parts met the contracts’ specifications. The complaint names specific parts shipped on specific dates, and it relates details of payment. Simple breach of contract is not fraud, but making a promise while planning not to keep it is fraud, see Wharf (Holdings) Ltd. v. United Int’l Holdings, Inc., 532 U.S. 588, 121 S.Ct. 1776, 149 L.Ed.2d 845 (2001), and this complaint alleges the promise, the intent not to keep that promise, and the details of non-conformity. What else might be required to narrate, with particularity, the circumstances that violate 31 U.S.C. § 3729(a)(1)? Rolls-Royce’s answer is: the specific request for payment. Lusby has not seen any of the invoices and representations that Rolls-Royce submitted to its customers. He knows about shipments and payments, but he does not have access to the paperwork. The district court held that, unless Lusby has at least one of Rolls-Royce’s billing packages, he lacks the required particularity. Since a relator is unlikely to have those documents unless he works in the defendant’s accounting department, the district court’s ruling takes a big bite out of qui tarn litigation. We don’t think it essential for a relator to produce the invoices (and accompanying representations) at the outset of the suit. True, it is essential to show a false statement. But much knowledge is inferential—people are convicted beyond a reasonable doubt of conspiracy without a written contract to commit a future crime—and the inference that Lusby proposes is a plausible one. Rolls-Royce’s contracts with the United States require the firm to submit, with each request for payment, a form specified by Federal Acquisition Regulation 246-15. The certificate called for by FAR 246—15(d) reads: I certify that on [date], the [Contractor’s name] furnished the supplies or services called for by Contract No. [number] via [carrier] on [bill of lading] in accordance with all applicable requirements. I further certify that the supplies or services are of the quality specified and conform in all respects with the contract requirements, including specifications, drawings, preservation, packaging, packing, marking requirements, and physical item identification (part number), and are in the quantity shown on this or on the attached acceptance document. If Rolls-Royce submitted such a certificate, knowing the representations to be false, then it committed fraud. See Heffennan v. Bass, 467 F.3d 596, 601-02 (7th Cir.2006); United States ex rel. Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 785 (4th Cir.1999). Lusby contends that Rolls-Royce must have submitted at least one such certificate, or the military services would not have paid for the goods, given the contractual (and regulatory) requirement that the FAR 246-15 certificate accompany every invoice. The district court thought it possible that military procurement officers accepted and paid for the turbine blades without this certificate. That certainly is a possibility—though a remote one. Rolls-Royce submitted lots of invoices. Suppose there were 50, and federal procurement officers overlook the absence of a certificate half the time. The probability that the military would accept 50 shipments in a row without a certificate is 0.5 to the 50th power, a number that has 15 zeros before the first significant digit. The probability that Rolls-Royce never signed a false certificate would be greater if a single slapdash procurement officer handled all of its invoices; then the errors would not be independent. But even a requirement of proof beyond a reasonable doubt need not exclude all possibility of innocence; nor need a pleading exclude all possibility of honesty in order to give the particulars of fraud. It is enough to show, in detail, the nature of the charge, so that vague and unsubstantiated accusations of fraud do not lead to costly discovery and public obloquy. See United States ex rel. Clausen v. Laboratory Corp. of America, 290 F.3d 1301, 1310 (11th Cir.2002). Cf. Ashcroft v. Iqbal, — U.S.-, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Lusby’s accusations are not vague. Rolls-Royce has been told exactly what the fraud entails. To say that fraud has been pleaded with particularity is not to say that it has been proved (nor is proof part of the pleading requirement). Lusby’s complaint may be wrong. Perhaps the parts did comply (Lusby may have been fired for blowing events out of proportion rather than for blowing the whistle on a fraud), or at least Rolls-Royce may have thought that the parts complied. Perhaps Rolls-Royce told the military about the problems independently of the formal certificates. Extended discussions between the military and its suppliers are common. If the military services knew what they were getting and decided to accept blades that Lusby deems “inferior” rather than pay a higher price, then Rolls-Royce will prevail on the merits. No complaint needs to rule out all possible defenses. One final issue. Lusby argues that Rolls-Royce violated not only § 3729(a)(1), which covers false and fraudulent claims, but also § 3729(a)(7), which covers a person who “knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government”.* * §After the Air Force detected problems in 1991, it negotiated at length with Rolls-Royce, which in 1999 reimbursed the military for a portion of the purchase price of the defective parts. Lusby’s theory is that all of the parts were substandard, that Rolls-Royce therefore had an “obligation” to repay everything it had received, and that by keeping even a penny Rolls-Royce violated § 3729(a)(7). The district court doubted that Rolls-Royce had a concrete “obligation to pay or transmit money or property to the Government”. A dissatisfied customer is a business problem, but how much money changes hands is a matter for negotiation; a federal court ought not step in, declare that there is an “obligation” to rebate some particular amount, and use that as the basis of a penalty under § 3729(a)(7). But, like the district court, we need not decide which situations create “obligations” for the purpose of § 3729(a)(7), because Lusby does not know what the military and Rolls-Royce said to each other during the eight years of negotiations. The complaint does not offer any reason to think that Rolls-Royce committed fraud during those negotiations. With respect to this claim, therefore, the complaint does not satisfy Rule 9(b). The judgment of the district court is affirmed with respect to the claim under § 3729(a)(7) and otherwise reversed. The case is remanded for a decision on the merits. An amendment effective May 20, 2009, redesignated § 3729(a)(7) as § 3729(a)(1)(G) and made some changes to the language. Pub.L. 111-21, 123 Stat. 1621. Section 3729(a)(1), cited earlier, became § 3729(a)(1)(A), and § 3730(h) became § 3730(h)(1). The amendment also adds a definition of the word "obligation.” We use the versions that were in force when the events at issue in this suit occurred. Pub.L. 111-21 § 4(f) provides that the changes to § 3729(a) apply only to conduct after May 20, 2009. (There is an exception for the changes to § 3729(a)(1)(B), but that does not affect Lusby’s action.) Cf. Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).