142 F.Supp. 264 (1956)
Helen T. TURNER, Adm'x Estate of Gordon L. Turner
v.
WILSON LINE OF MASSACHUSETTS, Inc.
Civ. A. No. 55-896.
United States District Court D. Massachusetts.
May 17, 1956.
*265 Leo P. Doherty, Boston, Mass., for plaintiff.
Thomas H. Walsh, and John M. Geaghan, Boston, Mass., for defendant.
ALDRICH, District Judge.
Defendant moves to strike certain portions of the complaint in this civil action on the ground that no valid claim is set out. The complaint is a hybrid product of questionable ancestry, but because it could easily be changed and enlarged I accepted certain additional allegations made by plaintiff's counsel during argument, referred to and delimited in this opinion. Correspondingly, I treat defendant's motion as, in effect, a motion for summary judgment.
In June, 1955, the coastwise steamer Pilgrim Belle grounded on a bar in Boston Harbor and took water. The McKie Lighter Co. undertook salvaging operations, including pumping her out. Plaintiff's intestate, Turner, an employee of *266 McKie,[1] came aboard to assist with the bailing as supervisor of the pumps. The master of the vessel remained on board. The pump was operated by a gasoline motor belonging to McKie for 14 hours. It was a hot, muggy day. There were no exhaust pipes, and the motors exhausted inboard. No one opened the ports or windows, and there were no blowers in operation. As a result, that portion of the vessel became partially filled with carbon monoxide gas. On such evidence it could be found that the master was negligent in permitting this to occur, and that, whether he was negligent or not, the vessel became unseaworthy. Turner, while engaged in his employment, inhaled excessive quantities of gas for perhaps 7 or 8 hours. During this period he had pains in his chest and was nauseated, but continued to work, not knowing what the trouble was, until he blacked out. He died shortly thereafter without recovering consciousness.
The defendant is the owner of the Pilgrim Belle. There are five counts. In none is there a mention of the Jones Act, or an allegation that it is brought under 46 U.S.C.A. § 688. However, at the hearing plaintiff stated that all counts were brought under that Act. I will first consider each count individually as drawn, and then as if under the Act.
Count 1, as drawn, is for personal injuries (other than death), due to negligence. It is alleged that Turner was a business invitee. The injury was inflicted on navigable waters, and constituted a maritime tort. Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S. Ct. 202, 98 L.Ed. 143; Thorneal v. Cape Pond Ice Co., 321 Mass. 528, 74 N.E.2d 5. The action was brought on the law side of the court. Although there is a prayer for damages in the amount of $10,000, it is not affirmatively alleged that $3,000 is involved. I made inquiry and received statements of plaintiff's counsel addressed to this subject, and hold that as matter of law they could not warrant such a finding.[2] The action, accordingly, fails to satisfy the requirements of 28 U.S.C. § 1331.
Count 2 is similar to Count 1, except that it makes an additional or alternative allegation of unseaworthiness. Defendant contends that a cause for personal injuries due to unseaworthiness does not survive. It is unnecessary to consider this question, because plaintiff is faced with the same difficulty of absence of the jurisdictional amount. Doucette v. Vincent, 1 Cir., 194 F.2d 834.
Count 3 seeks to recover for Turner's wrongful death, alleging that it was occasioned by defendant's negligence. Recovery for such death is purely statutory. Plaintiff has no claim under the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq., because neither the injury nor the death occurred on the high seas. The Massachusetts death statute, Mass.G.L.(Ter.Ed.) c. 229, § 2C, added by St.1949, c. 427, § 3 as amended, is punitive, and does not create a maritime cause of action. Plaintiff cannot *267 sue in the federal court on this statute in the absence of diversity of citizenship. Doucette v. Vincent, 1 Cir., 194 F.2d 834, 843, note 7.[3]
Count 4 is paired with Count 3, and is for death due to unseaworthiness. Unseaworthiness, also, does not create a cause of action for death at common law. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L. Ed. 686.
Count 5 is for funeral expenses "under the laws of the United States." Counsel suggests no law that would be apposite except Article 7, Shipowners Liability Convention, 1936, 54 Stat. 1693, 1699, which equates recovery with liability for maintenance and cure. Maintenance and cure is a contractual obligation. Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107. In spite of certain conclusory allegations of plaintiff, it is clear that there was no contract between Turner and the defendant. Calvino v. Farley, D.C.S.D.N.Y., 23 F.Supp. 654.
The Jones Act cannot breathe life into the complaint. Counts 1 and 2 still must fail for lack of the jurisdictional amount. Branic v. Wheeling Steel Corp., 3 Cir., 152 F.2d 887, certiorari denied 327 U.S. 801, 66 S.Ct. 902, 90 L.Ed. 1026. The Act cannot aid Count 5, because, as stated, maintenance and cure is purely contractual. It is not within the Act. Nor can it affect Counts 3 and 4. By its terms the Jones Act is an employer's liability act, directed against the seaman's employer. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692, rehearing denied 338 U.S. 839, 70 S.Ct. 32, 94 L.Ed. 513. Plaintiff points out that the fact Turner was working aboard ship made him a seaman for the purpose of the Act. This may well be so; but that is not to say his employer was the ship. Regardless of the location of his activities, he was in the employ of McKie, and not of the defendant. White v. American Barge Lines, D.C. W.D.Pa., 127 F.Supp. 637; The New Brooklyn, D.C.D.Mass., 37 F.Supp. 955; cf. Kelly v. Delaware River Joint Commission, D.C.E.D.Pa., 85 F.Supp. 15, and cases cited. Plaintiff has a number of other courses open, including her action against McKie. This complaint is dismissed.
NOTES
[1]  Turner was on McKie's payroll, and was not on the vessel's, but plaintiff contends that, in addition to being a business invitee, in legal effect he was for some purposes also an employee of the vessel. The entire factual basis for this claim appears in this opinion.
[2]  Plaintiff states that Turner "had tightness across the forehead, severe headache, muscular weakness, dizziness, nausea and vomiting, lasting over a period of at least 7 or 8 hours; that he complained of pain in the chest, stating that he thought he had pneumonia." However such pains may be characterized, actions speak louder than words, and it is admitted that he continued to work throughout this interval. While $3,000 might well be compensation for agonizing pain of short duration due to extreme trauma, or well-known excruciating poisons such as strychnine, and even if it might not be appropriate for me to take judicial notice of the fact that carbon monoxide is a favorite suicide medium because of its relatively innocuous-feeling and insidious effects, I would certainly hold that pain for 7 or 8 hours not severe enough to cause a man to stop work or realize that something more serious was the matter is not of $3,000 extent.
[3]  Where liability for death depends upon a state statute any admiralty cause is not only limited to the state substantive law, Byrd v. Napoleon Avenue Ferry Co., D.C.E.D.La., 125 F.Supp. 573, affirmed 5 Cir., 227 F.2d 958, certiorari denied 76 S.Ct. 783 (contributory negligence); Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (time for suit); but if the statute is purely penal it creates no admiralty cause at all. M'Afee v. The Creole, D.C.E.D.Pa., 15 Fed.Cas. 1201, No. 8,655. In in Re St. Louis & Tennessee River Packet Co., D.C. E.D.Mo., 266 F. 919, the statute, though partly penal, considered fair compensation as a measure of damages. The Massachusetts statute does not, but makes "degree of * * * culpability" the sole measure. Therefore while, in the broad, the statute does have a compensatory effect, and that adjective has been used, it is truly penal, Porter v. Sorell, 280 Mass. 457, 182 N.E. 837, 85 A.L.R. 1159; Arnold v. Jacobs, 316 Mass. 81, 54 N.E.2d 922, and is "exactly what Lord Campbell's act is not." Hudson v. Lynn & Boston Railroad Co., 185 Mass. 510, 519, 71 N.E. 66, 70. Even if it is not penal to the extent that, upon a showing of diversity, a civil action could not be brought on the law side of the court, Boston & M. R. R. v. Hurd, 1 Cir., 108 F. 116, 56 L.R.A. 193, certiorari denied 184 U.S. 700, 22 S.Ct. 939, 46 L. Ed. 765; Cross v. Ryan, 7 Cir., 124 F. 2d 883, certiorari denied 316 U.S. 682, 62 S.Ct. 1269, 86 L.Ed. 1755, the importation of a pure penalty instead of damages would scarcely be consistent with the "characteristic features of the general maritime law." Cf. Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90.


846 F.2d 29
46 Fair Empl.Prac.Cas.  1303,46 Empl. Prac. Dec. P 37,986Cynthia A. FORRESTER, Plaintiff-Appellant,v.Judge Howard Lee WHITE, Defendant-Appellee.
No. 84-1823.
United States Court of Appeals,Seventh Circuit.
May 5, 1988.

John D. Lynn, South Roxana, Ill., for plaintiff-appellant.
Imelda Terrazino, Asst. Atty. Gen., Chicago, Ill., for defendant-appellee.
Before ESCHBACH, POSNER, Circuit Judges, and TIMBERS, Senior Circuit Judge.*
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
PER CURIAM.

1
This case comes before us again on remand from the Supreme Court, --- U.S. ----, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988).  In this suit for damages under 42 U.S.C. Sec. 1983, a former probation officer charged her employer, a state-court judge, with demoting and discharging her because of her sex.  The procedural background and facts of this case were discussed fully in Forrester v. White, 792 F.2d 647 (7th Cir.1986), such that we will only expound those aspects of the case relevant to the specific issue before us.  On remand, we must determine whether the district court correctly granted the respondent's motion for a new trial.

2
The respondent, Howard Lee White, served as a Circuit Judge of the Seventh Judicial Circuit of the State of Illinois and Presiding Judge of the Circuit Court in Jersey County.  Acting as a designee of the Chief Judge of the Seventh Judicial Circuit, White was authorized under Illinois law to appoint and dismiss juvenile probation officers at his pleasure.

3
Judge White hired Cynthia A. Forrester as an adult and juvenile probation officer in April 1977.  In July 1979, Judge White appointed Forrester as Project Supervisor of the Jersey County Juvenile Court Intake and Referral Services Project, a position of greater responsibility.  He demoted Forrester in the summer of 1980, and ultimately discharged her on October 1, 1980.

4
Forrester brought this action against White in the district court, alleging that her demotion and dismissal violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq., and 42 U.S.C. Sec. 1983.  The jury found for Forrester on her Sec. 1983 claim, concluding that Judge White had discriminated against her in violation of the Equal Protection clause of the Fourteenth Amendment, and awarded her $81,818.80 in compensatory damages.  During the trial proceedings, Forrester's Title VII claim was dismissed.

5
The district court denied Judge White's motion for judgment notwithstanding the verdict, but granted his motion for a new trial.  The magistrate who tried the case held that the jury verdict was against the weight of the evidence, that the damages awarded were excessive, and that proper jury instructions on the Equal Protection claim were not given.  Judge White subsequently moved for summary judgment, claiming that he had absolute judicial immunity from a civil damages suit.  The district court granted this motion, and Forrester appealed.

6
On appeal this Court, with Judge Posner dissenting, affirmed the district court's grant of summary judgment.  Judges may be accorded immunity for certain acts taken within the scope of their judicial authority.  We concluded that because Forrester performed duties "inextricably tied" to Judge White's judicial functions, 792 F.2d at 657, Judge White acted in a judicial capacity when he demoted and dismissed Forrester.  Accordingly, we affirmed the district court's grant of summary judgment, and found it unnecessary to rule on the district court's grant of the motion for a new trial.  However, in light of the Supreme Court's recent determination that the respondent does not have absolute judicial immunity, we must now decide whether Judge White is entitled to a new trial.

7
Appellate review of a district court's order for a new trial is limited.  Because the trial judge is uniquely situated to rule on such a motion, the trial court has great discretion in determining whether to grant a new trial.   See Davis v. FMC Corp., 771 F.2d 224, 233 (7th Cir.1985);  Juneau Square Corp. v. First Wisconsin National Bank, 624 F.2d 798, 806 (7th Cir.), cert. denied, 449 U.S. 1013, 101 S.Ct. 571, 66 L.Ed.2d 472 (1980).  In determining whether a new trial is warranted, the trial judge must decide if the verdict is against the weight of the evidence, the damages are excessive, or if for other reasons the trial was not fair to the moving party.   See General Foam Fabricators, Inc. v. Tenneco Chemicals, Inc., 695 F.2d 281, 288 (7th Cir.1982);  Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 194, 85 L.Ed. 147 (1940).  Upon review by this Court, the trial judge's grant or denial of a motion for a new trial will not be overturned "except where exceptional circumstances show a clear abuse of discretion."   Spanish Action Committee v. Chicago, 766 F.2d 315, 321 (7th Cir.1985).   See also General Foam Fabricators, Inc. v. Tenneco Chemicals, Inc., 695 F.2d at 288 (citing Stinebower v. Scala, 331 F.2d 366, 367 (7th Cir.1964)).

8
Although the district court found three different bases on which to grant a new trial, we need only determine if any single basis exists upon which the order may be supported.  "If a single ground supports the new trial order, it is not reversible." Juneau Square Corp., 624 F.2d at 809.  Our careful examination of the record indicates that the trial judge did not abuse his discretion when he concluded that the jury verdict was against the weight of the evidence on Forrester's Sec. 1983 claim.  Hence, we will not consider the other two grounds upon which the trial judge determined that a new trial was required.

9
The district court found that the jury verdict was based on evidence solely pertaining to the alleged Title VII violation.  However, the parties had stipulated that the Title VII claim was to be dismissed.  Thus, the petitioner was obliged to support her Sec. 1983 claim based on alleged violations of the Equal Protection clause.  Under Title VII, the petitioner must prove that she was discriminated against through disparate treatment based on an impermissible factor, or disparate impact of a neutral practice on a protected group.   See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 1824-26, 36 L.Ed.2d 668 (1973);  International Bhd. of Teamsters v. United States, 431 U.S. 324, 335-36 & n. 15, 97 S.Ct. 1843, 1854-55 & n. 15, 52 L.Ed.2d 396 (1977);  Griggs v. Duke Power Co., 401 U.S. 424, 429-32, 91 S.Ct. 849, 853-54, 28 L.Ed.2d 158 (1971).  In an Equal Protection claim, the petitioner faces the tougher standard of proving purposeful and intentional acts of discrimination based on her membership in a particular class, not just on an individual basis.   See generally Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976);  Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977);  Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979).

10
The magistrate concluded that the evidence presented by the petitioner failed to satisfy the lower burden of proof required under Title VII because Forrester failed to show disparate treatment.  The district court found that Judge White had several legitimate, non-discriminatory reasons to dismiss the petitioner.  Forrester was unable to manage her subordinate employee and complained frequently to the respondent about this subordinate.  However, she refused to take steps to ameliorate the situation, and would not dismiss this employee for fear of tainting her record as a supervisor.  Moreover, in spite of the respondent's objections, Forrester insisted on taking compensatory time off to which she was not entitled.  Since Forrester did not satisfy the lower burden of proof required under Title VII, the trial judge axiomatically concluded that she failed to satisfy the tougher burden of proof required under the Equal Protection clause.

11
We conclude that the trial judge did not abuse his discretion when he granted Judge White's motion for a new trial.  Although the Supreme Court left open the availability of qualified immunity as a defense for the respondent, it expressly declined to decide the issue.  It is not clear to us whether the respondent raised the defense of qualified immunity in the lower court, since the terms "absolute immunity" and "judicial immunity" were used interchangeably throughout the record.  We leave it to the discretion of the district court on remand to determine whether the respondent may now raise that defense, and if so, the validity thereof.1   This case is remanded to the district court for such proceedings as are appropriate.

12
REVERSED AND REMANDED.

*
 The Honorable William H. Timbers, Senior Circuit Judge for the Second Circuit, sitting by designation

1
 While the question presented here is whether the right allegedly violated was clearly established at the time that Judge White dismissed Forrester, see Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), we note that the question in the context of this case may be a substantially narrower one.  The Supreme Court has recently stated that "the right the official is alleged to have violated must have been 'clearly established' in a more particularized, and hence more relevant, sense:  The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."   Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).  In a similar vein, this Court noted earlier:
The words 'clearly established ... constitutional rights' may not be used to read the defense of immunity out of federal tort law by the facile expedient of stating constitutional rights in the most general possible terms, so that anyone who prevails on the merits of a claim based on (for example) the First Amendment's free exercise of religion clause ... can defeat the defense of immunity simply by pointing out that the right to the free exercise of one's religion has long been a clearly established constitutional right.  The right must be sufficiently particularized to put potential defendants on notice that their conduct probably is unlawful.
Azeez v. Fairman, 795 F.2d 1296, 1301 (7th Cir.1986).
In Forrester's case, the relevant issue is whether it was clearly established at the time of Forrester's dismissal that a judicial officer's discharge of a female probation officer violated the established law regarding sex-discrimination.  We, of course, cannot and do not reach that issue here.


           Case: 18-15087   Date Filed: 02/26/2020   Page: 1 of 11

                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-15087
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:18-cr-60127-WPD-1

UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                   versus

TRENARD CALDWELL,

                                                        Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (February 26, 2020)

Before GRANT, LUCK and BLACK, Circuit Judges.

PER CURIAM:
              Case: 18-15087     Date Filed: 02/26/2020    Page: 2 of 11

      Trenard Caldwell appeals his convictions and 161-month total sentence for

being a felon in possession of a firearm, possession of unauthorized access devices,

aggravated identity theft, and possession of a detectable amount of

methamphetamine with intent to distribute. Caldwell asserts five issues on appeal,

which we address in turn. After review, we reverse and remand to allow the

district court to modify Caldwell’s sentence so it does not run afoul of the statutory

maximum, but affirm as to all other issues.

                                  I. DISCUSSION

A. Motion to Withdraw Guilty Plea

      First, Caldwell contends the district court abused its discretion when it did

not allow him to withdraw his guilty plea because he did not have close assistance

of counsel when he entered the plea and his plea was not knowing and voluntary.

After the district court accepts the plea and before sentencing, the defendant may

withdraw a guilty plea if (1) the district court rejects the plea agreement, or (2) “the

defendant can show a fair and just reason for requesting the withdrawal.” Fed. R.

Crim. P. 11(d)(2)(A)-(B). “There is no absolute right to withdraw a guilty plea.”

United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). In determining if the

defendant has met his burden, a district court may consider the totality of the

circumstances surrounding the plea, including the following factors: “(1) whether

close assistance of counsel was available; (2) whether the plea was knowing and

                                           2
              Case: 18-15087     Date Filed: 02/26/2020   Page: 3 of 11

voluntary; (3) whether judicial resources would be conserved . . . ; and (4) whether

the government would be prejudiced if the defendant were allowed to withdraw his

plea.” United States v. Buckles, 843 F.2d 469, 472 (11th Cir. 1998) (citation

omitted). The good faith, credibility, and weight of the defendant’s representations

in support of the motion to withdraw are issues for the trial court to decide. Id.

      The district court held a hearing on Caldwell’s motion to withdraw his guilty

plea in which both Caldwell and his attorney testified. After hearing the testimony,

the district court denied the motion, finding that when Caldwell pled guilty, he

understood and confirmed that (1) he would not be allowed to withdraw his plea,

(2) he did not have to follow his attorney’s advice, (3) he wanted to plead guilty

and give up all defenses, (4) no threats or promises were made to him, and (5) he

fully understood what he was doing and had no questions.

      The district court did not abuse its discretion in denying Caldwell’s motion

to withdraw his guilty plea because he failed to show that he did not have close

assistance of counsel and the evidence supports that his plea was knowing and

voluntary. See United States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996)

(stating we will disturb the district court’s decision to deny a defendant’s motion to

withdraw a guilty plea only when it constitutes an abuse of discretion).

      The district court found Caldwell’s attorney, Richard Merlino, credible

during the hearing on Caldwell’s motion. During that hearing, Merlino testified

                                          3
              Case: 18-15087     Date Filed: 02/26/2020    Page: 4 of 11

that he had met with Caldwell four to six times and his investigator had met with

Caldwell six to eight times in preparation for trial. Merlino testified that he

reviewed the discovery with Caldwell and they had discussed that the Government

had a “reasonable likelihood of conviction” if the case proceeded to trial.

      In addition, both the district court’s plea colloquy and the testimony at the

hearing on the motion to withdraw establish Caldwell knowingly and voluntarily

entered his plea. See Medlock, 12 F.3d at 187 (stating there is a strong

presumption that statements made during the plea colloquy are true). The district

court confirmed Merlino explained the Sentencing Guidelines to Caldwell, that

Caldwell agreed with the strategy of an open plea, and that Caldwell understood

the maximum amount of prison time he could serve. Moreover, the district court

confirmed that Caldwell’s plea was done freely and voluntarily and that he

understood that he could not come back to the district court and argue that he did

not understand, made a mistake, or that his lawyer provided him with bad advice.

Caldwell failed to meet the heavy burden of showing the statements he made,

under oath, during his change or plea hearing were false. See United States v.

Rogers, 848 F.2d 166, 168 (11th Cir. 1988) (explaining a defendant bears a heavy

burden to show that his statements under oath were false). The final two Buckles

factors also weigh against the withdrawal of the plea, and Caldwell concedes that

whether judicial resources would be conserved weighs against him.

                                           4
              Case: 18-15087     Date Filed: 02/26/2020   Page: 5 of 11

B. Ineffective Assistance of Counsel

      Second, Caldwell asserts he received ineffective assistance of counsel. To

make a successful claim of ineffective assistance of counsel, a defendant must

show both that (1) his counsel’s performance was deficient; and (2) the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). Failure to establish either prong is fatal and makes it unnecessary to

consider the other. Id. at 697. A counsel’s performance is measured under an

objective standard of reasonableness, and there is a strong presumption that

counsel’s conduct falls within the range of reasonable performance. Id. at 687,

690. Prejudice occurs when there is a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id.

      As an initial matter, the record is sufficiently developed to permit this Court

to consider Caldwell’s ineffective assistance of counsel claim. See United States v.

Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (explaining while we generally do

not consider claims of ineffective assistance of counsel raised on direct appeal, we

will do so if the record is sufficiently developed). Caldwell raised the claim in his

amended motion to withdraw his guilty plea, and the district court held an

evidentiary hearing where Caldwell and Merlino testified regarding the issue.

                                          5
              Case: 18-15087    Date Filed: 02/26/2020    Page: 6 of 11

      Caldwell has failed to establish the district court erred when it denied his

ineffective assistance of counsel claim. See id. (stating whether a criminal

defendant’s trial counsel was ineffective is a mixed question of law and fact,

subject to de novo review). Merlino testified that he reviewed the discovery, went

through the evidence with Caldwell, attempted to contact witnesses, and found he

could not file a motion to suppress in good faith. In addition, Merlino testified he

spoke with Caldwell about entering the guilty plea and the consequences of

entering a guilty plea. Caldwell has failed to present evidence to show the

likelihood of the district court allowing him to withdraw his guilty plea would have

increased had Merlino taken different actions. See Harrington v. Richter, 562 U.S.

86, 112 (2011) (the petitioner must show the likelihood of a different result is

substantial). Thus, Caldwell has failed to establish that Merlino acted deficiently

or that Merlino’s actions prejudiced his defense. See Strickland, 466 U.S. at 687.

C. Criminal History Calculation

      Third, Caldwell argues the district court erred at sentencing when it assessed

him a criminal history point for a previous grand theft of a motor vehicle

conviction, because that conviction was part of the relevant conduct of his current

charges. The district court is required to assess one criminal history point for each

“prior sentence” of less than 60 days of imprisonment. U.S.S.G. § 4A1.1(c). The

term “prior sentence” means “any sentence previously imposed upon adjudication

                                          6
              Case: 18-15087     Date Filed: 02/26/2020    Page: 7 of 11

of guilt . . . for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1).

Relevant conduct includes “all acts and omissions committed . . . by the defendant

. . . that occurred during the commission of the offense of conviction, in

preparation for that offense, or in the course of attempting to avoid detection or

responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1)(A).

      The district court did not clearly err when it assessed one criminal history

point to Caldwell for the grand theft of a motor vehicle. See United States v.

Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir. 2006) (stating a district court’s factual

findings are reviewed for clear error and its application of the Guidelines to those

facts are reviewed de novo). The district court found the grand theft of the motor

vehicle was not part of the relevant conduct of this case because it was a separate

crime and it occurred on a separate date from the convictions in this case. In

addition, the grand theft of the motor vehicle did not occur during the commission

of the offenses in this case and was not done in order to avoid detection or

responsibility for those offenses. Thus, under the Guidelines, it is not relevant

conduct, and the district court did not clearly err when it assessed Caldwell one

criminal history point. U.S.S.G. § 1B1.3(a)(1)(A).

D. Sentence Greater than Statutory Maximum

      Fourth, Caldwell asserts the district court erred when it imposed a 161-

month total sentence which was greater than the maximum statutory sentence

                                           7
               Case: 18-15087       Date Filed: 02/26/2020       Page: 8 of 11

permitted. The district court sentenced Caldwell at the high end of his Guidelines

range, 137 months’ imprisonment on Counts 1, 2, 4, and 5, to run concurrently.

The district court further sentenced Caldwell to 24 months’ imprisonment on

Count 3, to run consecutively. Caldwell contends the maximum prison sentence

permitted by law on Counts 1, 2, and 5 1 is 120 months’ imprisonment. See 18

U.S.C. § 924(a)(2) (Count 1); 18 U.S.C. § 1029(c)(1)(A)(i) (Counts 2 and 5).

       The Government concedes that Caldwell correctly argues the district court

erred when it imposed a 137-month sentence as to Counts 1, 2, and 5. The

Government contends the district court should have structured the sentence by

imposing concurrent terms of 120 months’ imprisonment as to Counts 1, 2, and 5,

and a 137-month sentence for Count 4, which carries a statutory maximum of 240

months. See 21 U.S.C. § 841(b)(1)(C).

       We have held that Federal Rule of Criminal Procedure 36 “may not be used

to make a substantive alteration to a criminal sentence.” United States v. Portillo,

363 F.3d 1161, 1164 (11th Cir. 2004) (quotations omitted). In addition, we have

held that Rule 36 permits courts to “correct an error in the record arising from [an]

oversight. Id. at 1165.

       1
          Caldwell’s counts of conviction are as follows: Count 1—possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1); Count 2—possession of unauthorized
access devices, in violation of 18 U.S.C. § 1029(a)(3); Count 3—aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1); Count 4—possession of methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1); and Count 5—possession of unauthorized access
devices, in violation of 18 U.S.C. § 1029(a)(3).
                                               8
                Case: 18-15087       Date Filed: 02/26/2020       Page: 9 of 11

       The district court erred in how it structured Caldwell’s sentence because it

sentenced him to 137-months’ imprisonment as to Counts 1, 2, and 5, when the

statutory maximum sentence for those counts is 120 months’ imprisonment. See

United States v. Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007) (reviewing the

legality of a sentence de novo). However, this error is one that can be corrected,

pursuant to Rule 36, as the correction will not result in a substantive alteration to

Caldwell’s sentence. See Portillo, 363 F.3d at 1164-65. The district court could

sentence Caldwell to 120-months’ imprisonment as to Counts 1, 2, and 5 to run

concurrently with a 137-month sentence as to Count 4, and an additional 24

months to run consecutively as to Count 3 for a total sentence of 161 months’

imprisonment. Allowing the district court to enter a new judgment, pursuant to

Rule 36, will allow the district court to correct an oversight in how it announced

Caldwell’s sentence, without making the sentence more onerous. See id.

E. Superseding Indictment

       Fifth, Caldwell contends Count 1 of the Superseding Indictment illegally

charged him with being a felon in possession of a firearm, in light of the Supreme

Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019).2 We review

       2
           Caldwell waived the defect in his indictment because his guilty plea waived all
nonjurisdictional defects in his proceeding. See United States v. Brown, 752 F.3d 1344, 1347
(11th Cir. 2014). He may obtain relief from his guilty plea only if he identifies a defect that
affected the power of the district court to enter its judgments. See id. at 1350-51. While Rehaif
clarified that a defendant’s knowledge of his status as a felon is an element of the offense of
being a felon in possession of a firearm, 139 S. Ct. at 2200, the omission of a mens rea element
                                                9
               Case: 18-15087        Date Filed: 02/26/2020        Page: 10 of 11

new challenges to indictments for plain error. United States v. Reed, 941 F.3d

1018, 1020 (11th Cir. 2019). A defendant must prove that an error occurred, that

was plain, and that affected his substantial rights. Id. at 1021. We may consult the

whole record when considering the effect of an error on a defendant’s substantial

rights. Id. “[I]n a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the

Government must prove both that the defendant knew he possessed a firearm and

that he knew he belonged to the relevant category of persons barred from

possessing a firearm.” Rehaif, 139 S. Ct. at 2200.

       Caldwell cannot show plain error occurred because he failed to show the

error affected his substantial rights. The district court specifically asked Caldwell

if he knew what a felony was and if he had previously pled guilty to a felony.

Caldwell replied in the affirmative to both questions. Thus, Caldwell cannot

establish an error occurred that affected his substantial rights because the record

establishes that he knew of his status as a felon. See Reed, 941 F.3d at 1020-22.

from an indictment does not divest the district court of subject matter jurisdiction to adjudicate a
criminal case. See Brown, 752 F.3d at 1350-51, 1353-54. Caldwell’s indictment was defective
because it failed to allege he knew he was a felon, but Caldwell waived that nonjurisdictional
defect by pleading guilty.
                                                 10
             Case: 18-15087     Date Filed: 02/26/2020   Page: 11 of 11

                                II. CONCLUSION

      Accordingly, we reverse and remand to allow the district court to correct

Caldwell’s sentence pursuant to Rule 36, but affirm as to all other issues.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

                                         11


8 F.3d 52
303 U.S.App.D.C. 399, 1993-2 Trade Cases  P 70,417
UNITED STATES of America, appellee,v.NYNEX CORPORATION, appellant.
No. 93-3019.
United States Court of Appeals,District of Columbia Circuit.
Argued Sept. 15, 1993.Decided Nov. 12, 1993.

On Appeal from the United States District Court for the District of Columbia (No. 90cr00238).
Guy M. Struve, New York City, argued the cause, for appellant.   With him on the briefs were Scott W. Muller, Linda Chatman Thomsen, J. Andrew Heaton and Seth Richard Lesser, Washington, DC.
Nancy C. Garrison, Atty., U.S. Dept. of Justice, Washington, DC, argued the cause, for appellee.   With her on the brief were Anne K. Bingaman, John J. Powers, III, Constance K. Robinson and Carl Willner, Attys., U.S. Dept. of Justice, Washington, DC.
Before:  EDWARDS, WILLIAMS and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
HARRY T. EDWARDS, Circuit Judge:

1
Under the so-called "AT & T Consent Decree," a number of Regional Companies were spun off in the divestiture of the American Telephone and Telegraph Company.   See United States v. AT & T, 552 F.Supp. 131, [303 U.S.App.D.C. 400] 226-34 (D.D.C.1982) (containing the "modification of final judgment" with respect to AT & T's reorganization).   Pursuant to section II(D)(1) of the Consent Decree, Regional Companies were prohibited, directly or through any affiliated enterprise, from providing "information services."1  552 F.Supp. at 227.   Section IV(J) of the Consent Decree defined "information service" to mean:

2
the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information which may be conveyed via telecommunications.

3
Id. at 229.   Under this provision, an "information service" did not include "any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service."  Id.  For purposes of this case, however, the most important exception to section II(D) was found in section VIII(A) of the Consent Decree, which provided that, "[n]otwithstanding the provisions of section II(D)(2), [Regional Companies] shall be permitted to provide, but not manufacture, customer premises equipment."  Id. at 231.2

4
NYNEX Corporation was one of the Regional Companies created at the occurrence of the divestiture of AT & T.   Thus, under the terms of the Consent Decree, NYNEX is a Bell Operating Company ("BOC") fully subject to the terms of the Decree.   See section IV(C) of the Consent Decree, 552 F.Supp. at 228.   On May 31, 1990, NYNEX was indicted for criminal contempt, under 18 U.S.C. § 401(3) (1988), for allegedly providing "information services" through a subsidiary, Telco Research Corporation ("Telco"), to MCI Communications Corporation ("MCI") in violation of section II(D)(1) of the Consent Decree.   NYNEX requested a jury trial, but this request was denied by the District Court.   Following a four-day trial, the District Court judge found NYNEX guilty of criminal contempt for willfully violating the proscription against "information services."   The District Court then imposed a fine of one-million dollars ($1,000,000.00).  United States v. NYNEX Corp., 814 F.Supp. 133 (D.D.C.1993).   NYNEX now appeals from the verdict and judgment of the District Court.

5
On appeal, NYNEX raises a number of challenges to its conviction, including a significant objection to the District Court's denial of the request for a jury trial.   We need not reach most of the issues that have been raised, however, for we find one to be dispositive.   In our view, the record does not substantiate the District Court's finding that the Consent Decree's prohibition against information services was sufficiently clear or specific to sustain a conviction for criminal contempt.   Relying solely on that ground, we reverse.

I. BACKGROUND

6
In April 1986, NYNEX acquired Telco.   Telco is a company that provides telecommunications-related products and services.   At the time of acquisition, Telco was providing MCI with an interactive remote-access data processing service (the "MCI service bureau") pursuant to a contract entered into between Telco and MCI in 1985.   See Master Agreement for Software License, Maintenance & Enhancement, and Equipment Purchase for Computer Software and/or Hardware, reprinted in Joint Appendix ("J.A.") 489.   As part of the agreement, Telco licensed MCI to use Telco's "Voice Network Architect" computer program on a MicroVAX computer owned by Telco and housed on its premises in Nashville, Tennessee.   MCI used the service to conduct long distance network design studies.   J.A. 487-510.

7
The network design work was conducted in four steps.   MCI would begin by mailing computer tapes containing customer telephone calling pattern data to Telco.   Upon receipt of this information, Telco employees would load the data onto its computer and, if [303 U.S.App.D.C. 401] necessary, convert the information into a format which could be read by the Telco software.   The data was then transferred to the MicroVAX computer where it was stored.   Following transfer of the converted data, MCI personnel could perform network studies by accessing the MicroVAX computer via phone lines.   The results were either mailed to MCI or retrieved by MCI via telephone.

8
Two employees of NYNEX Development Company (a wholly-owned subsidiary of NYNEX)--Gad Selig and Victor Cunningham--brought the MCI service bureau to the attention of Thomas Hearity, a lawyer in the NYNEX legal department.   Hearity, in turn, discussed the matter with Gerald Murray, the senior antitrust lawyer at NYNEX.   According to NYNEX, Hearity and Murray initially concluded that the MCI service bureau could be defended as customer premises equipment ("CPE") under section VIII(A) of the Consent Decree.

9
After further consideration, NYNEX officials concluded that the MCI service bureau might be prohibited by the Consent Decree, and decided to take steps to transfer legal title and possession of the computer in order to remove any doubt about the service's legality.   In conjunction with its decision to make these changes, NYNEX contacted Michael Altschul, a Department of Justice ("DOJ") Antitrust Division lawyer.   Altschul stated that if both the title and the location of the computer were changed, it was difficult to see how anyone could charge NYNEX with providing an information service;  but, in Altschul's view, if the location of the computer was unchanged, the MCI service bureau would be more susceptible to being challenged.   Deposition of Thomas Hearity, reprinted in J.A. 398, 408.

10
The District Court found that Cunningham, Selig, and Hearity knew or should have known that the MCI service bureau violated the Decree, and that, despite this knowledge, they nevertheless continued to operate the service.  NYNEX, 814 F.Supp. at 139-40.   In support of its conclusion, the District Court found that Hearity informed both Selig and Cunningham that the MCI service bureau was an information service and illegal under the Consent Decree, and that Cunningham so informed other NYNEX and Telco employees.  Id.  The trial judge found it significant that, although the three NYNEX officials discussed possible modifications, they never took affirmative steps to insure that the problem was corrected.  NYNEX, 814 F.Supp. at 141.

11
On May 31, 1990, NYNEX was indicted for criminal contempt in violation of 18 U.S.C. § 401(3) (1988).   NYNEX's request for a jury trial was denied.   A bench trial was conducted from April 6 through April 9, 1992.   On February 16, 1993, the District Court convicted NYNEX of criminal contempt for willfully violating section II(D)(1) of the Consent Decree and imposed a fine of $1,000,000, as requested by the Government.

II. DISCUSSION

12
There are three essential elements of criminal contempt under 18 U.S.C. § 401(3):  (1) there must be a violation (2) of a clear and reasonably specific order of the court, and (3) the violation must have been willful.  United States v. Turner, 812 F.2d 1552, 1563 (11th Cir.1987).   The Government carries the burden of proof on each of these elements, and the evidence must be sufficient to establish guilt beyond a reasonable doubt.  Id. (citing Michaelson v. United States ex rel. Chicago, St. Paul, Minneapolis & Omaha Railway Co., 266 U.S. 42, 66, 45 S.Ct. 18, 20, 69 L.Ed. 162 (1924)).

13
From our vantage point, the heart of the problem in this case is that the District Court apparently assumed that, because several NYNEX officials feared that the MCI service bureau might be a prohibited information service, the Consent Decree was undoubtedly clear with respect to the question at issue.   See NYNEX, 814 F.Supp. at 139.   In other words, the District Court seemed to think that if NYNEX officials acted willfully they necessarily violated a clear order of the court.   This reasoning improperly conflates the elements of criminal contempt, and it unacceptably alters the Government's burden of proof.

14
In a case such as this, the Government must prove each and every element of the offense, and " 'contempt will lie only if the [303 U.S.App.D.C. 402] putative contemnor has violated an order that is clear and unambiguous....' "  Armstrong v. Executive Office of the President, Office of Admin., 1 F.3d 1274, 1289 (D.C.Cir.1993) (quoting Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir.1991)).   That NYNEX may have acted willfully satisfies one element of criminal contempt, but cannot relieve the Government of its obligation to prove each of the remaining elements.   See Turner, 812 F.2d at 1568 ("In the case of a crime consisting of three essential elements, of which wilfulness is third, a substantially supported finding of wilfulness is insufficient to support a conviction if substantial evidence is absent as to either or both of the first and second essential elements.").   We find insufficient evidence to support the District Court's conclusion that the clarity element was proven beyond a reasonable doubt.

15
All parties agree that, under the Consent Decree, "information services" and "CPE" substantially overlapped.   On the one hand, section II(D)(1) prohibited BOCs from providing information services.   At the same time, however, section VIII(A) expressly authorized BOCs, such as NYNEX, to provide CPE.   Dr. Peter Huber, who was certified as an expert for NYNEX, testified that at the poles the distinction between an information service and CPE is clear, but that there was a substantial area in the middle "where equipment becomes service ... [and] where service becomes equipment."   J.A. 207.   Dr. Huber suggested that a paradigm information service would be a powerful central computer being accessed by multiple users, usually on an interactive, time-sensitive basis.   J.A. 207-08.   In contrast, Dr. Huber opined that the MCI service bureau did not "look, taste, smell, or feel ... like an information service, and [he had] been using them for 22 years."   J.A. 218.

16
Our review of the record, as well as the Government's inability to squarely explain what made the MCI service bureau an information service rather than CPE, convinces us that the service Telco provided was not clearly proscribed by the Consent Decree.   We have no doubt that the MCI service bureau was, in part, an information service.   However, this alone is insufficient to find that NYNEX violated a clear and specific prohibition in the decree.   The critical question is whether the MCI service bureau could be characterized as CPE (either in whole or in part), and thus found to be either permitted under section VIII(A) or not clearly proscribed by section II(D)(1).

17
Foremost among the evidence demonstrating the Consent Decree's lack of clarity as applied to the MCI service bureau is the Government's own inability to rationally differentiate between an information service and CPE.   Indeed, in 1987, when DOJ submitted its Triennial Review to the District Court, the Government conceded the ambiguity generated by the overlap of sections II(D) and VIII(A):

18
There is no bright line, in either a technical or a definitional sense, that distinguishes information services, which the BOCs may not provide, from 'exchange' and 'exchange access' services, which they are allowed to provide....  Similarly, there is no clear or competitively rational dividing line between information services and CPE.   Most PBXs and other sophisticated CPE perform some information services functions, but the [Consent Decree] permits the BOCs to provide all types of CPE.

19
J.A. 634-35 (footnotes omitted).   We recognize that this passage was part of a lengthy report assessing whether there was a continuing competitive justification for the information service restriction.   See Brief for Appellee United States at 28-29.   Yet, the passage plainly states that, in addition to there being no competitive reason for distinguishing between an information service and CPE, there was also no clear dividing line between the two.   Further, the Triennial Review explained that the distinction was increasingly meaningless because the same results could be achieved using equipment and systems permitted by the decree.   J.A. 634-35.   In effect, DOJ was saying that the divide between the permissible and the impermissible had become so blurred that it was no longer rational to disallow information services.

20
At oral argument, the Government utterly failed to explain to our satisfaction why the [303 U.S.App.D.C. 403] Telco system was not CPE.   The Government continually argued that while the MCI service bureau involved a computer, which alone might qualify as CPE, the "package of services" NYNEX provided qualified as an information system.   The Government could not explain, however, what aspects of the "package" were prohibited.

21
Indeed, when asked about various elements of the service, the Government more often than not conceded their permissibility.   For example, the Government agreed that the use of a computer (along with Telco's software) was lawful;  that the location of the computer on Telco's premises was not itself unlawful;  and also that Telco could lawfully provide maintenance for the system.   In addition, countering the Government's argument that the components of the "package" were prohibited, NYNEX directs us to substantial evidence in the record which strongly suggests that most aspects of the MCI service bureau were expressly permitted by either the Consent Decree or specific waivers.   See NYNEX Corporations' Proposed Findings of Fact and Conclusions of Law, reprinted in J.A. 233-39.   The District Court made no findings on this showing and the Government did not dispute it.

22
In particular, NYNEX's list included the following aspects of the MCI service:

23
(1) The modem's capability to modulate and demodulate telephone signals.   According to NYNEX, modulation and demodulation were permitted as exchange services.   J.A. 236.

24
(2) Permitting MCI to reach the MicroVAX through Telco's Equinox data switch.   Switching is expressly included as part of "telecommunications" under the Consent Decree.   J.A. 236.

25
(3) Installing, maintaining and trouble-shooting the MicroVAX as needed.   J.A. 238.

26
(4) Licensing software for MCI's use in the MicroVAX and to provide program consulting and help-desk services in connection with the use of that software.   J.A. 238.

27
(5) Providing record conversion and associated services related to MCI's use of the software, including converting electronic data between tape, disk and paper, making electronic copies of MCI's data (backups), and transforming MCI's magnetic tapes to disk (reformatting where necessary to make the tapes readable by and usable with Telco software).   J.A. 238.

28
(6) Using Telco's printer which was permitted as electronic-to-paper record conversion under the software waiver.   J.A. 238.

29
(7) Sending e-mail to and from the MicroVAX to assist with the CPE and software provided to MCI.   NYNEX insists nothing in the software waiver or the Consent Decree was intended to or did prohibit Telco or MCI from the normal use of telephone services to communicate with each other by voice, data, teleconference or facsimile.   J.A. 239.

30
The District Court noted a number of these aspects, never doubting the legality of any individual component.   Rather, the District Court apparently concluded that the whole was greater than the sum of the parts, finding that the "package of services" taken together constituted a prohibited information service.   We cannot fathom the basis of this calculation, for it seems to ignore the applicable burden of proof in this case.   As noted above, the Government was required to produce evidence sufficient to establish guilt beyond a reasonable doubt.   The Government did not come close to satisfying this burden with respect to the question focused on the clarity of the Consent Decree.   On this point, it is sufficient to note that, in contrast to the Government's unsupported conclusions, NYNEX points to uncontested evidence in the record tending to show that the MCI service bureau was more squarely in the "gray area" than on the prohibited pole.

31
The record also indicates that, in other like situations, the Government has taken positions on the scope of the CPE exemption inconsistent with the one that it takes in this case.   The District Court incorrectly found that DOJ had never taken the position that a service which is arguably prohibited by the Decree may be provided if it consists of components each of which is permitted by the Decree.  NYNEX, 814 F.Supp. at 138. [303 U.S.App.D.C. 404] To the contrary, the record contains DOJ letters advising several companies subject to the Decree that they could provide central utility meter reading services.   See J.A. 603-04, 636-39.   Specifically, these services entailed the automatic transmission of meter readings from the utility customers' premises to the operating company, where the information was collected, stored, and then periodically retransmitted to the participating utility over the phone lines.   Id.  Although these "information services" blended customer premises equipment, J.A. 604, 638-39, exchange access, J.A. 639, and management of a telecommunications service--thus requiring a combination of exclusions for their legality--the Government gave its approval.

32
The Government argues that these letters are not inconsistent with the position taken in this case, because the letters merely indicated that companies could provide information access but not information service.   Brief for Appellee United States at 29 n. 15.   This distinction is lost on us.   In any event, we surely do not see how it erases the problem before us in the instant case.   We can comprehend no meaningful distinction between the service NYNEX provided and the meter reading service which was permitted under the CPE exception.

33
Adding to the confusion in this case were conflicting views about what it meant to provide CPE.   The District Court held that "CPE is the lease or sale by a Regional Company of telephone equipment ... or, perhaps, a computer, to be used on the customer's premises."  NYNEX, 814 F.Supp. at 136.   At oral argument, Government counsel conceded that an arrangement could be characterized as CPE even if a computer remained on a provider's premises.3  In other words, a customer who was able to work from its home base to control and manipulate data on a remote computer that was dedicated to its use could be viewed as having been provided that equipment as contemplated by the CPE exception found in sections IV(E) and VIII(A) of the Consent Decree.   When we consider the matter in light of the express terms of the Consent Decree, there is no clear answer as to whether the MCI service bureau was permissible CPE or an impermissible information service.

34
Because nothing in the record supports the Government's contention that the MCI service bureau was not in the "gray area" encompassing the overlap between information services and CPE, we are constrained to find that the Consent Decree lacked the necessary clarity and specificity to support a finding of criminal contempt.   Accordingly, we reverse and vacate the judgment of the District Court.

35
So ordered.

1
 The information services restriction was eliminated in 1991.  United States v. Western Elec. Co., 767 F.Supp. 308, 327 (D.D.C.1991)

2
 The now obsolete subsection II(D)(2) had provided that no Regional Company shall "manufacture or provide telecommunications products or customer premises equipment (except for provision of customer premises equipment for emergency services)...."  552 F.Supp. at 227

3
 Government counsel also claimed that, "depending upon the circumstances," there might have been a violation of section II(D)(1) even if Telco had moved the computer to MCI's premises.   We do not understand what "circumstances" might have prompted such a conclusion


985 F.2d 560
142 L.R.R.M. (BNA) 2704
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.NATIONAL LABOR RELATIONS BOARD, Petitioner,v.NORMANDIE ON THE PARK, INC., Respondent.
No. 92-6459.
United States Court of Appeals, Sixth Circuit.
Jan. 29, 1993.

1
Before BOGGS and SILER, Circuit Judges, and JOINER, Senior District Judge.*

2
This cause was submitted upon the application of the National Labor Relations Board for summary entry of a judgment against Respondent, Normandie on the Park, Inc., Detroit, Michigan, its officers, agents, successors, and assigns, enforcing its order dated February 26, 1992, in Case No. 7-CA-31981, and the Court having considered the same, it is hereby

3
ORDERED AND ADJUDGED by the Court that the Respondent, Normandie on the Park, Inc., Detroit, Michigan, its officers, agents, successors, and assigns shall:

1. Cease and desist from

4
(a) Threatening to close its restaurant if employees continue to support the Union as their collective-bargaining representative.

5
(b) Unilaterally reducing the starting wage rates for new employees and changing the method by which employees are assigned to work stations.

6
(c) Unilaterally changing the past practice for scheduling full-time work by scheduling newly hired employees for more hours per week than it schedules for more senior employees.

7
(d) Unilaterally refusing to make contributions on behalf of its employees to the Health and Welfare Fund and Pension Fund pursuant to the collective-bargaining agreement.

8
(e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act, or refusing to bargain in good faith with the Union.

9
2. Take the following affirmative action necessary to effectuate the policies of the Act.

10
(a) On request, bargain in good faith with the Union as the exclusive collective-bargaining representative of the unit employees.

11
(b) Rescind, on the Union's request, the unilateral reductions in starting wage rates for new employees.

12
(c) Rescind, on the Union's request, the unilateral changes in the method of assigning employees to work stations and the past practice for scheduling full-time work.

13
(d) Make whole the unit employees for any loss of earnings and benefits suffered as a result of the Respondent's unilateral reductions and changes, in the manner set forth in the remedy section of the Board's Decision and Order.

14
(e) Make whole the unit employees by making delinquent fringe benefit contributions to the appropriate fringe benefit funds on behalf of the unit employees and by reimbursing them for any expenses ensuing from the Respondent's unlawful refusal to make such payments, in the manner set forth in the remedy section of the Board's Decision and Order

15
(f) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, trust fund statements, and all other documents or records necessary to analyze the amount of fringe benefit payments or union dues due under the terms of this Judgment.

16
(g) Post at its facility in Detroit, Michigan, copies of the attached notice marked "Appendix."   Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted.   Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

17
(h) Notify the Regional Director in writing within 20 days from the date of this Judgment what steps the Respondent has taken to comply.

APPENDIX
NOTICE TO EMPLOYEES

18
POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF

19
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR

RELATIONS BOARD
An Agency of the United States Government

20
The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice.

21
WE WILL NOT threaten to close the restaurant if employees continue to support the Union as their collective-bargaining representative.

22
WE WILL NOT unilaterally reduce the starting wage rates for new employees and change the method by which employees are assigned to work stations.

23
WE WILL NOT unilaterally change the past practice for scheduling full-time work by scheduling newly hired employees for more hours per week than we schedule for more senior employees.

24
WE WILL NOT unilaterally refuse to make contributions on behalf of our unit employees to the Health and Welfare Fund and Pension Fund pursuant to the collective-bargaining agreement.

25
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act, or refuse to bargain in good faith with the Union.

26
WE WILL, on request, bargain in good faith with the Union as the exclusive collective-bargaining representative of our unit employees.

27
WE WILL rescind, on the Union's request, the unilateral reductions in starting wage rates for new employees.

28
WE WILL rescind, on the Union's request, the unilateral changes in the method of assigning employees to work stations and the past practice for scheduling full-time work.

29
WE WILL make whole our unit employees for any loss of earnings and benefits suffered as a result of our unilateral reductions and changes.

30
WE WILL make whole our unit employees by making delinquent fringe benefit contributions to the appropriate fringe benefit funds on behalf of the unit employees and by reimbursing them for any expenses ensuing from our unlawful refusal to make such payments.

31
/s/ NORMANDIE ON THE PARK, INC.

32
/s/ (Employer)

Dated __________
By __________ (Representative) (Title)

33
This is an official notice and must not be defaced by anyone.

34
This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.   Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 477 Michigan Avenue, Room 300, Detroit, Michigan 48226-2569, Telephone 313-226-3219.

*
 The Honorable Charles W. Joiner, U.S. Senior District Judge for the Eastern District of Michigan, sitting by designation


 UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                          Before
                              LIND, KRAUSS, and PENLAND
                                 Appellate Military Judges

                             UNITED STATES, Appellee
                                         v.
                          Specialist TYWAN J. MITCHELL
                           United States Army, Appellant

                                    ARMY 20130033

                   Headquarters, 8th Theater Sustainment Command
                            David L. Conn, Military Judge
                   Colonel Paul T. Salussolia, Staff Judge Advocate

For Appellant: Colonel Kevin Boyle, JA; Major Amy E. Nieman, JA; Captain Robert
H. Meek, III, JA (on brief).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Steven J. Collins, JA; Captain Benjamin W. Hogan, JA (on brief).

                                     31 October 2014

                                ---------------------------------
                                SUMMARY DISPOSITION
                                ---------------------------------

PENLAND, Judge:

       An officer panel sitting as a general court-martial convicted appellant, contrary
to his pleas, of conspiracy to commit burglary; conspiracy to commit housebreaking;
false official statement; aggravated sexual assault of a child; four specifications of
indecent acts; adultery; and wrongful receipt of stolen property of a value of over
$500, in violation of Articles 81, 107, 120, and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 891, 907, 920, 934 (2006 & Supp. IV 2011). The
panel sentenced appellant to a dishonorable discharge, confinement for five years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening
authority credited appellant with five days against the sentence to confinement and
approved the adjudged sentence.

      This case is before us for review under Article 66, UCMJ. Appellant raises three
assignments of error, two of which merit discussion and one of which merits relief.
Appellant’s matters submitted personally pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), are without merit.
MITCHELL — ARMY 20130033

                  FACTUAL AND LEGAL INSUFFICIENCY

    Appellant was convicted of Specification 1 of Charge II, which alleged:

          In that [appellant] did, on the island of Oahu, between on or
          about 21 April 2012 and on or about 7 May 2012, wrongfully
          receive the following property, of a value of about the
          following amount, the property of the following people, which
          property, the accused then knew had been stolen, and that said
          conduct was to the prejudice of good order and discipline in
          the armed forces and was of a nature to bring discredit upon
          the armed forces.

          Name: SPC [SS]
          Property: Apple MacBook Laptop and one watch
          Value: over $500

          Name: 2LT [JB]
          Property: Xbox 360, eleven Xbox 360 video games, two
          laptop computers, and nine Blu-Ray movies
          Value: over $500

          Name: Mrs. [ET]
          Property:    Nintendo 3DS, Kindle Fire, nine rings, two
          necklaces, four bracelets, three pairs of earrings, two earrings,
          two necklaces, a watch, and a jewelry box
          Value: over $500

          Name: Mrs. [KR]
          Property: Playstation 3, two necklaces, and two Mississippi
          University class rings
          Value: over $500

          Name: LTC [RG]
          Property: 46 inch Sony television, television remote control,
          Apple iPad, one ring, one bracelet, and one pair of earrings
          Value: over $500

          Name: LTC [PF]
          Property:    Xbox 360, iPod Touch, Nintendo DS, twelve
          Nintendo DS video games, six Xbox 360 video games, two
          Airsoft guns, five pairs of earrings, two earrings, one Pendant,
          and one ring
          Value: over $500

                                         2
MITCHELL — ARMY 20130033

               Name: Mrs. [JL]
               Property: iPod Touch, 48 pairs of earrings, 8 earrings, 32
               necklaces, 43 bracelets, 13 rings, 19 pendants, 3 watches, and
               a silver crown design with diamonds decorative piece
               Value: over $500

               Name: SGT [JC]
               Property:    BOSE speakers, 52 inch Samsung television,
               television remote control, and three Xbox controllers
               Value: over $500

       Our examination reveals obvious evidentiary shortfalls with respect to
Specification 1 of Charge II. 1 The test for legal sufficiency is whether, considering all
of the evidence in the light most favorable to the government, a reasonable fact-finder
could have found all of the essential elements of the offense beyond a reasonable
doubt. United States v.Winckelmann, 70 M.J. 403, 406 (C.A.A.F. 2011) (citing Jackson
v. Virginia, 443 U.S. 307, 319 (1979)). The test for factual sufficiency is whether,
after weighing the evidence and making allowances for not having personally observed
the witnesses, this court is convinced of appellant’s guilt beyond a reasonable doubt.
United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

       The officer panel in this case returned a verdict of guilty to this specification,
without exception. However, there was no direct or circumstantial evidence of the
following at trial: that appellant received any stolen property belonging to SPC SS,
Mrs. KR, or Mrs. JL; 2 that appellant received a stolen Nintendo 3DS and more than two
stolen necklaces belonging to Mrs. ET; or that appellant received a Nintendo DS and
more than three stolen Nintendo DS video games belonging to LTC PF. The findings
of guilty to these portions of Specification 1 of Charge II are wholly unsupported by
the evidence and thus legally insufficient. We are left to wonder how the guilty verdict
of this specification in its entirety withstood the scrutiny of the military judge, staff
judge advocate, and convening authority during post-trial processing.

      The government alleged that appellant wrongfully received stolen property of a
value exceeding $500. We find the evidence of this element factually insufficient. The
property’s value at the time of its alleged wrongful receipt is a fundamental element of

1
 As an example, in an Article 39(a) session, upon motion of the trial counsel and
without defense objection, the military judge allowed trial counsel to preadmit
photographs of various stolen property alleged to be found in appellant’s quarters. No
evidence was elicited before the members regarding when and where these photographs
were taken.
2
    SPC SS, Mrs. KR, and Mrs. JL did not testify at trial.

                                              3
MITCHELL — ARMY 20130033

this offense, but the government’s evidence of value consisted almost entirely of
Amazon.com “shopping cart” printouts and related testimony indicating the
replacement costs of certain electronic items. The evidence at trial included virtually
no evidence, direct or otherwise, of the stolen property’s condition at the time of theft.
With scant evidence of this element, we are not convinced beyond a reasonable doubt
that the stolen property appellant received was of a value in excess of $500.00.
Therefore, we will only affirm as much of the conviction as provides that appellant
received certain stolen property of some value. See United States v. Rupert, 25 M.J.
531, 532-33 (A.C.M.R. 1987); United States v. Tamas, 6 U.S.C.M.A. 502, 510-11, 20
C.M.R. 218, 226-27 (1955).

               UNREASONABLE MULTIPLICATION OF CHARGES

      Appellant engaged in sexual and sodomitic acts with SB, DW, and JV, while in
each other’s presence. SB was under the age of 16. This conduct formed the bases of
appellant’s conviction of Charge III and its specifications (violations of Article 120,
UCMJ) which alleged: aggravated sexual assault of a child, SB; indecent act for the
same sexual act with SB; indecent act for a sexual act with DW; indecent act for a
sexual act with JV; and indecent act for a sodomitic act with JV.

       Appellant alleges unreasonable multiplication of charges with regard to these
five specifications. We agree in part and, applying the factors in United States v.
Quiroz, 55 M.J. 334, 338-39 (C.A.A.F. 2001) and considering Rule for Courts-Martial
307(c)(4), we conclude that Specification 2 of Charge III constitutes an unreasonable
multiplication of charges for findings with Specification 1 of Charge III.
Specifications 3, 4, and 5, however, address fundamentally independent acts of
indecency; a conviction for each is not inconsistent with Quiroz.

                                     CONCLUSION

      The Court affirms only so much of the finding of guilty of Specification 1 of
Charge II as provides that:

             In that Specialist Tywan J. Mitchell, U.S. Army, did, on the
             island of Oahu, between on or about 21 April 2012 and on or
             about 7 May 2012, wrongfully receive the following property,
             of a value of about the following amount, the property of the
             following people, which property, the accused then knew had
             been stolen, and that said conduct was to the prejudice of good
             order and discipline in the armed forces and was of a nature to
             bring discredit upon the armed forces.

                                            4
MITCHELL — ARMY 20130033

             Name: 2LT JB
             Property: Xbox 360, eleven Xbox 360 video games, two
             laptop computers, and nine Blu-Ray movies
             Value: some value

             Name: Mrs. ET
             Property:     Kindle Fire, nine rings, two necklaces, four
             bracelets, three pairs of earrings, two earrings, a watch, and a
             jewelry box
             Value: some value

             Name: LTC RG
             Property: 46 inch Sony television, television remote control,
             Apple iPad, one ring, one bracelet, and one pair of earrings
             Value: some value

             Name: LTC PF
             Property: Xbox 360, iPod Touch, three Nintendo DS video
             games, six Xbox 360 video games, two Airsoft guns, five pairs
             of earrings, two earrings, one Pendant, and one ring
             Value: some value

             Name: SGT JC
             Property:    BOSE speakers, 52 inch Samsung television,
             television remote control, and three Xbox controllers
             Value: some value

The finding of guilty of Specification 2 of Charge III is set aside and dismissed. The
remaining findings of guilty are AFFIRMED.

       Reassessing the sentence on the basis of the errors noted, the entire record, and
in accordance with the principles of United States v. Winckelmann, 73 M.J. 11, 16-17
(C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986), the
sentence is AFFIRMED. All rights, privileges, and property, of which appellant has
been deprived by virtue of that portion of the findings set aside by this decision, are
ordered restored.

      Senior Judge LIND and Judge KRAUSS concur.

                                      FOR
                                       FORTHE
                                           THECOURT:
                                               COURT:

                                      MALCOLM H. SQUIRES, JR.
                                       MALCOLM H. SQUIRES, JR.
                                      Clerk
                                       Clerkofof
                                               Court
                                                 Court

                                            5


                        Docket No. 109321.

                       IN THE
                  SUPREME COURT
                         OF
                THE STATE OF ILLINOIS

DONALD B. COOKSON, Appellee, v. TODD PRICE et al.,
                  Appellants.

                 Opinion filed December 23, 2010.

   JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
   Chief Justice Kilbride and Justices Freeman, Thomas, Garman,
Burke, and Theis concurred in the judgment and opinion.

                               OPINION
     This court granted leave to appeal in this case in order to
determine whether section 2–622 of the Code of Civil Procedure (735
ILCS 5/2–622 (West 2008)) requires the filing by plaintiff of a health
professional’s report of the exact class as the defendant within the
first 90 days after the filing of the complaint. On October 25, 2007,
plaintiff herein, Donald Cookson, filed a two-count complaint
alleging medical malpractice on the part of a physical therapy
assistant, defendant Todd Price, and his employer, defendant Institute
of Physical Medicine and Rehabilitation. Plaintiff’s attorney attached
an affidavit to the complaint stating that he was unable to obtain the
consultation with a medical professional required by section
2–622(a)(1), before the expiration of the statute of limitations, but
would file the written report within 90 days after the filing of the
complaint. See 735 ILCS 5/2–622(a)(2) (West 2008).
     On January 28, 2008 plaintiff’s attorney filed an affidavit and
written report including the signature of Dr. Jeffrey Kornriech, a
physician specializing in physical medicine and rehabilitation.
Defendants moved to dismiss, claiming that plaintiff’s health
professional report was required to be authored by a physical therapy
assistant like Price, rather than a physician. The version of section
2–622 in effect at the time required: “As to defendants who are
individuals, the written report must be from a health professional
licensed in the same profession, with the same class of license, as the
defendant.” 735 ILCS 5/2–622(a)(1) (West 2008). Plaintiff initially
challenged the motion to dismiss but, ultimately, on July 18, 2008,
filed a motion to file an amended affidavit of attorney which included
a new health professional’s report written by a physical therapy
assistant, Jim Modglin. Defendants objected to the motion to file an
amended affidavit because it came more than 90 days after the
expiration of plaintiff’s first 90-day extension. Defendants argued that
only one extension is available to a plaintiff pursuant to section
2–622(a)(2). The trial court granted defendants’ motion to dismiss.
     The appellate court reversed, finding, inter alia, that a trial court
may grant leave to file an amended complaint with a new affidavit
and health professional’s report, and that here the purpose of section
2–622 would not be frustrated by allowing plaintiff to do so. 393 Ill.
App. 3d 549. Defendants filed a petition for leave to appeal from the
appellate court’s decision, which this court granted on January 27,
2010. However, on February 4, 2010, this court filed its opinion in
Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 250 (2010),
holding Public Act 94–677, containing the version of section 2–622
at issue here, unconstitutional on grounds unrelated to section 2–622.
Because Public Act 94–677 contained a nonseverability provision,
this court held the Act “invalid and void in its entirety.” Id.
     The effect of declaring a statute unconstitutional is to revert to the
statute as it existed before the amendment. People v. Gersch, 135 Ill.
2d 384, 390 (1990). Thus, following Lebron, section 2–622 reverted
to the prior version that went into effect in May 1998, Public Act
90–579. However, in O’Casek v. Children’s Home & Aid Society of
Illinois, 229 Ill. 2d 421, 424-25, 450 (2008), this court found that the
only effect of Public Act 90–579 was to add naprapaths to a list of

                                   -2-
health professionals set forth in the pre-1995 version of section
2–622(a)(1). Thus, except for the naprapath language, the statute now
reads as it did when amended in 1989 by Public Act 86–646. Id.; 735
ILCS 5/2–622 (West 1994).
    Because the version of section 2–622 in effect at the time of this
appeal is void, the reasons upon which this court relied in granting
leave to appeal no longer exist. See Ill. S. Ct. R. 315(a) (eff. Oct. 15,
2007). Accordingly, as “a matter of sound judicial discretion,” we
now decline to address the merits of the substantive issue raised
herein (Ill. S. Ct. R. 315(a) (eff. Oct. 15, 2007)) and dismiss this
appeal. However, we believe the parties should have an opportunity
to argue the question of how the current version of section 2–622
applies to the facts of this case. Therefore, in the exercise of our
supervisory authority, the appellate court is directed to vacate its
judgment; this cause is remanded to the circuit court of Tazewell
County to vacate its order granting defendants’ motion to dismiss
plaintiff’s complaint, and for further proceedings to determine
whether plaintiff’s pleadings meet the current requirements of section
2–622.

Appeal dismissed;
supervisory order entered.

                                  -3-


77 F.3d 479
Mitchell Energy Corp.v.Samson Resources
NO. 95-40204
United States Court of Appeals,Fifth Circuit.
Jan 11, 1996
Appeal From:  E.D.Tex., No. 9:93-CV-83

1
REVERSED.