729 F.Supp. 840 (1990)
In re Jonathan CANDIOTTI, A Witness Before Federal Grand Jury.
No. FGJ 88-2.
United States District Court, S.D. Florida, Fort Lauderdale Division.
January 26, 1990.
*841 Barbara Ward, Office of the U.S. Atty., Ft. Lauderdale, Fla., for plaintiff.
Joel Kaplan, Miami, Fla., for defendant.

ORDER
GONZALEZ, District Judge.
THIS CAUSE has come before the court upon the motion of the government to impose sanctions on the witness, Jonathan Candiotti, for failure to produce his passport for the grand jury. The court heard oral argument on this motion by able counsel. Pursuant to an ore tenus order, the parties have filed supplemental memorandums regarding the law on this motion. The motion is ripe for disposition.
Jonathan Candiotti is an apparent Israeli national residing in this country since 1975. He entered the USA with a valid Alien Registration Card, commonly known as a green card, and still possesses a valid card today.
The prosecutor subpoenaed this witness to produce all of his passports for the grand jury. He was to deliver it to the prosecutor who would then, at the witness' option, make a copy of it and return the original. This procedure was apparently adopted to alleviate any due process challenges the defendant might have raised. See In re Grand Jury Subpoena Duces Tecum, Etc. (Passports), 544 F.Supp. 721 (S.D.Fla.1982) (Aronovitz, J.)).
The government obviously believes Candiotti has a passport, but they have offered no State Department or Israeli government documentation that any passport was actually issued. The government also has no information that the witness' passport, if there is one, was ever stolen or fraudulently obtained.
However, in a criminal case against the witness' twin brother, David, presently pending before the Honorable William Zloch, Judge, the government has evidence that David Candiotti traveled on his brother's passport.
The government does not consent to use immunity allowed under 18 U.S.C. §§ 6002-03. The government also disagrees with the conditions placed on production of a passport imposed by Judge Aronovitz in the case of In re Grand Jury Subpoena Duces Tecum, Etc. (Passports), 544 F.Supp. 721 (S.D.Fla.1982). The judge ordered production, but noted the following three conditions: (1) the act of production could not be used to authenticate the passport, (2) the witness would not be compelled to offer oral testimony on the act of production and the fact that the witness produced the passport could not be used as evidence against him in later grand jury or judicial proceedings, and (3) the prosecutor would make provision for return or replacement of the passport or provide the witness with a hearing on the passport's revocation. Here, the prosecutor agrees to condition # 3, but expressly refuses to forego using the act of production for authentication or as evidence.
Candiotti expresses a fear that the passport will incriminate him and that he faces prosecution by both Israeli and American authorities. See 18 U.S.C. § 1544 (prosecution by U.S. for misuse of any passport, American or foreign); 18 U.S.C. §§ 2, 371 (culpability of a principal and conspiracy to commit offense or to defraud U.S.).
The issue in this case is what Fifth Amendment protection, if any, attaches to the act of a foreign national who resides in *842 the United States who is requested to produce his passports.
In discussing the factors a trial judge should consider when faced with a self-incrimination issue, the Supreme Court has noted that unless it is "perfectly clear" that the witness' invocation of the right is mistaken and that the answer "cannot possibly" tend to incriminate, then the judge should sustain the witness' objection. See Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 819, 95 L.Ed. 1118 (1951).
There are two key components of this court's inquiry: (1) is the act of production testimonial, and (2) is a passport sufficiently public to be outside the scope of the Fifth Amendment.
Examining these in order, the act of production is testimonial. The key case is Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). There, the Court stated,
The act of producing evidence in response to a subpoena nevertheless has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the taxpayer [witness]. It also would indicate the taxpayer's belief that the papers are those described in the subpoena ... The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments of the taxpayer are both "testimonial" and "incriminating" for purposes of applying the Fifth Amendment. These questions do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases or classes thereof. 425 U.S. at 410-11, 96 S.Ct. at 1581.
In Fisher, the Court found that accountant's workpapers should be produced. However, the case is especially significant in light of the Court's refusal to adopt a per se ruling regarding the testimonial implications of producing documents. In Fisher, the accountant and not the taxpayer had possession of the documents. Here, the witness has his passport, if there is one. Further, the papers there belonged to the accountant, not the taxpayer. Here, the issue is the witness' own passport. In Fisher, the existence and location of the workpapers was a "foregone conclusion" and the taxpayer's act of production would "add[] little or nothing to the sum total of the Government's information by conceding that he in fact has the papers." 425 U.S. at 411, 96 S.Ct. at 1581. In this case, the government has produced only one piece of evidence that Candiotti was ever issued a passport by Israel. In the case against David Candiotti, Judge Zloch found as a fact that David has traveled on Jonathan's passport. The government contends that this proves the existence of the passport. However, this does not make its existence a "foregone conclusion". Jonathan Candiotti entered the county on a green card and there is no alleged requirement that he also have a passport to reside here. Further, the government would certainly not rely on Judge Zloch's finding of fact alone at a trial against Jonathan for misuse of his passport. To date, the government has not produced any evidence that Israel ever issued a passport to Jonathan. Therefore, unlike Fisher, the passport's existence is in question.
Furthermore, the passport's location is also at issue. Should David be found with it or if Jonathan states that he does not have the passport, this fact could be incriminating against Jonathan if he gave the passport to another for travel. The fact of nonpossession could have evidentiary value in a case involving the above discussed charges.
The final testimonial aspect, the witness' belief that the documents produced are those requested in the subpoena, is also at issue in this case. However, the witness is not called to speculate, via his own mental processes, about some vague category of documents. See In re Grand Jury No. 86-3 (Will Roberts Corp.), 816 F.2d 569, 573 (11th Cir.1987) (holding subpoena invalid as to "other records which identify the purpose of the check(s), and the identities and addresses of the parties involved in the *843 transaction represented by this check(s)"). The nature of a passport is understood and the subpoena is unambiguous in that it requests "all" of Candiotti's passports, regardless of country of issuance.
However, this third element also involves the witness' act in authenticating the documents. By producing certain documents in response to the subpoena, the witness is agreeing that the produced documents are authentic. Judge Aronovitz attempted to get around this problem by conditioning production on the limitation that the government not use the act of production as evidence of the authenticity of the passport. Aside from the fact that the government here refuses to so stipulate, this court believes such a condition on production would be improper. By conditioning production, the judiciary is usurping the executive's ability to grant use immunity. This is exactly the concern expressed in another important case, United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), by the Supreme Court. In all fairness, Judge Aronovitz was presented with a different issue. In his case, the government produced into evidence "a certified State Department document establishing that a passport was issued to the witness". 544 F.Supp. at 724. Here, the prosecutor has introduced no such documents from either the United States State Department or the nation of Israel. Finally, the government claims that authenticity is not an issue because a passport is self-authenticating. Government's Supplemental Memo. at 4. But, there is no citation to any legal authority to support this allegation and this court could find no legal basis for this bold assertion.
The two cases which hold a passport to be nontestimonial are distinguishable. In Judge Aronovitz's case, the passport's existence and location were not in question. Further, authenticity was also not at question because the judge specifically ordered that the act of production could not be used as evidence. In United States v. Praetorius, 622 F.2d 1054 (2nd Cir.1979), the Circuit Court adopted the lower court's determination on two grounds: (1) existence and location were not at issue, and (2) the passport itself was not testimonial. The first element is not true in this case. The second element goes to the public nature of the document, discussed below, and is not really a valid consideration. As noted in Fisher, the mere act of production is testimonial, even if the contents of the passport are not. Also noteworthy is Doe. The case concerned certain records of a sole proprietorship. The Supreme Court declined to overturn both lower courts' decision refusing to order production. As noted in footnote 11 (465 U.S. at 613, 104 S.Ct. at 1242), the district court found that:
With few exceptions, enforcement of the subpoenas would compel [respondent] to admit that the records exist, that they are in his possession, and that they are authentic. These communications, if made under compulsion of a court decree, would violate [respondent's] Fifth Amendment rights ... The government argues that the existence, possession and authenticity of the documents can be proved without [respondent's] testimonial communication, but it cannot satisfy this court as to how that representation can be implemented to protect the witness in subsequent proceedings. (citation omitted).
The next component of this court's inquiry is the question that the parties addressed in their supplemental memorandums: To what extent a passport is a public document. This issue is relevant for two reasons. First, the Fifth Amendment only applies to private papers, see Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), as explained in Wilson v. United States, 221 U.S. 361, 380, 31 S.Ct. 538, 544, 55 L.Ed. 771 (1910), and second, there is a required public records exception to the Fifth Amendment, which mandates production even if the documents are incriminating, see e.g. In re Grand Jury Subpoena Duces Tecum, Underhill, 781 F.2d 64 (6th Cir.1986) (odometer records); Connor v. Alderman, 159 So.2d 890 (Fla. App. 2nd DCA 1964) (citrus records).
The required public records exception has three elements, as discussed by the Supreme Court in Grosso v. United States, *844 390 U.S. 62, 67-68, 88 S.Ct. 709, 713, 19 L.Ed.2d 906 (1968): (1) the purpose of the United States' inquiry must be essentially regulatory, not prosecutorial, (2) information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept, and (3) the records themselves must have assumed "public aspects" which render them at least analogous to public documents.
Based on these elements and the facts here, the court finds that a passport is not a required public document. First, it is voluntarily obtained. Further, obtaining a passport is a single act, not a systematic collection of records envisioned by the exception. Finally, the passport is not required to be preserved. It can be surrendered after travel or even before, if no travel is consummated.
Therefore, the question is whether a passport is a public paper outside the protection of the Fifth Amendment.
In response to this court's ore tenus order, the government filed a supplemental memorandum listing the following grounds why a passport is a public document. It is very interesting that the prosecutor focused almost her entire argument on U.S. passports. Of course, the passport here, if it even exists, is Israeli.
Pursuant to 22 C.F.R. § 51.9, "A passport shall at all times remain the property of the United States and shall be returned to the Government upon demand." The prosecutor here claims that Israeli law is the same. However, to substantiate that an Israeli passport remains the property of that government, the prosecutor relies upon an alleged telephone call to some authority. She offers no American or Israeli legal authority to support this allegation.
Questions of foreign law are a matter of fact to be determined after an adversary presentation by the parties. See Federal Rule of Criminal Procedure 26.1. Based on the absence of evidence in this record, the court has no idea what interest the witness has in his passport under Israeli law.
The government also discusses the various provisions dealing with aliens in this country. Pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., immigration officials can take "evidence" on an individual's immigration status in this country. 8 U.S.C. § 1357(b). The prosecutor makes the logical extension that this phrase would include passports. Moreover, the person applying for a U.S. passport must furnish any necessary information to the Secretary of State to obtain it. See 22 U.S.C. § 213. Based on this requirement, the person who voluntarily applies for a passport impliedly waives his Fifth Amendment privilege as to the information contained in the document. See Fisher v. United States, 425 U.S. 391, 411, 96 S.Ct. 1569, 1581, 48 L.Ed.2d 39 (1976); United States v. Doe, 465 U.S. 605, 610, 104 S.Ct. 1237, 1240, 79 L.Ed.2d 552 (1984); In re Grand Jury Subpoena Duces Tecum, Etc. (Passports), 544 F.Supp. 721, 723-24 (S.D.Fla.1982) (Aronovitz, J.). Finally, at the nation's borders, the INS has broad powers to require basically any proof it needs before allowing a party to leave or enter the U.S. See 8 C.F.R. § 235.1(b) and (d)(1). Of course, the INS has the authority to arrest anyone who is in the country illegally. See 8 U.S.C. § 1357.
The witness has also filed a memorandum. He makes a number of arguments. First, Candiotti points out that contrary to the government's assertion, he is not subject to INS checks at any time. He has been in the country since 1975 on a valid green card. Given his valid registration, Candiotti argues that he would not be required to produce his Israeli passport if INS so requested.
Furthermore, INS would have to comply with the Fourth Amendment's requirements of probable cause to arrest and reasonable suspicion to stop and question. Candiotti also notes that he is not subject to the near absolute power of immigration at the borders since he is not now seeking to exit the United States.
The underlying rationale of the witness' argument is that he is protected by the United States Constitution including the Fifth Amendment. If INS wants his passport, they can ask for it, but he can apparently *845 decline to produce it since his green card, if valid, would be sufficient proof of legal residence. Furthermore, even if he declines to produce the passport, the government cannot compel production since the Fifth Amendment would protect him. The most that they could do is to institute deportation proceedings for noncompliance with INS investigations. However, given his green card, he would probably prevail on such a claim.
Therefore, the only way to defeat the witness' invocation of the Fifth Amendment is to hold that a passport is a public document outside its protection. However, this court cannot make a finding of the Israeli law regarding passports. This is relevant in the sense that there may be no Fifth Amendment expectation of privacy in passports. While the witness may have a privacy interest in the document itself and the contents thereof, he may have waived any Fifth Amendment privilege when he applied for the passport. However, once again, this determination requires examination of Israeli law.
The last point emphasized by the witness is that he fears not only U.S. prosecution, but penalties under Israeli law. The Supreme Court has never decided whether fear of foreign prosecution is sufficient to invoke the privilege. See Murphy v. Waterfront Comm., 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964) (rejected separate sovereign principle so that fear of prosecution by state or federal government is sufficient threat of incrimination); Zicarelli v. New Jersey Investig. Comm., 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972) (issue of foreign prosecution raised but not decided; only a proper consideration if witness demonstrates there is a "real danger" of foreign prosecution). As to the Zicarelli test, the witness here asserts that the showing of "real danger" rests upon the government. However, the Supreme Court's opinion is contrary. The witness must show this to prove the incriminatory element of the privilege.
Although this is a difficult case, the court finds that the Fifth Amendment is applicable. The green card complicates matters in the sense that INS queries may be limited to its legality, without the need to view a passport. The inquiry which neither side really answers is the very question this court required supplemental memorandums on; namely, can the U.S. government through one of its branches require Candiotti to surrender his passport? For the reasons stated above, this court answers "no".
The movant bears the burden of proof in this case since the government is seeking an affirmative of the proposition. The standard for obtaining production is demanding. For the reasons stated above, the court finds that the government has not proved the United States is entitled to the relief sought.
Having considered the record in this cause and being otherwise duly advised, it is hereby
ORDERED AND ADJUDGED that the motion by the United States to impose sanctions upon the witness, Jonathan Candiotti, and to order production of his passport is DENIED.
DONE AND ORDERED.


749 F.2d 616
79 A.L.R.Fed. 717
UNITED STATES of America, Plaintiff-Appellee,v.Morrell WATCHMAN, Defendant-Appellant.
No. 83-2256.
United States Court of Appeals,Tenth Circuit.
Dec. 7, 1984.

Martin J. McClain, Cheyenne, Wyo., for defendant-appellant.
William J. Eichelberger, Asst. U.S. Atty., D. of Wyo.  (Richard A. Stacy, U.S. Atty., David A. Kern, Asst. U.S. Atty., Cheyenne, Wyo., on the brief), for plaintiff-appellee.
Before SETH, BARRETT and SEYMOUR, Circuit Judges.
SETH, Circuit Judge.

1
This appeal is from a motion to reduce defendant's sentence insofar as it included an order of restitution in the amount of $13,556.88 to the victim for medical treatment for physical injuries.

2
The appellant challenges the constitutionality of the statute authorizing restitution (18 U.S.C. Sec. 3579 and Sec. 3580), the amounts, and procedure used.

3
The basic constitutional issue has been considered by the Eighth Circuit in United States v. Florence, 741 F.2d 1066 (8th Cir.1984), in United States v. Brown, 744 F.2d 905 (2d Cir.1984), and in United States v. Welden, 568 F.Supp. 516 (N.D.Ala.).

4
The basic challenge is that a jury trial is required on the amount of restitution because under the Act it can be enforced as a civil action.  The enforcement method does not however determine the nature of the order nor how the amount is determined.  The victim does not appear as a party, control the hearing as to "losses," nor take an appeal.  Restitution is a permissible penalty imposed on the defendant as part of sentencing.  As the court said in United States v. Brown, the discretion and method of determining the length of a defendant's incarceration does not infringe on his Sixth Amendment rights.  The restitution procedure does not infringe on Seventh Amendment rights.  The basic concept of restitution (although without the present variations) was in place when the Seventh Amendment was adopted.  We generally agree with the analysis made by the Eighth Circuit in United States v. Florence, 741 F.2d 1066 (8th Cir.), but we do not agree with the significance therein given to the presentence report.  We conclude that the Act insofar as it provides for restitution, and as it provides for the court to determine the amount (if any), is a constitutional extension of sentencing.

5
We are here also concerned with the portion of the Victim and Witness Protection Act of 1982 (P.L. 97-291) relating to fact determinations and to procedures.  This part of the Act appears at 18 U.S.C. Sec. 3579 and Sec. 3580.  This aspect of the appeal requires a more extensive analysis than did the constitutional issue.  This goes to the procedure and amount.

6
More particularly our consideration is directed to the parts of the cited sections which must be applied when the victim has received physical injuries inflicted by the defendant.

7
The defendant Watchman entered a guilty plea to an indictment for assault with intent to murder on an Indian reservation.  The victim was an Indian as was the defendant.  The victim, a woman, received very serious injuries which required extensive medical treatment.  The defendant was considered to be an indigent person for the purpose of his representation at trial.

8
Congress has placed a duty on the trial courts to make several factual determinations under the Act and to enter specific orders of restitution based on such facts.  The need for accuracy and thoroughness is apparent to permit the court to "impose an order of restitution to the extent that such order is as fair as possible to the victim."    (Sec. 3579(d))  To accomplish this end the court in the case before us was required to ascertain the "losses" suffered by the victim by reason of the physical harm she suffered.  (Sec. 3580(a)).  This necessarily required some detailed information.  These are details as to dollars not generalities.

9
The "losses" of the victim under Sec. 3579(b)(2) of the Act are to include the following specific elements:

10
(1) An amount equal to the cost of necessary medical and related professional services;

11
(2) Cost of nonmedical care and further treatment;

12
(3) The cost of therapy and rehabilitation;

13
(4) Income loss.

14
It is apparent that shortly after the guilty verdict is the time to gather the facts to make an order of restitution complete and accurate.  If the restitution order is to be enforced in the future or otherwise relied on, it is essential that it have a sound basis in fact.  This would seem to be the only way the purpose of the Act to aid the victim can be accomplished.

15
It also is apparent that the victim should have some participation directly or indirectly in the fact finding in order that his or her "losses" can be accurately determined and "fairness" be established.  One of the basic purposes in the Act as a whole is to have the victims aware of the proceedings.  In the record before us we do not know whether this requirement was met, and the indications are that it was not.

16
A good development of the facts would serve to reduce further litigation on the subject of "losses" by the victim or by the Government and reduce the chances of mistakes.  Some facts in the record as a basis for the trial court's order of restitution are also necessary should appellate review be necessary.

17
On the other side of the coin, Congress has imposed a fact gathering requirement as to the defendant.  (Sec. 3580(a))  This includes an ability to pay, thus an examination of the financial needs and resources of defendant and of the financial needs of defendant's dependents, "and such other factors as the court deems appropriate."    Here again there is a need to have the basic facts determined in order that the restitution order can carry out the purposes of the Act, and to reduce the risk of a mistake.

18
Since Congress has mandated these several determinations it must be assumed that Congress also intended that sufficient time be devoted to these matters to assure completeness and accuracy.  The "unduly prolong" language referring to sentencing means unduly long beyond what is required by the Act.

19
The burden in the fact gathering is placed by the statute on the Government on behalf of the victim and on the defendant or his attorney on behalf of the defendant.  This is expressly so placed when there is a "dispute" as to the amount.  We must conclude that there is a "dispute" as to the amount until the Government and the defendant have marshaled the facts and presented them to the court as a best effort.  There is a "dispute" also until the trial judge is satisfied with these facts to an extent that he or she is prepared to enter an order to provide restitution in whole or in part or to decide that no order should be entered.

20
We must assume that mention by Congress of the use of presentence reports as a possible way to develop the facts contemplated that such reports would have to be expanded or their construction be somehow changed to accomplish the desired result.  Until this is done we cannot hold that such reports are adequate.  The data is not developed and the reports are not constructed to accomplish the purpose of the Act.  The use of unverifiable reports, data and sources of information, the use of hearsay and "understandings" is intended to provide background information.  The specifics in the reports necessarily represent information acquired from the sources and in the manner mentioned above.  No one questions that such reports are suitable for the very important purpose for which they are intended, but in sentencing, the broad discretion of the judge can fully accommodate the generalities, the uncorroborated statements of informers, hearsay, and the necessary uncertainties in such reports.

21
For the restitution order the court is not dealing with generalities.  In the dollar determinations there is no discretion of any significant degree.  The victim has suffered specific monetary "losses," which need to be established.  The defendant here argues that he is entitled to a jury trial as to the amount of the restitution that may be ordered.  We considered this briefly at the outset and concluded that no such right exists.  The adjudication of this point does not resemble civil litigation in the relationship of the parties, the position of the victim in the litigation, nor other indicia of civil litigation.  It is not an academic exercise by reason of the possibility that the defendant may not or cannot ultimately pay the ordered amount.

22
In the case before us there was a reliance on a presentence report.  At oral argument it was stated that the figures--the "losses"--were established by telephone conversations with unidentified persons.  We don't know whether the victim was interviewed at all or in a meaningful way as to her "losses."    The record is silent on this.  No one spoke for her.  There may very well be other expenses which can now be determined or which will be incurred.  The fact finding as to the victim was deficient.  The Government had a burden in this respect which was not discharged.

23
In order to prevent variations in the methods for application of the Act as to restitution orders, the trial courts should place the burden on the prosecution and on the defense to develop the facts before the sentencing hearing.  This will help accomplish the purpose of the Act to protect the victim and to prevent mistakes as to the defendant.  If a hearing as part of sentencing is advisable to further resolve the dispute as to the amount, it should be held.

24
The appellate courts have no general review of sentences but they are obligated to examine the method or process by which a sentence is imposed.   United States v. Sparrow, 673 F.2d 862 (5th Cir.1982).  There are many requirements as to methods.  This Act has in our view added new requirements and procedures.

25
We must hold that the record and the order in this case are not in accordance with the Act.

26
There are some unusual factors in this case which do not appear to have been treated in the order.  Thus some of the victim's medical treatment was furnished by the Indian Public Health Service and some by an Idaho state welfare agency.  It should be decided whether payment to such agencies is "restitution" in these circumstances.  It is possible under the Act for the victim to make a designation of a person or institution to receive the "restitution."    This element should be explored on remand.

27
The order of restitution is set aside and the case is remanded for further proceedings.


                                                                                Opinions of the United
2008 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

10-8-2008

In Re: Frederick Tor
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3858

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Recommended Citation
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ALD-2                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 08-3858
                                       ___________

                           IN RE: FREDERICK TORRENCE,
                                                 Petitioner
                       ____________________________________

                      On a Petition for Writ of Mandamus from the
           United States District Court for the Western District of Pennsylvania
                       (Related to W.D. Pa. Civ. No. 07-cv-00331)
                       ____________________________________

                      Submitted Pursuant to Rule 21, Fed. R. App. P.
                                    October 2, 2008

              Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

                              Opinion filed: October 8, 2008
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Petitioner Frederick M. Torrence, a prisoner proceeding pro se, seeks a writ of

mandamus compelling the District Court to order production of discovery materials. For

the reasons that follow, we will deny the petition.

       Torrence filed a complaint pursuant to 42 U.S.C. § 1983 against prison officials in

the United States District Court for the Western District of Pennsylvania. Torrence has

                                              1
filed four motions requesting that the District Court order the production of allegedly

discoverable information. The Court denied three such motions, and one remains

pending.1

       In his petition, Torrence alleges that the District Court arbitrarily denied his

discovery motions and colluded with Defendants to deny Torrence a fair trial. He alleges

that such actions violate his rights under the First and Fourteenth Amendments to the

United States Constitution, and seeks a writ directing the District Court to order that

Defendants produce the sought-after information.

       Mandamus is an “extraordinary remedy” that we have discretion to award only

when a petitioner demonstrates, among other things, a “clear and indisputable” right to

relief. In re Pressman-Gutman Co., 459 F.3d 383, 398-99 (3d Cir. 2006). Mandamus lies

only when there is no other remedy, Mallard v. U.S. Dist. Court for the S. Dist. of Iowa,

490 U.S. 296, 309 (1989), and must not be used as a mere substitute for appeal. In re Diet

Drugs Prods. Liab. Litig., 418 F.3d 372, 379 (3d Cir. 2005). Because Torrence’s petition

amounts to an appeal of the District Court’s denial of his discovery motions, mandamus is

not an appropriate remedy and we deny his petition. See Westinghouse Elec. Corp. v.

Philippines, 951 F.2d 1414, 1422 (3d Cir. 1991).

   1
    The Court denied Torrence’s “Motion for Discovery of Documentary Evidence,” No.
31, “Motion for Request for Discovery,” No. 40, and “Motion to Compel (Plaintiff’s
Request for Oral Depositions),” No. 65. The pending motion is Torrence’s “Motion for
Order to Compel the Production [of Statements and Testimony],” No. 58, which was
entered May 30, 2008.

                                              2


28 F.3d 532
Milton Eugene CUPIT, Petitioner-Appellee,v.John P. WHITLEY, Warden, Louisiana State Penitentiary,Respondent-Appellant.
No. 93-4179.
United States Court of Appeals,Fifth Circuit.
Aug. 16, 1994.Rehearing Denied Sept. 12, 1994.

William R. Coenen, Jr., Dist. Atty., Terry A. Doughty, Asst. Dist. Atty., Rayville, for respondent-appellant.
Prof. Kenneth J. Servay, New Orleans, LA (court-appointed), for petitioner-appellee.
Appeal from the United States District Court for the Western District of Louisiana.
Before REYNALDO G. GARZA, DeMOSS, and PARKER1, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:

1
This is an appeal from a judgment of the district court granting a conditional writ of habeas corpus to Milton Eugene Cupit (Cupit) in a civil writ of habeas corpus proceeding.  The jurisdictional basis for this appeal is 28 U.S.C. Sec. 2254.  More specifically, Respondent-Appellant John P. Whitley (Whitley)--the Warden of the Louisiana State Penitentiary--appeals on behalf of the State of Louisiana from a final judgment of the United States District Court for the Western District of Louisiana (adopting the reasoning and recommendation of the United States Magistrate Judge) granting Cupit's petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254.

2
We vacate the judgment of the district court and remand with directions to dismiss the writ.

I. BACKGROUND

3
On October 9, 1993, the body of James Allen Halley was found on the bank of the LaFourche Canal in Richland Parish, Louisiana.  Halley had suffered three gunshot wounds from a .12 gauge shotgun discharged at close range.  Before his death, Halley had been scheduled to appear for his trial (on October 10, 1983) on a charge of attempted aggravated arson.  In that charge, it was alleged that Halley had been discovered behind the Foxfire Lounge in Monroe, Louisiana, on June 21, 1983, by the proprietor of the establishment, Carl Gwin, applying gasoline to the walls of the lounge in preparation to set the place on fire.

4
Cupit and Halley had spent a great deal of time together.  Cupit was questioned about Halley's death in October and November of 1983--at which times he professed to know nothing about Halley's death.  On December 3 and 4, 1983, however, Cupit gave law enforcement officials taped statements concerning Halley's death.  In his December statements, Cupit implicated Jeffrey Wayne Mann as Halley's killer, stating that he was with Mann when Mann killed Halley and that Mann killed Halley because Halley was having an affair with Mann's wife.  In these statements, Cupit said that he and Mann left the scene together, and that together they had hid the shotgun Mann used to kill Halley.

5
Cupit was arrested and charged in Richland Parish, Louisiana, with first degree murder and with conspiracy to commit the first degree murder of James Halley.  He was ultimately charged with a second degree murder count.

6
The Louisiana trial court held a pretrial hearing outside the presence of the jury prior to the introduction of the particular evidence about which Cupit complains.  The purpose of this pretrial hearing was to consider the admissibility in evidence of testimony regarding Cupit's purported involvement in the attempted aggravated arson of the Foxfire Lounge for which Halley was to be tried at the time of his murder (on the prosecution's theory that "silencing" Halley about Cupit's involvement in the attempted arson was Cupit's motive to kill Halley).  In the hearing:  Carl Gwin, Bobby Nobles, Officer Gary Brooks and Judy Scott all testified as to Halley's statements to them prior to his death.  All of this testimony, to which Cupit's counsel objected, was ruled admissible by the state trial judge.

7
Cupit was convicted on the second degree murder charge on June 7, 1986.  He was subsequently sentenced to life in prison without parole, probation, or suspension of sentence.

8
Cupit appealed his conviction to the Louisiana Second Circuit Court of Appeals, alleging seven assignments of error--including the claim central to this appeal, that a number of witnesses were improperly permitted to give hearsay testimony to prove that Cupit had a motive for killing Halley.  The state appellate court affirmed his conviction on June 10, 1987, 508 S.2d 996.   Cupit sought a writ of certiorari from the Louisiana Supreme Court, which was denied on November 20, 1987, 514 So.2d 1174.   He filed an application for collateral, post-conviction relief in the Louisiana Fifth Judicial District, Parish of Richland, on February 20, 1990.  That application was dismissed on April 5, 1990.  His application for a writ of review was then denied by the Louisiana Second Circuit Court of Appeals, whereupon he filed an application for writ of review with the Louisiana Supreme Court, which was denied on September 20, 1991.

9
Cupit then filed this petition for a writ of habeas corpus under the federal statutory regime, 28 U.S.C. Sec. 2254, in the United States District Court for the Western District of Louisiana--on February 24, 1992.  The magistrate court assigned to Cupit's case by the district court issued a Report and Recommendation on September 17, 1992, finding merit in Cupit's third (and only his third) habeas issue--in which Cupit argued his constitutional rights had been violated during his trial by the state trial court's admission of hearsay evidence.  The magistrate court recommended that Cupit be granted a conditional writ of habeas corpus, ordering his discharge from custody within 60 days unless the state commenced proceedings to retry Cupit within that period.

10
The parties filed objections to the Report and Recommendation.  But on February 4, 1993, the district court adopted the Report and Recommendation in full, which resulted in the district court's decision that Cupit's trial may have been adversely impacted by the erroneously admitted hearsay testimony, and that therefore Cupit's petition should be granted.

11
Whitley filed a timely notice of appeal to this Court.  And the district court granted Whitley's motion to stay the judgment on February 26, 1993.

II. ANALYSIS

12
A. Procedural Default and Exhaustion Requirement Issues

13
Whitley argues that the doctrines of procedural bar and exhaustion should preclude our consideration of Cupit's hearsay arguments.  He argues in particular that Cupit failed to raise the hearsay issue through his appropriate, state remedial avenues.  However, we hold that Whitley's procedural default and exhaustion arguments are without merit, for the following reasons.  First, the state record belies Whitley's claim in this respect (in that Cupit did indeed adequately raise his hearsay arguments through his state court proceedings).  Second, Whitley waived his right to object to Cupit's hearsay claims on these doctrinal grounds, Whitley failed to so object in his answer to Cupit's federal petition and/or in argument to the United States Magistrate Judge assigned to the case.  Specifically, Cupit clearly raised this issue in his federal petition.  While Whitley was ordered by the Magistrate Judge to file an answer and memorandum specifically addressing the claims raised by Cupit in his petition, Whitley answered Cupit's hearsay argument in but a cursory and non-responsive manner.  In his answer, Whitley did not object to Cupit's claims on procedural default grounds.  Rather, Respondent simply admitted that Petitioner "has exhausted his state remedies."2  Indeed, in the memorandum attached to his answer, without objecting on procedural default grounds, Respondent actually attempted to address the merits of Petitioner's argument in this respect.3  Not until after the magistrate court issued its Report and Recommendation to the district court addressing Cupit's arguments and finding them meritorious did Whitley object on procedural default grounds.4  By waiting until after the magistrate court had issued its findings and recommendations, and by admitting that Petitioner had exhausted his state remedies on all issues raised in his federal petition, Respondent has waived procedural default and exhaustion doctrine objections.5B. The Assumed Trial Error of Wrongfully Admitted Hearsay Evidence

14
What is and is not hearsay evidence in a state trial is governed by the relevant state law on evidence.  A state court's evidentiary rulings present cognizable habeas claims only if they run afoul of a specific constitutional right or render the petitioner's trial fundamentally unfair (in which case sustaining the conviction would violate Petitioner's Fourteenth Amendment right to due process).6  Cupit alleges that the state trial court in his second degree murder case erred by admitting inadmissible hearsay evidence, and that this error both violated Cupit's specific rights under the Sixth Amendment's confrontation clause and rendered his trial fundamentally unfair--which entitle him to a writ of habeas corpus.  Cupit relies upon out-dated law, however, predating the now-controlling United States Supreme Court decision of April 21, 1993, in Brecht v. Abrahamson.7

15
The district court adopted the reasoning and conclusions contained in the Report and Recommendation of the magistrate court to whom Cupit's petition had been assigned for the purpose of conducting any necessary hearings and submitting proposed findings of fact and conclusions of law.  But the Report and Recommendation adopted by the district court was itself based upon pre-Brecht harmless error analysis.

16
Following Brecht, we hold upon de novo review of the record:  even assuming that the evidence about which Cupit complains was wrongfully admitted hearsay evidence under the law of Louisiana, and even assuming that the state trial court's erroneous admission of such hearsay evidence violated Cupit's Sixth Amendment rights, this evidence did not have much probative force in Cupit's second degree murder trial and conviction.  It did not have enough of an effect upon Cupit's conviction to support the habeas relief Cupit seeks.

17
1. Regarding Cupit's Sixth Amendment Claim in Particular

18
Even assuming the evidence about which Cupit complains was wrongfully admitted hearsay under Louisiana evidence law, we regard Cupit's Sixth Amendment claims to be empty.

19
The Sixth Amendment--made applicable to the states through the Fourteenth Amendment--provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....".8  Although the confrontation clause and the hearsay rule are related, the Sixth Amendment right to confrontation does not perforce preclude the admission of any hearsay testimony.9  As the Supreme Court has explained, the "mission of the confrontation clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that 'the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.' "10 ]  In order to determine whether the wrongful admission of hearsay evidence violates the confrontation clause, courts must assess the admission of the evidence in light of a host of considerations--in order to determine whether the evidence was not just inadmissible, but also whether it was material (i.e., whether it was a crucial, critical, or highly significant factor in the framework of the whole trial).11

20
Specifically, in order to determine whether the admission of hearsay violates the confrontation clause, five factors must be considered:

21
(1) whether the hearsay evidence was "crucial" or "devastating;"

22
(2) whether prosecutors misused a confession or otherwise engaged in misconduct;

23
(3) whether a joint trial or the wholesale denial of cross-examination was involved;

24
(4) whether the most important prosecution witness, as well as other prosecution witnesses, was available for cross-examination;

25
and

26
(5) the degree to which the hearsay evidence is supported by "indicia of [its] reliability."12

27
The prosecutors in Cupit's trial did not misuse a confession or otherwise engage in significant misconduct.  The third consideration is wholly inapplicable to this case.  The fourth consideration weighs strongly against Cupit's position.  Indeed, the prosecution's most important witness was Cupit himself--in the form of his own statements given to law enforcement officers.  These statements, in conjunction with Cupit's actions, constituted the most devastating evidence against him.  Finally, fifth, the reliability of the hearsay testimony that was supported by Cupit's own actions toward Halley, both before and after Halley's death.

28
Viewing the evidence about which Cupit complains through the above prism of considerations, we are of the view that the hearsay evidence in this case was not "crucial, devastating, or unreliable.  Therefore, its admission did not violate the confrontation clause."13  Furthermore, even assuming that the evidence admitted against Cupit did violate his Sixth Amendment rights, such constitutional trial error was "harmless," affording Cupit no grounds for habeas relief.

29
2. Regarding Brecht, "Harmless Error" and This Case, in Particular

30
In Brecht v. Abrahamson, the Supreme Court reaffirmed its distinction between two broad, primary "kinds" of constitutional violations that may occur in a state criminal proceeding:  "structural errors"--which affect the most basic elements of a criminal trial (e.g., a biased judge or the denial of counsel to the defendant);  and "trial errors"--mistakes made during the course of the defendant's trial that are deemed less significant than "structural errors."14  The Court also clarified that a different "harmless error" standard is applicable to the federal court habeas review of a case than the one applicable to a federal court's direct review of a case:

31
In Chapman v. California [ ] we held that the standard for determining whether a conviction must be set aside because of federal constitutional error is whether the error "was harmless beyond a reasonable doubt."   In this case we must decide whether the Chapman harmless-error standard applies in determining whether the prosecution's use for impeachment purposes of petitioner's post-Miranda [ ] silence, in violation of due process, ... entitles petitioner to habeas corpus relief.  We hold that it does not.  Instead, the standard for determining whether habeas relief must be granted is whether the ... error "had substantial and injurious effect or influence in determining the jury's verdict."15

32
In the habeas context, then, the first ("structural") type of violation vitiates the proceedings;  it cannot be considered "harmless error."   But the second ("trial") type of violation is not necessarily fatal to the proceedings;  it may, in light of a de novo review of the whole record, be considered "harmless error"--in that it can be found not to have caused actual prejudice to the petitioner.  There may also be "hybrid," or "unusual" cases that do not fit so neatly into one of these two primary categories of error.  In Brecht 's footnote 9, the Court noted the possibility of "an unusual case" in which there occurs "a deliberate and especially egregious error of the trial type, or one that is combined with a pattern of prosecutorial misconduct" that might so "infect the integrity of the proceedings as to warrant the grant of habeas relief, even if it did not substantially influence the jury's verdict."16

33
The assumed wrongful and unconstitutional admissions of hearsay evidence against Cupit are neither so unusual nor egregious, either in isolation or as a part of a pattern of error, as to constitute structural error or "Brecht Footnote Nine," "hybrid" error.  These assumed wrongful evidentiary admissions are but "classic trial errors."17  Still, when reviewing "classic trial errors," a 28 U.S.C. Sec. 2254 federal habeas court must heed the caution contained in Kotteakos itself:

34
The [court's habeas, "harmless error"] inquiry cannot be merely whether there was enough [evidence] to support the [conviction] result, apart from the phase affected by the error.  It is rather, even so, whether the error itself had substantial influence.   If so, or if one is left in grave doubt, the conviction cannot stand.18

35
Our task in a case like this, then, is to determine--based upon careful review of the record in this case--whether the petitioner has successfully established in our minds grave doubt as to the question of whether the assumed wrongfully admitted hearsay influenced the conviction.19

36
Cupit has failed to establish such doubt.  Specifically, the determination of whether the erroneous admission of such evidence is "harmless" depends upon a host of factors, all readily accessible to a reviewing court:

37
(1) the importance of the witness's testimony in the prosecution's case;

38
(2) whether the testimony was cumulative;

39
(3) the presence or absence of evidence corroborating or contradicting the testimony;

40
and

41
(4) the overall strength of the prosecution's case against the defendant.20

42
Of these, the strength of the prosecution's case is probably the single most important factor in determining whether the error was harmless.21  The record reveals that the prosecution's case against Cupit for second degree murder was substantial.  As the magistrate court's Report and Recommendation itself recognizes:  "[e]ven if the hearsay evidence as to Cupit's motive which was improperly admitted into evidence had been excluded, there would still have been sufficient evidence to support a guilty verdict, if the jury had brought in a guilty verdict without the inadmissible evidence."22

43
The magistrate court (and the district court in turn) nonetheless felt compelled to grant Cupit's writ petition--because (and only because) the Chapman standard compelled that result:  "the jury may not have rendered the same verdict if it had not heard the inadmissible evidence."23  This "maybe" finding is a good degree less than the establishment by Cupit of "grave doubts" that the inadmissible hearsay evidence actually prejudiced or had a substantial and injurious effect or influence upon the jury's guilty verdict against him.24

44
In short, not even the magistrate court harbored the "grave doubts" as to the effect or influence of the hearsay evidence upon the Cupit guilty verdict that is required under Brecht.   Nor do we.  The probative value of the challenged statements is quite minimal compared to the wealth of other, substantial and corroborating non-hearsay evidence introduced against Cupit at his trial.

45
a. The Applicable State Law

46
"Motive" was not an element of proof under the Louisiana second degree murder law.  On the day the victim was killed, Louisiana defined second degree murder as the killing of a human being:  (1) when the offender has the specific intent to kill or inflict great bodily harm;  or (2) when the offender is engaged in the perpetration or attempted perpetration of a felony--including aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery or, simple robbery--even though he has no intent to kill or to inflict great bodily harm.25  The prosecution presented both of these type theories of Cupit's guilt for second degree murder to the Louisiana jury sitting in judgment of Cupit.  And the state trial court charged the jury under both theoretical provisions of the state's second degree murder statute.  The law of Louisiana also defined "principals" as follows:

47
All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.26

48
One convicted of a crime as a principal under this statute must himself be found to have possessed the intent required under the relevant "principal" statute.27  The jury passing judgment on Cupit was instructed on this law as well.

49
b. The Hearsay Evidence Deemed Critical by the District Court

50
The hearsay evidence the magistrate and district courts determined "may" have been critical to Cupit's conviction was the testimony of Bobby Nobles (Nobles) and Officer Gary Brooks (Brooks).  The district court adopted the magistrate court's reasoning and conclusion that:

51
[t]he only evidence from which the jury could infer that Cupit had a specific intent to kill Halley or to assist in Halley's killing was the evidence that Halley intended to implicate Cupit in the aggravated arson of the Foxfire Lounge when Halley was tried for that crime on October 10, 1983.  * * *  For that reason, I find that the admission of the just discussed hearsay testimony of Bobby Nobles and Gary Brooks rendered the trial as a whole "fundamentally unfair", and stands as a ground for granting habeas corpus relief to Cupit.28

52
This analysis and conclusion are mistaken.

53
The state trial court allowed witnesses Bobby Nobles and Gary Brooks to testify as to the following.

54
i. Nobles' Testimony

55
Nobles told the jury that he was present at the Foxfire Lounge on the night of Halley's alleged attempted arson of the place.  Nobles testified that he and Halley arrived at the Lounge between seven and eight that night.  He said that later, he saw Cupit arrive at the Lounge, he saw Halley go over to join Cupit at Cupit's table, and that he saw the two of them then begin talking.  He testified that he (Nobles) went over to join them.  Then, Nobles stated that he heard Cupit and Halley talking about burning down the Lounge, and that he saw Cupit hand Halley some money.  Nobles stated that he then saw Halley leave the Lounge, and a little later, that he saw Lounge manager Gwin escorting Halley back into the Lounge.  He testified that he saw Gwin go immediately over to Cupit at that point, and that then Gwin and Cupit went into a storage room for a private conversation.  Nobles stated that about thirty to thirty-five minutes later, he saw the police arrive and arrest Halley.  Also, Nobles testified that during later meetings he had with Halley, Halley told him that he intended to "turn state's evidence" at his impending attempted arson trial, but that he was scared about doing so--i.e., impliedly, that he was scared of Cupit.

56
ii. Brooks' Testimony

57
Officer Brooks, a bomb specialist who talked to Halley the day after the latter's arrest, testified that Halley told him that Cupit was involved in the attempted arson, and that he (Halley) was afraid of Cupit. Brooks testified that Halley told him that if he implicated Cupit, "[Cupit will] kill me."29  And Brooks stated that on a later occasion, Halley again mentioned Cupit's name to Brooks in connection with the attempted Foxfire Lounge arson.

58
c. The Substantial, Non-Hearsay Evidence of Cupit's Guilt,

59
and the Assumed Hearsay's Insignificance Within

60
the Overall Scheme of This Substantial

Non-Hearsay Evidence, Specifically

61
Undoubtedly, the requisite specific intent to kill or to cause Halley great bodily harm that Cupit must have had in order to be found guilty of the second degree murder of Halley can be found in the substantial non-hearsay evidence introduced at Cupit's trial.  The law is clear that specific intent can reasonably be found to exist when circumstances indicate that the offender actively desires criminal consequences to flow or to follow from his act(s) or failure(s) to act.  And even the actions of the defendant after a crime can be deemed demonstrative of his or her intent relative to the crime itself.30

62
In this case, non-hearsay evidence was to the effect that Cupit knew Halley was going to trial on the arson charge--i.e., that Cupit exhibited significant nervousness just before Halley's scheduled trial date.

63
Furthermore, as Cupit's own statements disclose:  Cupit drove Halley to an obscure site on a Louisiana backroad.  There, Cupit allowed Mann to get a weapon out of Cupit's vehicle.  Indeed, Cupit had to exit the vehicle so that Mann could reach the shotgun.  Cupit also at least helped Mann by pretending to "look for stash" after Mann asked Cupit to cooperate in this ruse in order to dupe Halley long enough for him to be killed.

64
Cupit certainly took no action to prevent Mann from killing Halley.  And, as the Louisiana Second Circuit Court of Appeals recognized, this evidence of Cupit's failure to try to stop Mann from killing Halley or to warn Halley, despite the fact that (according to Cupit's statements) Cupit had been told by Mann that he was going to kill Halley, is indicative of Cupit's own specific intent to aid and abet Mann in the killing.  So too are the facts that, far from comforting or assisting Shotgun Victim Halley, Cupit actually continued to assist Mann in covering up the murder--for example, by driving the vehicle back from the scene, by assisting Mann in the hiding of the murder weapon, and by assisting Mann in the hiding of the vehicle that had been used in the killing.  Indeed, Cupit disposed of Halley's car keys after the killing (by throwing them into a Bayou)--in what the jury might rationally have considered to be yet another guilt-indicative attempt by Cupit to eliminate evidence of Halley's murder.  Further, far from promptly reporting the crime, for two months following law enforcement officers' discovery and initiation of investigation into Halley's killing, Cupit maintained that he had no knowledge of Halley's death, that he was not present when Halley was killed, that he did not know who killed Halley, and that he did not kill Halley.  Also, an eyewitness testified at trial to having seen Cupit and Mann together, driving near (and away from) the crime scene on the very day the body was found, at approximately the time the body was spotted.  From this testimony, in light of the other non-hearsay evidence presented, a reasonable jury could well have inferred that Cupit and Mann were continuing with their cover-up cooperation, checking to see whether Halley's body had been discovered and/or the current discoverable state of his carcass.

65
In addition to the evidence of Cupit's guilt addressed above, the jury might well have also found incredible Cupit's story that the shotgun used in the killing remained behind a produce stand for two months after the killing and before Cupit showed it to law enforcement officers.  The jury might reasonably have deemed this unbelievable and indicative of Cupit's lack of credibility on the subject of Halley's killing generally.   Indeed, the jury might even have found this story to but evidence Cupit's own "planting" of the weapon that he had used on Halley, notwithstanding that he was saying he and Mann placed the gun behind the stand after Mann killed Halley.  The jury had heard testimony from someone who had sold Cupit a shotgun, as well as from someone who said she knew Cupit carried a shotgun behind the seat of the vehicle he customarily operated.  Also potentially undermining of Cupit's credibility with the jury was the fact that, when he did finally decide to talk to law enforcement officers about the killing of Halley, Cupit told them he had never gone back to the crime scene--yet, as noted, an eyewitness testified to seeing Mann and Cupit driving near the crime scene on the day the body was found.

66
The fact that Cupit denied that he killed Halley, and further denied he had intended to participate in, or aid and abet in Halley's murder, is certainly not devastating to the prosecution's case.  Anyone standing accused of murder as Cupit was can be expected to say such things.  And the jury was entitled to find Cupit's contentions of innocence lacking in credibility, given the substantial circumstantial evidence contravening such contentions--i.e., his actions.  The rendering of such credibility determinations is precisely the thing juries are entrusted to do under our system of criminal justice.

67
In sum, the fact that the assumed hearsay evidence about which Cupit complains may have actually prejudiced Cupit by causing a jury to convict him when it would not otherwise have done so is just not enough to support Cupit's claim for habeas relief under the applicable Brecht-Kotteakos standard.  Even assuming that the statements about which Cupit complains were wrongfully admitted hearsay under the law of Louisiana, and even assuming that this wrongfully admitted evidence violated Cupit's Sixth Amendment rights, we conclude that--under the applicable harmless error factors of consideration, supra--the record defies the harboring of grave doubts as to whether such constitutional trial error had a "substantial and injurious effect or influence in determining the jury's verdict" of Cupit's guilt.31

68
C. Regarding Cupit's Insufficient Evidence Contention in Particular

69
As an additional, or more specific argument, Cupit maintains that the evidence at his trial was insufficient to allow the jury to find him guilty beyond a reasonable doubt of the second degree murder of Halley.  In accordance with the controlling standards set forth in the Supreme Court decision in Jackson v. Virginia, the reviewing court confronted with such a claim must, after reviewing all the evidence in the light most favorable to the conviction (prosecution), determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.32  As the magistrate and the district courts found, so do we:  our de novo review of the record reveals, as we have addressed above, that there was ample evidence upon which the jury could have reasonably found Cupit guilty beyond a reasonable doubt of James Allen Halley's second degree murder--even without the assumed, improperly admitted hearsay evidence.

III. CONCLUSION

70
For the reasons stated above, the judgment of the district court is hereby VACATED;  and the case is hereby REMANDED with directions to dismiss the petitioner's writ.

71
So Ordered.

1
 Judge Parker participated by designation in the oral argument of this case as a United States District Judge for the Eastern District of Texas.  Since that time he has been appointed as a Fifth Circuit Judge

2
 Federal District Court Record, at 82

3
 Id., at 85-86

4
 Id., at 140-144

5
 See, e.g., Long v. McCotter, 792 F.2d 1338, 1345 (5th Cir.1986) ("we ordinarily do not consider issues that have not been presented to the court of first instance") (citations omitted).  See also e.g., Paterson-Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 990-991 (1st Cir.1988) (explaining that a party "has a duty to put its best foot forward" before the Magistrate Judge--i.e., "to spell out its arguments squarely and distinctly"--and, accordingly, that a party's entitlement to de novo review before the district court upon filing objections to the Report and Recommendation of the Magistrate Judge does not entitle it to raise issues at that stage that were not adequately presented to the Magistrate Judge);  Anna Ready Mix, Inc. v. N.E. Pierson Construction Co., 747 F.Supp. 1299, 1302-1303 (S.D.Ill.1990) (thoroughly analyzing the federal Magistrate Judge Act, 28 U.S.C. Sec. 631, et seq., and discerning therefrom that when a matter is assigned to a Magistrate Judge, Congress intended that the Magistrate Judge hear all arguments of the parties and take all evidence;  and, accordingly, holding that while the Act provides for de novo review by the district court if timely objections are filed, it does not allow the parties to raise at the district court stage new evidence, argument, and issues that were not presented to the Magistrate Judge--"absent compelling reasons")

6
 See Pemberton v. Collins, 991 F.2d 1218, 1226 (5th Cir.)  (citing Johnson v. Blackburn, 778 F.2d 1044, 1050 (5th Cir.1985)), cert. denied, --- U.S. ----, 114 S.Ct. 637, 126 L.Ed.2d 596 (1993)

7
 Brecht, --- U.S. ----, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).  Compare Supplemental Brief of Appointed Counsel in Support of Appellee, Milton E. Cupit, at 19-20 ("Where the state court is found to have violated a defendant's constitutional rights, the burden shifts to the party who has benefitted by the violation (here, the respondent) to prove that the 'error was harmless beyond a reasonable doubt.' ")  (quoting  Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)),  with Brecht v. Abrahamson, --- U.S. ----, ---- - ----, 113 S.Ct. 1710, 1721-1722, 123 L.Ed.2d 353 (1993) ("overturning final and presumptively correct convictions on collateral review because the State cannot prove that an error is harmless under Chapman undermines the States' interest in finality and infringes upon their sovereignty over criminal matters.  * * *  The imbalance of the costs and benefits of applying the Chapman harmless-error standard on collateral review counsels in favor of applying a less onerous standard on habeas review of constitutional error.")  (holding the standard in  Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), to be applicable on habeas review)
8 U.S. CONST. amend.  VI.

9
 Johnson v. Blackburn, 778 F.2d 1044, 1051 (5th Cir.1985)

10
 Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213 (1970) (quoting California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970))

11
 See e.g., Johnson v. Blackburn, supra note 9, at 1051

12
 Id. at 1051 (quoting Dutton, supra note 10, 400 U.S. at 89, 91 S.Ct. at 220)

13
 Johnson v. Blackburn, supra note 9, at 1051

14
 Brecht v. Abrahamson, --- U.S. ----, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).   See also Arizona v. Fulminante, 499 U.S. 279, 306-311, 111 S.Ct. 1246, 1263-1265, 113 L.Ed.2d 302 (1991) (holding that harmless error analysis applies to the wrongful admission at trial of coerced confessions;  explaining that the essential feature of "trial errors" is that they occur during the presentation of the case to the jury, "and may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless";  and explaining further that "structural errors" are not subject to this harmless error analysis, primarily because "[t]he entire conduct of the trial from beginning to end is obviously affected" by them--so, the trial cannot then reliably serve its function as a vehicle for determination of guilt or innocence and no criminal punishment may be regarded as fundamentally fair)

15
 Brecht, supra note 14, --- U.S. at ---- - ----, 113 S.Ct. at 1713-1714 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967);  and Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)) (other citations omitted)

16
 Brecht, supra note 14, --- U.S. at ---- n. 9, 113 S.Ct. at 1722 n. 9 (citing Greer v. Miller, 483 U.S. 756, 769, 107 S.Ct. 3102, 3110, 97 L.Ed.2d 618 (1987) (Stevens, J., concurring in judgment)).  See also e.g., Hardnett v. Marshall, 25 F.3d 875, 879 (9th Cir.1994) ("This hybrid, Footnote Nine error as we denominate it, is thus assimilated to structural error and declared to be incapable of redemption by actual prejudice analysis.  The integrity of the trial, having been destroyed, cannot be reconstituted by the appellate court.")

17
 Compare Arizona v. Fulminante, supra note 14, 499 U.S. at 309, 111 S.Ct. at 1265 (stating that the erroneous introduction of a coerced confession by the trial court is "a classic trial error");  id., 499 U.S. at 307, 111 S.Ct. at 1264 (explaining that by classifying most constitutional errors--including coerced confessions--as "trial errors," the Court remains faithful to the view that harmless error is necessary to preserve the " '[p]rinciple that the central purpose of a criminal trial is to decide the factual question of a defendant's guilt or innocence and promote public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.' ")  (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986);  other citations omitted)

18
 Kotteakos, supra note 15, 328 U.S. at 765, 66 S.Ct. at 1248 (emphasis added).  See also Brecht, supra note 14, --- U.S. at ----, 113 S.Ct. at 1724 (Stevens, J., concurring) (emphasizing that in order to apply the Kotteakos standard properly, the Sec. 2254 federal habeas court must make a de novo examination of the entire trial record, so as to fully consider all the ways in which the complained-of error could have infected the course of the petitioner's trial--as the habeas court must decide that the error did not influence the jury, and that the judgment was not substantially swayed by the error)

19
 See Lowery v. Collins, 996 F.2d 770, 773 (5th Cir.1993)

20
 See Samuels v. Mann, 13 F.3d 522, 526 (2d Cir.1993), petition for cert. filed, --- U.S.L.W. ---- (U.S. June 8, 1994) (No. 93-9479).  See also Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986)

21
 See e.g., United States v. Castano, 999 F.2d 615, 618 (2d Cir.1993) (per curiam).  See also 3A CHARLES A. WRIGHT, FEDERAL PRACTICE AND PROCEDURE Sec. 854, at 305 (2d ed. 1982)

22
 Report and Recommendation of 9-17-92, Federal District Court Record, 94, 112

23
 Id.  (emphasis added)

24
 See Brecht, supra note 14, --- U.S. at ---- - ----, 113 S.Ct. at 1720-1721 (explaining how, in a Sec. 2254 habeas context, a state judgment is presumptively correct and habeas petitioners therefore may not obtain relief from such a judgment based on trial error "unless they can establish that it resulted in 'actual prejudice.' ").  See also Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th Cir.1993) (Brecht applied to hold that in order to obtain relief, a Sec. 2254 habeas petitioner must show that the alleged trial error "had substantial and injurious effect or influence in determining the jury's verdict.")  (quoting Brecht, --- U.S. at ----, 113 S.Ct. at 1722, in turn quoting Kotteakos, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)), cert. denied, --- U.S. ----, 114 S.Ct. 1294, 127 L.Ed.2d 647 (1994).  See also Castillo v. Stainer, 997 F.2d 669 (9th Cir.)  (applying Brecht on appeal to a pre-Brecht district court decision--and accordingly holding that given the presumptive correctness of a state judgment, the petitioner had failed to meet his burden of establishing that the trial error resulted in the petitioner's suffering actual prejudice), cert. denied, --- U.S. ----, 114 S.Ct. 609, 126 L.Ed.2d 574 (1993)

25
 See LOUISIANA R.S. Sec. 14:30.1

26
 LOUISIANA R.S. Sec. 14:24

27
 See e.g., State v. Brooks, 505 So.2d 714, 717 (La.), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987)

28
 Report and Recommendation of 9-17-92, Federal District Court Record, at 109, 111 (emphasis added)

29
 State Record, IV, at 886

30
 See generally e.g., State v. Brooks, 505 So.2d 714, 717 (La.)  ("specific intent is a state of mind and, as such, it need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant.")  (citing Louisiana R.S. Sec. 15:445), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987)

31
 Brecht, supra note 14, --- U.S. at ----, 113 S.Ct. at 1714

32
 Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)


Opinion issued December 31, 2009

In The
Court of Appeals
For The
First District of Texas
____________

NO. 01-09-00357-CR
____________

CALVIN JEROD HENDERSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1197596

MEMORANDUM  OPINION

          Appellant, Calvin Jerod Henderson, was convicted by a jury of the offense of
possession of a controlled substance, and the trial court assessed punishment at
confinement for 12 years and a $10,000.00 fine.  We affirm.   Appellant’s counsel on appeal has filed a brief stating that the record  presents
no reversible error, that the appeal is without merit and is frivolous, and that the
appeal must be dismissed or affirmed.  See Anders v. California, 386 U.S. 738, 87
S.Ct. 1396, (1967). The brief meets the requirements of Anders by presenting a
professional evaluation of the record and detailing why there are no arguable grounds
for reversal.  Id. at 744, 87 S. Ct. at 1400; see also High v. State, 573 S.W.2d 807,
810 (Tex. Crim. App. 1978).
          Counsel represents that she has served a copy of the brief on appellant.
Counsel also advised appellant of her right to examine the appellate record and file
a pro se brief.  See Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991).
More than 30 days have passed, and appellant has not filed a pro se brief.  Having
reviewed the record and counsel’s brief, we agree that the appeal is frivolous and
without merit and that there is no reversible error.  See Bledsoe v. State, 178 S.W.3d
824, 826-27 (Tex. Crim. App. 2005).
          We affirm the judgment of the trial court and grant counsel’s motion to
withdraw.
   Attorney Dionne S. Press must immediately send the notice required by
Texas Rule of Appellate Procedure 6.5(c) and file a copy of that notice with the Clerk
of this Court.
          We affirm the judgment of the trial court.
          We deny as moot any pending motions.
PER CURIAM
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish.  Tex. R. App. P. 47.2(b).