222 Md. 192 (1960)
159 A.2d 864
FINLAYSON ET AL.
v.
GRUZS
[No. 175, September Term, 1959.]
Court of Appeals of Maryland.
Decided April 7, 1960.
The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.
Henry W. Klemkowski, with whom was A. Raymond Bevans, Jr., on the brief, for the appellants.
*194 Kenneth C. Proctor, with whom were Michael P. Crocker and Piper & Marbury on the brief, for the appellee.
HAMMOND, J., delivered the opinion of the Court.
The jury found for the defendant driver in a suit on behalf of a boy almost five years old who was struck by her automobile. The claim on appeal is that the trial judge erred when he failed to instruct the jury as requested that if the driver "failed to exercise that higher degree of care that she would have to an infant than would ordinarily be required, then the jury's verdict must be for the plaintiff."
About six-thirty p.m. on a clear day in July 1957, the defendant, a housewife en route to her home nearby, was driving on Fenway North, a twenty-foot wide one-way street in a thickly populated residential area in Essex in Baltimore County in which there were many children; a street sign several blocks away, of which the defendant was aware, urged caution because children were at play. She testified that she had been proceeding at about 15 miles an hour  the speed limit was 25 miles per hour  so as to make a left turn at Woodale Road, a short distance ahead, when two boys about ten years old dashed from her right across the path of her car, causing her to apply her brakes and skid to a halt. (A police officer testified that there was one twenty-eight foot skid mark and a parallel shorter one.) She called out a reprimand to the boys and then had just started up again when she noticed the infant plaintiff's head appear from between the parked cars at her right and saw the child run into the right front part of her car before she could stop.
Two disinterested witnesses, who were seated in one of the parked cars, said they heard the sound of brakes just to the left of their car, and then observed the little boy running out in front of the car parked just ahead of theirs. One of these witnesses said the boy took about three steps and hit defendant's car at its right front corner, and that the car went five feet or less after the impact. The point of impact was some four to six feet from the line of parked cars and was either in, or just outside, the crosswalk.
In his charge, the trial judge submitted to the jury the *195 question of whether the accident occurred at a crosswalk where the pedestrian had the right of way, or at a point where the motorist had the right of way. After instructing them that the infant plaintiff could not be guilty of contributory negligence, he defined negligence and told the jury if they found from the facts before them that the driver had failed to use the care an ordinarily prudent person would have used under the circumstances, she could be found to have been negligent and, if her negligence caused or contributed to the accident, the verdict should be for the plaintiff but, on the other hand, if she did use the care an ordinarily prudent person would have used and the accident was caused by the little boy's running out from between the parked cars and could not have been avoided by the exercise of due care, then the verdict should be for the defendant.
The appellants concede that the charge would have been proper if the plaintiff had been an adult, but say that under the holding in State, Use of Taylor v. Barlly, 216 Md. 94, the jury should have been instructed that the defendant, having seen the two boys run across in front of her car and realizing the large number of children in the area, should have exercised a greater duty towards the infant plaintiff than she would have been required to exercise if he had been an adult.
Maryland Rule 554 requires in Section d that a party state distinctly the error of any instruction to which he objects and "the specific grounds of his objection." Section e provides that the party assigning error on appeal "shall be restricted to (1) * * * the particular failure to instruct distinctly objected to * * * and (2) the specific grounds of objection distinctly stated * * *." The instructions requested by appellants, in excepting to the charge, could not properly have been granted as requested since they called for a higher degree of care to an infant than to an adult. The Maryland law has been stated to be that the duty owed by the driver of an automobile or motor truck to children is ordinary care and caution in such amount as the facts of the particular situation demand. Havermale v. Houck, 122 Md. 82, 89; Miller v. Graff, 196 Md. 609, 616; Abbott v. Railway Express Agency, (4th Cir.), 108 F.2d 671. All of these cases involved children under six years of age.
*196 If we assume that the appellants were seeking to have the jury told what this Court said they should have been told in Barlly, that it was the defendant's duty to keep a proper lookout for children even between intersections and that the defendant was required by law to recognize that children of tender years do not exercise the same care and caution as do adults, we think the trial judge was right when he said that the facts of the Barlly case were entirely different from those of the instant case, and that the instructions he gave were adequate on the facts before the jury in the present case. In Barlly, as in Miller v. Graff, supra, also relied on by appellants, there was evidence of excessive speed and an opportunity to see the child in a position of potential danger. The essence of the Barlly case is found in this extract from the opinion: "The appellants were entitled to have the jury instructed upon their theory of the case. The deceased was under six years of age. The law requires greater caution from the operator of a motor vehicle who observes a child in the middle of the street than one who sees an adult; and, if his vision were unobscured for 100 feet, or more, it places a duty upon him to see the child. From the above evidence, the jury, if they so desired, were at liberty to conclude that the appellee, having an unobstructed view for some distance, could have avoided striking the child, if he had been driving at a rate of speed that was reasonable under the circumstances and had used proper care to look out for the boy." (pp. 99-100.) The Court went on to say: "What we have said does not, in any way, alter the previous rulings of this Court in such cases as Cocco v. Lissau, 202 Md. 196, 202, 95 A.2d 857, wherein it was held that if a child darts out in front of an approaching automobile when the driver is travelling at a reasonable rate of speed and obeying the rules of the road, so that with the exercise of reasonable care he is unable to avoid running into the child, he is not liable for any injuries the child may sustain." Miller v. Graff was cited in Cocco in support of the proposition just quoted from Barlly.
As Judge Barrett pointed out below, it was uncontradicted in the case, and indeed stated by appellants' counsel in his opening statement, that the child darted out between parked *197 cars. There is nothing to indicate that the driver of the car actually saw, or reasonably should or could have seen him until he suddenly appeared in front of her. There was no evidence of excessive speed in the case before us and none is claimed. This case belongs in the group of which Cocco, Rush v. Lloyd, 221 Md. 7, and Johnny's Cabs, Inc. v. Miller, 199 Md. 16, are examples, and Judge Barrett's charge adequately presented to the jury on the evidence before them the questions of whether the driver was acting with ordinary care after she saw the boys in the vicinity and whether, in the exercise of due care, she should have seen the infant plaintiff before she did and could have done more than she did to avoid the accident.
Judgment affirmed, with costs.


                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                             No. 07-4646

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIEL WILLIAM ALLMAN,

                Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:06-cr-00165-LHT)

Submitted:   April 3, 2008                 Decided:   April 14, 2008

Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

D. Baker McIntyre, III, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           On   August   7,   2006,    the    grand    jury    for    the   Western

District of North Carolina returned a four count indictment against

Daniel William Allman and seventeen co-conspirators.                    Count One

charged Allman and his co-conspirators with conspiracy to possess

with   intent   to   distribute   a    quantity       of   methamphetamine,     in

violation of 21 U.S.C.A. §§ 841 and 846 (West 2000 & Supp. 2007).

According to the indictment, the conspiracy involved at least 1.5

kilograms of a mixture or substance containing a detectable amount

of methamphetamine. Count Two charged Allman and others with using

a communication facility in committing or causing the acts alleged

in Count One, in violation of 21 U.S.C.A. § 843(b) (West 2000).

Finally, Count Three charged Allman with possession of a firearm

during and in relation to a drug trafficking crime, in violation of

18 U.S.C.A. § 924(c)(1) (West 2000 & Supp. 2007).

           On October 4, 2006, Allman entered into a plea agreement

with the Government.     According to Allman’s plea agreement, Allman

agreed to plead guilty to Counts One and Three of the indictment.

Allman’s   agreement      also    specified       that        “the    amount    of

methamphetamine      (mixture)    that    was    known      to   or    reasonably

foreseeable by the defendant was at least 200 grams but less than

350 grams.”

           Allman appeared for sentencing on June 18, 2007.                  Prior

to sentencing, the Government filed a motion pursuant to U.S.

                                      - 2 -
Sentencing Guidelines Manual (“U.S.S.G.”) § 5K1.1 and 18 U.S.C.A.

§ 3553(e) (West 2000 & Supp. 2007) for a three level reduction in

Allman’s   total   offense   level    as     a   result    of   his   substantial

assistance.   After reducing Allman’s offense level three points

pursuant to U.S.S.G. § 3E1.1 and a further three points pursuant to

the Government’s motion, the district court sentenced Allman to

fifty-one months’ imprisonment on Count One in conformity with his

advisory guidelines range and to a consecutive term of sixty-

months’ imprisonment on Count Three.

           Allman timely noted his appeal and has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967).1                On appeal,

Allman questions: (1) whether his sentence was properly calculated

and imposed; and (2) whether his prior counsel provided effective

representation before the district court.                 For the reasons that

follow, we affirm the judgment of the district court.

           To the extent Allman argues on appeal that his sentence

was unreasonable, his argument is without merit.2 Following United

States v. Booker, 543 U.S. 220 (2005), a district court must engage

in a multi-step process at sentencing.             First, it must calculate

     1
      Allman was informed of his right to submit                       a   pro   se
supplemental brief. He has elected not to do so.
     2
      Additionally, to the extent Allman challenges the district
court’s three level downward departure pursuant to the Government’s
§ 3553(e) motion, we lack jurisdiction to hear his appeal. See 18
U.S.C.A. § 3742; United States v. Hill, 70 F.3d 321, 324 (4th Cir.
1995).

                                     - 3 -
the appropriate advisory guidelines range.     It must then consider

the resulting range in conjunction with the factors set forth in

§ 3553(a) and determine an appropriate sentence.

          Appellate review of a district court’s imposition of a

sentence is for abuse of discretion.    Gall v. United States, 128

S. Ct. 586, 597 (2007); see also United States v. Pauley, 511 F.3d

468, 473 (4th Cir. 2007).     The appellate court must first ensure

that the district court committed no procedural error, such as

“failing to calculate (or improperly calculating) the Guidelines

range, treating the Guidelines as mandatory, failing to consider

the § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen

sentence - including an explanation for any deviation from the

Guideline range.”   Gall, 128 S. Ct. at 597.

          If there are no procedural errors, the appellate court

then considers the substantive reasonableness of the sentence. Id.

“Substantive reasonableness review entails taking into account the

totality of the circumstances, including the extent of any variance

from the Guidelines range.”    Pauley, 511 F.3d at 473 (quotations

and citation omitted).    While the court may presume a sentence

within the guidelines range to be reasonable, it may not presume a

sentence outside the range to be unreasonable.    Id.   Moreover, it

must give due deference to the district court’s decision that the

§ 3553(a) factors justify imposing a variant sentence and to its

                                - 4 -
determination regarding the extent of any variance.                    Even if the

reviewing court would have reached a different sentence result on

its own, this fact alone is insufficient to justify reversal of the

district court.       Id. at 474.

            Here, the record does not indicate the district court

committed    procedural        error   in      imposing     Allman’s      sentence.

According to U.S.S.G. § 2D1.1(c)(6), the amount of methamphetamine

reasonably foreseeable to Allman, as stipulated by the parties,

results in a base offense level of 28.                    This level was then

properly    reduced    three    points    pursuant     to   U.S.S.G.      §   3E1.1,

resulting in an adjusted offense level of 25.                 The court further

reduced    Allman’s    total    offense     level   three    additional        points

pursuant to the Government’s § 3553(e) and § 5K1.1 motion.                      This

offense level combined with Allman’s Criminal History Score of III

resulted    in   an    advisory     guideline       range    of   51-63       months’

imprisonment.    By virtue of the Government’s § 3553(e) motion, the

district court was free to sentence Allman below the statutory

mandatory minimum sentence of five years.                   Therefore, Allman’s

sentence of 51 months was proper.               Moreover, prior to imposing

sentence, the district court gave Allman the opportunity to address

the court, considered the advisory nature of the guidelines, and

specifically stated it had considered the factors in § 3553(a).

Accordingly, the district court did not commit procedural error in

sentencing Allman.

                                       - 5 -
          Additionally,      Allman’s      sentence     was    substantively

reasonable.    Allman received a fifty-one month sentence when a

mandatory minimum sentence of twenty years could have been imposed.

The district court reduced Allman’s offense level six points and

then selected a sentence at the very bottom of Allman’s advisory

guidelines range.     This court may presume a sentence within the

advisory guidelines range is reasonable, and there is nothing in

the record to rebut that presumption in Allman’s case.                  Rita

v. United States, 127 S. Ct. 2456, 2459 (2007).                 Accordingly,

Allman’s sentence was reasonable.

          Finally, Allman questions whether he received effective

assistance    of   counsel   in   the   district      court.    Ineffective

assistance of counsel claims are not generally cognizable on direct

appeal, unless it conclusively appears from the record that counsel

did not provide effective representation.               See United States

v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United States

v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994).                Because the

record does not conclusively demonstrate that Allman’s counsel was

ineffective, we decline to consider this claim on direct appeal.

             In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.            We

therefore affirm the judgment of the district court.             This court

requires that counsel inform Allman, in writing, of the right to

petition the Supreme Court of the United States for further review.

                                   - 6 -
If Allman requests that a petition be filed, but counsel believes

that such a petition would be frivolous, then counsel may move in

this court for leave to withdraw from representation.   Counsel’s

motion must state that a copy thereof was served on Allman.

          We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

                                                         AFFIRMED

                              - 7 -


718 F.Supp. 1053 (1989)
EAGLE-PICHER INDUSTRIES, INC.
v.
AMERICAN EMPLOYERS' INSURANCE CO.
Civ. A. No. 83-348-Z.
United States District Court, D. Massachusetts.
August 14, 1989.
*1054 Charles R. Parrott, Brian T. Kenner, Nutter, McClennan & Fish, Boston, Mass., for plaintiff.
Richard H. Gimer, Hamel & Park, Stephen L. Humphrey, Washington, D.C., Ellen M. Martin, Boston, Mass., for American Employers.
Alice E. Richmond, Hemenway & Barnes, Boston, Mass., for Prudential Reinsurance.

MEMORANDUM OF DECISION
ZOBEL, District Judge.
This case represents, one hopes, the next-to-last installment of lengthy litigation regarding the liability of various insurance companies to indemnify Eagle-Picher Industries, Inc., a manufacturer of asbestos products, for sums paid to claimants suffering asbestos-related injuries. Eagle-Picher Indus., Inc. v. Liberty Mutual Ins. Co., 682 F.2d 12 (1st Cir.1982) ("Eagle-Picher I"), determined that the obligation of defendant insurers arose as of the date of manifestation (defined as the time at which the disease was "reasonably capable of medical diagnosis"). On appeal from the implementation judgment, the First Circuit adopted the presumption, rebuttable by clear and convincing evidence, that asbestosis is "reasonably capable of medical diagnosis" six years before the date of actual diagnosis and it remanded for findings as to the appropriate rollback period for other asbestos-related diseases. Eagle-Picher Indus., Inc. v. Liberty Mutual Ins. Co., 829 F.2d 227 (1st Cir.1987).
While the first appeal in Eagle-Picher I was pending, Eagle-Picher filed the instant case ("Eagle-Picher II") against a number of carriers not previously sued, including defendant, American Employers' Insurance Company ("American Employers'").[1] Defendant moved for summary judgment on issues of judicial, collateral and equitable estoppel and for partial summary judgment to the extent plaintiff's claim was based upon underlying asbestosis claims previously indemnified. Both motions were denied. Following the issuance of this Court's Memorandum of Decision in EaglePicher I on May 30, 1986, Eagle-Picher filed a Motion for Entry of a Final Judgment in this action seeking collateral estoppel effect to the second Eagle-Picher I decision, i.e., automatic application of the six-year rollback implementation formula. In a Memorandum of Decision, I denied the motion, noting that the Eagle-Picher II defendants could not be bound by the Court's implementation ruling in Eagle-Picher I, to which they were not parties. I then directed the parties to file written outlines of their implementation proposals. On the basis of these written submissions, plaintiff moved for partial summary judgment invoking the doctrine of stare decisis. It argued that the proposal submitted by defendant contained substantially, if not precisely, the same weaknesses that the Court had found in the Eagle-Picher I protocol and that the Court was therefore compelled to reject defendant's proposal and impose a six-year rollback formula. On May 31, 1988, that motion too was denied to afford defendant an opportunity to distinguish its implementation proposal from that presented in Eagle-Picher I. However, in view of the issues raised by the motion, I ordered that the trial proceed in two phases, the first to determine the feasibility of claim-by-claim review, and the second, if necessary, the manner of fixing the manifestation date.[2] What follows are my findings and conclusions in Phase I.[3]
*1055 The parties agree that defendant bears the burden of establishing that the "universe" of claims at issue in this case is so small that the claim-by-claim review it advocates is practicable. A necessary concomitant is a showing that existing claims files contain adequate information for such review and that a practical method exists for determining insurance attachment dates from the available information.
American Employers mounts a two-pronged attack. First, Dr. Paul Epstein, a physician who specializes in pulmonary diseases, offered a definition of disease and testified concerning his experiences with persons who present with an asbestos exposure history. Second, defendant offered its Draft Process for Determining when a Diagnosed Asbestos Disease was Clinically Evident, i.e., Reasonably Capable of Diagnosis, (hereinafter "the Process") and the results obtained by its use.
Dr. Epstein, a Professor at the University of Pennsylvania School of Medicine and a pulmonary specialist, defined disease as something that changes a person's life span or life style, that produces symptoms, or that causes a measurable change in function. Given that definition, he opined that the onset of asbestos-related disease is usually accompanied by symptoms such as shortness of breath or impairment of the person's lungs, and that persons with those symptoms seek medical attention within a relatively short period of time thereafter. Accordingly, the interval between the time when the disease is diagnosed and the earlier date when it was clinically evident or capable of diagnosis is relatively short: two years for asbestosis and lung cancer and one for mesothelioma. Dr. Epstein also stated that, with rare exceptions, claimants with only pleural changes are asymptomatic and they therefore do not have disease, as he defined it. Because they have no symptoms, the condition of these claimants is clinically evident only when observed by X-ray.
From this evidence, defendant argues first that at most the "universe of claims" includes only those Eagle-Picher claimants who were diagnosed on or before June 1, 1975, i.e., within two years after the expiration of defendant's policy on June 1, 1973. Second, it asserts pleural claims should be excluded altogether as not within defendant's policy since they do not constitute disease. It then approximates the number of claims subsumed by the period between June 1, 1973 and June 1, 1975, at 600, a number clearly allowing for individual review.
The second prong of defendant's case concerns the feasibility of determining insurance attachment dates based upon the information available about the underlying claims. The only such information is that contained in the files of Eagle-Picher, Liberty Mutual, its claims administrator and defense counsel. Defendant acknowledges that the first two may be inadequate, but offered the testimony of Edward J. David that defense counsel files are fully sufficient for this purpose. Mr. David served as defense counsel in the underlying litigation for a number of manufacturers, not including Eagle-Picher, prior to 1985. Although he apparently collected more medical information on behalf of his clients than did plaintiff and its counsel, he agreed that only a tiny fraction of cases is intensively prepared for trial. He also agreed that the quantum of evidence in counsel files varied *1056 from time-to-time and from jurisdiction-to-jurisdiction.
The procedure by which American Employers' proposes to establish an insurance attachment date is divided into two phases. Phase I consists of file review and data extraction; the actual claims analysis occurs in Phase II. During the first phase, data recorders review the claim files presented by plaintiff and extract medical information therein onto data-collection forms. During Phase II a team of claims analysts, using the data so collected, applies the Process to determine the insurance attachment date.
The Process provides for three approaches. As described by defendant, Approach I focuses on prediagnostic signs and symptoms of asbestos-related disease which, taken alone or in combination, indicate the time when, prior to actual diagnosis, the particular disease involved was diagnosable. According to defendant, it is to be applied with some flexibility in order to address the greatest possible number of scenarios of available prediagnostic information. Approach II assumes the absence of sufficient information to apply Approach I and looks, instead, for evidence of good chest health as a means of circumscribing the time in advance of diagnosis when an asbestos-related disease was diagnosable. That is, when a claimant's file evidences a healthy chest after the expiration of defendant's policy, defendant argues, he could not have had diagnosable disease during the covered period. Approach III is to be used when Approaches I and II cannot be employed, i.e., when the file contains insufficient evidence of prediagnostic symptoms or prediagnostic indications of "normal" health but it does contain "information indicating the mildness of the disease at the time of diagnosis." Approach III apparently applies only to asbestosis claims, and the "degree" of mildness dictates whether the disease was diagnosable one or two years before the appearance of symptoms.
Plaintiff relied on the testimony of Drs. Hans Weill, John Diem and Gary Epler to establish that a large number of claims diagnosed well after the policy years, 1967 to 1973, were in fact reasonably capable of medical diagnosis during that period. Drs. Weill and Diem are the authors of the epidemiologic study described in Eagle-Picher I. Dr. Epler is a physician specializing in pulmonary disease as clinician, researcher, author and academic. He serves as Chairman of the Department of Medicine and as Director of Respiratory Therapy at the New England Baptist Hospital in Boston, Massachusetts, and is an Associate Clinical Professor of Medicine at the Boston University School of Medicine. He testified that asbestosis and/or pleural conditions have long latency periods after exposure, at least fifteen years, that both progress slowly, and that a percentage of diagnoses made in the 1980s could have been made at least fifteen years earlier. He concluded that the meaningful possibility of diagnosability begins once the latency period has been met.
For purposes of Eagle-Picher I, the Weill/Diem study showed that it is more probable than not that a currently diagnosed case of asbestosis could have been diagnosed approximately six years ago. For this litigation, Drs. Weill and Diem were asked to extrapolate the findings of the initial study, which involved the observation of the progression of asbestosis among workers over a ten-year period to a twenty-one-year period. The result of that exercise is the statistical likelihood that disease found well after the policy period in issue could have been diagnosed within the period. Dr. Weill testified that projections of this sort beyond the actual period studied are frequently done, although he was unaware of any instance where projections had been made over double the observation time.
Finally, plaintiff offered the testimony of Lawrence G. Cetrulo, counsel for a number of manufacturers of asbestos products and for the Asbestos Claims Facility, to rebut Mr. David's description of defense counsel files. Mr. Cetrulo found that the available files often contain conflicting medical information, that typically they include only a small amount of prediagnostic material, and that it is difficult to recreate accurately the state of the medical record. Roger *1057 L. Prickett, plaintiff's general counsel, through his earlier testimony, confirmed that a large number of cases have settled at relatively early stages in the litigation process and that those files may contain no medical information beyond the allegations of the complaint. Indeed, because of potential statute of limitations problems, it is against a claimant's interest to obtain such historical information. Mr. David did agree with this observation and further acknowledged that defense counsel does not make a conscious effort to obtain all prediagnostic medical information.
The evidence requires resolution of two underlying factual disputes: the amount and quality of available medical information as to particular claimants, and the nature and rate of progression of asbestos-related disease, and, thus, the size of the universe.
As to the first, I find that, contrary to defendant's assertions, the earlier case files do not contain more information than do the later ones. The evidence in this case simply does not contradict the finding in Eagle-Picher I that the aggregation of files as to any one claimant generally contains little medical information. Although Mr. David suggested that any defendant in the underlying litigation "could, on a routine basis, with very little if any additional effort or expense," obtain a variety of additional medical information, the issue is not what might be or might have been obtained when these cases were pending, but rather what is now contained in the existing files of those cases. On that issue I credit the testimony of Mr. Cetrulo that the vast majority of cases are not tried or even prepared for trial, that the files of the settled cases generally contain current diagnostic information but no historical medical information prior to the claimant's diagnosis. This is so because many of these cases result from mass X-ray screenings at occupational locations conducted by unions and/or plaintiffs' attorneys, and many claimants are functionally asymptomatic when suit is filed. Moreover, many diagnoses are made by physicians not well schooled in the American Thoracic Society's criteria for the diagnosis of asbestosis, and the medical literature does not provide standards for judging the diagnosability of asbestos-related disease. In addition to being inadequate, the files thus also frequently contain conflicting information.
As to the second underlying issue, I credit Dr. Epler's testimony that asbestos-related disease has a long latency period, that asbestosis and pleural conditions progress slowly and at variable rates, but that a significant possibility of diagnosability exists from the expiration of the latency period and that, indeed, a percentage of claimants diagnosed in the 1980s were diagnosable fifteen years earlier. Defendant's expert, Dr. Epstein, agreed with most of Dr. Epler's premise, but he denies the possible existence of pleural conditions in such claimants and he fixes the diagnosability of asbestosis at two years before diagnosis in each instance, based on his definition of disease. However, Dr. Epstein's definition is at variance with common sense[4] as well as the experience of the parties and the court in the underlying cases.[5]
As I did in Eagle-Picher I, I note the imperfections of the Weill/Diem study. Notwithstanding those imperfections, I accept the study as adequate for the limited purpose of establishing the probability of prior diagnosability of asbestosis. Although the projections covered an extended period, Dr. Epler's experience supports the Weill/Diem analysis. I note also in this connection that Exhibit E, Frequency Distribution of Intervals between Actual Diagnosis and Attachment Date, a document submitted with the direct testimony of defendant's computer expert, shows that by defendant's own calculation half of the cases processed under defendant's Process have intervals of greater than two years. In fact, according the Exhibit E approximately *1058 90% of the claims reviewed by defendants were assigned attachment dates within six years of actual diagnosis. Accordingly, the number of claims subject to indemnification by defendant's policy far exceeds defendant's estimate of 600.
Although not necessary to the decision of this phase of the case, it is appropriate to address the evidence of defendant's Process and to record the problems inherent in its use. That is, even were the universe sufficiently small to permit claim-by-claim review, such review with the use of the Process would yield no more accurate and fair result than does the use of the rollback sanctioned by Eagle-Picher I.
First, the Process is unworkable. It does not define how conflicts in medical opinions are to be resolved. It articulates no standard for making a whole series of judgments that result ultimately in the decision as to attachment date. It arbitrarily ignores certain events in a claimant's medical history and elevates others to assume greater importance than that assigned by the claimant's physician. By establishing its own definitions of diagnostic events, it sometimes fails to accept the conclusion of the treating physician. It fails to explain the means by which an attachment date is assigned to a claim without prediagnostic information or evidence of normal health but with indications of severe asbestosis at the time of diagnosis.
Second, and more important, the Process is unreliable. It is unreliable because at each level of execution all of the results obtained by its use are based on subjective judgments which are necessarily carried forward to subsequent phases of analysis and review. This is particularly troubling as these judgments are made largely by persons lacking even rudimentary medical training. During data extraction, paralegal assistants initially judge the completeness of the file and determine whether additional information is needed. Upon obtaining such additional information, they decide whether or not it is sufficient and, finally, what is to be extracted and recorded on the prescribed data-collection forms.[6] To the extent that the files contain descriptive terms, e.g., severe, mild, normal, abnormal, possibly caused by, impression that, early, late, etc., the paralegals decide how these terms are recorded on the data-collection forms. The paralegals thus decide which diagnostic criteria will be available to the Phase II Team. The Phase II Team, comprised of experienced claims analysts, decides whether enough information exists, pre-diagnostic or otherwise, to proceed under Approach I or whether Approach II or III should be applied. They do not review the data extraction forms for reliability. However, they interpret the descriptive terms memorialized on the data extraction forms without reference to any established medical conventions and without accounting for any possible bias in the files. At the same time, the Process permits the claims analysts to override a treating physician's diagnosis and to establish a date of diagnosis different from that of the doctor. In the case of conflicting medical information or diagnoses, the claims adjusters resolve the difference. Defendant has conducted no studies to determine whether all members of the Team apply the stated criteria consistently. These subjective decisions are layered on top of the grander underlying assumptions of the Process, including the definition of disease and the diagnostic criteria employed under the Process.
Given the numerous subjective decisions made in the course of executing the Process and the absence of any evidence indicating *1059 the level of intervariability of either data collectors or claims analysts, the consistency of its application and interpretation are called into serious question. In light of these problems, it is also noteworthy that the Process provides no mechanism for resolving any dispute with plaintiff concerning the use of particular data or the application of the Process.
Finally, as was true in Eagle-Picher I, the speed with which this defendant would review claims is relevant to the issue of feasibility. From mid-May until November 22, 1988, the Phase II Team reviewed only 594 claims. Not all were assigned an attachment date. At this rate of approximately twenty claims per week the speed of review becomes a procedural barrier effectively denying insurance coverage to plaintiff.
Because defendant has failed to sustain its burden of demonstrating the feasibility of claim-by-claim review, the doctrine of stare decisis applies. Accordingly, pursuant to the decision of the Court of Appeals in Eagle-Picher I, a six-year presumptive rollback from the date of diagnosis, as established therein, will determine the attachment date for all asbestosis and pleural cases. The presumptive rollback for other asbestos-related diseases will be determined after a further trial. A pretrial conference will be held on September 21, 1989 at 3:00 p.m.
Given the length of these proceedings and the extensive discussion of the issues in this Court and in the Court of Appeals, there is no justification for further delay. Accordingly, judgment shall be entered pursuant to Rule 54 declaring that implementation for asbestosis and pleural cases shall be in accordance with the rule announced in Eagle-Picher I. Plaintiff shall submit a form of judgment by August 23, 1989. Any indemnity payable for asbestosis and pleural claims shall carry interest from September 16, 1987.
NOTES
[1]  All defendants but American Employers' have settled.
[2]  The Order states in relevant part:

Phase I will address the feasibility of individual review of claims. Resolution of that issue hinges on the definition of the relevant universe, the number of claims encompassed thereby and the quality of the underlying claim files.
Phase II will address the method for determining the manifestation date in light of the decision in Phase I and to the extent that decision does not call for the application of stare decisis.
[3]  After the close of the evidence of Phase I, defendant submitted a motion for reconsideration of this Court's denial of its motion for partial summary judgment concerning pleural claims without functional significance. The original motion for partial summary judgment sought to exclude claims for pleural conditions without functional significance, because those conditions do not amount to disease and are not therefore within the coverage of its policies. Defendant also now moves for summary judgment based on a letter which, defendant argues, constitutes an agreement between plaintiff and Liberty Mutual Insurance Company ("Liberty Mutual") attesting to a "first medical diagnosis" trigger. Defendant claims that the comprehensive general liability insurance policies between plaintiff and Liberty Mutual governs all excess coverage policies in effect at that time, including policies provided by defendant, and that a "first medical diagnosis" trigger should therefore be imposed in this case. The merits of both motions are dealt with in the body of this opinion. With respect to defendant's Motion for Summary Judgment, the Court adds that the law of the case is diagnosability and that the letter is therefore irrelevant. Further, a letter between plaintiff and Liberty Mutual cannot alter a contract between plaintiff and American Employers'.
[4]  Dr. Epstein testified that a person who has hypertension without functional impairment and a sprained wrist suffers from one disease  the sprained wrist.
[5]  Claimants without functional impairment are being diagnosed with asbestos-related disease on the basis of X-ray and an exposure history and they bring lawsuits and recover damages.
[6]  Several data-extraction forms in evidence were shown to have been prepared with significant deletions. Defendant's computer expert testified that during the data-extraction process 35,000 separate indications were recorded for each of 2,700 claimants, totalling over 28-million characters of information and rendering the deletion of any one item of information statistically insignificant. However, each piece of information is itself composed of a number of characters, and the information extracted is of varying importance to the validity of the process. For example, failure to record the presence of one of the diagnostic criteria or a description of the medical condition as stated by a treating physician, both of which had occurred, may well skew the conclusion as to that claim, whereas an error in the claimant's address may indeed be unimportant.


United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 8, 2013                   Decided March 29, 2013

                         No. 12-5087

           KASIPPILLAI MANOHARAN, DR., ET AL.,
                       APPELLANTS

                              v.

               PERCY MAHENDRA RAJAPAKSA,
                       APPELLEE

                UNITED STATES OF AMERICA,
                     AMICUS CURIAE

        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:11-cv-00235)

    Bruce Fein argued the cause and filed the briefs for
appellants.

     Mitchell R. Berger argued the cause for appellee. With him
on the brief was Benjamin D. Wood.

     Adam C. Jed, Attorney, U.S. Department of Justice, argued
the cause for amicus curiae United States of America. With him
on the brief were Stuart F. Delery, Acting Assistant Attorney
General, Ronald C. Machen Jr., U.S. Attorney, Mark B. Stern,
Attorney, and Harold Hongju Koh, Legal Adviser, U.S.
                               2

Department of State. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.

   Before: GARLAND, Chief Judge, and BROWN and
KAVANAUGH, Circuit Judges.

    Opinion for the Court filed PER CURIAM.

     PER CURIAM: The plaintiffs have brought civil claims
against the sitting president of Sri Lanka under the Torture
Victim Protection Act (TVPA), 28 U.S.C. § 1350 note.
Although the defendant maintains that the plaintiffs failed to
serve him with process, he appeared before the district court for
the limited purpose of requesting the United States’ view as to
whether he was immune from suit. The United States
Department of State filed a Suggestion of Immunity in the
district court. Without expressing any opinion regarding the
merits of the plaintiffs’ claims, the State Department
“determined that President Rajapaksa, as the sitting head of a
foreign state, enjoys head of state immunity from the
jurisdiction of U.S. courts in light of his current status.”
Suggestion of Immunity at 6 (Jan. 13, 2012) (J.A. 47). The
district court then dismissed the plaintiffs’ suit.

    On appeal, the plaintiffs urge us to reverse the judgment of
the district court, contending that the sitting president of Sri
Lanka is not immune from civil suit under the TVPA. We
disagree.

     As the Supreme Court has held, “[t]he doctrine of foreign
sovereign immunity developed as a matter of common law.”
Samantar v. Yousuf, 130 S. Ct. 2278, 2284 (2010). In Samantar,
the Court explained that “a two-step procedure developed for
resolving a foreign state’s claim of sovereign immunity,” and
that “the same two-step procedure was typically followed when
                                3

a foreign official asserted immunity.” Id. at 2284-85. Under the
first step of that procedure, the only one that is relevant here,
“the diplomatic representative of the sovereign could request a
‘suggestion of immunity’ from the State Department,” and “[i]f
the request was granted, the district court surrendered its
jurisdiction.” Id. at 2284; accord Habyarimana v. Kagame, 696
F.3d 1029, 1032-33 (10th Cir. 2012); Matar v. Dichter, 563 F.3d
9, 13-14 (2d Cir. 2009); Ye v. Zemin, 383 F.3d 620, 625-27 (7th
Cir. 2004); Spacil v. Crowe, 489 F.2d 614, 617 (5th Cir. 1974);
cf. Republic of Mexico v. Hoffman, 324 U.S. 30, 36 (1945) (“[I]t
is an accepted rule of substantive law governing the exercise of
the jurisdiction of the courts that they accept and follow the
executive determination that the vessel shall be treated as
immune.”). Here, the defendant did request a suggestion of
immunity, and the United States granted that request by
submitting a suggestion of immunity to the court. Accordingly,
as the district court recognized, it was without jurisdiction, see
Saltany v. Reagan, 886 F.2d 438, 441 (D.C. Cir. 1989), unless
Congress intended the TVPA to supersede the common law.

     “The canon of construction that statutes should be
interpreted consistently with the common law helps us interpret
a statute that,” as here, “clearly covers a field formerly governed
by the common law.” Samantar, 130 S. Ct. at 2289. “In order
to abrogate a common-law principle, the statute must ‘speak
directly’ to the question addressed by the common law.” United
States v. Texas, 507 U.S. 529, 534 (1993) (quoting Mobil Oil
Corp. v. Higginbotham, 436 U.S. 618, 625 (1978)). Whether or
not legislative history would be sufficient to satisfy the
requirement of speaking “directly,” the plaintiffs’ view is that
the legislative history of the TVPA is ambiguous on the subject
of head of state immunity. In fact, if anything the legislative
history appears to indicate that Congress expected the common
law of head of state immunity to apply in TVPA suits. See H.R.
REP. NO. 102-367, at 5 (1991) (“[N]othing in the TVPA
                                  4

overrides the doctrines of diplomatic and head of state
immunity.”).

     This leaves only the language of the TVPA, which the
plaintiffs contend supersedes the common law because it renders
“an individual” liable for damages in a civil action, and a head
of state is “an individual.” But as even the plaintiffs
acknowledge, the term “an individual” cannot be read to cover
every individual; plaintiffs agree that both diplomats and
visiting heads of state retain immunity when they visit the
United States. Oral Arg. Recording at 33:19-34:04. Indeed,
although the most analogous statute, 42 U.S.C. § 1983, provides
a cause of action against “[e]very person” who deprives another
of his or her Constitutional rights under color of state law, id.
(emphasis added), the Court has held that Congress did not
intend that language to abrogate the preexisting common law of
immunity applicable to executive officials. See Malley v.
Briggs, 475 U.S. 335, 339-40 (1986). We likewise conclude that
the common law of head of state immunity survived enactment
of the TVPA. Accord Matar, 563 F.3d at 15; see Devi v.
Rajapaksa, No. 12-4081 (2d Cir. Jan. 30, 2013) (holding that the
defendant, who is the same defendant as in this case, “clearly is
entitled to head-of-state immunity”).

     Because, as a consequence of the State Department’s
suggestion of immunity,* the defendant is entitled to head of
state immunity under the common law while he remains in
office, and because the TVPA did not abrogate that common law

     *
      This case does not require us to decide what deference we should
give to the State Department when the Department indicates that a
defendant, whether a sitting head of state or otherwise, should not
receive immunity. Cf. Yousuf v. Samantar, 699 F.3d 763 (4th Cir.
2012).
                            5

immunity, the judgment of the district court dismissing the
plaintiffs’ complaint is

                                                  affirmed.


804 F.2d 571
58 A.F.T.R.2d 86-6227, 86-2 USTC  P 9801
UNITED STATES of America, Plaintiff-Appellant,v.James C. RUSSELL, Earhl R. Schooff, and Lawrence M. Richey,Defendants-Appellees.
Nos. 86-3013, 86-3014 and 86-3015.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Sept. 2, 1986.Decided Nov. 18, 1986.

Donald W. Searles, Atty., Roger M. Olsen, Michael L. Paup, Robert E. Lindsay, Deborah W. Dawson, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.
Thomas Bothwell, Bothwell & Lorello, Christopher S. Tait, Yakima, Wash., Joseph Nappi, Jr., Brian T. Butler, Spokane, Wash., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Washington.
Before FLETCHER, FERGUSON, and REINHARDT, Circuit Judges.
FLETCHER, Circuit Judge:

1
Plaintiff United States appeals the district court's dismissal of 12 counts of a 28-count indictment.  The district court held that the defendants lacked fair notice of the illegality of the tax avoidance schemes they developed and promoted, and that they accordingly could not have willfully violated the statute.  We reverse and remand for trial.

BACKGROUND

2
Frank Forrester developed tax shelter programs designed to reduce taxpayers' income tax liabilities.  Under Forrester's primary program, the "personal services contract," taxpayers would "sell" their life services to Professional and Technical Services (PTS), an entity created by him, for one dollar per year.  When the taxpayers received paychecks from their employers, they would endorse the checks and send them to PTS, which transferred the checks to International Dynamics, Inc.  (IDI), another Forrester organization.  IDI in turn transferred the funds to IDI Credit Union (IDICU), which would send the taxpayers "gift" checks equal to 90 to 92 percent of the taxpayers' original paychecks.  Some of these entities purported to be foreign trusts or corporations.

3
Forrester's other tax scheme at issue here was the "9:1 tax shelter" under which taxpayers purchased "consulting services" from IDI.  Taxpayers paid an allegedly deductible consulting fee to IDI, and IDI immediately sent the taxpayers an alleged tax-free reimbursement check less a ten percent fee.  No consulting services were ever performed.

4
Defendants James Russell, Earhl Schooff, and Lawrence Richey were involved in the promotion and sale of these schemes.  These three, along with Forrester, who is now deceased, were charged in a 28-count indictment with a variety of tax fraud, mail fraud, and tax evasion violations.

5
On motion by the defendants, the district court dismissed twelve counts of the indictment, finding that under the reasoning of United States v. Dahlstrom, 713 F.2d 1423 (9th Cir.1983), cert. denied, 466 U.S. 980, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1984), the defendants lacked fair notice of the illegality of the tax schemes until July 29, 1982 when the Eighth Circuit held, in a civil proceeding, that a "personal services contract", similar to those involved in this case, was an illegal tax avoidance scheme.   United States v. Landsberger, 692 F.2d 501 (8th Cir.1982).1

6
The government appealed the dismissal of the twelve counts.  The district court continued trial on the remaining counts, ruling that the time accruing during the pendency of the appeal would be deemed excludable delay under the Speedy Trial Act.

DISCUSSION
1. Appealability

7
The district court dismissed 12 of the 28 counts in the indictment, and continued trial on the remaining counts pending this appeal.  To prosecute its appeal, the government "must show that it has the right to appeal and that the order appealed from comes within the terms of a statutory grant of appellate jurisdiction."   United States v. Dior, 671 F.2d 351, 354 (9th Cir.1982).  To satisfy the first prong, the government must be authorized to bring the appeal under 18 U.S.C. Sec. 3731.  To satisfy the second prong, the decision being appealed generally must constitute a "final judgment" under 28 U.S.C. Sec. 1291.   United States v. Martinez, 763 F.2d 1297, 1307 (11th Cir.1985).  Despite the general application of Sec. 1291's finality requirement, "[s]ection 3731 can, and does, make it lawful for the government to take certain appeals even though there is no final judgment."   Id. at 1308 n. 10.  According to the Eleventh Circuit in Martinez, this "right to take an interlocutory appeal [must be] expressly provided in section 3731."    Id.

8
Title 18 U.S.C. Sec. 3731 provides in relevant part:  "In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment ... as to any one or more counts."    Because the district court dismissed 12 of the 28 counts, the government is authorized to appeal under Sec. 3731, thus satisfying the first prong.  As to the second prong, the district court order is not a final judgment except as to Schooff because it does not dispose of the remaining 16 counts.2   However, we have interpreted the quoted portion of Sec. 3731 as expressly providing the right to take an interlocutory appeal in this situation.   See United States v. Marubeni America Corp., 611 F.2d 763, 764-65 (9th Cir.1980) (court held that Sec. 3731 supplied appellate jurisdiction where district court had dismissed portion of one count and had suspended pre-trial proceedings on remaining counts pending appeal;  no discussion of Sec. 1291's finality requirement).  Following Marubeni, we conclude that we have jurisdiction to hear the interlocutory appeal in the case at bar.3

2. Standard of Review

9
The district court "assumed the truth of each material fact set forth in the indictment and, applying Dahlstrom, ruled that regardless of the evidence, the government would be unable to sustain its burden with respect to those counts which were dismissed."    The district court thus ruled as a matter of law, and we review this holding de novo.

3. Dahlstrom

10
The tax avoidance scheme at issue in Dahlstrom is described at 713 F.2d 1425-26, and also in Zmuda v. Commissioner, 731 F.2d 1417, 1419 (9th Cir.1984).    Zmuda was an appeal from a Tax Court judgment disallowing deductions and assessing civil penalties for use of a tax scheme virtually identical to the one at issue in the Dahlstrom criminal prosecution.  At the heart of the scheme were three foreign trusts to be established individually by each taxpayer participant.  Property or income was transferred to and among these trusts, and eventually transferred back to the taxpayer as a "gift."    Some of the transactions, including the "gift" to the taxpayer, were allegedly tax-free in part because of the foreign status of the trusts.

11
The Dahlstrom defendants were tried by a jury and convicted of conspiracy to defraud the United States and of aiding and abetting the preparation and presentation of fraudulent income tax returns.  On appeal, the court noted that to convict a person for aiding and abetting the preparation and presentation of fraudulent income tax returns under 26 U.S.C. Sec. 7206(2), the government must prove the defendant acted willfully.  713 F.2d at 1426-27.  Under the statute, a "willful" act consists of "a 'voluntary intentional violation of a known legal duty.' "   Id. at 1427 (quoting United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976)).  The court held that because "the legality of the tax shelter program advocated by the appellants in this case was completely unsettled by any clearly relevant precedent on the dates alleged in the indictment," the defendants lacked fair notice of the illegality of their acts and thus lacked the requisite intent to violate the law.  713 F.2d at 1428.  The court accordingly reversed the judgments.   Id. at 1429.

4. Frank Forrester's Tax Shelter Schemes

12
The heart of the primary Forrester tax shelter scheme was the personal services contract under which taxpayers sold their life services to PTS, one of the entities created by Forrester, for one dollar per year.  The taxpayers were allegedly thereby obligated to transfer all paychecks to PTS.  According to the indictment, the defendants assured the participants that the income was no longer taxable to them as individuals because PTS owned their paychecks.

13
As this court has recognized, "[t]he guiding principle in assignment of income cases is that income is taxed to the person or entity, which in fact controls the earning of income."   Johnson v. United States, 698 F.2d 372, 374 (9th Cir.1982).  The Supreme Court first announced this rule in 1930 in Lucas v. Earl, 281 U.S. 111, 114-15, 50 S.Ct. 241, 74 L.Ed. 731 (1930), and has often repeated it.   See, e.g., United States v. Basye, 410 U.S. 441, 450, 93 S.Ct. 1080, 1086, 35 L.Ed.2d 412 (1973) ("The principle of Lucas v. Earl, that he who earns income may not avoid taxation through anticipatory arrangements no matter how clever or subtle, ... stands today as a cornerstone of our graduated income tax system.");   Commissioner v. Culbertson, 337 U.S. 733, 739-40, 69 S.Ct. 1210, 1212, 93 L.Ed. 1659 (1949) (court cites "the first principle of income taxation:  that income must be taxed to him who earns it").

14
The acts alleged in the indictment constitute violations of the statute because they contradict this "first principle" of tax law.  Such anticipatory assignments of income have been recognized as ineffective to shift income for tax purposes for over fifty years.  The defendants in this case had fair notice of the illegality of their scheme from its inception.

15
According to the district court,

16
The twist in the instant scheme is that the accused not only took cognizance of the controlling nature of Lucas and progeny, but cited that decision in their promotional literature for the proposition that while preassignment of the fruit may be unlawful, there is no prohibition against assigning the tree.  Ergo, if the assignee-trust owns the tree, it also owns the fruit, and the assignor-taxpayer is thus relieved of any liability for taxes on such fruit.

17
This fruit/tree distinction does not, however, save the defendants' scheme.  In Lucas, the Supreme Court held that "the tax could not be escaped by anticipatory arrangements and contracts, however skilfully devised to prevent the salary when paid from vesting even for a second in the man who earned it."    281 U.S. at 114-15, 50 S.Ct. at 241.  The indictment in the case at bar alleges that a taxpayer who signed a personal services contract "continued to work for his previous employer and receive paychecks in his own name."    The indictment further states that "the defendants orally assured these individuals that they did not have to turn over every paycheck to Professional and Technical Services.  Instead, individuals who signed a 'personal services contract' had complete discretion over whether or not they turned their paychecks over to Professional and Technical Services."

18
These allegations in the indictment indicate that participants in the scheme continued to "earn" their own salaries.  The scheme is therefore illegal under Lucas.    Calling the scheme an assignment of life services rather than an assignment of income does not change the nature of the underlying acts alleged in the indictment.

19
The fact that this scheme involved the use of purported foreign trust organizations, and that this particular scheme had not been ruled illegal until the Landsberger litigation, does not change the basic conclusion.  Regardless of the entities through which taxpayers' monies were funneled, the basic personal services contract remains an assignment of income that is ineffective for tax purposes.  If it is clear beyond any doubt that a scheme is illegal under established principles of tax law, then participants have fair notice of its illegality even if no appellate court has explicitly so ruled.   See United States v. Ingredient Technology Corp., 698 F.2d 88, 96 (2d Cir.)  ("it is immaterial that 'there is no litigated fact pattern precisely in point' "), cert. denied, 462 U.S. 1131, 103 S.Ct. 3111, 77 L.Ed.2d 1366 (1983).  This case is thus distinguishable from Dahlstrom, where the court was "convinced that the legality of the tax shelter program advocated by the [defendants] ... was completely unsettled by any clearly relevant precedent on the dates alleged in the indictment."    713 F.2d at 1428.   See United States v. Little, 753 F.2d 1420, 1433-34 (9th Cir.1984) (court distinguished Dahlstrom, noting that the law regarding retroactive partnership allocations was clear on the dates alleged in the indictment);  United States v. Condo, 741 F.2d 238, 240 (9th Cir.1984) (court distinguished Dahlstrom, observing that the constitutionality of the taxing system was clear), cert. denied, 469 U.S. 1164, 105 S.Ct. 924, 83 L.Ed.2d 936 (1985).

20
The other Forrester tax scheme was the "9:1 tax shelter."    The illegality of this scheme was likewise clear beyond any doubt.  "The incidence of taxation depends upon the substance of a transaction."   Commissioner v. Court Holding Co., 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 981 (1945);  see also Rickey v. Commissioner, 502 F.2d 748, 752 (9th Cir.1974).  The indictment alleged that taxpayer participants contracted with IDI for the purchase of "consulting services," paid a fee for the services, immediately received a "gift" from IDI equal to 90 percent of the fee paid, and never received any consulting services.  They were told that the "fee" paid for the "consulting services" was tax deductible.  This scheme lacks substance, and the defendants had fair notice of its illegality.

21
We conclude that assuming the truth of the allegations in the indictment, defendants were engaged in promoting tax schemes, the illegality of which they had fair notice.  The district court erred in granting the defendants pre-trial motions for dismissal of 12 counts.

22
REVERSED and REMANDED.

FERGUSON, Circuit Judge, concurring:

23
I concur in Judge Fletcher's opinion.  I write separately in an effort to clarify our decision in United States v. Dahlstrom, 713 F.2d 1423 (9th Cir.1983), cert. denied, 466 U.S. 980, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1984).

24
Initially, I disagree with the district court's decision to dismiss a number of counts without benefit of trial.  The court ruled that, regardless of what evidence might be produced, the government could not prove willfulness unless an appellate court had previously held the specific tax shelter scheme illegal.  I know of no law that permits the dismissal of an indictment based upon the nonexistence of facts, such as a defendant's state of mind, prior to trial.  The district court's reliance on Dahlstrom is misplaced, for Dahlstrom was decided after a trial in which the government had ample opportunity to demonstrate defendants' willfulness.

25
Further, as a member of the panel in Dahlstrom, I view its facts and holding differently than did the district court.  In Dahlstrom, there were two different categories of defendants.  The first group, including all of the defendants except Durst, only advocated tax shelters--they did no more than talk.  They prepared no false or fraudulent documents for the I.R.S.;    at most, they may have counseled such a preparation.  The bulk of the opinion, then, dealt with a group of people whose acts could not possibly be "advocacy ... directed to inciting or producing imminent lawless action ... likely to incite or produce such action."   Dahlstrom, 713 F.2d at 1428 (quoting Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1980) (per curiam).  The prosecution under I.R.C. Sec. 7206(2) thus failed because it failed to prove incitement of imminent unlawful action.

26
Defendant Durst presented a different case, for he had prepared a tax return based upon the fraudulent tax plan.  His conviction was reversed nonetheless because we found the filing of a document an essential element of a conviction under I.R.C. Sec. 7206(2), and the return prepared by Durst was never filed.   See Dahlstrom, 713 F.2d at 1429.

27
Dahlstrom holds, as noted in its Conclusion, that "[p]rosecution for advocacy of a tax shelter program in the absence of any evidence of a specific intent to violate the law is offensive to the first and fifth amendments of the United States Constitution."    Id. (emphasis added).  The Dahlstrom case was primarily a First Amendment case involving pure advocacy.  The defendants there were prosecuted even though nothing gave them fair warning that advocacy of the tax shelter would result in a criminal prosecution.  It is doubtful that a statute prohibiting advocacy in tax matters would, absent imminent unlawful action, withstand the First Amendment's protection of speech.

28
The case at hand does not present a case of pure advocacy.  The counts of the indictment that were dismissed allege various unlawful acts, not mere speech, on the part of the defendants.  The defendants are not prosecuted for the advocacy of false or fraudulent statements, but for various acts in support of false or fraudulent statements.  Their case is outside the advocacy protection granted by Dahlstrom.

1
 Landsberger involved only the "personal services contract," and did not involve the "9:1 tax shelter."    The district court in the case at bar apparently concluded that pre-Landsberger, the defendants lacked fair notice of the illegality of the "9:1 tax shelter" as well, because the district court dismissed at least one count involving only the "9:1 tax shelter."

2
 We note that defendant Schooff was charged only in count I, which was dismissed.  The district court's order is therefore final as to Schooff.  The interlocutory appeal issue arises only as to defendants Russell and Richey

3
 At the end of its Order, the district court stated:  "To the extent that this Court has any authority to entertain the government's motion for leave to take an interlocutory appeal, the same is GRANTED."    This statement has no effect.  There is no provision for district court certification of interlocutory criminal appeals analogous to 28 U.S.C. Sec. 1292(b) regarding interlocutory civil appeals


532 F.2d 1374
U. S.v.Pinson*#
No. 76-1264
United States Court of Appeals, Fifth Circuit
5/26/76

1
N.D.Tex.

2
AFFIRMED***

*
 Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterpr ises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409
#  Local Rule 21 case; see NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966.

***
 Opinion contains citation(s) or special notations


People v Slavik (2018 NY Slip Op 07761)

People v Slavik

2018 NY Slip Op 07761

Decided on November 14, 2018

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 14, 2018
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
RUTH C. BALKIN
SYLVIA O. HINDS-RADIX
ANGELA G. IANNACCI, JJ.

2016-11798
 (Ind. No. 1225/96)

[*1]The People of the State of New York, respondent,
vTodd Slavik, appellant.

Laurette D. Mulry, Riverhead, NY (Lisa A. Marcoccia of counsel), for appellant.
Timothy D. Sini, District Attorney, Riverhead, NY (Glenn Green of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant pursuant to CPL 450.10(5) from an order of the Supreme Court, Suffolk County (Mark D. Cohen, J.), dated August 18, 2016, which denied, without a hearing, his motion pursuant to CPL 440.30(1-a) for forensic DNA testing of certain evidence.
ORDERED that the order is affirmed.
The defendant's motion pursuant to CPL 440.30(1-a) for DNA testing of evidence was properly denied, as the defendant failed to allege any facts demonstrating that there was a reasonable probability that the verdict would have been more favorable to him had DNA testing been performed and the results been admitted at trial (see People v Pitts, 4 NY3d 303, 311; People v Gentile, 156 AD3d 814; People v Letizia, 141 AD3d 1129; People v Kaminski, 61 AD3d 1113, 1115; People v Williams, 47 AD3d 648; People v Fuentes, 44 AD3d 871; People v Mattocks, 15 AD3d 676, 677).
MASTRO, J.P., BALKIN, HINDS-RADIX and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


569 F.2d 1155
U. S.v.Willis
No. 77-5353
United States Court of Appeals, Fifth Circuit
2/27/78
S.D.Miss., 564 F.2d 415


731 F.2d 523
116 L.R.R.M. (BNA) 2331, 17 Ed. Law Rep. 71
Estella ROBERTS and Bertha Burden, Appellants,v.VAN BUREN PUBLIC SCHOOLS;  James R. Tate and James Starbird,Individually and as Superintendent and Principal of VanBuren Public Schools;  and Gene Neidecker, President;  C.J.Franklin;  Iverson Riggs;  Ray Nelson;  Darral Sparkman;Dr. Robert Darden;  Otis Arnold and Robert Daugherty,Individually and as a member of the Board of Directors ofthe Van Buren Public Schools, Appellees.
No. 83-1457.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 18, 1983.Decided March 27, 1984.

Richard W. Roachell, Marcia Barnes, Cearley, Mitchell & Roachell, Little Rock, Ark., for appellants.
Ben Core, Daily, West, Core, Coffman & Canfield, Fort Smith, Ark., for appellees.
Before HEANEY and McMILLIAN, Circuit Judges, and COLLINSON,* Senior District Judge.
McMILLIAN, Circuit Judge.

1
Estella Roberts and Bertha Burden, former nontenured teachers in the Van Buren Public Schools (School District) whose contracts were not renewed, appeal from a final order entered in the District Court1 for the Western District of Arkansas denying their motion for a preliminary injunction requiring the School District to reinstate them.  For reversal appellants argue that the district court erred in finding (1) that appellants would not suffer irreparable harm if the injunction were not granted and (2) that appellants were not likely to succeed on the merits of their action brought under 42 U.S.C. Sec. 1983 claiming violation of their first, fifth and fourteenth amendment rights in the nonrenewal of their teaching contracts.  For the reasons discussed below, we affirm the order of the district court.

2
Appellant Roberts began teaching for the School District in the 1979-80 school year;  appellant Burden began in the 1980-81 school year.  Both were nontenured fifth grade teachers at the City Heights Elementary School under the supervision of Principal James Starbird.  At the end of each school year, Starbird would evaluate the teachers under his supervision using written evaluation forms.  The forms would be submitted to Superintendent of Schools, James R. Tate, who in turn would submit them to the Board of Directors of the School District along with recommendations regarding contract renewals.  Both appellants were given a rating of satisfactory in every category of their 1980-81 teaching evaluations and were rehired for the 1981-82 school year.

3
Appellants were active members in the local teachers organization which was affiliated with a statewide organization (the Arkansas Education Association) and a national organization (the National Education Association).  Both engaged in recruiting efforts on behalf of the organization and participated in organization meetings and seminars.  During the 1981-82 school year, appellant Roberts served as vice-president and faculty representative of the organization.

4
On May 21, 1981, after the teaching evaluations for that year had been completed, appellants and another fifth grade teacher submitted two written grievances to Starbird on matters of concern to them which they wished to discuss with Starbird.  They used written grievance forms developed by the teachers organization.  These were the first written grievances ever filed in the School District and the record leaves little doubt that both Starbird and Tate, to whom Starbird referred the grievance, did not approve of this procedure.

5
On April 26, 1982, Starbird prepared the written teaching evaluations covering the 1981-82 school year.  On appellant Roberts' evaluation, eleven of the twenty-one categories were marked "needs improvement";  on appellant Burden's evaluation, ten categories were so graded.  Starbird indicated on both forms that he did not recommend renewal of the teachers' contracts2 and requested that in the event of contract renewal, neither teacher be reassigned to his school.  Tate reviewed these written evaluations and recommended to the Board of Directors that appellants' contracts not be renewed.  On May 11, 1982, at its meeting to consider contract renewals, the Board voted unanimously not to renew appellants' contracts for the 1982-83 school year.  Upon notification of this decision, appellants requested but were denied hearings on the matter.

6
On August 13, 1982, appellants filed this suit against the School District, Starbird, Tate and the members of the Board, individually and in their official capacities, seeking money damages as well as declaratory and injunctive relief.  Appellants claimed that (1) the nonrenewal of their contracts was motivated by their union activities including filing grievances and, as such, was in violation of their first amendment right of freedom of speech and association, and (2) the termination of their employment coupled with the stigma to their reputations resulting from the derogatory evaluations placed in their personnel files was a deprivation of liberty without due process in violation of their fifth and fourteenth amendment rights.  Appellants also asserted claims based on Arkansas state law.

7
Accompanying appellants' complaint was a motion for a preliminary injunction requiring that they be reemployed as teachers in the School District pending trial upon the merits.  This motion was referred to a magistrate pursuant to 28 U.S.C. Sec. 636(b)(1)(B) (1976).  Following a three-day hearing and submission of briefs by both sides, the magistrate recommended that the motion be denied, finding no threat of irreparable harm to appellants and little likelihood that appellants would succeed on the merits.  The magistrate's findings and recommendation were adopted by the district court and this appeal followed.

8
We note at the outset that this case is before us only as an appeal from the denial of preliminary injunctive relief, not from a decision on the merits.  Our review of a district court's denial of a preliminary injunction is limited.  The granting or denial of a preliminary injunction is properly a matter within the sound discretion of the trial court and the function of an appellate court is limited to determining whether there has been an abuse of this discretion.    Minnesota Association of Health Care Facilities v. Minnesota Department of Public Welfare, 602 F.2d 150, 152 (8th Cir.1979);  Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861, 866 (8th Cir.1977).

9
In Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir.1981) (banc), this court clarified the standard to be applied by the district court in considering requests for preliminary injunctive relief.  Whether a preliminary injunction should issue involves consideration of four factors:  "(1) the threat of irreparable harm to the movant;  (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant;  (3) the probability that movant will succeed on the merits;  and (4) the public interest."    Id. at 113.  We recognized that in all cases the movant is required to show the threat of irreparable harm and that the absence of such a showing is alone sufficient ground for denying the preliminary injunction.  Id. at 114 n. 9 (citing Rittmiller v. Blex Oil, Inc., 624 F.2d 857, 861 (8th Cir.1980);  Frejlach v. Butler, 573 F.2d 1026, 1027 n. 4 (8th Cir.1978)).

10
In the instant case, the basis of appellants' complaint is the loss of their jobs and it is this injury which appellants seek to avoid through their request for preliminary injunctive relief.  Should appellants prevail on the merits of their action they would be entitled to reinstatement and backpay relief.  Because such relief would offer a complete remedy, the requirement of irreparable harm upon which a preliminary injunction must be based is not met.    See McDonough v. Trustees of the University System of New Hampshire, 704 F.2d 780, 784 n. 2 (1st Cir.1983).

11
The district court's denial of appellants' motion for a preliminary injunction was, therefore, not an abuse of discretion.3

12
Accordingly, we affirm the order of the district court.

*
 The Honorable William R. Collinson, United States Senior District Judge for the Eastern and Western Districts of Missouri, sitting by designation

1
 The Honorable H. Franklin Waters, Chief Judge, United States District Court for the Western District of Arkansas

2
 Starbird stated as follows with respect to Plaintiff Roberts:
This teacher has demonstrated consistently poor rapport with administration, other teachers, staff, parents, and members of the Parent-Teacher Association.  Her recruitment efforts in behalf of the state educational association have often attempted to create poor relations between administration and faculty, instead of cooperation for the good of the children.  Her relations with parents have led to apologies on behalf of the school for her harsh uncompromising point of view.  She is never wrong.  Attempts to improve the situation led her to hand me some type of grievance form accusing me of lack of adequate explanation, dishonesty, and an implied threat of legal action by the educational association.  She has a high rate of requests from parents not to assign her their children.  Special Services has requested that children in their program not be assigned to her.
With respect to Plaintiff Burden:
According to comments from parents of students assigned to this teacher the classroom atmosphere is excessively harsh, uncompromising, and lacking in adequate instruction for assigned tasks.  I have attempted to persuade her to ease up and was handed some type of grievance form accusing me of lack of adequate explanation, dishonesty, and an implied threat of legal action, instead of an honest attempt to alleviate the deteriorating situation.  This teacher turned in over eighty reports of discipline last year, and has one of the highest request rates from parents not to assign her their children.

3
 The district court also found that appellants' likelihood of success on the merits was slim.  As recognized by the district court, the law controlling appellants' claim that their nonrenewal offended the first amendment is set out in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).  In that case, the Court first reaffirmed that a nonrenewed, nontenured teacher may establish a claim to reinstatement if the decision not to rehire the teacher was made by reason of the teacher's exercise of constitutionally protected first amendment freedoms.  Id. at 283-84, 97 S.Ct. at 574-75.  However, the Court held that even if the teacher shows that his or her constitutionally protected conduct "was a 'substantial factor'--or, to put it in other words, that it was a 'motivating factor' in the Board's decision not to rehire," id. at 287, 97 S.Ct. at 576, that decision would not amount to a constitutional violation justifying remedial action where the Board establishes "by a preponderance of the evidence that it would have reached the same decision ... even in the absence of the protected conduct."    Id
Applying this test to the case at bar, the district court found the evidence "almost overwhelming" that the nonrenewal decision would have been made in the absence of appellants' union activities and grievances filing.  The district court found that the reason Starbird and Tate decided not to recommend renewal of appellants' contracts was the lack of regard for appellants by a large number of parents and teachers at their school.
The determination of the legal issues raised by appellants is inextricably intertwined with resolution of factual disputes.  While we express no opinion as to the ultimate outcome of this case, we note with approval the reasoning and holding of the Sixth Circuit in Hickman v. Valley Local School District Board of Education, 619 F.2d 606 (6th Cir.1980).  The court there held that where a personality conflict between a teacher and principal and a decline in teaching evaluations given the teacher by the principal were traceable to the teacher's union activities, neither the conflict nor the decline could justify dismissal of the teacher.  Id. at 610.


COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-02-516-CR

MICHAEL CRAIG ROTH                                                          APPELLANT

V.

THE STATE OF TEXAS                                                                  STATE

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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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        Appellant
Michael Craig Roth brings this appeal, following the revocation of his deferred
adjudication community supervision, from the trial court’s judgment
adjudicating him guilty and sentencing him to ten years’ confinement.  In
three points, Appellant complains that: (1) the trial court erred in failing to
hold a separate punishment hearing after his adjudication of guilt; (2) the
trial court’s deadly weapon finding was not supported by legally sufficient
evidence; and (3) the trial court lacked jurisdiction to revoke his community
supervision because the judgment placing him on community supervision was
void.  We will affirm in part and dismiss in part.
Factual and Procedural Background
        Appellant
was charged by indictment with sexual assault and aggravated assault with a
deadly weapon, his hands.  Appellant pleaded guilty on April 28, 2000 to
the aggravated assault charge and was placed on five years’ deferred
adjudication community supervision.  The judgment indicates that the trial
court determined the evidence supported Appellant’s plea of guilty, but the
court deferred entering any findings of guilt or the use of a deadly weapon and
placed Appellant on five years’ deferred adjudication community
supervision.  Although Appellant did not enter a plea on the sexual assault
charge, he was placed on a sexual offender caseload.
        On
October 17, 2002, the State filed its first amended petition to proceed to
adjudication based on Appellant violating a number of the conditions of his
deferred adjudication community supervision. On December 16, 2002, the trial
court conducted a hearing on the State’s petition.  At the hearing, both
sides presented evidence, and Appellant acknowledged that he had violated the
conditions of his deferred adjudication community supervision, but he testified
that he did not think he was doing so at the time of the violations.
Appellant’s wife and mother-in-law, who were his “chaperones” corroborated
Appellant’s admissions.
        The
trial court stated that it found that Appellant had violated each and every term
of the conditions as alleged in the State’s petition.  The court then
asked whether the parties were ready to proceed with sentencing.  Both
sides announced ready for sentencing, and neither indicated in any manner that
it desired to call additional witnesses or to put on other evidence.  The
court proceeded to explain its thinking concerning Appellant’s punishment and
assessed a sentence of ten years’ confinement in the Texas Department of
Criminal Justice.  In the judgment adjudicating Appellant guilty, the court
affirmatively found that Appellant used or exhibited a deadly weapon, his hands,
during the commission of the assault or the immediate flight therefrom.
Trial Court’s Jurisdiction
        We
will first address Appellant’s third point, as raised in his supplemental
brief, in which he complains that the trial court lacked jurisdiction to revoke
his community supervision because the trial court’s order placing him on
community supervision was void.  See Nix v. State, 65 S.W.3d 664,
667-68 (Tex. Crim. App. 2001) (stating that “[a] void judgment is a
‘nullity’ and can be attacked at anytime”).  Specifically, Appellant
asserts that the indictment failed to state a felony, thus depriving the trial
court of jurisdiction to place him on deferred adjudication community
supervision.
        In
Duron v. State, the court of criminal appeals held that a written
instrument that purports to be an indictment is an indictment “under the
Constitution if it accuses someone of a crime with enough clarity and
specificity to identify the penal statute under which the State intends to
prosecute, even if the instrument is otherwise defective.”  956 S.W.2d
547, 550-51 (Tex. Crim. App. 1997).  While the State abandoned count one of
its indictment (sexual assault), it proceeded on a handwritten amendment to the
indictment, which reads as follows:

Count
Two: And it is further presented in and to said Court that on or about the 16th
day of December, 1998, in Tarrant County, Texas, the defendant did intentionally
or knowingly threaten [A.D.] with imminent bodily injury, and the defendant used
or exhibited a deadly weapon during the commission of said assault: to wit; the
defendant’s hands.

Count two of the
indictment clearly charged Appellant with aggravated assault and followed the
elements for aggravated assault listed in the penal code.  Tex. Penal Code Ann. §§ 22.01(a)(2),
22.02(a)(2) (Vernon Supp. 2004).  We hold that the indictment in this case
was sufficient to invoke the trial court’s jurisdiction and that the judgment
placing Appellant on deferred adjudication community supervision is not
void.  See Duron, 956 S.W.2d at 550-51.  The trial court
therefore had jurisdiction to revoke Appellant’s community supervision.
Accordingly, we overrule Appellant’s third point.
Issa Hearing
        In
his first point, Appellant contends that the trial court erred by failing to
hold a separate punishment hearing after his adjudication of guilt.  See
Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999); Pearson v.
State, 994 S.W.2d 176, 179 (Tex. Crim. App. 1999); Issa v. State, 826
S.W.2d 159, 161 (Tex. Crim. App. 1992).  In Issa, the court of
criminal appeals held that a “defendant is entitled to a punishment
hearing after the adjudication of guilt, and the trial judge must allow the
accused the opportunity to present evidence.”  826 S.W.2d at 161.
We agree with the State’s position that any error regarding the timing of
Appellant’s sentencing hearing is not preserved for our review because the
record does not indicate that Appellant raised this complaint with the trial
court.
        To
preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion that states the specific grounds
for the desired ruling if they are not apparent from the context of the request,
objection, or motion.  Tex. R. App.
P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim.
App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
With respect to whether an appellant preserves error on the issue of the timing
of the punishment hearing following an adjudication of guilt, Issa
addressed a situation where

the
record reflect[ed] that the trial court in one proclamation stated that it
“[t]hereby revoke[d] [appellant’s] probation and enter[ed] a finding,
adjudication . . ., and [t]hereby sentence[d] [appellant] to serve a term in the
Texas Department of Corrections for ten years[,]” [such that] appellant had no
opportunity to object to the trial court’s action until after that action was
taken.

Id.  Issa
concluded that the appellant had preserved error for appellate review by raising
his complaint in a timely filed motion for new trial. Id.
        In
Hardeman, however, the court of criminal appeals rejected an
appellant’s claim that he had preserved Issa error by timely filing a
motion for new trial.  1 S.W.3d at 690.  Rather, the court stated that
the appellant in Issa had preserved error by filing a motion for new
trial only because he had not been given the opportunity to object and present
evidence.  Id.  In contrast, while the appellant in Hardeman
had timely filed a motion for new trial, the court held this action failed to
preserve error because the trial court had given him the opportunity to object
and to present evidence prior to the pronouncement of his sentence, but he had
done neither. Id.
        This
case is factually similar to and controlled by Hardeman. See id.
In this case, the trial court determined that Appellant had failed to comply
with the terms of his community supervision and then asked whether the parties
were ready to proceed to sentencing.  After both sides announced ready, the
trial court sentenced Appellant to ten years’ confinement.  Appellant did
not object and therefore failed to preserve error on his Issa
complaint.  See Tex. R. App.
P. 33.1(a)(1); Hardeman, 1 S.W.3d at 690.
        Moreover,
even if Appellant lacked an opportunity to object, he failed to preserve error
because the record does not indicate that he presented his motion for new trial
to the trial court.  See Tex.
R. App. P. 21.6 (providing generally that defendant must present motion
for new trial to trial court within 10 days of its filing); Carranza v. State,
960 S.W.2d 76, 78 (Tex. Crim. App. 1998) (holding appellant had burden not only
to file motion for new trial, but also to “present” it to the trial court); Reyes
v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993); Amaro v. State,
970 S.W.2d 172, 173-74 (Tex. App.—Fort Worth 1998, no pet.). According to Carranza,
the term “‘present’ . . . means the record must show the movant for a new
trial sustained the burden of actually delivering the motion for new trial to
the trial court or otherwise bringing the motion to the attention or actual
notice of the trial court.”  960 S.W.2d at 79.  Here, the record
establishes that Appellant timely filed his motion for new trial, but it does
not show that he actually delivered the motion for new trial to the trial court
or otherwise brought the motion to the attention or actual notice of the trial
court.2  See Tex. R. App. P. 21.6; Carranza,
960 S.W.2d at 79; Amaro, 970 S.W.2d at 174 n.2.  Accordingly,
because Appellant did not preserve error concerning the alleged Issa
error, we overrule his first point.3
Deadly Weapon Finding
        In
his second point, Appellant complains that the deadly weapon finding is not
supported by legally sufficient evidence. The State argues that we may not
address the sufficiency of the evidence because Appellant’s attempt to appeal
this issue three years after being placed on deferred adjudication community
supervision is untimely.  During the plea proceedings, Appellant signed a
judicial confession, in which he acknowledged that he had read the indictment
and then stated, “I committed each and every allegation it contains.”
Appellant waived the right to a court reporter, and he did not file a notice of
appeal.
        We
agree with the State that Appellant waived his sufficiency complaint by failing
to raise it in an appeal after the trial court imposed deferred adjudication
community supervision.  See Manuel v. State, 994 S.W.2d 658, 661
(Tex. Crim. App. 1999); see also Stowe v. State, 124 S.W.3d 228, 233-34
(Tex. App.—El Paso 2003, no pet.) (stating general rule that “a defendant
placed on deferred adjudication community supervision may raise issues related
to the original plea proceeding only in appeals taken when deferred adjudication
is first imposed”).  We therefore dismiss Appellant’s second point. See
Manuel, 994 S.W.2d at 662.
Conclusion
        We
dismiss Appellant’s second point because it relates to the original cause in
which he received deferred adjudication community supervision.  Having
overruled his first and third points, we affirm the trial court’s judgment.

                                                          ANNE
GARDNER
                                                          JUSTICE

PANEL A:   CAYCE,
C.J.; GARDNER and MCCOY, JJ.

DO NOT PUBLISH
Tex. R.
App. P. 47.2(b)

DELIVERED: July 1, 2004

NOTES
1.  See Tex. R. App. P. 47.4.
2.  We observe that the clerk’s
record contains a docket entry that states, “Motion for new trial filed,”
but this alone is not sufficient to show presentment. Amaro, 970 S.W.2d
at 174 n.2 (citing Reyes, 849 S.W.2d at 815).
3.  In light of our determination
that Appellant’s motion for new trial is deficient for lack of presentment, we
do not address the State’s arguments concerning the lack of verification or
the absence of any affidavits attached to Appellant’s motion. See Tex. R. App. P. 47.1 (stating opinion
need only address every issue necessary to final disposition of the appeal).


543 U.S. 1152
WILLIAMS ET AL.v.KING, ATTORNEY GENERAL OF ALABAMA.
No. 04-849.
Supreme Court of United States.
February 22, 2005.

1
C. A. 11th Cir. Certiorari denied. Reported below: 378 F. 3d 1232.


243 F.2d 575
Margaret GRENAWALT, as Administratrix of the Goods, Chattelsand credits of Roy R. Grenawalt, Deceased,Plaintiff-Appellant,v.SOUTH AFRICAN MARINE CORPORATION, Limited, Defendant-Respondent.
No. 285, Docket 24314.
United States Court of Appeals Second Circuit.
Argued April 3, 1957.Decided April 18, 1957.

Thomas F. Frawley, New York City (Milton Neimark and Jacob Rassner, New York City, on the brief), for plaintiff-appellant.
James B. Magnor, of Kirlin, Campbell & Keating, New York City (Vernon S. Jones, of Kirlin, Campbell & Keating, New York City, on the brief), for defendant-respondent.
Before CLARK, Chief Judge, LUMBARD, Circuit Judge, and LEIBELL, District Judge.
PER CURIAM.

1
Affirmed on the findings and opinion of District Judge Weinfeld, D.C.S.D.N.Y., 130 F.Supp. 432.