231 F.2d 68
Ennis M. NICHOLS, individually and on behalf of otherstockholders of Long Island Lighting Company, similarlysituated, and as Acting Chairman and member of the Committeeof the Common Stockholders Committee of Long Island LightingCompany, and Common Stockholders Committee of Long IslandLighting Company, Plaintiffs-Appellants,v.Harry A. ALKER, Edward F. Barrett, Dougall C. Fraser, JohnVannek, Samuel Housman, Lee P. Slack, Ethel W. Blakeslee, asExecutrix of the Estate of Charles G. Blakeslee, Deceased,James W. Carpenter, William Rogers Coe, Errol W. Doebler,George Link, Jr., Robert G. Olmstead, Edward J. Crummie,Harry C. Hagerty, Thomas P. Booth, Albert F. Tegen, PercivalE. Jackson, Franklin S. Coons, Vincent T. Miles, William C.Langley, Laurence M. Marks, David K. Kadane and Charles P.Elbert, Defendants-Appellees.
No. 39, Docket 23580.
United States Court of Appeals Second Circuit.
Argued Oct. 10, 1955.Decided Feb. 14, 1956.

Harold G. Aron, Madison, Conn., for plaintiffs-appellants.
Winthrop, Stimson, Putnam & Roberts, New York City, Peter H. Kaminer, New York City, of counsel, for appellee Marks.
David K. Kadane, Mineola, N.Y., pro se, Bertram D. Moll, Mineola, N.Y., of counsel, for appellees Barrett and others.
Charles C. Lockwood, New York City, for appellee Vannek.
Percival E. Jackson, New York City, pro se.
Before FRANK, HINCKS and WATERMAN, Circuit Judges.
WATERMAN, Circuit Judge.

1
Plaintiff appeals from an order of the United States District Court for the Eastern District of New York (Galston, J.) dismissing the complaint on the ground of res judicata and striking it from the files of the District Court as sham and false.  The complaint was filed by Ennis M. Nichols, individually, and as representative of a group of common stockholders of the pre-reorganized Long Island Lighting Company ('Long Island'), and was brought against four groups of defendants: (1) officers and directors of the pre-reorganized Long Island (Alker, Barrett, Blakeslee, Fraser, Vannek, Housman, Slack, Elbert, Carpenter, Coe, Doebler, Link, Crummie, Hagerty, Tegen, and Marks); (2) agents of the pre-reorganized Long Island (Barrett, Olmstead, and Booth); (3) members and counsel of a preferred stockholders' committee (the Langley Committee) representing certain preferred stockholders of the pre-reorganized Long Island (Langley, Marks, Jackson); and (4) David Kadane, formerly of the Securities and Exchange Commission ('S.E.C.'), and now general counsel of the present Long Island.  The complaint alleges in substance that these groups and Mr. Kadane fraudulently conspired together to defeat rights of the old common stockholders of the Long Island, allegedly created by and established under a 1944 plan of recapitalization of the Long Island ('the 1944 plan') which had been approved by the New York Public Service Commission.  The same or strikingly similar charges have been before this court on four previous occasions.  In re Long Island Lighting Co., D.C.E.D.N.Y.1950, 89 F.Supp. 513, affirmed sub nom.  Common Stockholders Committee, etc. v. S.E.C., 2 Cir., 1950, 183 F.2d 45, certiorari denied 1950, 340 U.S. 834, 71 S.Ct. 64, 95 L.Ed. 612, petition to reopen denied 2 Cir., 1952, 197 F.2d 709; Nichols v. Long Island Lighting Co., 2 Cir., 1953, 207 F.2d 931, certiorari denied, 1954, 348 U.S. 827, 75 S.Ct. 45, 99 L.Ed. 652, petition for rehearing denied 1954, 348 U.S. 884, 75 S.Ct. 123, 99 L.Ed. 695, petition to amend denied 2 Cir., 1954, 211 F.2d 392.  Reference to these opinions and to the opinion of Judge Kennedy enforcing the plan of reorganization approved by the S.E.C., In re Long Island Lighting Co., D.C.E.D.N.Y.1950, 89 F.Supp. 513, will supply in profuse detail the factual background of the present action.

2
It is desirable to summarize the history of the reorganization of the Long Island and the resulting litigation.  By 1937 the Long Island had suspended full payment of dividends on its preferred stock.  At this time and until 1945, the Long Island had been granted an exemption by the S.E.C. from the registration provisions of the Public Utility Holding Company Act of 1935, 15 U.S.C.A. § 79 et seq., ('P.U.H.C.A.').1  The financial position of the Long Island and its subsidiaries continuing to deteriorate, the Long Island in 1944 submitted a reorganization plan to its stockholders.  Under this plan the par value and current dividend rights of its preferred stock were to have been reduced by 40 per cent, the accrued dividend arrears of the preferred were not to be affected, and a new issue of common stock was to have been distributed approximately one half to the holders of preferred and one half to the holders of common.  Although the plan was approved by the stockholders, and, with some modifications, by the Public Service Commission of New York, it was never put into effct.2

3
Shortly before the 1944 plan of reorganization was to be consummated, certain dissenting preferred stockholders of Long Island, realizing that the Public Service Commission of New York had only limited powers to compel readjustment of stock interests or voting rights, filed with the S.E.C. a petition asking the S.E.C. to revoke or modify the exemption previously granted.  In November, 1944, the S.E.C. instituted proceedings to determine whether the exemption should be revoked or modified, and in December, 1944, the S.E.C. instituted an action in the United States District Court to restrain Long Island from taking any further steps to consummate the 1944 plan pending a determination by the S.E.C. as to whether the provisions of the P.U.H.C.A. should be extended to the Long Island.  This attempt to enjoin the consummation of the plan failed in the first instance, S.E.C. v. Long Island Lighting Co., D.C.E.D.N.Y.1944, 59 F.Supp. 610, affirmed 2 Cir., 1945, 148 F.2d 252, and the certiorari granted by the Supreme Court, 324 U.S. 837, 65 S.Ct. 869, 89 L.Ed. 1401, became moot, 325 U.S. 833, 65 S.Ct. 1085, 89 L.Ed. 1961, when the S.E.C. completed its proceedings and revoked the exemption of Long Island from the P.U.H.C.A. The Long Island, which had heretofore contested the revocation of its exemption, now acquiesced in the order of the S.E.C., and registered in accordance with the provisions of the P.U.H.C.A.

4
In 1945 Long Island filed an application with the S.E.C. under § 11(e) of the P.U.H.C.A., 15 U.S.C.A. § 79k(e) for approval of a plan of reorganization and consolidation of Long Island with other Few York public utilities.  For 4 years thereafter various plans were under consideration by the S.E.C. The Public Service Commission of New York was also involved in consideration of these plans until 1948, when it was held that it had no jurisdiction with respect to the allocation of securities of New York public utilities which were being reorganized under § 11(e) of the P.U.H.C.A.3  In re King's County Lighting Co., D.C.E.D.N.Y.1947, 72 F.Supp. 767, affirmed sub nom.  Public Service Commission of New York v. S.E.C., 2 Cir., 1948, 166 F.2d 784, certiorari denied 334 U.S. 838, 68 S.Ct. 1495, 92 L.Ed. 1763.  The present plaintiffs formed a common stockholders committee in 1948 and took part in the S.E.C. proceedings.  On November 16, 1949, the S.E.C. entered an order of consolidation and reorganization which, although giving the old common stockholders of Long Island much less than the 1944 plan, gave them in excess of 5 per cent of the new common stock to be issued.  A petition for enforcement of this plan was granted by the District Court after a finding that the plan was fair and equitable.  In re Long Island Lighting Co., D.C.E.D.N.Y.1950, 89 F.Supp. 513.  We affirmed, 2 Cir., 183 F.2d 45, and certiorari was denied by the Supreme Court, 340 U.S. 834, 71 S.Ct. 64, 95 L.Ed. 612.

5
In April, 1952, approximately 18 months after the consummation of the reorganization, the present plaintiffs sought to set aside the order, reopen the proceedings, or be granted leave to file a bill of review in the District Court, on the ground that the order was entered 'under circumstances tantamount to fraud effected and committed by said Long Island Lighting Company upon the Securities and Exchange Commission, the court below and this court.'4  We denied this motion, finding that the 'facts alleged in the petition do not show that fraud was practiced upon the Commission, the District Court, or this court,' In re Long Island Lighting Co., 2 Cir., 1952, 197 F.2d 709, 710.

6
Then, in November, 1952, the present plaintiffs sued the reorganized Long Island in an independent tort action alleging that the Long Island's predecessor corporation conspired with certain of its preferred stockholders to defeat rights of the plaintiffs allegedly created by and established under the 1944 recapitalization plan.  The S.E.C. moved to intervene and dismiss the action as a collateral attack on the 1950 decree enforcing the consolidation.  That decree contained an injunction, pursuant to 15 U.S.C.A. § 79k(e) and § 79r(f) to the effect: 'Long Island Lighting Company, Queens Borough Gas & Electric Company and Nassau & Suffolk Lighting Company, and all their creditors and security holders, and all persons be, and they are hereby enjoined and restrained from doing any act or taking any action interfering with, or tending to interfere with, these proceedings * * * including the commencement or prosecution of any action, suit or proceeding, at law or in equity, or under any statute, in any court or before any executive or administrative officer, commission or tribunal, other than such proceedings before the Commission or this Court as may be authorized by the Act or the Rules and Regulations promulgated thereunder, and such review, if any, in an appropriate Court of Appeals as may be provided by law.'  The District Court, per Judge Inch, granted the motion of the S.E.C. to intervene, and dismissed the action as being a forbidden collateral attack on the reorganization decree.  On appeal this court affirmed the dismissal for the reason given by the trial judge, and also on the ground of res judicata, Nichols v. Long Island Lighting Co., 2 Cir., 1953, 207 F.2d 931.  Attempts by the present plaintiffs to compel the S.E.C. to receive testimony on the charges of fraud in the reorganization were dismissed by Judge Inch, following which we reaffirmed our previous holding on petition to amend, 2 Cir., 1954, 211 F.2d 392, certiorari denied 348 U.S. 827, 75 S.Ct. 45, 99 L.Ed. 652, petition for rehearing denied 348 U.S. 884, 75 S.Ct. 123, 99 L.Ed. 695.

7
The present action against officers, directors and agents of the predecessor corporation was begun late in October, 1954.  The allegations of the complaint are almost identical to those contained in the complaint filed against the reorganized corporation in 1952, and it is obvious that the plaintiffs seek to avoid the conclusive effect of that and other prior adjudications by the device of shifting defendants.

8
The complaint in this action charges that an alleged conspiracy of the defendants, or some of them, defrauded the plaintiffs of the greater portion of their interest in the Long Island, vested in them pursuant to the 1944 plan of recapitalization, by carrying through the following steps of the conspiracy: (1) inducing the S.E.C. to institute federal court proceedings to prevent the imminent consummation of the 1944 plan and enjoin its enforcement;5 (2) waiving the exemption of the Long Island from the Public Utility Holding Company Act of 1935, 15 U.S.C.A. § 79 et seq.  ('P.U.H.C.A.'), thereby submitting the Long Island to the jurisdiction of the S.E.C.;6  (3) inducing the Long Island to file a plan of reorganization with the S.E.C., which, if adopted, would destroy all but a nominal part of the plaintiffs' interest in the Long Island; and (4) inducing the S.E.C. and the federal courts by misrepresentation, fraud and concealment to approve this plan of reorganization,7 thereby completing the conspiracy.

9
Athough largely lacking in detailed factual allegations, the complaint indicates several of the means employed to carry out the various steps in the alleged conspiracy: (a) dual employment of Kadane (employed by the S.E.C. prior to March, 1946, and by the Long Island subsequent to September, 1946); (b) oppression of the common stockholders by failing to call stockholders' meetings, denying the common stockholders the right to examine corporate records, and failing to give them notice of the pendency of reorganization proceedings; (c) understatement of earnings by misrepresenting the prospective earnings of the Long Island to the S.E.C., and concealing the true earnings of the Long Island from this court; (d) overstatement of depreciation by misrepresenting and concealing before the S.E.C. and the federal courts the true facts in respect to depreciation; and (e) consideration of an offer of the Consolidated Edison Co. for the assets of Long Island in return for debentures at 'a price less than one half of the then true value.'

10
The plaintiffs brought this action in the United States District Court for the Eastern District of New York.  Jurisdiction over the action was predicated solely on diversity of citizenship of the parties.  One might therefore suppose that the Erie doctrine would require that New York law govern this action substantively.8  But the primary issue involved is the scope and effect of a federal decree, and this of necessity is a question governed by federal law.

11
The reorganization decree here involved is immune from collateral attack.  It rests on the special statutory jurisdiction conferred by § 11 and 24 of the P.U.H.C.A., 15 U.S.C.A. §§ 79k(e), 79r, and 79x(a).  Such a decree, we think, is sui generis, and hence in determining its scope and effect, other adjudicated cases are not controlling.  The P.U.H.C.A. provides an administrative procedure before a specialized governmental agency, the S.E.C., for the simplification of structure and consolidation of certain public utilities.  The Act contains appropriate safeguards and provides that orders of the S.E.C. approving plans of reorganization shall be subject to judicial review by a United States Court of Appeals, 15 U.S.C.A. §§ 79k(b) and 79x(a).  In addition, the Commission may bring an action 'in the proper district court of the United States' to enforce the plan and enjoin violations thereof, 15 U.S.C.A. §§ 79k(d) and (e), 79r(f).  The district court in which the enforcement proceeding is brought (hereafter, the 'enforcing court') is empowered the approve the plan if it finds it 'fair and equitable and as appropriate. * * *' 15 U.S.C.A. §§ 79k(e).  And both the Commission and the enforcing court 'may, to such extent as it deems necessary for purposes of enforcement of such order, take exclusive jurisdiction and possession of the company or companies and the assets thereof, wherever located.' §§ 79k(d) and (e).  Thus the very scheme of the Act is such that a reorganization proceeding thereunder, just as fully as a reorganization under the Bankruptcy Act, 11 U.S.C.A. § 501 et seq., binds all those holding securities affected by a plan approved by the court having jurisdiction thereof.9

12
We think it plain that the jurisdiction thus conferred upon the Commission and the Court, respectively, is exclusive, and beyond reach of attack through actions of any form whatsoever brought to courts other than the enforcing court.  This conclusion we think is corroborated by the express grant of injunctive powers carried in the above-cited sections of the Act.  The respective grants of general jurisdiction to the district courts contained in the Judicial Code are generally unaccompanied with express grant of power to enjoin interference with the jurisdiction involved.  On that account, perhaps, judgments by courts of general jurisdiction are more vulnerable to collateral attack for fraud in their procurement.  But the express grant of such power to an enforcing court under the P.U.H.C.A., like the similar provisions in the Bankruptcy Act, strongly suggests Congressional intent to immunize enforcement decrees from such attack.

13
We find no cases in conflict with these conclusions.10  Indeed, the cases touching the problem most closely certainly are consistent with our view and tend to confirm our conclusions.  See particularly, In re United Gas Corp., D.C.D.Del., 58 F.Supp. 501, affirmed 3 Cir., 162 F.2d 409; Auburn Savings Bank v. Portland R. Co., 144 Me. 74, 65 A.2d 17, certiorari denied 338 U.S. 831, 707 S.Ct. 74, 94 L.Ed. 506, rehearing denied 338 U.S. 881, 70 S.Ct. 156, 94 L.Ed. 541; Okin v. S.E.C., 2 Cir., 161 F.2d 978.  Cf. In re Federal Water & Gas Corp., 3 Cir., 188 F.2d 100; General Protective Committee, etc. v. S.E.C., 346 U.S. 521, 74 S.Ct. 261, 98 L.Ed. 339, rehearing denied 347 U.S. 911, 74 S.Ct. 474, 98 L.Ed. 1068.  And such is the purport of S.E.C. v. Central-Illinois S. Corp., 338 U.S. 96, 69 S.Ct. 1377, 93 L.Ed. 1836, that even the enforcing court, on a direct petition to reopen its decree on the ground of fraud in its procurement, could go no further than to vacate its decree (or perhaps so much of its decree as approved the treatment of common stock) and remand the plan to the S.E.C. for further consideration.

14
Practical considerations support this conclusion.  Simplification or consolidation proceedings under the P.U.H.C.A. are in rem proceedings involving a multiplicity of parties.  The enforcing court becomes familiar with the parties and the issues involved, and for this reason the parties participating in the reorganization should have some protection from harassing actions brought before various other tribunals.

15
The plaintiffs contend that this action is not a direct or collateral attack on the reorganization decree-- they contend that it is an independent tort action seeking only damages from individual officers, directors, and other individuals as distinguished from a reallocation of the corporate securities amongst the several classes of security holders.  This contention, however, will not withstand analysis.  Although in form an independent action for damages, this action in effect is one to obtain for the common stock of Long Island a more favorable treatment than that provided by the decree in the reorganization proceedings.  This is so because it will necessarily involve the litigation of matters within the sole competence of a specialized administrative agency (the S.E.C.) and because it depends upon rights extinguished by the reorganization decree.

16
The plaintiffs' complaint inescapably rests on the assertion that they received less in the reorganization proceedings that they thought they were entitled to receive.11  The only allegations of the complaint which venture any detail as to the alleged conspiracy make it quite clear that if the allegations be taken as true a fraud was perpetrated by the defendants upon the S.E.C. and the federal courts by the obtaining of Commission and court approval of the reorganization.12  In order for the plaintiffs to recover in this action, they must prove that they suffered damage because the reorganization decree was fraudulently procured.  This would amount to a showing that: (a) the conspiracy of the defendants effected a fraudulent disposition of the assets of the Long Island, and (b) if such fraudulent disposition had not occurred, the S.E.C. would have given the plaintiffs exactly as much as the Public Service Commission of New York had rather unwillingly agreed to allow them.13  We think it obvious that both of these matters should not be litigated in courts other than the enforcement court provided for by the P.U.H.C.A., and that in that court the proceedings should be by direct rather than collateral attack.

17
Moreover, damage to the plaintiff is an essential element of a tort action for fraud.  The only damages asserted in the instant action are such as pertain to the plaintiffs below as holders of the pre-reorganization common stock.  The decree provided that 'all rights, interest and claims of the common stockholders of Long Island Lighting Company * * * shall cease and determine' except as provided for in the plan.  It follows that the instant action, in that it depends upon the pre-reorganization value of the common stock, is one seeking to assert a right extinguished by the decree.  This is so even though the recovery sought is only from the named defendants without involving any adjustment of the treatment afforded by the plan to other classes of security holders.  Thus necessarily the action is in derogation of at least one important feature of the plan and violates the injunction against interference with the decree in the reorganization proceedings.

18
Accordingly, we think that the action was rightly dismissed.  But we prefer to predicate the dismissal upon the grounds that the instant action was brought in violation of the injunction in the reorganization decree and constituted an attack on that decree not permissible under the P.U.H.C.A. We hold that through the device of an apparently independent tort action the plaintiffs below may not bypass the Commission and the enforcement court in an effort to alleviate their treatment under the plan approved by the reorganization decree.

19
This, of course, is not to say that the reorganization decree was immune from direct impeachment for fraud in its procurement.  Under Fed.Rules Civ.Proc. rule 60(b), 28 U.S.C.A., a direct motion to the enforcement court afforded a remedy to the plaintiffs below.  And perhaps this action, since it invoked the general jurisdiction of the same court, which in the exercise of its jurisdiction under the P.U.H.C.A. entered the enforcement decree, might have been treated as a motion under F.R.C.P. 60(b) seeking at least a partial reopening of the earlier decree on the ground of alleged fraud.  But these very plaintiffs in 1952 sought to reopen the reorganization proceeding on the ground that S.E.C. approval and court enforcement of the plan of reorganization was procured by means of fraud.  We considered the charges of fraud presented at that time and denied that petition 'on the ground that no fraud or other basis for relief under Rule 60(b), F.R.C.P., is made to appear' (2 Cir., May 21, 1952, unreported).14  On rehearing we again stated that 'the facts alleged in the petition do not show that fraud was practiced upon the Commission, the District Court or this court.'  In re Long Island Lighting Co., 2 Cir., 197 F.2d 709, 710.  We stated then that 'this court has jurisdiction to set aside its judgment if the judgment was induced by fraud upon the court practiced by a party to the litigation.' 197 F.2d 709, 710.  We adhere to that view.

20
It follows that, even had the court below treated the pending action as a direct motion for reopening under Rule 60(b), our former decision that the allegations of fraud were insufficient to justify a reopening would have constituted either a bar to reopening or an authoritative precedent for another ruling to the same effect.  For the allegations of fraud contained in the complaint in this action are substantially similar to those presented in 1952, and, to the extent that they are dissimilar or more complete, they were known to the plaintiffs and could have been presented at that time.15  Further, we think it proper to suggest that if the plaintiffs, unless they can show further justification than that shown in their present complaints and in those heretofore dismissed, should make yet another motion for reopening to the enforcement court, an order of denial be entered accompanied by an appropriate injunctive order directed to counsel as well as to plaintiffs restraining further litigation against the reorganized company and those individuals who directly or indirectly participated in its reorganization.

21
Affirmed.

22
FRANK, Circuit Judge (concurring).

23
I concur in the decision, but I think my colleagues travel the wrong road to reach the correct conclusion.

24
1. Of course, the 'enforcing court' (i.e. the court which enforced the S.E.C. order approving the plan) had exclusive jurisdiction of everything relating to the plan and to the allocation of the assets of the reorganized company, i.e. the allocation of securities issued pursuant to the plans.  Of course, too, that court's injunction prohibited the plaintiffs from taking any steps whatever, except in the enforcing court, to obtain a larger share of the assets of that company.  For that reason, among others, this court held that a previous suit by plaintiffs, against the reorganized company itself, could not be maintained.  See Nichols v. Long Island Lighting Co., 2 Cir., 207 F.2d 931, and 2 Cir., 211 F.2d 392.

25
In the present suit, however, plaintiffs do not seek to obtain a larger share of the reorganized company's assets.  Instead-- precisely because the judgment of the enforcing court (including its injunction) prevented their doing so-- they seek damages, not from the company, but from persons who, so plaintiffs allege, wrongfully brought about that judgment.  In other words, the present suit is based upon a tort consisting of the alleged harm done to plaintiffs by the wrongful conduct of the defendants.  If plaintiffs were to win in the present suit, they would indeed have more than the securities allotted to them under the plan.  But that added recovery would in no way diminish the assets of the reorganized company, nor would it be at the expense of the other participants in the plan.  Consequently, I cannot agree that plaintiffs seek to 'assert a right extinguished by the decree' in the reorganization proceedings.

26
I think when B, by certain kinds of fraudulent conduct, helps to bring about a judgment adverse to A in a suit by A against C, then B has committed a tort as against A, so that A may maintain an action for that tort against B. Such a tort action is not a collateral attack on the judgment adverse to A in his suit against C.1  To be sure, it is generally held that, if the wrongful conduct of B consisted solely of perjury at the trial in the suit between A and C, that wrong is not actionable; the most cogent reason for such rulings is that, on grounds of policy, the courts regard such an action, based upon such perjury, as undesirable, because the fear of such a possible action may tent to induce honest witnesses not to testify.2 But here the plaintiffs charge the defendants with a general conspiracy-- involving fraud on the S.E.C. and the enforcing court-- of which perjury in the reorganization proceedings was but an incident.3  Accordingly, I think that in bringing the present suit (1) the plaintiffs did not violate the injunction, and (2) that this suit cannot properly be dismissed on the ground that the enforcing court in the reorganization proceedings had exclusive jurisdiction of such a nature as to bar the present suit.

27
2. The correct basis for dismissing the complaint is, I think, the following: In the reorganization proceedings-- including those in the enforcing court and on appeal from its judgment-- the very facts which plaintiffs now assert were considered, and findings on those facts were made adverse to plaintiffs.  See Common Stockholders Committee, etc. v. S.E.C., 2 Cir., 183 F.2d 45, and In re Long Island Lighting Co., 2 Cir., 197 F.2d 709.  Indeed, when this court decided against these plaintiffs in their suit against the company, it did so, in part, on that very ground; see Nichols v. Long Island Lighting Co., 2 Cir., 207 F.2d 931, 934, and 2 Cir., 211 F.2d 392, 393.  As the decision in that suit against the company did not rest on a trial at which testimony was received (or the equivalent), and as there were no findings of fact, it probably did not, itself, give rise to a collateral estoppel here.4  But we surely can and should accept that decision as the most reliable sort of stare decisis to the effect that the previous decision in the reorganization case did operate as a collateral estoppel as to the facts which plaintiffs now allege.

28
Most of the present defendants were, I think, sufficiently 'in privity' with the company, and with others opposed to the present plaintiffs in the reorganization proceedings, so that the findings in the reorganization proceedings constitute a collateral estoppel which precludes this suit.5

29
As to the others, the district judge dismissed the complaint, as a sham pleading, on the basis of facts stated in the defendant's affidavits and facts appearing in the record of the reorganization proceedings.  Those statements of fact flatly denied, as to these defendants, the allegations of the unsworn complaint.  In effect, as to these defendants, the judge entered a summary judgment.  Plaintiffs filed no counter-affidavit disputing the facts as asserted in the affidavits and appearing in the record.  Since those facts were not at all peculiarly within the knowledge of the defendants, I think inapposite the doctrine enunciated in such cases as Subin v. Goldsmith, 2 Cir., 224 F.2d 753, 755, 757-761, and in Alvado v. General Motors, 2 Cir., 229 F.2d 408.

30
My colleagues in footnote 11 of their opinion say that, since the complaint lacks allegations 'to the effect that the S.E.C. was fraudulently induced to exert a jurisdiction over the Long Island which, in actual fact, did not exist, the complaint does not show that the plaintiffs have been wronged in this regard.'  To that extent, my colleagues justify a dismissal on the merits.  I incline to agree.  But my colleagues do not rest their decision on that ground.

1
 The exemption from the provisions of the P.U.H.C.A., according to the terms of the Act, 15 U.S.C.A. § 79c(c), was subject to revocation or modification, after notice and opportunity for hearing, in the event of changed circumstances.  See Long Island Lighting Co., 1 S.E.C. 345; 18 S.E.C. 717

2
 The Public Service Commission of New York expressed dissatisfaction with the 1944 plan and stated that it was overly favorable to the holders of common stock.  After referring to deficiencies in the capital structure and in the distribution of voting power among the stockholders of the Long Island, the Commission concluded with an invitation for S.E.C. intervention:
'The power of the Commission (the Public Service Commission) to remedy this condition directly is nil.  The Security and Exchange Commission has dealt summarily with such conditions in companies under their jurisdiction, but we have no power to compel a company to readjust its stocks or voting rights in accord with what is considered sound finance and equitable considerations.'
I annual Report of P.S.C. for 1944, p. 555.

3
 The plaintiffs have contended ever since 1948 that the reorganization of the Long Island should have been governed by Law York law, and carried out under the jurisdiction of the Public Service Commission.  They charge that the removal of the Long Island from the jurisdiction of the state commission to that of the S.E.C. was a wrongful act.  They overlook the fact that we have held: (1) that the S.E.C. was given jurisdiction by Congress over the reorganization of the Long Island, 183 F.2d 45, 48; (2) that the New York Public Service Commission did not have jurisdiction over the reorganization of the Long Island, 166 F.2d 784; and (3) that federal law governs in a reorganization carried out under the P.U.H.C.A., 166 F.2d 784

4
 The factual charges of fraud raised in 1952 in the petition to reopen, and in the petition for rehearing after the petition petition for rehearing after the petition had been denied, were as follows: (a) the officers and counsel of Long Island knowingly overstated the depreciation reserve in the proceedings before the S.E.C., the district court, and this court; (b) they 'radically and fraudulently' changed their position with respect to this depreciation reserve; (c) they knowingly understated prospective earnings of the Long Island and deliberately concealed the true facts relating thereto; (d) an omnibus allegation, quoted below, which contained in capsule form almost every allegation made in this case, viz:
'(6) Rehearing and reargument will afford this Court, on a fuller showing of the facts, an opportunity to decide the paramount issues presented by the petition:
'(A) Whether there is nothing in the ten year juridical and commission history of this proceeding, to shock the conscience of the Court, where a reorganization of the Long Island Lighting Company, an intrastate New York corporation, completed to the finality of the cessation of trading in the stock of the Company, under the statutes of New York state, is abrogated without notice, much less consent of its common and only voting stockholders, by the forcible entry and intervention of a Federal commission, which at the time of such intervention was totally without authority, as this Court has previously decided ((S.E.C. v. Long Island Lighting Co., 2 Cir.,) 148 F.2d 252); where, without knowledge, much less consent of its stockholders, the Company surrenders, in the face of and because of such decision, its immunity from the jurisdiction of the Securities and Exchange Commission; where to accomplish this intervention and oust the State of New York of its authority, the first move is counselled, in appearance before this Court eight years ago, by a specially retained attorney for the S.E.C. who, after repeated intermediate appearances on its behalf, on the accomplishment of the intervention in this very Court in this very proceeding, now appears as general and special counsel for the same company, the Long Island Lighting Company, against which he first appeared in this Court on a motion against it to enjoin its state-approved and completed reorganization; where that intervention was admittedly based on an 'invention' by certain lawyers of preferred stockholders of suppositious grounds to inject S.E.C. into the reorganization, to supersede the Public Service Commission of New York and to frustrate the unassailable recapitalization of the Long Island Lighting Company in 1944 by the action of more than two-thirds of its stockholders; where the result of that intervention was to reduce the participation in the common stock of the re-organized company of these petitioners from 49% to less than 6%; where that re-organization is accomplished by denying these petitioning stockholders for a period of eight years any opportunity to meet and elect or remove directors and by preventing those stockholders from obtaining or contributing funds for the common defense of their rights.'

5
 On November 10, 1944, the S.E.C. instituted proceedings under Section 3(c) of the P.U.H.C.A., 15 U.S.C. § 79c(c), to determine whether the exemption granted to Long Island should be revoked or modified.  While the revocation proceedings were in progress before the S.E.C., the S.E.C. instituted an action in the Eastern District to restrain the Long Island from taking any further steps to consummate the 1944 plan pending a determination by the S.E.C. of the issues involved in the revocation proceeding.  The Eastern District held that it had no power to grant the requested relief, S.E.C. v. Long Island Lighting Co., D.C.E.D.N.Y.1945, 59 F.Supp. 610, and this court affirmed, 2 Cir., 1945, 148 F.2d 252, with one judge dissenting.  The majority decision was later overruled by us in West India Fruit & Steamship Co. v. Seatrain Lines, Inc., 2 Cir., 1948, 170 F.2d 775
On April 21, 1945, after hearings, the S.E.C. entered its order revoking the Long Island's exemption from the P.U.H.C.A. and bringing its reorganization within the jurisdiction of the S.E.C. Long Island Lighting Co., 18 S.E.C. 717.

6
 On April 23, 1945, in compliances with the order of the S.E.C., the Long Island registered as a holding company under the P.U.H.C.A. The jurisdiction of the S.E.C. over the Long Island was contested by the common stockholders before the Eastern District and this Court.  It was held that the S.E.C. did have jurisdiction over the Long Island.  In re Long Island Lighting Co., 89 F.Supp. 513, 518-519, affirmed 2 Cir., 183 F.2d 45, 48

7
 Claims of misrepresentation, fraud, and concealment were presented to us in 1952 in the petition to reopen the reorganization proceeding filed by these same plaintiffs.  We considered the charges presented at that time and denied the petition. 197 F.2d 709, 710.  See note 4, supra

8
 It now seems well established that the Erie (Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188) doctrine applies, whatever the basis of federal jurisdiction, to any issue in a case which is governed by state law.  See, e.g., Rothenberg v. H. Rothstein & Sons, 3 Cir., 1950, 183 F.2d 524, 21 A.L.R.2d 832.  Cf. Wichita Royalty Co. v. City National Bank, 1939, 306 U.S. 103, 107, 59 S.Ct. 420, 83 L.Ed. 515.  Likewise, the Erie doctrine is clearly inapplicable with respect to issues governed by federal law, even if the jurisdiction of the federal court rests on diversity of citizenship.  See Sola Electric Co. v. Jefferson Electric Co., 1942, 317 U.S. 173, 176, 63 S.Ct. 172, 87 L.Ed. 165; cf. Prudence Realization Corp. v. Geist, 316 U.S. 89, 95, 62 S.Ct. 978, 86 L.Ed. 1293
Since the initial issue here is the scope and effect of a reorganization decree rendered pursuant to a federal statute by a federal court, it is unnecessary for us to consider such New York cases as Verplanck v. Van Buren, 1879, 76 N.Y. 247; Ross v. Preston, 1944, 292 N.Y. 433, 55 N.E.2d 490; Young v. Leach, 1898, 27 App.Div. 293, 50 N.Y.S. 670; and Burbrooke Mfg. Co. v. St. George Textile Corp., 1954, 283 App.Div. 640, 129 N.Y.S.2d 588, which hold that under certain circumstances a judgment procured by means of a fraudulent conspiracy will not prevent a tort action against the wrongdoers by those wrongfully deprived of property interests in an in rem legal proceeding.

9
 See e.g., Brown v. Gerdes, 1944, 321 U.S. 178, 64 S.Ct. 487, 88 L.Ed. 659 (exclusiveness of jurisdiction of bankruptcy court); Mar-Tex Realization Corp. v. Wolfson, 2 Cir., 1944, 145 F.2d 360 (power of bankruptcy court to reserve jurisdiction over debtor corporation and enjoin state court proceedings); Evans v. Dearborn Machinery Movers Co., 6 Cir., 1952, 200 F.2d 125 (power of bankruptcy court to enjoin state court action brought by creditor who was not scheduled and did not know of proceedings); In re Union League Club of Chicago, 7 Cir., 1953, 203 F.2d 381, 386 (conclusive effect of reorganization decree as to questions which might have been raised as well as to those litigated).  Several reorganizations under the Bankruptcy Act have raised issues concerning the scope and effect of a reorganization decree which are somewhat similar to those involved in the instant case: Shores v. Hendy Realization Co., 9 Cir., 1943, 133 F.2d 738; National Lock Co. v. Hogland, 7 Cir., 1938, 101 F.2d 576, 583-586

10
 The statement in Petition of Blatchley, 1 Cir., 1946, 157 F.2d 894, at 898, that 'It is not at all clear to us that the injunction (incorporated in the reorganization decree) in its present terms would forbid the commencement or prosecution of (tort actions by a stockholder against officers and directors of the pre-reorganization corporation)' is clearly a dictum.  Cases such as Downing v. Howard, 3 Cir., 1947, 162 F.2d 654, certiorari denied 1947, 332 U.S. 818, 68 S.Ct. 155, 92 L.Ed. 395, and Goldstein v. Groesbeck, 2 Cir., 1944, 142 F.2d 422, 154 A.L.R. 1285, certiorari denied 1944, 323 U.S. 737, 65 S.Ct. 36, 89 L.Ed. 590, are distinguishable since they involve the different question of whether the violation of provisions of the P.U.H.C.A. by management officials creates a statutory liability

11
 The defendants are alleged to have initiated their conspiracy by inducing the S.E.C. to institute federal court proceedings to prevent the imminent consummation of the 1944 plan and enjoin its enforcement, and by waiving the exemption of the Long Island from the P.U.H.C.A., thereby submitted the Long Island to the jurisdiction of the S.E.C. However, such acts would not be tortious even had they occurred as alleged
The S.E.C. had power to exempt the Long Island from the provisions of the P.U.H.C.A., 15 U.S.C.A. § 79c.  Such exemption was subject to revocation or modification, after notice and opportunity for hearing, in the event of changed circumstances. 15 U.S.C.A. § 79c(c).  See Long Island Lighting Co., 1 S.E.C. 345.  The S.E.C. concluded, after an appropriate notice and hearing, that the exemption previously granted to the Long Island should be withdraw.  Long Island Lighting Co., 18 S.E.C. 717.  Accordingly, the S.E.C. assumed jurisdiction over the assets of the Long Island and the reorganization proceedings of which plaintiffs complain were commenced.  Jurisdiction of the S.E.C. over the Long Island was based on the interstate distribution of Long Island's securities.  The plaintiffs below do not contend that the S.E.C. was misled into accepting jurisdiction of the Long Island by fraudulent and erroneous statements as to the interstate distribution of Long Island's securities.  Thus it appears uncontested that the securities of the pre-reorganized Long Island were distributed in interstate commerce, and that, therefore, neither the S.E.C. nor anyone else acted improperly in taking or suggesting such jurisdiction.  For we have held that, under such circumstances, the S.E.C. had jurisdiction over the Long Island.  Common Stockholders Committee, etc. v. S.E.C., 2 Cir., 183 F.2d 45, 47-48, affirming In re Long Island Lighting Co., D.C., 89 F.Supp. 513, 518-519.  Cf. Halsted v. S.E.C., 86 U.S.App.D.C. 352, 182 F.2d 660; Public Service Comm. of New York v. S.E.C., 2 Cir., 166 F.2d 784.
Further, it appears from the opinions of this Court that the management of the pre-reorganized Long Island did, in actual fact, contest the jurisdiction of the S.E.C. and the power of the S.E.C. to enjoin the Long Island from consummating the 1944 plan.  S.E.C. v. Long Island Lighting Co., D.C.E.D.N.Y. 1945, 5. F.Supp. 610, affirmed 2 Cir., 1945, 148 F.2d 252, remanded because moot 325 U.S. 833, 65 S.Ct. 1085, 89 L.Ed. 1961.  Once the S.E.C. had revoked the Long Island's exemption, the management of the Long Island did not act improperly in filing a registration statement as required by the Act. 15 U.S.C.A. § 79e.  Failure to register might have subjected the officers and directors to the sanctions contained in the Act. 15 U.S.C.A. § 79z-3.
We conclude that the allegations concerning the taking of jurisdiction by the S.E.C. and the 'waiver of exemption' by Long Island cannot be the basis for a tort recovery.  Certainly an interested group of stockholders or creditors can suggest to the S.E.C. that it revoke an exemption previously granted to a public utility without creating tort liability.  It is only to be expected that groups of shareholders and creditors will advance positions to regulatory bodies which are favorable to themselves, and there is nothing wrongful about their so doing.  Absent any allegations to the effect that the S.E.C. was fraudulently induced to exert a jurisdiction over the Long Island which, in actual fact, did not exist, the complaint does not show that the plaintiffs have been wronged in this regard.  For, as we have held, the S.E.C. had jurisdiction over the Long Island, and to assert that the defendants are liable in tort because they brought that jurisdiction to the attention of the S.E.C. is virtually equivalent to asserting that the S.E.C. has wronged the plaintiffs by exercising a jurisdiction over the Long Island which Congress has seen fit to give the S.E.C. The plaintiffs appear to be unaware of the fact that federal legislation, when constitutional, is paramount to state legislation, and that Congress, by creating a statutory scheme of simplification and consolidation applicable to public utilities selling their securities in interstate commerce, could rightfully deprive the plaintiff of advantages which would otherwise be available to them under the law of New York.  Public Service Commission of New York v. S.E.C., 2 Cir., 166 F.2d 784.
The result is that the only allegations of the complaint which assert acts on which a tort recovery might be predicated are those stating, in substance, that the plan of reorganization was obtained, approved, and confirmed by means of fraud practiced on the Commission and the federal courts by the defendants.  This analysis plainly reveals that the real complaint of the plaintiffs is that the reorganization decree fraudulently diminished their interest in the Long Island.  This is an assertion that, were it not for the fraud practiced on the Commission and the courts by these defendants, the plaintiffs would have received a far larger share in the assets of the reorganized Long Island.

12
 Specifically: (1) The allegations concerning the dual employment of Kadane carry the clear inference that Kadane was corrupted by the promise of a high position with Long Island, and that in his capacity as an official of the S.E.C. and later as an employee of Long Island, he induced the S.E.C. to adopt the plan of which plaintiffs complain, and helped perpetrate a fraud upon the enforcing and reviewing courts.  (2) The allegations of concealment and misrepresentation concerning the actual and prospective earnings of Long Island and concerning depreciation indicate that the approval of the plan by the S.E.C. and by this Court was tainted with fraud.  There is a specific allegation that defendants Elbert, Barrett, Olmstead, and Booth 'knowingly gave misleading testimony * * * in furtherance of * * * the conspiracy.'  (3) The repeated allegations in this and prior proceedings of oppression of common stockholders are made in such broad terms that, if believed, the proceedings confirming and enforcing the plan would have denied the plaintiffs due process of law

13
 See not 11 supra.  The reluctance of the New York Public Service Commission in approving the 1944 plan is obvious from the portion of its report quoted in note 2 supra

14
 Plaintiffs' brief indicates a misconception of this decision.  It states that the petition to reopen was not within Rule 60(b), Federal Rules of Civil Procedure, 'which was not available because of lapse of time' but upon the 'inherent power (of every tribunal) to reopen and revise a decision induced by fraud.'
To the extent that federal district courts possess such inherent power after the one year period of limitation on Rule 60(b)(1), (2) and (3), the authority for its exercise is codified in the savings clause of Rule 60(b) which states, 'This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified * * * or to set aside a judgment for fraud upon the court.'  See 7 Moore's Federal Practice P60.31, 60.36 et seq.  (1955). West Virginia Oil & Gas Co. v. George E. Breece Lumber Co., 5 Cir., 1954, 213 F.2d 702.  Cf. Hadden v. Rumsey Products, 2 Cir., 1952, 196 F.2d 92.

15
 See note 4 supra

1
 A asserts that B, by his fraudulent conduct, intentionally harmed A; A thus shows a prima facie tort.  B must therefore defend on the ground that his conduct is immune from liability.  He attempts to do so thus: 'I admit, arguendo, that I committed the alleged fraud; but I am not liable, simply and solely because the judgment adverse to A, in his suit against C, is a bar.'  I think such a defense is untenable
A judgment may be the means by which a fraudulent conveyance is accomplished.  Northern Pacific R. v. Boyd, 228 U.S. 482, 33 S.Ct. 554, 57 L.Ed. 931; Glenn, Fraudulent Conveyances (1944) s. 224; Frank, Some Realistic Reflections on Corporate Reorganization, 19 Va.L.Rev.  (1933) 541.  A judgment creditor of the debtor may pursue the grantees of that conveyance without attacking or disturbing the judgment.  If he sues one who is not a grantee but who aided in bringing about the fraudulent conveyance, his action is one for a tort; see Glenn, Fraudulent Conveyance (1940) Sec. 56; Phelan v. Middle States Oil Corp., 2 Cir., 220 F.2d 593, 615-616; cf. Findlay v. McAllister, 113 U.S. 104, 114, 5 S.Ct. 401, 28 L.Ed. 930.

2
 Godette v. Gaskill, 151 N.C. 52, 53, 65 S.E. 612, 24 L.R.A.,N.S., 265; Stevens v. Rowe, 59 N.H. 578; Hocker v. Welti, 239 Ill.App. 392, 397

3
 Cf. Robinson v. Missouri Pacific Transp. Co., D.C., 85 F.Supp. 253, 258; Verplanck v. Van Buren, 76 N.Y. 247 as interpreted in Burbrooke Mfg. Co. v. St. George Textile Corp., 283 App.Div. 640, 129 N.Y.S.2d 588 and in Anchor Wire Corp., v. Borst, 278 App.Div. 728, 102 N.Y.S.2d 871, 873; Dictograph Products Co., Inc., v. Sonotone Corp., 2 Cir., 231 F.2d 867 (C.A. 2, March 28, 1956)
Most of those cases dealt with collateral attacks; their reasoning therefore applies a fortiori to a case like the instant case.
Dictograph Products Corp., Inc. v. Sonotone .corp., supra, disposes of the intrinsic-extrinsic fraud distinction in the federal courts, even in a collateral attack suit.

4
 Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 99 L.Ed. 1122

5
 See, e.g., Judge Goodrich's concurring opinion in Bruszewski v. United States, 3 Cir., 181 F.2d 419, 423; Adriaanse v. United States, 2 Cir., 184 F.2d 968


Dismissed and Memorandum Opinion filed February 7, 2008

Dismissed
and Memorandum Opinion filed February 7, 2008.

In The

Fourteenth Court of
Appeals
____________

NO. 14-07-01073-CR
____________

JAMES ANTHONY CARLISLE,
Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the
248th District Court
Harris County, Texas
Trial Court Cause No. 947054

M E M O R A N D U M   O P I N I O N

After
appellant pled guilty, the trial court entered an order on September 17, 2003,
deferring adjudication of guilt for the offense of indecency with a child.  The
State subsequently moved to adjudicate.  Appellant pled true to the State=s stipulation of evidence and signed
a waiver of the right to appeal in connection with this plea.  On October 19,
2007, appellant was adjudicated guilty of the offense of indecency with a child
and was sentenced to eight years= confinement in the Texas Department
of Criminal Justice, Institutional Division.  No timely motion for new trial
was filed.  Appellant=s notice of appeal was not filed until December 7, 2007.
A
defendant=s notice of appeal must be filed within thirty days after sentence is
imposed when the defendant has not filed a motion for new trial.  See Tex. R. App. P. 26.2(a)(1).  A notice
of appeal that complies with the requirements of Rule 26 is essential to vest
the court of appeals with jurisdiction.  Slaton v. State, 981 S.W.2d
208, 210 (Tex. Crim. App. 1998).  If an appeal is not timely perfected, a court
of appeals does not obtain jurisdiction to address the merits of the appeal.
Under those circumstances it can take no action other than to dismiss the
appeal.  Id.
Accordingly,
the appeal is ordered dismissed.

PER
CURIAM

Judgment rendered and Memorandum Opinion filed
February 7, 2008.
Panel consists of Justices Yates, Guzman, and Brown.
Do Not Publish C Tex. R. App. P.
47.2(b).


                                                                                Opinions of the United
2000 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

2-29-2000

USA Ex Rel Merena v. Smithkline Beecham
Precedential or Non-Precedential:

Docket 98-1497

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation
"USA Ex Rel Merena v. Smithkline Beecham" (2000). 2000 Decisions. Paper 40.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/40

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed April 21, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1497

UNITED STATES OF AMERICA EX REL.
ROBERT J. MERENA

v.

SMITHKLINE BEECHAM CORPORATION

United States of America,
Appellant

No. 98-1498

UNITED STATES OF AMERICA EX REL.
KEVIN J. SPEAR; THE BERKELEY COMMUNITY LAW
CENTER; JACK DOWDEN

v.

SMITHKLINE BEECHAM CLINICAL LABORATORIES, INC.

United States of America,
Appellant

No. 98-1499

UNITED STATES OF AMERICA EX REL.
GLENN GROSSENBACHER; CHARLES W. ROBINSON, JR.

v.
SMITHKLINE BEECHAM CLINICAL LABORATORIES, INC.

United States of America,
Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Ct. No. 93--cv--5974)
District Judge: The Honorable Donald W. VanArtsdalen

Argued: March 5, 1999

Before: ALITO, McKEE, AND GARWOOD,* Circuit Judges

(Opinion Filed: February 29, 2000)

ORDER AMENDING SLIP OPINION

The slip opinion in this case is amended as follows:

1. In the first sentence of Part IA of the opinion, the
phrase "had adopted a scheme" is amended to read "had
adopted the following scheme."

2. In the second sentence of Part IA of the opinion, the
words "Specifically, the government suspected that" are
deleted and the word "the" preceding the word
"laboratories" is capitalized.

3. The paragraph indentation between the second and
third sentences of Part IA of the opinion is eliminated.

BY THE COURT:

Samuel A. Alito
Circuit Judge
_________________________________________________________________

* The Honorable Will L. Garwood, Senior Circuit Judge for the United
States Court of Appeals for the Fifth Circuit, sitting by designation.

                               2
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               3


314 F.3d 1105
UNITED STATES of America, Plaintiff-Appellee,v.Clarence Kenneth GORMAN, Defendant-Appellant.
No. 02-50053.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 5, 2002.
Filed December 31, 2002.

Stephen D. Lemish, El Cajon, CA, for the defendant-appellant.
Steven F. Miller, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California; Judith N. Keep, District Judge, Presiding. D.C. No. CR-00-03663-K.
Before: PREGERSON, THOMPSON, and WARDLAW, Circuit Judges.
PREGERSON, Circuit Judge.

1
On October 19, 2001, Clarence Kenneth Gorman ("Gorman") entered a conditional guilty plea, pursuant to FED. R. CRIM. P. 11(a)(2), to possession of a counterfeit postal key, in violation of 18 U.S.C. § 1704. Gorman now appeals the two issues he reserved for review: the District Court's denial of his motion to suppress certain evidence and the denial of his motion to dismiss based on the Speedy Trial Act, 18 U.S.C. § 3161. Gorman argues that the District Court erred by not suppressing evidence police officers seized upon entering a third-party residence pursuant to an arrest warrant for Gorman. In addition, Gorman argues that his Speedy Trial Act rights were violated as over 90 days ran on the Speedy Trial clock and, therefore, the district court erred by not dismissing the indictment.

2
We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

3
Before dawn, on November 6, 2000, while it was still dark outside, Helen Anzelmo Vestle heard loud banging noises outside her home on Rancho Hills Drive in San Diego, California.

4
Helen testified at an evidentiary hearing that after hearing the loud banging noises, Gorman, her boyfriend, woke up and told her, "I think it's the police." Helen got out of bed. Wearing only her nightshirt, she walked to the door. When she saw the police outside, Helen asked, "Can I help you?" According to Helen, the police told her they needed her to open the door. Helen explained that she wasn't dressed and asked why she needed to open the door. The officers told Helen that they had a warrant for Vestle Anzelmo. Helen again asked why she needed to open the door and the officers again stated that they had a warrant; she opened the door.

5
Three officers were standing at the door. The officers asked if Ken Gorman was there and told Helen she could be arrested for harboring a federal fugitive. "I was kind of bewildered ... [a]nd I was really nervous because my mom and the baby, they were in the house," Helen testified. She told the officers, "Look, no one's in the house except for my mom and the baby." The officers asked what room Gorman was in; again, Helen stated that no one was in the house but her mom and her baby. The officers told Helen to sit down outside and entered her home.

6
At the same evidentiary hearing, San Diego Police Officer Lawrence Hal testified that he first learned about Gorman in September or October 2000, when a citizen informed him that a man named "Kenny" was stealing mail using mail box keys. The citizen also told the police that Kenny had several cars parked by a housing complex where he supposedly lived, and that a male and female were staying in Kenny's white van. Officer Hal and his partner Officer Steve Schnick went to the white van and there met David Ordway. Ordway informed the officers that Kenny's full name was Clarence Kenneth Gorman, and that Kenny was staying with his girlfriend Helen because he knew that he was wanted by the police. After learning this information, Officer Hal ran a records check and learned that there was an active federal felony arrest warrant for Gorman, who was in violation of the conditions of his supervised release.1 Officer Hal also conducted an ARJIS2 check on Gorman's companions looking for the name "Helen." They located a Helen, a known associate of Gorman, who lived on Rancho Hills Drive.

7
Armed with the above-stated information but without a search warrant, four to five San Diego police officers arrived at the Rancho Hills Drive address around 4:30 a.m. on November 6, 2000. The officers identified a Volkswagen parked in front of the residence as belonging to Gorman. For approximately an hour the officers kept the home under surveillance, but did not see Gorman go in or out. Around 5:30 a.m., the officers knocked on the front door — "pound[ed] on the front door pretty good" according to Officer Hal — but no one answered. Officer Hal thought he heard someone yell from inside, "Who is it?" The officers moved from the front door to the back door where they thought the sound originated and knocked again. When Helen opened the door, Officer Hal introduced himself as an officer with the San Diego Police Department and told Helen they had an arrest warrant for Kenny Gorman.

8
Officer Steve Schnick testified that Helen told the officers that it was her mom's house and her son was in the home. The officers repeatedly asked "Where's Kenny?" Helen kept looking over her shoulder and finally told the officers that Kenny was in bed.

9
According to Officer Hal, however, Helen immediately told them that Kenny was in bed sleeping. Officer Hal removed his firearm from his holster. He ordered Helen to step outside by the front door with the other officers. Officer Hal recalled that Helen was told there was a traffic warrant for her, but was unable to "recall whether I mentioned it or whether someone else did" or "at what point we told her about her traffic warrant."

10
With their flashlights shining, Officers Hal and Schnick entered Helen's home and saw Gorman in bed. The officers, with their guns drawn, shined their flashlights on Gorman and told him "San Diego Police Department, we have a warrant for your arrest." During the arrest, the officers found three mailbox keys and Gorman's wallet which contained several checks that were issued to other people. In Gorman's car the officers found a plastic bag of checks also issued to other people. The officers arrested Gorman for violation of his supervised release.

11
On November 29, 2000, an indictment was filed in the United States District Court for the Southern District of California, charging Gorman with possession of a postal key, in violation of 18 U.S.C. § 1704, and possession of stolen mail, in violation of 18 U.S.C. § 1708. The court appointed counsel for Gorman.

12
On December 29, 2000, Gorman brought two motions: the first to suppress evidence seized subsequent to the arresting officers' entry into the home of a third-party without a search warrant; the second to exclude evidence of other crimes, wrongs, or acts under FED. R. EVID. 404(b), including his 1999 conviction for possessing a counterfeit postal key.

13
On February 5, 2001, the District Court conducted a hearing on the suppression motion. The District Court found that "at the most, [the officers] had reasonable suspicion to believe that they could locate Kenny Gorman at [Helen's] residence." The District Court stated:

14
It's not at all clear to me that they had even a reasonable suspicion to believe that Kenny Gorman was in that residence at that time .... [T]hey knew that he was connected with a woman named Helen, and that one of his cars was out front. But since at least he's got two [cars], because he's letting another guy sleep in one, I'm not sure that the presence of the car out there indicates that Kenneth Gorman, to any reasonable person, is likely to be in the house at that moment. It's an indication he could be — I mean, reasonable suspicion, I guess I would say. But probable cause, no.

15
Finding there was no probable cause, "no consent, no exigency, and no search warrant, and it was nighttime," the District Court granted Gorman's motion to suppress the evidence. Gorman's motion to exclude evidence of other crimes, wrongs, or acts under FED. R. EVID. 404(b) was not heard.

16
On February 26, 2001, the government filed a motion for reconsideration of the District Court's order suppressing evidence. The government correctly argued that United States v. Underwood, 717 F.2d 482 (9th Cir.1983) (en banc), controlled.

17
On March 5, 2001, the District Court held a hearing on the government's motion to reconsider its February 5, 2001 ruling that the police officers' entry into Helen's residence was illegal. Although troubled by the nighttime entry of a third-party home, the District Court reversed itself. In detail, the court explained:

18
This wasn't some situation that would justify a nighttime entry. And yet we've got a nighttime entry in this case because there was an arrest warrant. And except for Underwood, they have the right — or because of Underwood, they have a right to invade really any house where they have reason to believe... Mr. Gorman may be present, and that's all they would have in this case. They clearly didn't have probable cause.

19
The other thing that was the anomaly to me is if the officers had tried to go get a search warrant, I do not believe a neutral magistrate would have executed a neutral search warrant and found that the tip from the guy who was sleeping in his car and the presence of Gorman's car indicated probable cause to believe that Mr. Gorman was located in this residence.

20
So again ... you couldn't do nighttime, there wasn't probable cause but, because it's a human being, you can — you can forcibly enter the house and seize him....

21
At the end of the reconsideration hearing, the District Court scheduled April 9, 2001, to hear Gorman's motion in limine to suppress evidence of other crimes, wrongs, or acts under FED. R. EVID. 404(b). Gorman's trial was scheduled to begin the next day, April 10, 2001. On March 19, 2001, Gorman moved for a competency evaluation. The District Court vacated the dates for the hearing on Gorman's 404(b) motion and Gorman's trial. A competency hearing was scheduled on April 16, 2001. The court expressly excluded the time between March 19, 2001, and April 16, 2001, from the Speedy Trial clock.

22
Gorman was found competent to stand trial. On April 16, 2001, new counsel, Mr. Lemish, was appointed to replace Gorman's previous counsel. On April 18, 2001, Mr. Lemish appeared before the district court and requested a continuance to give him time to prepare for trial. The court scheduled a status hearing for May 11, 2001, and ruled that the time between April 18, 2001, and May 11, 2001, was also excludable from the Speedy Trial clock.

23
On July 19, 2001, Mr. Lemish filed motions to suppress evidence on Fourth Amendment grounds. On July 26, 2001, the day the District Court was to hear the suppression motions, Judge Judith N. Keep was ill and the motions were heard by Judge Jeffrey T. Miller. Judge Miller took the motions under submission; however, he rendered no decision and set a further hearing on September 24, 2001, before Judge Keep.

24
On September 20, 2001, Judge Keep ordered that a hearing be held on October 12th on the Speedy Trial Act issue and on two pending motions: Gorman's motion to exclude evidence under 404(b) and Gorman's motion to suppress evidence obtained allegedly in violation of Gorman's Fourth Amendment rights. Gorman's trial was scheduled for October 23, 2001.

25
On September 28, 2001, the Government filed a motion in limine to admit prior act evidence under FED. R. EVID. 404(b), including Gorman's prior conviction in 1999 of possession of a counterfeit postal key, in violation of 18 U.S.C. § 1704. On October 1, 2001, Gorman filed a motion to dismiss the indictment under the Speedy Trial Act.

26
As scheduled, on October 12, 2001, the District Court heard the motion to dismiss the indictment under the Speedy Trial Act and denied that motion. The District Court also denied Gorman's motion to suppress evidence obtained allegedly in violation of Gorman's Fourth Amendment rights. The motion to exclude evidence under 404(b) was set to be heard on the morning of October 23, 2001, before the start of trial.

27
Four days before trial, Gorman entered a conditional guilty plea, pursuant to FED. R. CRIM. P. 11(a)(2), to possession of a counterfeit postal key. Under the conditional guilty plea, Gorman preserved the two issues which are the subject of this appeal: the District Court's denial of his Fourth Amendment suppression motion, and the District Court's denial of his motion to dismiss the indictment under the Speedy Trial Act.

28
To resolve Gorman's motion to suppress evidence seized by police who entered a third-party residence pursuant to an arrest warrant, we must decide whether the "reason to believe" standard enunciated in Underwood is the equivalent of "probable cause" or "reasonable suspicion."3 We hold that the "reason to believe" standard of Underwood embodies the same standard of reasonableness inherent in probable cause. In addition, we must decide whether the District Court erred in finding there was no Speedy Trial Act violation warranting dismissal of Gorman's indictment. On this issue, we hold that because Gorman's motion to exclude evidence under F ED. R. EVID. 404(b) was pending from December 29, 2000, to the day Gorman entered a conditional guilty plea on October 19, 2001, that time was excluded from the Speedy Trial calculation and thus there was no Speedy Trial violation.

II. STANDARD OF REVIEW

29
We review the District Court's denial of Gorman's motion to suppress evidence de novo; the District Court's factual findings are reviewed for clear error. See United States v. Summers, 268 F.3d 683, 686 (9th Cir.2001), cert. denied, 534 U.S. 1166, 122 S.Ct. 1182, 152 L.Ed.2d 124 (2002). The District Court's denial of Gorman's motion to dismiss for noncompliance with the Speedy Trial Act is reviewed de novo. See United States v. Lam, 251 F.3d 852, 855 (9th Cir.2001), amended by 262 F.3d 1033 (9th Cir.2001), cert. denied, 534 U.S. 1013, 122 S.Ct. 503, 151 L.Ed.2d 413 (2001).

III. DISCUSSION

30
A. District Court's Denial of Gorman's Motion to Suppress Certain Evidence

31
Under United States v. Underwood, 717 F.2d 482 (9th Cir.1983) (en banc), Gorman's Fourth Amendment rights would not have been violated when the police entered a third-party residence with an arrest warrant for Gorman, but without a search warrant or consent, if the police had "reason to believe" that he was present. The "reason to believe" standard first espoused by the Supreme Court in Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), was not defined in Payton or in subsequent cases. Payton, 445 U.S. at 603, 100 S.Ct. 1371 ("[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.") (emphasis added). Nor have we explicitly defined the "reason to believe" standard. We now hold that the "reason to believe," or reasonable belief, standard of Payton and Underwood embodies the same standard of reasonableness inherent in probable cause.4

1. "Reason to Believe" Standard

32
Gorman contends that his case should be distinguished from Underwood, and his suppression motion should be granted because the District Court found that there was no probable cause to believe that Gorman was either residing at Helen's home or was present at the time the officers entered. In response, the government asserts that "Underwood does not require probable cause; it held that the officers need only have a `reason to believe the person named in the warrant is present.'" At oral argument before us and before the District Court, the government maintained that the "reason to believe," or reasonable belief, standard is akin to "reasonable suspicion." While the government correctly states that the "reason to believe" standard of Underwood applies, the government incorrectly argues that Underwood does not require probable cause or an equal standard of reasonableness.

33
Citing Underwood, we recently stated that "[t]here can be little doubt that police can enter a dwelling for the purpose of executing an arrest warrant. That, however, does not mean that officers armed with a warrant can enter a private home at any time or for any reason. Quite the contrary." United States v. Albrektsen, 151 F.3d 951, 953 (9th Cir.1998) (citations omitted). An arrest warrant forms only the "necessary rather than sufficient basis" for entry into a home. Id. In addition to an arrest warrant, there must be "reason to believe the suspect is within" the residence. Payton, 445 U.S. at 603, 100 S.Ct. 1371.

34
In Underwood this court en banc addressed the issue of a non-consensual search of a third-party residence with only an arrest warrant for the defendant — the same issue now before us. We relied upon Payton in holding that "an arrest warrant [for the suspect] plus reason to believe the suspect is present are sufficient to permit entry [into a third-party residence] without a search warrant," and reasoned that:

35
[f]or the purpose of determining whether Underwood's rights were violated, nothing turns on [whether he was in his own home or the home of a third person]. A person has no greater right of privacy in another's home than in his own. If an arrest warrant and reason to believe the person named in the warrant is present are sufficient to protect that person's Fourth Amendment privacy rights in his own home, they necessarily suffice to protect his privacy rights in the home of another. United States v. Clifford, 664 F.2d 1090, 1093 (8th Cir. 1981).

36
Underwood, 717 F.2d at 484. Thus, Gorman's suppression motion can be granted only if the officers did not have reason to believe that Gorman was present in Helen's home.

37
Clearly, it is the "reason to believe" standard as espoused by the Supreme Court in Payton and by this Court in Underwood that applies to the case before us. But the "reason to believe" standard is far from clear.5 The Supreme Court did not define the "reason to believe" standard in Payton6 nor has it defined the standard subsequently. We did not define the "reason to believe standard" in Underwood nor have we explicitly defined the standard subsequently. We now conclude that the "reason to believe" standard of Payton and Underwood embodies the same standard of reasonableness inherent in probable cause.

38
In Underwood, the majority states that the District Court held that the officers had probable cause to believe Underwood was in the house when they entered; however, the majority does not define the "reason to believe" standard of Payton. Underwood, 717 F.2d at 483. The dissent primarily takes issue with what it finds to be an "unwarranted extension of Payton v. New York" and "an erroneous reading of the Supreme's Court more recent decision in Steagald." Id. at 486, 487 (citations omitted).7

39
The Underwood dissent warns of the possible misinterpretations of Payton's "reason to believe" standard: "[T]he majority rule permits searches of any home based only on `a reason to believe' the subject of an arrest warrant is present. The justification for the search may thus be made in the field on less than probable cause." Id. at 490 (emphasis added). Such an interpretation of "reason to believe" as "less than probable cause," the dissent states is "expressly rejected" by the Supreme Court in Steagald:

40
A contrary conclusion—that the police, acting alone and in the absence of exigent circumstances, may decide when there is sufficient justification for searching the home of a third party for the subject of an arrest warrant—would create a significant potential for abuse. Armed solely with an arrest warrant for a single person, the police could search all the homes of that individual's friends and acquaintances .... Moreover, an arrest warrant may serve as the pretext for entering a home in which the police have a suspicion, but not probable cause to believe, that illegal activity is taking place.

41
Id. at 491 (quoting Steagald, 451 U.S. 204, 215, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)). The majority, however, does not address the question whether "reason to believe" is different from or similar to probable cause.

42
In attempting to determine the standard for reasonable belief, the Fifth Circuit stated that:

43
[p]robable cause is essentially a concept of reasonableness, but it has become a term of art in that it must always be determined by a magistrate unless exigent circumstances excuse a search warrant. When one says "probable cause," therefore, one also says either "magistrate" or "exigent circumstances." Reasonable belief embodies the same standards of reasonableness but allows the officer, who has already been to the magistrate to secure an arrest warrant, to determine that the suspect is probably within certain premises without an additional trip to the magistrate and without exigent circumstances.

44
United States v. Cravero, 545 F.2d 406, 421 (5th Cir.1977) (emphasis added).

45
Further illustrating the similarity between probable cause and the "reason to believe" standard, three years after Cravero, the Fifth Circuit "[f]or want of a better verbal formulation ... drew upon the jurisprudence of `probable cause.'" Vasquez v. Snow, 616 F.2d 217, 220 (5th Cir.1980). Using the probable cause analogy, the Fifth Circuit found "an arrest warrant permits pursuit into the premises ... only if the investigating officers' knowledge and trustworthy information would cause a man of reasonable caution to believe that the suspect `is in (that) particular building.'" Id. (quoting United States v. Phillips, 497 F.2d 1131, 1136 (9th Cir.1974)).8

46
Our own case law supports equating the "reason to believe" standard of Payton and Underwood to the standard of reasonableness embedded in probable cause, not reasonable suspicion. In Watts v. County of Sacramento, 256 F.3d 886 (9th Cir. 2001), we found that "[c]ourts have generally required substantial evidence ... to create a reasonable belief." Id. at 890. In United States v. Phillips, 497 F.2d 1131 (9th Cir.1974), we ruled that an "agent must have probable cause to believe that the person he is attempting to arrest, with or without a warrant, is in a particular building" before he could enter the building by ruse or any other means. Id. at 1136. Three years after Underwood was decided, we found that "[e]ntry into a person's home is so intrusive that such searches always require probable cause regardless of whether some exception would excuse the warrant requirement." United States v. Howard, 828 F.2d 552, 555 (9th Cir.1987) (citing Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), and United States v. Winsor, 816 F.2d 1394, 1399 (9th Cir.1987), rev'd en banc, 846 F.2d 1569, 1574 (9th Cir.1988)).

47
Since Underwood, our cases have come to equate the reasonableness inherent in "reason to believe" with the reasonableness inherent in probable cause. In United States v. Harper, 928 F.2d 894 (9th Cir.1991), for example, we explicitly used the probable cause standard to find that the entry and search of David and Adrian Harper's residence pursuant to an arrest warrant for David was legal: "Once the police `possess[ed] an arrest warrant and probable cause to believe [David] was in his home, the officers were entitled to search anywhere in the house in which [he] might be found.'" Id. at 897 (quoting Maryland v. Buie, 494 U.S. 325, 332-33, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)).

48
The Tenth Circuit, however, criticizes Harper and contends that we provided no rationale for adopting the probable cause standard, except for "merely citing [our] prior decision in Perez v. Sim[m]ons [900 F.2d 213 (9th Cir.1990)]." Valdez v. McPheters, 172 F.3d 1220, 1224-25 (10th Cir.1999) (citation omitted). The Tenth Circuit notes that Perez used "reasonable grounds for believing" as the appropriate standard, not probable cause.9 Valdez, 172 F.3d at 1225 n. 1. The phrase "reasonable grounds to believe," however, is often synonymous with probable cause. In Payton, Justice White states that "the officer entering to arrest must have reasonable grounds to believe, not only that the arrestee has committed a crime, but also that the person suspected is present in the house at the time of the entry." Payton, 445 U.S. at 616, 100 S.Ct. 1371 (White, J., dissenting) (emphasis added). Under a footnote to that statement, Justice White then discusses the "quantum of probable cause necessary to make a valid home arrest" — clearly equating "reasonable grounds to believe" with probable cause. Id. at 616 n. 13, 100 S.Ct. 1371 (emphasis added).10

49
United States v. Clifford, the Eighth Circuit case whose reasoning we followed in Underwood, also supports using the reasonableness standard embedded in probable cause for the "reason to believe" standard. In Clifford, as in Underwood and as in the case before us, the subject of the arrest warrant asserted that the non-consensual entry into the home of a third-party without exigent circumstances or a search warrant was unconstitutional. Clifford, 664 F.2d at 1092. Clifford held that "Payton authorizes entry on the basis of the existing arrest warrant for the defendant and probable cause to believe that the defendant was within the premises." Id. at 1093 (emphasis added).

50
Nothing in Underwood or Payton precludes us from using the same standard of reasonableness embedded in probable cause as the standard of reasonableness for the "reason to believe" standard. Rather, Underwood, Payton, and our subsequent cases suggest that the standard of probable cause, and not of reasonable suspicion, is the standard already being applied in this Circuit. Thus, like the Fifth Circuit, we too "dr[a]w upon the jurisprudence of `probable cause.'" We therefore find that the "reason to believe," or reasonable belief, standard of Payton and Underwood should be read to entail the same protection and reasonableness inherent in probable cause.

51
B. District Court's Denial of Gorman's Motion to Dismiss Based on Speedy Trial Violation

52
The District Court did not err in denying Gorman's motion to dismiss for a violation of the Speedy Trial Act. Gorman's motion to exclude evidence under FED. R. EVID. 404(b) was pending during the entire time between December 29, 2000, and October 19, 2001, when Gorman entered a conditional guilty plea. Under 18 U.S.C. § 3161(h)(1)(F) that time is excluded from the calculations of the Speedy Trial Act; thus, there was no violation of the Speedy Trial Act.

53
The Speedy Trial Act, 18 U.S.C. § 3161 et seq., requires that Gorman's trial commence within 70 days of November 29, 2000, the day he was arraigned. See 18 U.S.C. § 3161(c)(1). The Act sets forth several types of excludable delay that do not count against the 70-day limit, including "delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on ... such motion." 18 U.S.C. § 3161(h)(1)(F). See Henderson v. United States, 476 U.S. 321, 330, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986) (holding that "Congress intended subsection (F) to exclude ... all time between the filing of a motion and the conclusion of the hearing on that motion, whether or not a delay in holding that hearing is `reasonably necessary.'").

54
Thus, the District Court correctly found that there was no violation of the Speedy Trial Act because Gorman filed a motion to exclude evidence of other crimes, wrongs, or acts under FED. R. EVID. 404(b) that was pending during the entire time between December 29, 2000, when it was filed, and October 1, 2001, when Gorman moved to dismiss on Speedy Trial grounds.

55
Gorman contends that his pretrial motion to exclude 404(b) evidence is analogous to the motion to dismiss for prosecutorial misconduct in United States v. Clymer, 25 F.3d 824 (9th Cir.1994). In Clymer, instead of conducting an evidentiary hearing and deciding the pretrial motion before trial, the District Court continued the motion to dismiss until after trial. We found that Clymer was not an "ordinary case" of pretrial delay and that the time between the filing of the motion and the hearing was not excluded because the delay did not result from the pretrial motion when the hearing on the motion would be after trial. Clymer, 25 F.3d at 830, 831. Gorman's argument, however, fails because this Court held that "the exception in United States v. Clymer, 25 F.3d 824, 830-31 (9th Cir.1994) (holding that time between filing of pretrial motion and hearing was not excludable) applies only when a motion is decided after trial." United States v. George, 85 F.3d 1433, 1436 (9th Cir.1996) (citing United States v. Springer, 51 F.3d 861, 865 (9th Cir.1995)). Gorman's motion to exclude evidence under FED. R. EVID. 404(b) was scheduled to be decided before trial — not after or even during trial.

56
Nor does Gorman's case fall within one of the "qualifications" of this broad rule excluding all delay from the filing of a pretrial motion to the hearing on that motion. Clymer, 25 F.3d at 831 n. 6. This is not a case where there were unsuccessful attempts "to obtain hearings on the pretrial motions or ... hearings [that] were `deliberately refused with intent to evade the Speedy Trial Act.'" Id. (citation omitted). Thus, there was no violation of the Speedy Trial Act.

IV. CONCLUSION

57
Because it appears the District Court equated the "reason to believe" standard of Underwood with "reasonable suspicion" instead of probable cause, we REVERSE the District Court's denial of Gorman's motion to suppress evidence seized by the police. We REMAND to the District Court for further proceedings to apply the "reason to believe" standard as clarified in this opinion. We, however, AFFIRM the District Court's denial of Gorman's motion to dismiss the indictment for violation of the Speedy Trial Act. AFFIRMED in part, REVERSED in part, and REMANDED. Each side to bear its own costs.

Notes:

1
 In 1999, Gorman was sentenced to 6 months custody and three years supervised release after he pleaded guilty to possession of a counterfeit postal key, in violation of 18 U.S.C. § 1704

2
 ARJIS is the Automated Regional Justice Information System, a countywide criminal justice database

3
 The District Court seemingly applied the latter because it found that there was no probable cause to believe Gorman was within Helen's home

4
 Our cases have interchangeably used "reason to believe," "reasonable belief" and "reasonable grounds for believing" as standards when determining the legality of an officer's entry into a home to execute a search warrantSee, e.g., United States v. Litteral, 910 F.2d 547, 554 (9th Cir.1990) (Police must "have reasonable grounds for believing that the subject of the arrest warrant is present at the time of the warrant's execution."); Case v. Kitsap County Sheriff's Dep't., 249 F.3d 921, 930-31 (9th Cir.2001) (citing Payton's "reason to believe the suspect is presently in the residence" requirement and holding that "the deputies could have reasonably believed that Case was in the house") (emphasis added); Watts v. County of Sacramento, 256 F.3d 886, 889-90 (9th Cir.2001) ("[U]nder Payton, an officer must have a reasonable belief that the suspect named in the arrest warrant ... is actually present at the time of the entry into the home.") (emphasis added). See also United States v. Lovelock, 170 F.3d 339, 342 (2d Cir.1999) (Officers "may enter a suspect's residence... in order to effectuate an arrest warrant where a reasonable belief exists that the suspect is present.").

5
 "Just what [the `reason to believe' standard] means continues to be a matter of considerable uncertainty," writes LaFave in his treatise on the Fourth Amendment. Wayne R. LaFave,Search and Seizure § 6.1(a) at 226. "The `reason to believe' standard was not defined in Payton, and since Payton, neither the Supreme Court nor the courts of appeal have provided much illumination." Id. at 226 n. 18 (quoting United States v. Magluta, 44 F.3d 1530, 1534 (11th Cir.1995)). LaFave concludes that the reason to believe standard should be treated similarly to probable cause. Id. at 228.

6
 The Court, however, did note that it was not "argued that the police lacked probable cause to believe the suspect was at home when they entered."Payton, 445 U.S. at 583, 100 S.Ct. 1371. Justice White, writing for the dissent, equated the "reason to believe" requirement espoused by Court with probable cause: "[U]nder today's decision, the officers apparently need an extra increment of probable cause when executing the arrest warrant, namely, grounds to believe that the suspect is within the dwelling." Id. at 616 n. 13, 100 S.Ct. 1371 (White, J., dissenting).

7
 The dissent would have followedSteagald and adopted a "bright-line rule" that "police must obtain a search warrant to enter and search a dwelling other than a suspect's own home." Underwood, 717 F.2d at 491.

8
 On this subject, the Eleventh Circuit stated that "[d]ue to the lack of authority on point, it is difficult to define thePayton `reason to believe' standard, or to compare the quantum of proof the standard requires with the proof that probable cause requires." United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995). The court then held that for law enforcement officers "to enter a residence to execute an arrest warrant for a resident of the premises, the facts and circumstances within the knowledge of the law enforcement agents, when viewed in the totality, must warrant a reasonable belief that ... the suspect is within the residence at the time of the entry." Id. The Tenth Circuit expressly states that probable cause "requires a higher knowledge standard" on the part of law enforcement officers and adopts Magluta's holding that "the facts and circumstances within the knowledge of the law enforcement agents, when viewed in the totality, must warrant a reasonable belief that ... the suspect is within the residence at the time of the entry." Valdez v. McPheters, 172 F.3d 1220, 1224-26 (10th Cir.1999) (quoting Magluta, 44 F.3d at 1535).

9
 InUnited States v. Litteral, 910 F.2d 547 (9th Cir.1990), we again found that "police must also have reasonable grounds for believing that the subject of the arrest warrant is present at the time of the warrant's execution." Id. at 554.

10
 Justice White states that "the officers apparently need an extra increment of probable cause when executing the arrest warrant, namely, grounds to believe that the suspect is within the dwelling."Payton, 445 U.S. at 616 n. 13, 100 S.Ct. 1371 (White, J., dissenting). See also LaFave, Search and Seizure 799 (in the Index, "See Probable Cause" is listed under "Reasonable Grounds to Believe").