48 F.3d 1452
41 Fed. R. Evid. Serv. 892
UNITED STATES of America, Plaintiff-Appellee,v.Victor PLESCIA, Frank Bonavolante, Camillio Grossi a/k/aCanillo Grossi a/k/a Camillo Grossi a/k/a Gam,Anthony Grossi, and Norman Demma,Defendants-Appellants.
Nos. 92-1222, 92-1223, 92-1224, 92-1225, 92-1226 and 93-3405.
United States Court of Appeals,Seventh Circuit.
Argued Oct. 3, 1994.Decided March 8, 1995.Rehearing and Suggestion for Rehearing En Banc Denied April19, 1995.

Barry Rand Elden, Asst. U.S. Atty., Bennett E. Kaplan (argued), Office of U.S. Atty., Criminal Receiving, Appellate Div., Helen B. Greenwald, Asst. U.S. Atty., Criminal Div., Jack O'Malley, Office of State's Atty. of Cook County, Chicago, IL, for U.S.
Michael B. Mann (argued), Zavislak & Mann, Oakbrook, IL, for defendant-appellant Victor Plescia.
James R. Meltreger, Peter A. Regulski (argued), Anthony J. Onesto, Onesto, Giglio, Meltreger & Associates, Chicago, IL, for defendant-appellant Frank Bonavolante.
Alexander M. Salerno, Berwyn, IL, argued, for defendant-appellant Camillio Grossi.
Cheryl I. Niro, Oak Park, IL, argued, for defendant-appellant Anthony Grossi.
Robert A. Korenkiewicz, Chicago, IL, argued, for defendant-appellant Norman Demma.
Before POSNER, Chief Judge, CUMMINGS and ENGEL,* Circuit Judges.
ENGEL, Circuit Judge.

1
The five defendants in this case appeal the convictions and sentences arising out of a sizeable Chicago-based cocaine conspiracy spanning several years.  Because we feel that the vast weight of the evidence supports the convictions and the sentences and that any possible error was harmless, we affirm.

2
Victor Plescia headed the conspiracy, which began during or before 1986.  He sent couriers, including chief prosecution witness Nickalos Rizzato and defendant Anthony Grossi, and he went himself many times to Miami, where he had a cocaine supplier.  Rizzato made at least ten trips over several years to pick up over 50 kilograms of cocaine, and as many trips carrying cash to pay the Miami supplier.  In 1988, with an initial investment of $40,000, Frank Bonavolante began to finance cocaine purchases in return for a share of the resale profits.  After Plescia or a courier brought the cocaine to Chicago, Camillio Grossi and his son, Anthony Grossi, or others distributed it in street-use quantities.  When Bonavolante or Plescia wanted cocaine for their own use, Plescia got it from one of the Grossis.  Plescia also set up deals between the Grossis and others, including Norman Demma, who regularly bought quantities of cocaine for redistribution, sometimes on credit.

3
Federal officials began to investigate the drug ring in 1989.  With the aid of a confidential informant, the officers identified Plescia as the leader of the conspiracy.  An undercover agent met with Plescia to arrange a drug purchase, and Plescia told the agent a considerable amount of detail about the operation.  With the accumulating evidence against Plescia, federal agents applied for and received permission for Title III electronic surveillance of Plescia's mobile phone and pager.  Surveillance agents recorded many conversations between the defendants in which Plescia coordinated the activity of the conspiracy.  The wiretap in place, officers stopped a coconspirator named Kevin Geiger after he met with Plescia.  The police then recorded the activity as Plescia called and paged the other four defendants, warning them that Geiger had been stopped with narcotics and telling them to lay low for a while.  Plescia did not then reach Demma, despite calling his residence numerous times.  In paging Bonavolante, Plescia used the code number 8, which Rizzato testified indicated drug-related activity.

4
Once the conspiracy resumed normal operations, the federal agents recorded a series of phone conversations in which Demma told Plescia he wanted to purchase more cocaine, Plescia called Anthony Grossi to check availability, then Plescia called back Demma at his residence and set up the drug transaction.  The transaction, observed by federal agents, occurred in a parking lot where Plescia and Demma parked before entering a cafe.  Afterward, federal agents pursued and caught Demma, who had thrown the cocaine out of his car during the chase.  Then they let him go and monitored the burst of communications among the defendants.  Demma immediately called Plescia to warn him that the agents followed them and may have bugged Plescia's phone or pager.  Plescia again called Bonavolante and the Grossis to warn them of the attention from drug enforcement officers, and Plescia agreed to replace Demma's lost cocaine.  When the U.S. had established the roles and identities of the people involved in the conspiracy and had sufficient evidence against them, all five were arrested, indicted, and tried.

5
The five defendants were tried in one proceeding with two juries, one for Plescia, Anthony Grossi, and Demma and one for Bonavolante and Camillio Grossi.  Each defendant had separate counsel.  The juries returned verdicts of guilty against all defendants, on most counts.  All five were convicted of conspiring to traffic in narcotics and of various counts of using a telephone or pager to facilitate their drug business.  All of the defendants now appeal, claiming that numerous reversible errors occurred.

6
We have considered all the arguments offered by the defendants, and we find sufficient merit for discussion in only a few.  We will briefly mention and dismiss some other claims in Section IV of this opinion.

I. The Gambling Tapes

7
Bonavolante and Camillio Grossi argue that the trial judge committed reversible error in denying them access to and use of certain evidence which they believe to be exculpatory.  During and preceding the drug conspiracy, Bonavolante directed an illegal gambling conspiracy in which Camillio Grossi and Plescia were involved.  Federal agents separately investigated the gambling conspiracy, again using Title III electronic surveillance, and recorded twelve conversations between Bonavolante and others not involved in the drug ring.  One of the tapes mentioned Camillio Grossi's role in the gambling operation.  Bonavolante and Grossi defended in the drug prosecution by claiming that their activities, while illegal and conspiratorial, were limited to gambling, not drugs.  They wished to offer the twelve tapes of gambling conversations as evidence to counter the government's tapes in which the defendants allegedly held drug-related conversations;  in both sets of conversations, the speakers primarily used general language such as "thing," "the stuff," "that guy," and "anything" as well as a euphemism about "groceries" and "a quarter of salami."   However, the gambling investigation had not been completed at the time of this trial, and disclosure of the tapes would have jeopardized the separate investigation and prosecution.  The trial judge ruled that the U.S. need not disclose the tapes to the defendants.  The U.S. disclosed the tapes to the defendants on appeal, after disclosure posed no danger to the other investigation.

8
Bonavolante and Camillio Grossi claim that the tapes tended to exculpate them, and that therefore they had a right to them under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).  They cite as support for their claim a Ninth Circuit case, United States v. Abascal, 564 F.2d 821 (9th Cir.1977).  The government in that case argued that real estate language used in a taped conversation referred to LSD, and the defendant wanted to present other taped conversations using similar language which actually concerned real estate deals.  The Abascal court held that suppression of the defense's tapes represented prejudicial error as to the charges of use of a telephone to further illegal activity.  564 F.2d at 830.   That case is easily distinguishable, however, because the district court in Abascal had improperly suppressed the evidence as hearsay (564 F.2d at 830), whereas here, the court balanced the defendants' interests against the government's very real interest in keeping the tapes confidential.  Thus, Bonavolante and Grossi must make a stronger case than did the defendant in Abascal to justify reversal of the ruling.

9
We review the district court's ruling, made after an in camera review of the material, for an abuse of discretion.  "When a criminal defendant seeks access to confidential informant files, we rely particularly heavily on the sound discretion of the trial judge to protect the rights of the accused as well as the government."  United States v. Phillips, 854 F.2d 273, 277 (7th Cir.1988).  To win a new trial, defendants must prove that there is a reasonable probability that disclosure of the evidence would have changed the outcome of the trial.  United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985).  Such a reasonable probability exists if the evidence undermines confidence in the outcome.  Phillips, 854 F.2d at 277.

10
The defendants characterize the suppressed tapes as groundbreaking, likely to have convinced the jury that Grossi and Bonavolante limited their criminal activity to gambling and that they were simply swept up with the others, admittedly their friends and associates, who were the real cocaine conspirators.  Yet the defendants did receive, and did admit into evidence several tapes made during the drug investigation of conversations limited to gambling.  Bonavolante and Grossi fail to explain how the suppressed tapes differed significantly from these, or how the suppressed tapes could have augmented the admitted tapes except by volume.  Thus the defendants were able to present their gambling defense without the suppressed tapes.  The government admitted that both had been involved in a gambling conspiracy, and it admitted freely that several of the tapes from the drug investigation exclusively concerned gambling.  The defendants presented their gambling defense using these and the "substitution theory" described below, and the jury rejected it.  Moreover, the suppressed tapes were too obscure and confusing to be effectual.  Almost all of the so-called "code" words used in the suppressed tapes are generalities, and the taped conversations are vague and rambling in the extreme.  Bonavolante and Grossi would have had to stage a miniature gambling trial simply to explain the suppressed tapes.  We find it difficult to see how the tapes could have improved the defendants' case perceptibly, much less how they might have changed the outcome in the face of the government's evidence.

11
Further, even if the defendants had not had similar evidence to present, we do not believe that the gambling tapes are effectively exculpatory.  Despite the defendants' characterizations, the drug tapes primarily involve not code words, which require a prior agreement to acquire their secret meaning, but non-specific words like "thing," "anything," "stuff," "friend," and "guy."   These words were given meaning by the speakers' conspiracy, as the government demonstrated by their actions before and after the calls.  As such, their meaning cannot be refuted by a demonstration that at another time, the words had been used to mean something else;  that is the very nature of such generalities, that they mean different things at different times.  If someone says "that thing" and points at something, then the act of pointing provides a context for the generic word, which then means the object pointed at--until someone points at something else.

12
When "code" words rather than generalities appeared on the government's tapes, the government did not claim to have broken the code;  rather, it demonstrated by the defendants' observed actions before and immediately after the calls that the "code" words must have referred to drugs.  The probative value of the government's tapes lay not in the actual words, but in the way the conversations interacted with drug activity observed by the agents.  For example, the U.S. introduced a taped conversation in which Demma spoke with Plescia and asked for "a quarter."   As defense counsel points out, "a quarter" could refer to gambling paraphernalia or orders.  In this case, however, Plescia told Demma he would make some inquiries, hung up, immediately called Camillio Grossi and asked for "a quarter of salami."   Grossi replied, "Groceries like last time."   Later that afternoon, Grossi delivered 125 grams of cocaine to Plescia, who delivered it in turn to Demma.  These actions strongly indicate that the three defendants had just set up a drug transaction, and that "a quarter of salami" meant a quantity of cocaine.  Tapes on which Bonavolante and gambling conspirators used the word "groceries" in other contexts, even about Grossi, would not undermine a jury's conclusion that in the Demma-Plescia-Grossi conversations, the defendants were talking about drugs, particularly because the suppressed conversations were all held with other people, several months before the taped drug conversations.  Sometimes the word "groceries" means food, even to a drug conspirator.

13
The other tapes do not offer another context for the drug conversations, but are distinguishable precisely because they are set in another context.  Even if the tapes were exculpatory, they would not suffice to undermine our confidence in the verdict.  The trial judge had discretion to admit or suppress the gambling tapes, and we hold that he did not abuse that discretion.

II. Sentencing

14
All five defendants challenge their sentences.  All except Camillio Grossi were sentenced according to U.S. Sentencing Guideline Sec. 2D1.1, which holds a drug conspirator accountable in sentencing "for all drug transactions that he was aware of or that he should have reasonably foreseen."  United States v. Edwards, 945 F.2d 1387, 1394 (7th Cir.1991).  The defendants claim that the trial judge attributed excessive quantities of cocaine to the conspiracy and to each conspirator.  This court will not reverse a sentence unless it is based on a clearly erroneous drug volume.  United States v. Mojica, 984 F.2d 1426, 1443 (7th Cir.1993).

15
Rizzato, the chief prosecution witness and one of the drug couriers, provided most of the information regarding the quantity of cocaine handled by the drug ring.  He testified that he made at least ten trips to Florida to pick up cocaine, and that while most trips he carried 5 kilograms, on one occasion he picked up 10 kilograms.  He also testified that he was not the only courier, that Anthony Grossi made at least one trip to pick up cocaine, and that another courier made several trips.  He also testified that Plescia often went to Florida to pay for or pick up cocaine.  Accordingly, the trial court held that the conspiracy was responsible for more than 50, but less than 150, kilograms of cocaine.

16
Plescia, as head of the drug ring, was held responsible for the drug volume of the entire conspiracy, and was sentenced in the 50 to 150 kilogram sentencing range.  He argues on appeal that the record only supports a finding of 45 kilograms, but his rationale is flawed.  He points out that Rizzato admitted to having lied in the past, concludes that Rizzato's word alone is untrustworthy, and concedes that motel slips and mileage records corroborate eight trips to pick up 5 kilograms of cocaine and one to pick up 10 kilograms for a total of 45 kilograms.  However, it is not for us to judge the credibility of witnesses.  The defendants did their best to impeach Rizzato, including gaining his admission of previous lies, but the jury still found Rizzato credible, as did the trial court.  The jury and the trial judge are best qualified to judge the credibility of witnesses appearing before them.  Rizzato testified to having brought at least 55 kilograms from Florida to Chicago, and other couriers transported indefinite quantities beyond that amount.  We affirm Plescia's sentence.

17
Bonavolante argues that since he did not join the conspiracy until 1988, he should not be held accountable for the entire volume handled by the conspiracy.  We have earlier held that "The judge may sentence a late entrant on the basis of all the drugs distributed only if the earlier distributions occurred as part of the conspiracy to which the defendant agreed."  Edwards, 945 F.2d at 1397.   That seems to be the case here.  In any event, we need not reexamine the question whether a conspirator may be held accountable for drug distributions before the conspirator joined the ring, for there is evidence of more than ten trips by different couriers to Florida to purchase cocaine after Bonavolante joined the conspiracy.  Since Rizzato testified that he never picked up less than 5 kilograms of cocaine per trip, it is reasonable to infer that different conspirators picked up over 50 kilograms of cocaine after Bonavolante joined the conspiracy.  Given Bonavolante's status as financier with whom Plescia split the profits, the quantity was reasonably foreseeable to him.

18
The trial court found that more than 20 kilograms of cocaine were reasonably foreseeable to Anthony Grossi.  Since Rizzato, the Title III tapes, and the DEA agents' observation of Anthony's activities all indicate that he was an active participant in both the transportation and the distribution of cocaine and that he and Camillio Grossi worked together in holding and distributing the drugs, we find the trial court's conclusion amply supported by the record.

19
Unlike his codefendants, Camillio Grossi incurred his sentence under 21 U.S.C. Sec. 841(b)(1)(A), because he had a prior conviction for a felony drug offense.  That statute imposes a minimum sentence of 240 months if any previously convicted felon commits another offense involving more than 5 kilograms of cocaine.  Since this mandatory minimum sentence exceeds the Guidelines range (188-235 months) for conviction for a felony drug offense involving more than 50 kilograms, the evidence need indicate only that over five kilograms of cocaine were reasonably foreseeable to Camillio Grossi.  The evidence demonstrates Grossi's active role as a regular distributor of cocaine and easily supports his sentence.

20
For the reasons given, we affirm the sentences of these four defendants.  We consider Demma's sentence below.

21
III. Demma's Conspiracy Conviction and Sentence

22
Norman Demma argues on appeal, as he did at trial, that he was never a member of the conspiracy but merely in a buyer-seller relationship with Plescia.  Demma correctly states that a buyer-seller transaction alone cannot support a conviction for conspiracy to distribute narcotics.  United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir.1991).  Demma argues that his transactions with Plescia were isolated, and that neither had an interest in the other's drug activities beyond each purchase.  However, the evidence against Demma indicates a significantly greater relationship between Demma and Plescia than Demma argues now.

23
Our circuit has held numerous times that "Evidence of frequent and repeated transactions, especially when credit arrangements are made, can support a conspiracy conviction.  United States v. Dortch, 5 F.3d 1056 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1077, 127 L.Ed.2d 394 (1994);  United States v. Fort, 998 F.2d 542, 546 (7th Cir.1993);  United States v. Edwards, 945 F.2d 1387, 1398, cert. denied, 503 U.S. 973, 112 S.Ct. 1590, 118 L.Ed.2d 308 (1992);  [United States v. Sergio, 934 F.2d 875, 869 (7th Cir.1991) ]."  United States v. Fagan, 35 F.3d 1203, 1206 (7th Cir.1994).  A purchaser of drugs for redistribution need not be accountable as an employee to the seller for a jury to find that the purchaser had joined in and furthered a conspiracy to distribute narcotics.

24
It was up to the jury to determine whether [the defendant] had an ongoing relationship with other members of the conspiracy which would support the conclusion that he joined the agreement to distribute cocaine to the Windtramps.  The jury was given a buyer-seller instruction;  its verdict demonstrates that it rejected that interpretation of the facts.  We cannot agree that the jury's conclusion was irrational or unsupported by probative evidence.  Indeed, the evidence of an ongoing relationship in this case is even stronger than the evidence held to be sufficient in Fort.   In Fort, there was only one completed transaction and a promise of future deals.  [998 F.2d] at 543.   Here, [the defendant] completed three transactions, and trial testimony established that a fourth would have occurred if the Windtramps had been able to locate him.  This evidence suggests prolonged cooperation, indicating trust and "implying something more than a series of spot dealings at arm's length between dealers who have no interest in the success of each other's enterprise."

25
Dortch, 5 F.3d at 1066, quoting United States v. Lechuga, 994 F.2d 346, 349 (7th Cir.1993) (en banc).  The Townsend court adds, "Evidence that the parties must negotiate the terms of every transaction, seek to maximize their gains at the expense of others, or engage in other forms of opportunistic behavior at the expense of the group, suggests that the transaction costs among the group are high and counsel against a finding of conspiracy between the members."  Townsend, 924 F.2d at 1395.

26
In this case, Demma had bought cocaine from Plescia for years, ending only when the government broke up the drug ring.  Demma bought in distribution quantities, not merely for personal use, and he arranged another purchase every three weeks to a month.  On two occasions during the investigation, Plescia gave Demma cocaine on credit.  Moreover, agents found Demma's home telephone number on a sheet of paper in Plescia's bedroom when they searched it.  When Geiger, who was involved in the drug ring but apparently had no other connection with Demma, was stopped by DEA agents, Plescia called Demma's home six times in an attempt to warn him.  Plescia also called Demma later at his home to set up a drug deal involving cocaine with a street value of $50,000.  Nor was the relationship one-sided;  after being chased and stopped by DEA agents, Demma called Plescia to warn him that DEA agents might be following him or might have wiretapped Plescia's phone or pager.  Demma's long-term relationship with Plescia and his drug ring contradicts the claim that Demma was merely a casual buyer.  Rather, the evidence supports the jury's conclusion that Demma was a conspirator with an interest in the success of the ring, who acted in furtherance of its illegal goals.

27
Moreover, this court established in Townsend that "limited participation can be probative of limited agreement" (924 F.2d at 1402) which nonetheless constitutes conspiracy, even if it is a more limited conspiracy than that charged by the government.  Plainly, Demma's interaction with Plescia individually rises to the level of an ongoing agreement sufficient to constitute a conspiracy to distribute the drugs actually sold to and distributed by Demma.  Townsend held that even if the evidence supported conviction for a different conspiracy than the one with which the defendant was charged and indicted, this court will affirm the conviction.  924 F.2d at 1402.   Whether the Demma-Plescia agreement was a separate conspiracy or a part of the larger conspiracy run by Plescia is relevant to Demma's sentence, but the evidence fully justifies his conviction for conspiracy.

28
Demma's sentencing challenge, however, merits a closer examination.  The judge sentenced Demma, like Plescia and Bonavolante, according to the entire volume of cocaine, more than 50 kilograms.  Demma argues on appeal that he should not be held responsible for the entire volume of cocaine turned over by the larger conspiracy run by Plescia.  Demma was involved in the conspiracy from its early days, making monthly or more frequent transactions over a period of years.  He knew Plescia well, and since Plescia was willing to describe the scope of the drug ring to an undercover agent trying to buy cocaine, it is more likely than not that Demma knew the approximate volume of drugs Plescia bought and sold.  Demma also knew Rizzato, the courier, and Camillio Grossi.  However, Demma distributed relatively small quantities, and the government does not claim that he handled 50 kilograms himself.

29
The scope of conspirators' liability is determined by the scope of the agreement they actually entered, not necessarily by the total volume of a larger conspiracy.  "Townsend requires a trial court to scrutinize the agreement that an individual defendant entered into to determine whether he actually agreed to become involved in a conspiracy to distribute a given quantity of drugs....  Townsend makes clear that conspiracy law contains an important limiting principle--namely, that conspiracy liability cannot exceed the scope of a defendant's agreement to further criminal activity."  Edwards, 945 F.2d at 1396.   While Demma clearly conspired to distribute illegal narcotics, his relative independence suggests that he may have conspired with Plescia to distribute some lesser amount than that distributed by the larger drug ring.

30
Our past decisions offer some guidance.  In Townsend, an independent marijuana purchaser-dealer was held to be a conspirator in the overall marijuana conspiracy, but not the related cocaine and heroin conspiracies involving many of the same coconspirators.  924 F.2d at 1402.   We see a closer parallel to Demma in United States v. Auerbach, 913 F.2d 407 (7th Cir.1990).  The defendant in Auerbach claimed, like Demma, that as one of several purchasers from a drug ring, he did not take part in the larger conspiracy.  This court disagreed.

31
The evidence established that Helish dealt continuously with [his supplier] throughout the spring and summer of 1985.  His purchases were not discrete transactions requiring limited contact with the conspiracy;  rather, they required an ongoing relationship that soured only when Helish failed to move the marijuana fast enough....  "[I]f each [defendant retailer] knew, or had reason to know, that other retailers were involved ... in a broad project for the smuggling, distribution and retail sale of narcotics, and had reason to believe that their own benefits derived from the operation were probably dependent upon the success of the entire venture, the jury could find that each had, in effect, agreed to participate in the overall scheme."  United States v. Grier, 866 F.2d 908, 924 (7th Cir.1989)....  "While the parties to the agreement must know that others are participating in the conspiracy, they neither have to personally know the individuals involved nor do they have to participate in every facet of the conspiracy scheme."

32
Auerbach, 913 F.2d at 415, quoting United States v. Adamo, 882 F.2d 1218, 1224 (7th Cir.1989).  In Edwards, 945 F.2d at 1400, this court affirmed the conspiracy conviction of "an insubstantial supplier who made a late entrance into the conspiracy," reversing his sentence only in consideration of the short period of his participation.

33
Here, Demma's frequent large purchases over a long time made his venture dependent to a considerable extent upon the success of Plescia's operation.  As the Auerbach court noted, " 'Separate conspiracies exist when each of the conspirators' agreements has its own end, and each constitutes an end in itself.'  ...  Here, there was no divergence between [the defendant]'s aims and those of the conspiracy;  both sought to get the same [narcotics] into the hands of users on the street."  913 F.2d at 416.   We affirm Demma's sentence, determined with reference to the volume of drugs involved in the overall Plescia conspiracy.

34
Finally, Demma challenges the forfeiture of his house, calling it inappropriate under forfeiture law and an excessive fine in violation of the Excessive Fines Clause of the Constitution.  We find without extended discussion that the forfeiture was proper.  Forfeiture of real estate is appropriate where the property is used in any way to facilitate any drug-related offense, unless the connection between the offense and the property is "incidental and fortuitous."  United States v. 916 Douglas Ave., 903 F.2d 490, 493 (7th Cir.1990).  The government claimed the house primarily on the basis of one phone call made by Plescia to Demma at his house in which the two set up a large cocaine transaction.  There is no doubt that Demma used the privacy of his home to conduct drug-related business over the telephone, and he apparently gave his home number to Plescia so that he and others could contact Demma.  The connection in this case is not incidental and fortuitous, but a fitting situation for forfeiture.

35
Because Demma did not make his Excessive Fines argument until this appeal, we review only for plain error.  United States v. Olano, --- U.S. ----, ----, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993).  No such error appears in this case.  Although the Supreme Court has not articulated a clear standard by which to judge claims of excessive fines, Justice Scalia in a concurrence wrote, "the question is not how much the confiscated property is worth, but whether the confiscated property has a close relationship to the offense."  Austin v. United States, --- U.S. ----, ----, 113 S.Ct. 2801, 2815, 125 L.Ed.2d 488 (1993) (Scalia, J., concurring).  See also Alexander v. United States, --- U.S. ----, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993).  We have already found such a connection, and even if we consider how much the property was worth, Demma's claim fails.  While Demma attacks the forfeiture of the house for one lone phone call, the government replies that Demma's equity in his one-half interest in the house was worth around $30,000, while the drug deal arranged in the phone call concerned $50,000 worth of cocaine.  Nor is there any reason to believe that this was most likely the only drug deal made from Demma's home.  The government's power of forfeiture over the property used in illegal drug transactions is one of its harsher powers, but the fine levied on Norman Demma in this case is far from an extreme example of its use.

IV. Other Contentions

36
The remainder of the defendants' arguments merit little discussion, so we briefly mention only a few.  Several of the issues which defendants raise now were not properly preserved for appeal.  An important example involves the defendants' expert witness on tapes and tape recordings.  Plescia claims now that the expert testimony was crucial to Plescia's argument that the Title III surveillance tapes recorded by the government had been tampered with and should not be trusted.  However, the pre-trial hearing on this issue revealed that the witness did not then intend to testify that he believed the tapes had been changed.  His testimony regarding the technical aspects of the tapes was specialized and confusing, and the inferences Plescia wished to draw were speculative.  Nonetheless, the district court did not then exclude the testimony.  Instead, he invited the defendants to bring the witness to the stand during trial, so the judge could hear the questions and the government's objections before ruling on admissibility.  The defendants never called their expert to the stand, and thus they waived their claim that his testimony should have been permitted.  United States v. Addo, 989 F.2d 238, 242 (7th Cir.1993).

37
Similarly, Demma claims now that the court improperly refused to re-open the proofs at the end of the trial to allow him to testify.  However, just after his lawyer made the motion, in the judge's chambers with only his own counsel and the judge, Demma refused to testify.  Several times during the trial, Demma had been informed of his right to testify, he had discussed the issue with his lawyer at some length, and he always refused, thereby waiving the right.

38
Only Anthony Grossi preserved the argument for suppression of the Title III tapes.  He argues that the district court should have suppressed the tapes because the government failed to seal them in a timely manner upon expiration of the permitted surveillance period as required by 18 U.S.C. Sec. 2518(8)(a).  That section provides:

39
Immediately upon the expiration of the period of the order [authorizing the surveillance], or extensions thereof, ... recordings [made of the electronic surveillance] shall be made available to the judge issuing such order and sealed under his directions.

40
To determine whether the tapes should have been suppressed, "we must consider whether the Government established good cause for the sealing delays that occurred in this case."  United States v. Ojeda Rios, 495 U.S. 257, 265, 110 S.Ct. 1845, 1850, 109 L.Ed.2d 224 (1990).  The government notes first that because a second surveillance period followed the first, it was treated as an extension of the first, preventing any need for sealing between the periods.  United States v. Carson, 969 F.2d 1480, 1488 (3d Cir.1992).  Second, the government reasonably explains the delay between the periods as necessary to draft the Title III surveillance request affidavit and to get the request processed by the federal bureaucracy.  Third, the government points out that it did seal the tapes two weeks after the end of the first period in a good-faith effort to comply with the statute in the face of an innocent delay in processing the request for a second surveillance period.  We believe that the government has provided good cause for the delay and has fulfilled the demands of the sealing statute.

41
Other of the defendants' contentions are simply unsuccessful.  Defendants argue that the Title III electronic surveillance was improper under 18 U.S.C. Sec. 2518(1)(c) because investigators had enough evidence without it and/or could have obtained sufficient evidence through ordinary investigative techniques.  However, "[o]ur Circuit recognizes that 'the government's burden of establishing its compliance with [subsection 2518(1)(c) ] is not great,' and that the requirement that the government exhaust 'normal investigative procedures' be reviewed in a 'practical and common-sense fashion.' "  United States v. Zambrana, 841 F.2d 1320, 1329 (7th Cir.1988) (citations omitted).  From a practical perspective, the defendants' claim fails.  Even if it were true that the government could have prosecuted Plescia without the tapes, the wiretaps both allowed the government to ascertain the extent and structure of the conspiracy and provided enough evidence to convict these five, the key players in the drug ring.  It would have been far more difficult or impossible to determine the extent of their involvement, such as Bonavolante's role as financier, by merely observing transactions from a distance.

42
Plescia argues that tapes of his conversations with an informant, who did not testify at trial, should have been suppressed as hearsay.  The informant's statements, however, were not offered for their truth, but only to give context to Plescia's own self-incriminating words.  See United States v. Davis, 890 F.2d 1373, 1380 (7th Cir.1989).

43
The chief witness for the prosecution was the courier Rizzato, a Chicago police officer on disability who had been involved in the conspiracy from the beginning, with a brief hiatus from 1988 to 1989.  The defendants claim that they were improperly limited in their attempts to impeach him several ways.  First, they cross-examined him regarding several lies he had told while under oath in the past, lies with considerable detail and specificity.  He admitted that he had in the past lied while under oath, and he admitted that his lies had been creative and detailed.  However, the trial court refused to allow cross-examination into the details of the lies because their prejudicial effect would outweigh any probative value.  Fed.R.Evid. 403.  In fact, Rizzato had lied several times in telling people that he had killed African-American gang members in retaliation for the murder of his brother, also a Chicago police officer, by African-American gang members.  Rizzato had also lied while under oath at a hearing in the Chicago Police Department regarding his positive drug test for cocaine.  Rizzato had claimed that a woman he had met when feeling lonely and depressed had slipped him the drug, which he had thought was something else.

44
"[T]rial judges retain wide latitude ... to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant."  Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986).  Given that Rizzato freely admitted on the stand that he had lied in detailed ways while under oath, and given the prejudicial effect a claim of the murder of African-American gang members would have, we feel that further cross-examination into the details was unnecessary, probably prejudicial, and properly precluded.  Rizzato willingly admitted his criminal activity while a police officer, his drug use, and the lies he told to conceal his illegal acts, and the jury found his frequently corroborated testimony credible regardless.

45
The trial judge also prevented the defendants from cross-examining Rizzato regarding certain anti-depressive and anti-anxiety medication, including Prozac, which he was taking at the time of trial and when the events he described had occurred.  The defendants argue that these drugs could have affected Rizzato's perception and memory, but they did not offer any expert testimony regarding the effects of the medications either generally or on Rizzato.  The trial judge correctly ruled that line of cross-examination more prejudicial and confusing than useful for impeachment, particularly because Prozac had often been mentioned negatively in popular media at that time.

46
Camillio Grossi and Bonavolante further attack the trial judge's decision not to allow their follow-up questions regarding Rizzato's brother-in-law, Carlo Plescia, in support of his defense theory that Rizzato had replaced Carlo Plescia, the real financier of the drug ring, with Grossi and Bonavolante, leader of a gambling ring, in an attempt to protect his sister's husband.  Since Rizzato had testified that he did not remember the statement about which Bonavolante wanted to question him, follow-up questions were improper.  Bonavolante and Grossi were not prejudiced, because Rizzato fully described his relationship with Carlo Plescia and implicated him in the drug conspiracy and because the defendants were able to present their substitution theory elsewhere.

47
Camillio Grossi and Bonavolante also wished to call a witness to testify that Rizzato told him he intended to substitute them for Carlo Plescia.  However, the witness, who was also involved in the conspiracy, stated that he would plead the Fifth Amendment right against self-incrimination on cross-examination.  The government demonstrated in a hearing that the witness would effectively preclude its impeachment of him for considerable bias and previous inconsistent statements by claiming the Fifth.  The district court may refuse to permit a witness to testify when that witness' right against self-incrimination precludes effective cross-examination.  United States v. Herrera-Medina, 853 F.2d 564, 567-68 (7th Cir.1988).  The trial judge therefore properly refused to allow the witness to testify.  Further, the defendants were not greatly disadvantaged.  The witness could only have tried further to impeach Rizzato, but he could not have proven the substitution theory, because Rizzato's statements to the witness would represent impermissible hearsay if offered for their truth.

48
Plescia argues that the judge should have declared a mistrial because a DEA officer, mistaking him for another officer, asked him a question about the cocaine present as an exhibit.  Plescia did not respond in any way.  The judge questioned the jurors and determined that there is no indication that any juror overheard the very brief interaction.  The judge properly instructed the jury immediately thereafter to consider only the evidence formally presented in the trial.  A defendant is entitled to a new trial only if there is a "reasonable possibility" that the jury's verdict has been affected by material not properly admitted into evidence.  United States v. Davis, 15 F.3d 1393, 1413 (7th Cir.1994).  We review the district court's ruling for an abuse of discretion, "and, as an appellate court sitting one step removed from the trial, we shall reverse the district court's decision only if we have a very strong conviction of error."  United States v. Sanders, 962 F.2d 660, 669 (7th Cir.1992) (citations omitted).  We find that the district court committed no error, because there is no reasonable possibility that the jury was affected by the exchange.

49
This was a long and complex trial.  In such a trial it is almost inevitable that some error or at least questionable ruling may occur during the course of it.  It is equally true, however, that the adverse impact upon a jury of such rulings, where otherwise isolated, is diminished in proportion to the length of the trial so that "while every additional day of trial increases the possibility of error, it correspondingly reduces the risk that any single error may have prejudicial effect upon the result."   Cf. In re Beverly Hills Fire Litigation, 695 F.2d 207, 227 (6th Cir.1982).  That observation is particularly true here.  As a whole, the trial was conducted in an orderly fashion and with conscientious regard for the defendants' rights.  Nothing we have seen in the record here undermines our belief that the defendants received a fair trial, were properly found guilty and were sentenced appropriately.  Accordingly, we AFFIRM.

*
 Honorable Albert J. Engel, of the United States Court of Appeals for the Sixth Circuit, sitting by designation


575 F.3d 476 (2009)
PETROLEUM PIPE AMERICAS CORPORATION, Plaintiff-Appellee,
v.
JINDAL SAW, LTD., Defendant-Appellant.
No. 08-20461.
United States Court of Appeals, Fifth Circuit.
July 9, 2009.
*478 David Michael Bond (argued), Craig Douglas Dillard, Boyar & Miller, Houston, TX, for Plaintiff-Appellee.
Hunter M. Barrow, Thompsom & Knight, L.L.P., Houston, TX, Debora B. Alsup (argued), Thompson & Knight, LLP, Austin, TX, for Defendant-Appellant.
Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Jindal Saw, Ltd. ("Jindal") appeals the district court's denial of its motion to stay litigation and compel arbitration. We affirm.

I
Defendant-Appellant Jindal is a manufacturer of steel pipes based in India. Plaintiff-Appellee Petroleum Pipe Americas Corp. is a Texas-based corporation whose United Arab Emirates' affiliate, Petroleum Pipe Middle East (collectively, "PPA"), began purchasing pipe from Jindal in the fall of 2004. From November 2004 until August 2005, Jindal accepted several purchase orders from PPA for various grades of pipe. These purchase orders do not contain arbitration clauses. PPA then supplied the pipe to third-parties, two of whomGunn Oil Co. ("Gunn") and Magnum Producing, LP ("Magnum")suffered well failures allegedly caused by defective Jindal grade P110 pipe. PPA notified Jindal that PPA had reached a settlement with Gunn and Magnum conditioned on Jindal's agreement to a separate settlement with PPA. Jindal responded favorably to this offer, and, on January 9, 2006, the parties resolved the dispute by reaching a comprehensive settlement agreement ("Settlement Agreement") in which Jindal would, inter alia, pay PPA $750,000 as full settlement of all claims that Gunn and Magnum brought against PPA and give PPA a $200,000 credit on two pending purchase orders. The agreement defines "Financial Claims" as those raised by PPA against Jindal in PPA's December 2, 2005 claim letter. In turn, that claim letter describes the Gunn and Magnum claims and also specifically describes the issues with the P110 pipe, but with no other pipe. Likewise, the Settlement Agreement specifically mentions only P110 pipe.
The Settlement Agreement includes a release provision in which PPA contracted to forgo:
any claim against the claimed rejection in [PPA's] Internal Inspection carried out on any other material bought by [PPA] from [Jindal]. This clause relates only to the material received up to 12th December 2005. PPA reserves the right to bring claims for claimed rejection *479 in respect of material received after this date.
Additionally, the parties' meeting minutes from the discussions surrounding the Settlement Agreement state that the Settlement Agreement "forms as the full and final settlement of the claims on P110 products supplied so far to [PPA], as on date." The parties dispute whether the release agreement applies to claims for all defective pipe received before December 12, 2005, or only P110 pipe received before that date.
The Settlement Agreement includes an arbitration clause whereby:
The parties agree to have the dispute if any to have the same arbitrated [sic] than litigated. All disputes arising in connection with the present contract shall be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by a Sole Arbitrator.... The law governing the contract and the arbitration procedure shall be English law. The place of arbitration shall be London.
On May 30, 2007, PPA sent Jindal a demand letter alleging that Jindal sold PPA defective L80 and N80 pipe. On that same day, PPA filed the instant lawsuit in Texas state court seeking damages of $2.46 million for breach of contract and breach of warranty based on the allegedly defective L80 and N80 pipe, but not any P110 pipe. PPA has disclaimed any intention to seek damages for L80 and N80 pipe that was inspected and rejected before December 12, 2005. On July 9, 2007, Jindal removed this case to the District Court for the Southern District of Texas. A week later, Jindal filed an answer and counterclaim. In its counterclaim, Jindal alleges that PPA failed to fulfill what Jindal views as PPA's obligations under the Settlement Agreement, including PPA's alleged agreement to purchase an additional 6,000 metric tons of pipe from Jindal. Jindal asserts four causes of action related to PPA's performance under the Settlement Agreement: (1) breach of the Settlement Agreement and purchase orders, (2) unjust enrichment or restitution for the amount Jindal paid to PPA under the Settlement Agreement, (3) promissory estoppel, and (4) money had and received.
The parties then exchanged documents and, at the district court's urging, discussed settlement and kept the judge updated regarding settlement discussions. The district court held a series of off-the-record conferences in chambers over the next several months. On November 15, 2007, the parties submitted a joint status report stating that at the October 29, 2007, status conference, the parties had agreed "that in the event that settlement was unlikely, that they could narrow the issues in the case to several discrete legal issues requiring rulings from the Court." Following another conference on March 12, 2008, the parties jointly filed their respective interpretations of the Settlement Agreement, neither of which mentioned the arbitration provision. Then, according to PPA, the district court, in a May 19, 2008, off-the-record conference, interpreted the Settlement Agreement in a manner contrary to Jindal's interests. Jindal characterizes this conference as an informal discussion in which the district court "expressed concern" over Jindal's interpretation, and denies that any rulings were made.
On May 29, 2008, ten days after that conference and a year after PPA originally filed suit, Jindal moved to stay the litigation and compel arbitration. PPA objected on two grounds: (1) that the claims did not fall within the scope of the arbitration clause of the Settlement Agreement, and (2) that even if the parties had agreed to arbitrate the claims, Jindal waived that *480 right by substantially invoking the judicial process. The district court summarily denied Jindal's motion to stay and to compel arbitration. Jindal timely filed a notice of appeal.

II
Because Jindal seeks review of an order refusing to stay the proceedings and compel arbitration, we have jurisdiction over this interlocutory appeal. See Republic Ins. Co. v. PAICO Receivables, LLC, 383 F.3d 341, 344 (5th Cir.2004). This court reviews de novo a district court's denial of a motion to stay litigation and to compel arbitration. See Pennzoil Exploration & Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1065 (5th Cir.1998).[1]

III
Even assuming arguendo that the parties agreed to arbitrate their dispute, Jindal has waived its right to compel arbitration. "The question of what constitutes a waiver of the right of arbitration depends on the facts of each case...." Walker v. J.C. Bradford & Co., 938 F.2d 575, 576 (5th Cir.1991) (citation omitted). The court finds waiver "when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party."[2]Id. at 577 (citation omitted). In this context, "prejudice" means "the inherent unfairness in terms of delay, expense, or damage to a party's legal position that occurs when the party's opponent forces it to litigate an issue and later seeks to arbitrate the same issue." Republic, 383 F.3d at 346 (citation omitted). And, "[t]hree factors are particularly relevant" to the prejudice determination: (1) whether discovery occurred relating to arbitrable claims; (2) the time and expense incurred in defending against a motion for summary judgment; and (3) a party's failure to timely assert its right to arbitrate. Id.
To invoke the judicial process, a party "must, at the very least, engage in some overt act in court that evinces a desire to resolve the arbitrable dispute through litigation rather than arbitration." Id. at 344 (citation omitted). A presumption against waiver exists such that the party asserting waiver "bears a heavy burden of proof in its quest to show" waiver. Id. at 344 (citation omitted). And, "[w]hile the mere failure to assert the right of arbitration does not alone translate into a waiver of that right ... such failure does bear on the question of prejudice, and may, along with other considerations, require a court to conclude that waiver has occurred." Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156, 1161 (5th Cir.1986). A party waives arbitration by seeking a decision on the merits before attempting to arbitrate. See Miller Brewing *481 Co. v. Ft. Worth Distributing Co., 781 F.2d 494, 498 (5th Cir.1986) ("Any attempt to go to the merits and to retain still the right to arbitration is clearly impermissible." (quotation omitted)).
In this case, PPA argues that Jindal's actions demonstrate a desire to litigate rather than arbitrate, stating that, before seeking to compel arbitration, Jindal: (1) delayed seeking arbitration until a year after PPA filed suit; (2) removed the case to federal court; (3) filed counterclaims that relate to the Settlement Agreement; (4) participated in discovery and numerous discovery meetings; and (5) sought a ruling from the district court on the interpretation of the Settlement Agreement. According to PPA, Jindal sought to compel arbitration in an attempt to avoid the district court's anticipated unfavorable interpretation of the Agreement.
Jindal does not contest that it took the first four actions cited by PPA but contends that they do not support a waiver finding. Jindal denies, however, that it sought any merits ruling from the district court or that any "substantive decisions" took place, and contends that the district court merely "expressed concern" about Jindal's interpretation as part of an "informal[] discuss[ion]." PPA argues (1) that the parties anticipated rulings when they stated that "in the even that settlement was unlikely, ... they could narrow the issues in the case to several discrete legal issues requiring rulings from the Court" and subsequently filed their competing contract interpretations, and (2) that Jindal agreed that the court issued rulings as demonstrated by the parties' July 16, 2008, joint status report, which states, in part, "PPA believes obtaining a written order of [the district court's] prior verbal rulings is necessary. ..." Jindal responds that no rulings were ever actually requested, and that the July 16, 2008 status report reflects the belief of PPAnot Jindalthat oral rulings had been made. Further, Jindal maintains, whatever the district court may have intended during the May 19, 2008, conference, it did not make any legally binding orders or rulings.
From our review of the record, it appears that Jindal is correct that the district court issued no legally binding orders or rulings at the May 19, 2008 conference; indeed, the only ruling indicated in the conference memorandum is "The parties will talk." Nonetheless, the transcript of the September 29, 2008, status conference[3] (with which Jindal supplemented the record when it filed its reply brief) makes clear, despite the district court's imperfect memory of the May 19 conference, that the district court at that conference gave very strong indications that he favored PPA's interpretation and that it was reluctant to consider further argument. For example, at the September 29 conference, in response to Jindal's counsel's statement that "We didn't ask the Court informally for a ruling. We asked for the court to consider it, and that was per the Court's instruction to us," the district court responded, "Right. We discussed it. I said it was not ambiguous, and it was this; and then we were going to need to document it. ..."[4]*482 Moreover, when addressing Jindal's counsel earlier in the September 29 conference, the district court stated, "What's the other argument [that would require further briefing]? I didn't buy the best ones, if that's what you told me you gave me last time," and shortly thereafter added, "If I had had a reporter, I would have said orally move and respond; but I didn't, and so we needed a record."
The district court's own characterization of the May 29 conference leaves us firmly convinced that the district court gave a very clear indication at that conference that it had considered the parties' arguments and intended to rule against Jindal's interpretation of the Settlement Agreement. The lack of a formal ruling does not convince us that Jindal, having learned that the district court was not receptive to its arguments, should be allowed a second bite at the apple through arbitration. See Miller Brewing Co., 781 F.2d at 498; see also Khan v. Parsons Global Servs., 521 F.3d 421, 427 (D.C.Cir. 2008) (rejecting approach that would "encourage parties to attempt repeat litigation of merits issues not resolved to their satisfaction, undermining the policy that arbitration may not be used as a strategy to manipulate the legal process." (quotations omitted)), Kramer v. Hammond, 943 F.2d 176, 179 (2d Cir.1991) ("Prejudice can be substantive, such as when a party loses a motion on the merits and then attempts, in effect, to relitigate the issue by invoking arbitration. ..."); cf. Cargill Ferrous Int'l v. SEA PHOENIX MV, 325 F.3d 695, 701 (5th Cir.2003) ("Under the facts of this case, it is clear Serene is not gaming the system by seeking a win at trial, and in the case of a loss, anticipating a second bite at the apple through arbitration. Rather, Serene has preferred arbitration since the time Cargill filed its complaint."). Nor does it matter that Jindal contends that it did not seek a rulingit knew, or should have known, that a decision on the merits was reasonably likely once settlement negotiations reached a standstill and the parties submitted their competing interpretations of the Settlement Agreement. We conclude that Jindal substantially invoked the judicial process by waiting to move to arbitrate until the district court's pronouncements in the May 19 conference and that PPA was prejudiced thereby. As that constituted waiver of Jindal's putative right to invoke arbitration, we need not consider whether Jindal's other actions constitute waiver.

IV
For the foregoing reasons, the district court's refusal to stay litigation and compel arbitration is AFFIRMED.
NOTES
[1]  We typically review for clear error the district court's factual findings underlying its determination whether a party waived its right to arbitrate. Sherer v. Green Tree Servicing LLC, 548 F.3d 379, 381 (5th Cir.2008) (per curiam). Since the district court made no factual findings on the waiver issue, however, there are none to review for clear error.
[2]  Although the waiver standard involves two prongs of analysis (substantial invocation of the judicial process and prejudice) our precedent has recognized some overlap:

When one party reveals a disinclination to resort to arbitration on any phase of suit involving all parties, those parties are prejudiced by being forced to bear the expenses of a trial ... [.] Arbitration is designed to avoid this very expense. Substantially invoking the litigation machinery qualifies as the kind of prejudice ... that is the essence of waiver.
Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156, 1158 (5th Cir.1986) (quoting E.C. Ernst, Inc. v. Manhattan Constr. Co. of Tex., 559 F.2d 268, 269 (5th Cir. 1977)).
[3]  This conference took place after PPA had filed its brief in this interlocutory appeal.
[4]  This was part of a wider exchange, which is also illuminating:

PPA'S COUNSEL: [Y]ou read the contract and gave us your interpretation of what those problems were at issue then. ... And I think one of the issues we are writing [sic] into on appeal is because it's not reduced to writing in the record and it's a little bit difficultI think there is enough of the record to reflect that these things occurred and that you weighed in on these issues, but that's
THE DISTRICT COURT: Well, give it to me. Give me your response and I will say what I said. But if you have got another six or seven arguments, just file your motion.... [Jindal's counsel will] respond ... and then I will look at any arguments that I cited last time.
I don't want to keep recycling. A motion to [sic] rehearing is fine. ... [B]ut just rehashing the same argument doesn't get us anywhere. ...
JINDAL'S COUNSEL: I guess that's what the issue is, Judge. It was our understanding, and we submitted, we did a joint submission for consideration with the Court. We didn't ask the Court informally for a ruling. We asked for the court to consider it, and that was per the Court's instruction to us.
THE DISTRICT COURT: Right. We discussed it. I said it was not ambiguous, and it was this; and then we were going to need to document it. ...
JINDAL'S COUNSEL: Okay.


351 F.2d 342
Walter H. CAMPBELL and Aetna Casualty & Surety Co., Inc., acorporation, Appellants,v.John BARNETT, d/b/a KSWS-TV, and Andrews Tower, Inc., acorporation, Appellees.
No. 7940.
United States Court of Appeals Tenth Circuit.
Sept. 27, 1965.

Richard E. Ransom, Albuquerque, N.M.  (Bernard D. Craig, Kansas City, Mo., and Smith & Ransom, Albuquerque, N.M., were with him on the brief), for appellants.
James T. Paulantis, Albuquerque, N.M.  (Iden & Johnson and Bryan G. Johnson, Albuquerque, N.M., were with him on the brief), for appellee John Barnett.
William B. Keleher, Albuquerque, N.M.  (Keleher & McLeod and Russell Moore, Albuquerque, N.M., were with him on the brief), for appellee Andrews Tower, Inc.
Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.
BREITENSTEIN, Circuit Judge.

1
Appellant-plaintiff Campbell was injured in the collapse and fall of a television tower owned and operated by appellee-defendant Barnett and built by appellee-defendant Andrews Tower, Inc.  In his complaint plaintiff asserted that the owner and the builder were each negligent and, hence, liable to him.  Jurisdiction is based on diversity.  The jury returned a verdict for the defendants.  In this appeal the principal errors urged relate to instructions of the court.

2
Barnett, the owner of a television station at Roswell, New Mexico, hired Andrews Tower, Inc., to build a tower for his station.  Andrews built the tower, 1,610 feet in height, at a site near Caprock, New Mexico; and the tower went into operation in March, 1957.  Plaintiff Campbell was an employee of Commercial Radio Monitoring Company which was in the business of checking and adjusting radio and television transmitter frequencies.  On December 8, 1960, Campbell, in the course of his employment, was at the transmitter building located near the tower.  The area was then, and had been for sometime, subjected to a severe snow, sleet and wind storm.  The tower collapsed and portions crushed through the building severely injuring Campbell.  Aetna, the compensation carrier for his employer, paid him under its compensation policy, and, to the extent of the amount so paid, is the assignee of his claim against the defendants.

3
The negligence claimed was the failure to design and build the tower with sufficient strength and stability to withstand wind and icing conditions present in the area.  No purpose would be served by relating the conflicting evidence.  It was sufficient to take the case to the jury and is sufficient to sustain the verdict in favor of the defendants.

4
We are bound by New Mexico law.  In Tipton v. Clower, 67 N.M. 388, 356 P.2d 46, 49, the New Mexico Supreme Court considered the principles pertaining to the liabilities of an independent contractor and an owner for work done by the contractor.  The opinion, so far as pertinent, said that the contractor may be found liable to third parties who have been foreseeably endangered by the contractor's negligence, even though the work had been accepted by the owner, with the limitation that 'if the owner discovers the danger, or it is obvious to him, his responsibility supersedes that of the contractor.'  In the instant case the trial court followed and applied these principles.

5
The first error claimed is that the plaintiff was required at the start of the trial to make an election of the theory under which he intended to proceed.  The situation was that counsel for the plaintiff in his opening statement said that the owner had knowledge of the hazardous condition of the tower.  Andrews, the contractor, then moved for a directed verdict on the ground that such knowledge would preclude recovery from it.  The court took the motion under advisement but stated that 'somewhere along the line the plaintiff is going to have to make up his mind what theory he is going on.'

6
We recognize that Rule 8(e)(2), F.R.Civ.P., permits a plaintiff to plead alternate, hypothetical and inconsistent claims and that Rule 20(a) permits the joinder of defendants in cases such as this.  No action of the court violated either of these rules.  The court did not require the plaintiff to make an election; and the case went to the jury on the liability of each defendant.

7
The court refused to give plaintiff's requested instruction No. 26.  This was based on the theory that Andrews Tower was a manufacturer and its liability was not superseded by the owner's knowledge of defects or by the obviousness of defects.  The basis for this argument is that Tipton v. Clower does not apply to manufacturers.  The contention that the builder of a television tower is in the same class as the manufacturer of a chattel need not concern us.  In Tipton the issue was the respective liability of an oil well driller and the owner of the land.  In the application of the principles announced by Tipton we see no distinction between the driller of an oil well and the builder of a tower.  Both the oil well and the tower are part and parcel of the realty.  In any event the failure to give the requested instruction would be pertinent only if the jury found against the owner and Andrews Tower went free.  The reason is simple.  The requested instruction said that if the owner knew of the defect, or if the defect was obvious, then Andrews Tower was not released from liability.  The finding for the owner removed the possibility of the release of Andrews Tower because of knowledge or obviousness.

8
The plaintiff, to support his theory that both Andrews and the owner could be held liable, requested an instruction saying in effect that Andrews was liable if it negligently built a tower containing defects neither discovered by nor obvious to the owner and that the owner was also liable if in the exercise of ordinary care he should have discovered the defects and warned the plaintiff.  The court refused the instruction and told the jury that a finding of negligence on the part of Andrews would require a verdict against it and in favor of the plaintiff unless the danger was discovered by or obvious to the owner.  The court went on to say 'if the danger, if there was any danger, was obvious to the defendant, I meant to include: or if the defendant Barnett could have or should have in the exercise of reasonable care discovered such negligence or such defect.'  The argument is that the quoted phrase eliminates the possibility of a verdict against both because it equates 'exercise of reasonable care' with 'obvious.'

9
Tipton imposes a superseding liability on the owner for defects either discovered or obvious.  The term 'obvious' carries a different connotation than the phrase 'should have discovered such defects in the exercise of ordinary care.'  We need not speculate whether the New Mexico Supreme Court would so extend Tipton because, as we see the case, any error in denying the requested instruction or in defining obvious did not prejudice the plaintiff.  The theory of the plaintiff would impose a liability on both defendants only if Andrews was negligent.  The verdict in favor of each defendant precludes that possibility.1  The plaintiff would be in a position to complain only if the verdict had run against Andrews and in favor of the owner.

10
Plaintiff complains that the court required the reading of a deposition in the order in which it was taken rather than in the order which the plaintiff deemed to be a systematic presentation of the relevant points.  The order of reading the deposition was within the discretion of the court and that discretion was not abused.  Indeed, the plaintiff makes no showing of how he was prejudiced by the action of the court.

11
Affirmed.

1
 The verdict was a general verdict.  The record discloses no requests for, or submission of special interrogatories


                                                                FILED BY CLERK
                                                                   MAY 30 2008
                           IN THE COURT OF APPEALS                  COURT OF APPEALS
                               STATE OF ARIZONA                       DIVISION TWO
                                 DIVISION TWO

THE STATE OF ARIZONA,                       )
                                            )       2 CA-CR 2007-0210
                                Appellee,   )       DEPARTMENT A
                                            )
                   v.                       )       OPINION
                                            )
LAKI DAVID PRICE,                           )
                                            )
                             Appellant.     )
                                            )

           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20054155

                            Honorable Gus Aragón, Judge

                                     AFFIRMED

Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Amy M. Thorson                                    Tucson
                                                           Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender
 By Kristine Maish                                                         Tucson
                                                           Attorneys for Appellant

H O W A R D, Presiding Judge.
¶1            After a jury trial, appellant Laki Price was convicted of armed robbery,

aggravated robbery, and aggravated assault. The trial court sentenced him to mitigated,

concurrent prison terms, the longest for seven years. On appeal, Price claims he was

improperly tried by an eight-person jury and the trial court abused its discretion in denying

his request for instructions on lesser included offenses. The state volunteers that one of

Price’s convictions violates double jeopardy principles. Finding no error, we affirm.

                                           Facts

¶2            “We view the facts in the light most favorable to sustaining the convictions.”

State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006). Price and a man named

Miguel Virgen approached the victim, a pedestrian, in a parking lot. Price told the victim

to “give it up.” Price then lifted his shirt to show the victim a gun that was tucked in his

waist area and said, “I ain’t playing.” When the victim did not respond, Price drew the gun,

held it by his leg, and told the victim, “I’ll leave you in this parking lot.” The victim gave

Virgen some money from one pocket and then, after further insistence by Price, some more

money from another pocket. Price and Virgen then fled but were later apprehended by

police. The jury found Price guilty of armed robbery, aggravated assault, and aggravated

robbery and found all three offenses to be of a dangerous nature. The court sentenced Price

to concurrent, mitigated prison terms of seven years for the armed robbery, five years for the

aggravated assault, and five years for the aggravated robbery. Price now appeals.

                                              2
                                      Double Jeopardy

¶3             Although Price does not raise the issue and, in fact, disagrees, the state asserts

that aggravated assault is a lesser included offense of armed robbery. It therefore contends

convicting Price of both constituted fundamental, prejudicial error and asks this court to

vacate Price’s conviction and sentence for aggravated assault. See State v. Fernandez, 216

Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore fundamental error

when it sees it).

¶4             Because this issue was not raised below, we review solely for fundamental

error. See State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). But, as the

state notes, double jeopardy principles prohibit convictions for both a greater offense and

a lesser included offense, and a violation of double jeopardy is fundamental error. See

Fitzgerald v. Superior Court, 173 Ariz. 539, 544, 845 P.2d 465, 470 (App. 1992); see also

State v. Siddle, 202 Ariz. 512, n.2, 47 P.3d 1150, 1153 n.2 (App. 2002). We review this

issue de novo. See Siddle, 202 Ariz. 512, ¶ 7, 47 P.3d at 1153.

¶5             For double jeopardy purposes, a lesser included offense and the greater offense

of which it is a part constitute the same offense, and multiple punishments for the same

offense are not permissible. See Lemke v. Reyes, 213 Ariz. 232, ¶¶ 16-18, 141 P.3d 407,

413 (App. 2006); Siddle, 202 Ariz. 512, ¶¶ 7-8, 47 P.3d at 1153-54. But two offenses are

not the same if “‘each [offense] requires proof of an additional fact which the other does

not.’” State v. Eagle, 196 Ariz. 188, ¶ 6, 994 P.2d 395, 397 (2000), quoting Blockburger

                                               3
v. United States, 284 U.S. 299, 304 (1932) (alteration in Eagle). To determine whether

offenses are the same, we analyze the elements of the offenses, not the facts of the case.1

Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d at 1154.

¶6           A person commits aggravated assault by using a deadly weapon or dangerous

instrument while:

                   1. Intentionally, knowingly or recklessly causing any
             physical injury to another person; or

                   2. Intentionally placing another person in reasonable
             apprehension of imminent physical injury; or

                    3. Knowingly touching another person with the intent
             to injure, insult or provoke such person.

A.R.S. § 13-1203(A); see also A.R.S. § 13-1204(A)(2).2 A person commits armed robbery

by, while armed with or threatening with a deadly weapon, dangerous instrument, or

      1
        Some Arizona authority suggests consideration of the charging document is
appropriate in a double jeopardy analysis. See State v. Welch, 198 Ariz. 554, ¶¶ 6-7, 12
P.3d 229, 230-31 (App. 2000); State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶¶ 10-12, 965
P.2d 94, 96-97 (App. 1998). The state does not ask us to analyze the charging document
in this case in the context of the double jeopardy issue, and in any event, we question
whether doing so would be appropriate. See United States v. Dixon, 509 U.S. 688, 708
n.12 (1993) (rejecting view that, after finding no double jeopardy violation under
Blockburger test, court should nevertheless analyze “whether the nature of the acts as
alleged supported such a claim”); see also Lemke, 213 Ariz. 232, n.2, 141 P.3d at 412 n.2
(Arizona and federal double jeopardy protections “coextensive”); State v. Sanders, 205
Ariz. 208, ¶ 65, 68 P.3d 434, 448 (App. 2003) (stating Supreme Court in Dixon held
Blockburger test “is the only permissible interpretation of the double jeopardy clause”).
      2
       The indictment did not include a particular subsection of § 13-1203(A). But we
note that the facts presented at trial supported aggravated assault only under § 13-
1203(A)(2), and the jury was instructed only on that subsection.

                                            4
simulated deadly weapon, threatening or using force against another person “with intent

either to coerce surrender of property or to prevent resistance to such person taking or

retaining property.” A.R.S. § 13-1902(A); see also A.R.S. § 13-1904(A).

¶7            Armed robbery can be committed without injuring or touching the victim, so

aggravated assault committed pursuant to § 13-1203(A)(1) and (3) has elements that armed

robbery does not. And armed robbery does not require either intending to place or actually

placing the victim in fear, see State v. Miguel, 125 Ariz. 538, 541, 611 P.2d 125, 128 (App.

1980), whereas aggravated assault committed pursuant to § 13-1203(A)(2) requires both an

intent to place the victim in “reasonable apprehension of imminent physical injury” and that

such apprehension actually results. See State v. Rineer, 131 Ariz. 147, 148-49, 639 P.2d

337, 338-39 (App. 1981). Finally, armed robbery requires proof of elements that aggravated

assault does not, including the taking of property. See § 13-1902(A); State v. Lopez, 158

Ariz. 258, 264, 762 P.2d 545, 551 (1988). Because each offense requires proof of a fact

that the other does not, armed robbery and aggravated assault are not the “same offense” for

double jeopardy purposes.

¶8            The state relies on State v. Sowards, 147 Ariz. 185, 709 P.2d 542 (App.

1984), where this court said “aggravated assault can be a lesser-included offense of armed

robbery.” Id. at 190, 709 P.2d at 547. But the court’s discussion makes clear that it was

actually analyzing whether the offenses constituted separate acts under the facts of that case.

First, the two cases the court cited in support of its proposition did not analyze whether

                                              5
aggravated assault was by definition a lesser included offense of armed robbery, but rather

whether convictions for both offenses were permissible under former A.R.S. § 13-1641,

which prohibited multiple convictions for the same act.3 See State v. Jorgenson, 108 Ariz.

476, 477, 502 P.2d 158, 159 (1972); State v. Horton, 108 Ariz. 16, 17-18, 492 P.2d 395,

396-97 (1972). Second, the court in Sowards went on to analyze the facts of that case,

concluding “the aggravated assault of each victim [was] not the same crime as the armed

robbery of each.” Sowards, 147 Ariz. at 190, 709 P.2d at 547. As discussed above,

determining whether an offense is a lesser included offense of another for double jeopardy

purposes depends on the elements of the offenses, not on the facts of the case. See Siddle,

202 Ariz. 512, ¶ 10, 47 P.3d at 1154. Thus, the court in Sowards did not use the term

“lesser-included offense” to mean “same offense” for double jeopardy purposes. Sowards

therefore does not support the state’s argument.

¶9             We conclude that, for double jeopardy purposes, aggravated assault is not the

same offense as armed robbery, and convictions for both offenses were constitutionally

permissible.

                                    Twelve-Person Jury

¶10            Price contends he faced imprisonment of thirty years or more and therefore

was entitled to a twelve-person jury. Although he failed to raise this issue in the trial court

       3
        Section 13-1641 was later renumbered as A.R.S. § 13-116 and amended to provide
that a single act may be punished under multiple statutes, but the sentences must be
concurrent. 1977 Ariz. Sess. Laws, ch. 142, § 141.

                                              6
and therefore forfeited all but fundamental error review, see State v. Henderson, 210 Ariz.

561, ¶ 19, 115 P.3d 601, 607 (2005), the failure to empanel a jury of twelve when required

constitutes fundamental, prejudicial error. See State v. Henley, 141 Ariz. 465, 469, 687

P.2d 1220, 1224 (1984). But see State v. Ring, 204 Ariz. 534, ¶¶ 106-07, 65 P.3d 915,

946-47 (2003) (Feldman, J., concurring in part and dissenting in part) (describing trial to

insufficient number of jurors as structural error).

¶11           A defendant exposed to potential imprisonment of thirty years or more at the

time the jury begins deliberations is entitled to a twelve-person jury. Ariz. Const. art. II,

§ 23; State v. Smith, 197 Ariz. 333, ¶ 16, 4 P.3d 388, 393 (App. 1999); State v. Thorne,

193 Ariz. 137, 138, 971 P.2d 184, 185 (App. 1997). In determining the length of a

defendant’s potential sentence, we take into account allegations of sentence enhancements,

see State v. Prince, 142 Ariz. 256, 259, 689 P.2d 515, 518 (1984), and whether the

sentences could be imposed consecutively.4 See Henley, 141 Ariz. at 468, 687 P.2d at

1223.

¶12           Here, the state alleged the dangerous nature of the offenses. Thus, when the

jury began deliberations, Price faced maximum prison terms of twenty-one years for armed

        4
        As the state notes, at sentencing defense counsel referred to a pretrial agreement that
the sentences would have to run concurrently. But because we cannot determine from the
record if the agreement attained the level of a stipulation that the offenses arose from a single
act, we cannot rely on it in resolving the issue before us. Cf. Thorne, 193 Ariz. at 138, 971
P.2d at 185 (eight-person jury appropriate where state stipulated two counts were one act,
thereby reducing maximum sentence “in a timely manner”).

                                               7
robbery, fifteen years for aggravated assault, and fifteen years for aggravated robbery. See

A.R.S. §§ 13-604(I); 13-1204(A)(2), (B); 13-1903; 13-1904. Because none of these

individual sentences is thirty years or more, the resolution of this issue turns on whether the

sentences could have run consecutively.

¶13           As discussed above, aggravated assault and armed robbery are not the same

offense for double jeopardy purposes. And the state does not suggest that aggravated assault

and aggravated robbery are the same offense. Therefore, we agree with Price that double

jeopardy principles would present no impediment to consecutive sentences. See Eagle, 196

Ariz. 188, ¶ 6, 994 P.2d at 397. But that does not end our analysis. Section 13-116,

A.R.S., prohibits consecutive sentences for multiple offenses that constitute a single act and

could bar consecutive sentences even though double jeopardy principles do not. See Siddle,

202 Ariz. 512, ¶¶ 16-17, 47 P.3d at 1155.

¶14           Price argues consecutive sentences were permissible under § 13-116. To

determine whether conduct constitutes a single act for purposes of § 13-116, we apply the

test set forth in State v. Gordon, 161 Ariz. 308, 778 P.2d 1204 (1989).

              First, we must decide which of the two crimes is the “ultimate
              charge—the one that is at the essence of the factual nexus and
              that will often be the most serious of the charges.” Then, we
              “subtract[] from the factual transaction the evidence necessary
              to convict on the ultimate charge.” If the remaining evidence
              satisfies the elements of the secondary crime, the crimes may
              constitute multiple acts and consecutive sentences would be
              permissible. We also consider whether “it was factually
              impossible to commit the ultimate crime without also
              committing the secondary crime.” Finally, we consider whether

                                              8
              the defendant’s conduct in committing the lesser crime “caused
              the victim to suffer a risk of harm different from or additional to
              that inherent in the ultimate crime.”

State v. Urquidez, 213 Ariz. 50, ¶ 7, 138 P.3d 1177, 1179 (App. 2006), quoting Gordon,

161 Ariz. at 315, 778 P.2d at 1211 (internal citations omitted; alteration in Urquidez).

Although our double jeopardy analysis above depended on comparing the elements of the

offenses, “our analysis under § 13-116 focuses on the ‘facts of the transaction’ to determine

if the defendant committed a single act.” Siddle, 202 Ariz. 512, ¶ 17, 47 P.3d at 1155,

quoting Gordon, 161 Ariz. at 313 n.5, 778 P.2d at 1209 n.5.

¶15           Here, the ultimate offense was either aggravated robbery or armed robbery.

See State v. Alexander, 175 Ariz. 535, 537, 858 P.2d 680, 682 (App. 1993) (aggravated

robbery ultimate offense where “[t]he object of the episode was to rob the victim”; burglary,

theft, and aggravated assault “simply ancillary”). Because Price does not argue that the

sentences for the two robbery offenses could run consecutively, we analyze whether the

sentence for aggravated assault could have run consecutively to either the aggravated robbery

sentence or armed robbery sentence.

¶16           The facts necessary to convict on aggravated robbery are that Price and Virgen

threatened to use force against the victim, demanded money, and in fact received the money.

See §§ 13-1902(A); 13-1903(A). Subtracting that evidence from the factual transaction, the

record contains no evidence of an act that could have placed the victim in “reasonable

apprehension of imminent physical injury.” § 13-1203(A)(2). The facts necessary to convict

                                              9
on armed robbery are that Price, armed with a gun, threatened force against the victim,

demanded money, and in fact received the money.             §§ 13-1902(A); 13-1904(A).

Subtracting that evidence from the factual transaction, the record contains no evidence of

a deadly weapon or an act that could have placed the victim in “reasonable apprehension

of imminent physical injury,” both of which were required to convict Price of aggravated

assault in this case. See §§ 13-1203(A)(2); 13-1204(A)(2). Thus, whether armed robbery

or aggravated robbery is the ultimate offense, there was insufficient evidence to prove

aggravated assault after subtracting the evidence necessary to prove the armed robbery or

aggravated robbery. The first Gordon factor therefore supports the conclusion that Price

committed a single act.5

¶17           Price does not argue that the second Gordon factor supports his claim that he

committed multiple acts; instead, he contends the third Gordon factor, the type of risk to

the victim, is dispositive. But Price committed aggravated assault and both robberies by

using a gun to threaten the victim, thus exposing the victim to the same risks in committing

all three offenses.

¶18           Price nevertheless contends that armed robbery exposes the victim to the risk

of only a simulated deadly weapon, whereas aggravated assault requires proof of an actual

       5
        The state asserts that we need go no further than the first factor. But in light of
authority analyzing the second and third Gordon factors even when the first does not
support consecutive sentences, see Siddle, 202 Ariz. 512, ¶ 18, 47 P.3d at 1156, we address
Price’s argument regarding the third Gordon factor.

                                            10
deadly weapon. However, although the elements of the statutes are different, the focus in

a Gordon analysis is on Price’s actual conduct. See Siddle, 202 Ariz. 512, ¶ 17, 47 P.3d

at 1155. Price used a deadly weapon to commit both aggravated assault and armed robbery.

Therefore, the risk of harm to the victim under the facts of this case was the same.

¶19           Price also contends the requirement that the defendant intentionally place the

victim in reasonable apprehension of immediate physical injury is an added risk of harm in

committing aggravated assault. But, again, a Gordon analysis examines the facts of the case,

not the elements of the offense. Price’s conduct in committing both aggravated assault and

armed robbery posed the same risks of harm to the victim here.

¶20           The first and third Gordon factors support the conclusion that Price committed

a single act, and Price does not argue the second Gordon factor supports his position.

Accordingly, we conclude Price’s conduct was a single act under Gordon and § 13-116,

making consecutive sentences impermissible. The maximum sentence Price faced was a total

of twenty-one years in prison. Thus, he was not entitled to a twelve-person jury, and the

trial court did not err in empaneling a jury of eight.

                  Denial of Instructions on Lesser Included Offenses

¶21           Price also argues the trial court erred in refusing to give the jury instructions

he requested on robbery and assault as lesser included offenses. We review the court’s

denial of a requested jury instruction for an abuse of discretion. State v. Wall, 212 Ariz. 1,

¶ 12, 126 P.3d 148, 150 (2006). “A defendant is only entitled to a lesser included offense

                                              11
instruction if there is evidence upon which the jury could convict of the lesser offense and

find the state had failed to prove an element of the greater offense.” State v. Conroy, 131

Ariz. 528, 532, 642 P.2d 873, 877 (App. 1982); see also Ariz. R. Crim. P. 23.3. Merely

asserting the jury might have disbelieved the evidence supporting an element of the greater

offense is insufficient. Wall, 212 Ariz. 1, ¶ 18, 126 P.3d at 151. Rather, to warrant a

separate instruction, “the evidence must be such that a rational juror could conclude that the

defendant committed only the lesser offense.” Id.

¶22           Here, the element that distinguishes the greater offenses of armed robbery and

aggravated assault from robbery and assault, respectively, is the use of a weapon. See §§ 13-

1902(A); 13-1904(A); 13-1203(A)(2); 13-1204(A)(2). Price’s sole argument is that “the

jury could have found that the element of the weapon, which allegedly was displayed, but

not drawn, was not proven.” But the victim testified that Price displayed and drew a gun

during the incident. Nothing in the record suggests that use of the gun was disputed at trial.

¶23           Moreover, Price’s use of the gun constituted the threat of force necessary to

establish the lesser offense of robbery. See § 13-1902(A). It was also evidence of Price’s

intent to place the victim in reasonable apprehension of imminent physical injury, which was

necessary to establish the lesser offense of assault. See § 13-1203(A)(2). Thus, had the jury

disbelieved the evidence regarding Price’s use of the weapon, it could not have found him

guilty of either the lesser or the greater offenses. See State v. Felix, 153 Ariz. 417, 419-20,

737 P.2d 393, 395-96 (App. 1986). Because Price does not point to any evidence from

                                              12
which a rational jury could find that he was guilty of only the lesser offenses of robbery and

assault but not the greater offenses of armed robbery and aggravated assault, we conclude

that the trial court did not abuse its discretion in refusing to instruct on the lesser offenses.

                                         Conclusion

¶24           For the foregoing reasons, we affirm Price’s convictions and sentences.

                                                ____________________________________
                                                JOSEPH W. HOWARD, Presiding Judge

CONCURRING:

____________________________________
JOHN PELANDER, Chief Judge

____________________________________
J. WILLIAM BRAMMER, JR., Judge

                                               13


                   IN THE COURT OF APPEALS OF IOWA

                                 No. 14-0416
                           Filed February 25, 2015

JIRAK CONSTRUCTION, LLC,
     Plaintiff-Appellee,

vs.

DANIEL H. BALK and KATHERINE J.
BALK,
     Defendants-Appellants,

and

FIRST SECURITY BANK AND TRUST CO.,
     Defendant.
________________________________________________________________

      Appeal from the Iowa District Court for Chickasaw County, Richard D.

Stochl, Judge.

      Homeowners appeal the entry of judgment for a construction company for

its work and materials and foreclosure of a mechanic’s lien on their property.

AFFIRMED.

      Christopher F. O’Donohoe of Elwood, O’Donohoe, Braun & White, New

Hampton, for appellants.

      Kevin J. Kennedy of Kennedy & Kennedy, New Hampton, appellee.

      Considered by Danilson, C.J., and Doyle and Tabor, JJ.
                                            2

TABOR, J.

       This appeal involves a contract dispute between Daniel and Katherine

Balk, owners of a 1900s-era farmhouse in Chickasaw County, and Jirak

Construction, which undertook a remodeling project for the Balks. The district

court entered judgment in favor of Jirak and against the Balks in the amount of

$55,609.49, plus interest, and foreclosed a mechanic’s lien. The Balks appeal,

contending Jirak should have been held to its initial estimate of the project’s cost

and—when their payments and costs to properly complete the work are

subtracted—Jirak actually owes them $4325.84.

       Because the district court properly applied Iowa contract law to the facts of

this case, we affirm its ruling by memorandum opinion. See Iowa Court Rule

21.26(a), (b), (c), and (e).

       In early 2012, the Balks approached Jirak about building an addition to

their home in Lawler, Iowa. On February 9, 2012, Jirak provided the Balks with

an initial estimate of $45,975 for the cost of building the new addition. After

meeting with a designer, the Balks’ plans changed slightly.            Jirak began

construction on June 19, 2012.         After construction began, Daniel Balk made

significant changes to the building plan—including increasing the size of the

addition, upgrading the windows, adding new windows, and replacing the siding

on part of the house.          Jirak had not considered these plans in its original

estimate.

       As construction progressed, Jirak and the Balks continued to discuss the

project and make additional alterations to the initial plan; the parties agreed on
                                        3

the changes. Jirak provided regular invoices to the Balks about ongoing costs.

In November 2012, the Balks began to question the overall cost of the project

and requested an itemized breakdown of the work performed. Jirak provided that

information. Through November 15, 2012, the Balks paid Jirak $67,000.00 for

work performed. But, according to Jirak, the Balks still owed $55,000.00 in labor

and materials.     The Balks refused to make additional payments.            Jirak

acknowledged the project was incomplete, but left the job due to the Balks’

refusal to pay.

        On December 12, 2012, Jirak filed a mechanic’s lien against the Balks’

real estate for the unpaid balance. On January 23, 2013, Jirak filed a petition

demanding judgment against the Balks for $55,609.49, plus interest. The Balks

filed an answer and counterclaim. The district court held a trial on September 20,

2013.

        On January 30, 2014, the court foreclosed the mechanic’s lien and

entered judgment for Jirak in the amount requested. The court determined Jirak

performed the work according to the Balks’ specifications and their agreement

was “clearly for payment of time and materials. It was not a firm bid price job.”

The court concluded Jirak was entitled to payment for the work and materials

provided and rejected the Balks’ allegations that claimed defects were due to

substandard work by Jirak. The Balks appeal.

        An action to enforce a mechanic’s lien is heard in equity and we review

the district court’s decision de novo. Flynn Builders, L.C. v. Lande, 814 N.W.2d
                                        4

542, 545 (Iowa 2012). We give weight to the district court’s findings of fact, but

are not bound by them. Id.

       On appeal, the Balks contend Jirak’s initial written estimate constituted an

offer and their acceptance of the offer locked in the quoted price. The Balks

argue: “The parties each provided consideration in the form of a promise—one to

perform, the other to pay. The actual cost of construction ultimately exceeded

the bid amount, and to the extent that is due to a mistake in Jirak’s judgment or

quote process, the mistake is attributable to Jirak.” The Balks argue any costs

over the initial estimate amount are the responsibility of Jirak and we should

award them $4325.84.

       We follow the lead of the district court in rejecting the Balks’ contention.

Jirak’s initial estimate of $45,975 was expressly an approximation.            The

description delivered to the Balks on February 9, 2012 stated: “These are approx.

costs until we get final details.” The estimate was not a binding offer. See

Denniston & Partridge Co. v. Mingus, 179 N.W.2d 748, 752 (Iowa 1970). The

discussion in Mingus is useful here:

       The “estimated cost” of a building means the reasonable cost of a
       building erected in accordance with plans and specifications
       referred to and not necessarily the amount agreed upon by the
       parties or an offer accepted by defendant. . . . An estimate is
       equivalent of “more or less” and does not pretend to be based on
       absolute calculations. Use of the word precludes accuracy. “To
       make an estimate” ordinarily means to calculate roughly or to form
       an opinion as to amount from imperfect data.

Id. (citations omitted).

       The parties in this case entered into oral modifications of the initial

estimate, which ultimately formed the binding contract.       See Seneca Waste
                                        5

Solutions, Inc. v. Sheaffer Mfg. Co., 791 N.W.2d 407, 413 (Iowa 2010) (noting

consent to modification “may be either express or implied from acts or conduct”).

“When a party to a contract modifies the scope of the work by requesting ‘extras’

or additional work, the party must pay the fair and reasonable value of the extra

work.” Id. (citing DeMuth Landscaping & Design v. Heggestad, 461 N.W.2d 354,

356 (Iowa Ct. App.1990) (contract implied from the evidence when contractor

hired to landscape north side of lakeshore bank but then requested additional

landscaping of south side of bank)). The Balks made significant changes to the

building plans; Jirak agreed to the changes, began performance, and sent

invoices to the Balks, which they paid. The Balks are responsible for the fair and

reasonable value of the modifications they requested.

      AFFIRMED.