     Case: 13-40481      Document: 00512603925         Page: 1    Date Filed: 04/22/2014

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                    No. 13-40481
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                Fifth Circuit

                                                                                FILED
                                                                            April 22, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ERICK OCHOA-RODRIGUEZ,

                                                 Defendant-Appellant

                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-1824-1

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Following a jury trial, Erick Ochoa-Rodriguez was convicted of one
charge of conspiring to possess with intent to distribute 175 kilograms of
marijuana and one charge of possessing 25 kilograms of marijuana with intent
to distribute. He was sentenced to serve two concurrent 115-month prison
terms as well as two concurrent four-year terms of supervised release.

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 13-40481

        In his first appellate claim, Ochoa-Rodriguez argues that the district
court abused its discretion by admitting evidence at trial pursuant to Federal
Rule of Evidence 404(b). He contends that the disputed evidence should not
have been admitted because it was of limited probative value and was unduly
prejudicial. We disagree.
        We review the admission of Rule 404(b) evidence in a criminal case under
a heightened abuse of discretion standard. United States v. Olguin, 643 F.3d
384, 389 (5th Cir. 2011). We have set forth a two-part test to determine
whether evidence is admissible under Rule 404(b). United States v. Beechum,
582 F.2d 898, 911 (5th Cir. 1978) (en banc). “First, it must be determined that
the extrinsic evidence is relevant to an issue other than the defendant’s
character.” Id. “Second, the evidence must possess probative value that is not
substantially outweighed by its undue prejudice and must meet the other
requirements of Rule 403.” Id. Application of this analysis shows no abuse of
discretion in connection with the challenged ruling. See Olguin, 643 F.3d at
389.
        The instant case is similar to United States v. Hernandez-Guevara, 162
F.3d 863 (5th Cir. 1998). Both cases involve a defendant who argued that he
had not committed the crime alleged and was simply in the wrong place at the
wrong time. Too, both cases involve the admission of Rule 404(b) evidence
pertaining to the defendant’s prior bad acts, which were similar to the charges
alleged at trial.
        In Hernandez-Guevara, we concluded that the disputed evidence was
“relevant to [Hernandez-Guevara’s] intent and the absence of mistake or
accident.” 162 F.3d at 871. This was because “[e]vidence that Hernandez had,
on past occasions, smuggled aliens with a guilty intent makes it more likely
that he was not innocently” running errands when he was arrested near a van

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transporting illegal aliens. Id. The same logic applies with equal force in the
instant case, and evidence showing that Ochoa-Rodriguez had previously been
involved with marijuana trafficking “makes it more likely that he was not
innocently” going for a walk or run when he was found and arrested near the
area where a marijuana-laden car was abandoned. See id. Consequently, we
conclude that the challenged evidence was relevant to issues other than Ochoa-
Rodriguez’s character. See id; Beechum, 582 F.2d at 911.
      This is not, however, the end of the analysis, and prejudice must still be
considered.   See Beechum, 582 F.2d at 911.      When making a decision on
whether the probative value of extrinsic evidence outweighs its potential
prejudice, we consider “(1) the government’s need for the extrinsic evidence,
(2) the similarity between the extrinsic and charged offenses, (3) the amount
of time separating the two offenses, and (4) the court’s limiting instructions.”
United States v. Kinchen, 729 F.3d 466, 473 (5th Cir. 2013).
      Consideration of these factors supports the district court’s decision to
admit the questioned evidence. An examination of the trial transcript shows
that this evidence was needed to show intent and lack of mistake or accident.
See id.; see also Hernandez-Guevara, 162 F.3d at 871. The challenged evidence
pertained to acts that were similar to the charged offense. See Beechum, 582
F.2d at 911; Kinchen, 729 F.3d at 474; United States v. Gadison, 8 F.3d 186,
192-93 (5th Cir. 1993). We note, too, that the challenged evidence was not so
outrageous as to inflame the jury. See United States v. Yi, 460 F.3d 623, 633
(5th Cir. 2006); see also Hernandez-Guevara, 162 F.3d at 872.
      The acts related to the challenged evidence were temporally proximate
to the acts underlying the charges against Ochoa-Rodriguez. See Beechum, 582
F.2d at 911. Finally, the court instructed the jury as to the limited use of the
Rule 404(b) evidence both when it was admitted and when it charged the jury

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before deliberations. See Beechum, 582 F.2d at 911. The district court did not
abuse its discretion by admitting evidence pursuant to Rule 404(b).            See
Olguin, 643 F.3d at 389.
      Next, Ochoa-Rodriguez argues that the district court erred by concluding
that he was a leader or organizer for sentencing purposes. We review this
claim for clear error. United States v. Scroggins, 485 F.3d 824, 834 (5th Cir.
2007). Our review of the record shows that this standard has not been met, as
the district court was presented with evidence sufficient to support its finding
that Ochoa-Rodriguez “was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive.” See U.S.S.G.
§ 3B1.1(a).
      Finally, we agree with Ochoa-Rodriguez’s contention that he received an
illegal sentence with respect to the distribution charge. The district court
commits plain error when it imposes a sentence in excess of the statutory
maximum. United States v. Thomas, 600 F.3d 387, 388 (5th Cir. 2010). One
who, like Ochoa-Rodriguez, is convicted of possessing less than 50 kilograms
of marijuana with intent to distribute may be sentenced to serve no more than
five years in prison and three years on supervised release.             21 U.S.C.
§ 841(a)(1), (b)(1)(D); United States v. Garcia, 242 F.3d 593, 600 (5th Cir. 2001).
Consequently, the district court plainly erred by imposing a sentence of 115
months in prison and a four-year term of supervised release with respect to the
possession charge. See Thomas, 600 F.3d at 388. Ochoa-Rodriguez’s sentence
on the possession charge is vacated, and this case is remanded for resentencing
on that charge only.
      Additionally, the judgment shows that Ochoa-Rodriguez was convicted
of “Possession with intent to distribute 100 kilograms or more, that is,
approximately 175 kilograms of marijuana.” This is erroneous because the

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                                  No. 13-40481

jury found that this charge involved 25 kilograms, or less than 50 kilograms,
of marijuana. We may remand a case to the district court with instructions to
correct clerical errors in judgments. See FED. R. CRIM. P. 36; United States v.
Powell, 354 F.3d 362, 371-72 (5th Cir. 2003). Consequently, we also remand
with an instruction for the district court to correct this apparent clerical error
in the judgment.
      CONVICTIONS AFFIRMED; SENTENCE AFFIRMED IN PART AND
VACATED IN PART; REMANDED FOR RESENTENCING IN PART AND
FOR CORRECTION OF CLERICAL ERROR IN JUDGMENT.

                                        5


104 F.3d 367
97 CJ C.A.R. 23
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Johnny JONES, Plaintiff-Appellant,v.Larry A. FIELDS, Dan Reynolds, Ken Klinger, Frank Morgan,John East, Eddie Morgan, Defendants-Appellees.
No. 95-6354.
United States Court of Appeals, Tenth Circuit.
Dec. 20, 1996.

Before PORFILIO, ALARCON,** and LUCERO, Circuit Judges.
ORDER AND JUDGMENT*
ALARCON, Circuit Judge.

1
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed.  R.App. P. 34(a);  10th Cir.  R. 34.1.9.  The case is therefore ordered submitted without oral argument.

2
Plaintiff filed a civil rights action pursuant to 42 U.S.C. § 1983 alleging that defendants violated his Fourteenth Amendment liberty interests by placing him in administrative segregation.  The district court granted defendants' motion for summary judgment.  We affirm.

3
Plaintiff escaped from custody in December 1992 and was apprehended the following day.  He was convicted of escape from a penal institution.  Also, he received a prison misconduct charge for the escape, which apparently was expunged.  After a hearing held in April 1994, the administrative segregation review board recommended that plaintiff be reclassified and placed in administrative segregation primarily based on his escape history and threatening behavior.  The warden approved the recommendation.

4
Thereafter, plaintiff commenced this action alleging that he was entitled to due process before his reclassification to administrative segregation because prison regulations created a liberty interest protected by the Due Process Clause.  He also maintained that his liberty interest was violated from the time he was apprehended from his escape until the hearing was held.  He apparently equated his placement in high security with administrative segregation.  The magistrate judge recommended that summary judgment be granted in favor of defendants, because plaintiff did not have a liberty interest in remaining in the general prison population and the mandatory regulations merely gave plaintiff the right to a hearing which he received and did not create a liberty interest.  Also, the magistrate judge determined that even if plaintiff were entitled to a hearing, he received a proper hearing, in compliance with the requirements of Wolff v. McDonnell, 418 U.S. 539 (1974).  After de novo review, the district court adopted the magistrate judge's recommendation and granted defendants' motion for summary judgment.

5
We review the grant ... of summary judgment de novo, applying the same legal standard used by the district court pursuant to Fed.R.Civ.P. 56(c).  Summary judgment is appropriate if ... there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.

6
Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996)(quotation omitted).  Because plaintiff is proceeding pro se, we must construe his pleadings liberally.  See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

7
On appeal, plaintiff argues that there is an issue of fact whether defendants violated his liberty interest by placing him in administrative segregation without due process.  He claims the conditions of administrative segregation are atypical to general conditions of confinement, he was subjected to administrative segregation for fifteen months without due process, and prison regulations require a hearing prior to placement in administrative segregation.  We agree with the district court's conclusion that plaintiff failed to establish a liberty interest.

8
A recent Supreme Court case provides further support for the court's decision.  In Sandin v. Conner, 115 S.Ct. 2293, 2300 (1995),1 the Court held that prison regulations do not create liberty interests unless they protect prisoners from restraints imposing "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."   Such was not the case here.  See Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir.1996)("[P]lacement in administrative segregation such as occurred here does not give rise to a liberty interest.");  see also Orellana v. Kyle, 65 F.3d 29, 32 n. 2 (5th Cir.1995)(unlikely administrative segregation can give rise to constitutional claim after Sandin ), cert. denied, 116 S.Ct. 736 (1996).  Administrative segregation due to legitimate concerns about plaintiff's escape history and prison security did not impose an atypical and significant hardship on plaintiff in relation to the ordinary incidents of prison life.  See Penrod v. Zavaras, 94 F.3d 1399, 1407 (10th Cir.1996).

9
The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.  The mandate shall issue forthwith.

**
 Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of Appeals for the Ninth Circuit, sitting by designation

*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.  The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir.  R. 36.3

1
 Sandin is applied retroactively.  Talley v. Hesse, 91 F.3d 1411, 1413 (10th Cir.1996)


380 Mass. 1 (1980)
401 N.E.2d 811
COMMONWEALTH
vs.
DELMONT F. DAVIS.
Supreme Judicial Court of Massachusetts, Middlesex.
November 6, 1979.
March 4, 1980.
Present: HENNESSEY, C.J., QUIRICO, KAPLAN, WILKINS, & ABRAMS, JJ.
*2 John C. McBride for the defendant.
Robert M. Raciti, Assistant District Attorney, for the Commonwealth.
KAPLAN, J.
About 8 P.M., March 20, 1974, the defendant entered Sam's Variety Store on Salem Street in Medford. Present were Nathan Cohen, the proprietor, and Marie Morelli, a customer. The defendant, armed, said, "This is a holdup, I want all the money." Instantly Cohen took a revolver from under the counter, behind which he was standing, and fired. The defendant returned the fire, then fled, shattering the glass of the front door.[1] In the exchange, Morelli had been shot in the head. She was pronounced dead at 9:40 that evening. The bullet that struck Morelli was not recovered. But sufficient evidence was introduced at trial to warrant the jury in concluding that it was the defendant who fired the fatal shot.[2]
On April 9, 1974, in a two and a half hour meeting with Medford police and others, the defendant admitted he was the robber. This interview occurred in the Auburn County jail in Lewiston, Maine, where the defendant was being held on unrelated charges. On being brought back to Medford the following day, the defendant participated in a lineup and was identified by Cohen and another witness. He spoke again with the police on May 5, 1974, again making *3 inculpatory statements, and on May 9 he testified before a grand jury, describing his involvement in the holdup. Subsequently he was indicted for murder (comprehending murder in the first degree), assault with a dangerous weapon with intent to murder, assault with a dangerous weapon with intent to rob, and use of a motor vehicle (the getaway car) without authority.
Before trial the defendant moved to suppress the three statements above mentioned as well as evidence of the lineup identifications. The motion was denied on June 27, 1975. At trial the defendant on December 13, 1975, was found guilty of murder in the second degree (the judge's instructions having also encompassed the first degree) and of the other offenses charged; he was sentenced to life imprisonment on the murder conviction with concurrent sentences of twelve to twenty years on the assaults, the motor use charge being filed by consent. He appealed under the provisions of G.L.c. 278, §§ 33A-33H. (Legislation of 1979 affecting those sections, particularly § 33E, will be discussed below.) He claims error in the denial of his motion to suppress and in the subsequent admission of the relevant evidence at trial. Other trial errors are alleged to which we shall also come.
1. Pretrial waiver. As will appear, on the three occasions on which the defendant made statements, he was advised of his constitutional rights and indicated that he understood and waived them and was willing to speak. The defendant's claim, however, is that, having limited intelligence, he never actually understood those rights, so that his waiver should be held ineffective as in essence involuntary, and the statements should be rendered inadmissible accordingly.
The Commonwealth bears the burden of demonstrating that the defendant waived his rights "voluntarily, knowingly and intelligently" (Miranda v. Arizona, 384 U.S. 436, 444 [1966]; see Commonwealth v. Hosey, 368 Mass. 571, 574 [1975]), every reasonable presumption being indulged against a waiver. See Commonwealth v. Hooks, 375 Mass. *4 284, 288 (1978), Johnson v. Zerbst, 304 U.S. 458, 464 (1938). We are to consider "the totality of all the surrounding circumstances  both the characteristics of the accused and the details of the interrogation"  in reaching a judgment. Commonwealth v. Daniels, 366 Mass. 601, 606 (1975), quoting from Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). In the present case we are assisted by the detailed findings of the motion judge after nine days and 1,314 transcript pages of hearings (unnecessarily extended by futilely repetitious interrogation by defense counsel). We accept the judge's subsidiary findings as well supported; his conclusions are entitled to respect, but they do not bind us and we submit them to our independent judgment. See Commonwealth v. Murphy, 362 Mass. 542, 550-551 (1972) (concurring opinion of Hennessey, J.); Commonwealth v. Jones, 375 Mass. 349, 354 (1978).[3]
(a) Statement of April 9, 1974. The defendant was then thirty years old. He had an I.Q. of seventy-nine. The normal range is between ninety and 109. Although he had attended school to the eighth grade, he was illiterate, but was able to write his name. All this is agreed.[4]
Medford police Lieutenant John Keating and his partner, Sergeant Patrick Carr, the principal questioners of the defendant, first encountered him at the Auburn jail about 6 P.M. that day. Keating said he had a warrant for the defendant's arrest for the murder on March 20 of Marie Morelli. Next, Keating read the defendant the Miranda rights from a printed card and asked if he understood them. The defendant said as to each right that he did. He answered affirmatively to the question whether he wanted to talk to the officers. Keating asked the defendant to read and sign *5 the Miranda card; when the defendant indicated he could not read, Keating read from the card again, and the defendant then signed it and said he wanted to talk about the holdup at Sam's to "get this thing off my chest."
In response to questions, the defendant recounted the episode of March 20. He told how he and three other men (Michael Barrett, Kenneth Larkin, and William Paskell) decided to rob Sam's store. The defendant was the one who entered the store and announced the holdup. He did not draw and fire his gun until Cohen had fired at him. He thought he had not struck Morelli because he heard his shot hit the cans behind the counter. He remembered seeing Morelli standing as he left the store.[5] He told also of his flight to Maine.
The interview was taped; in addition, the police wrote down the answers to the questions and read them back to the defendant to ensure accuracy. At the close of the interview, the written responses were read to the defendant again, and he signed each page on which they appeared.[6] Testifying at the suppression hearing, the defendant himself said that he was told three or four times during the session that he could stop the questioning at will; he also acknowledged that he had put questions to Keating about his constitutional *6 rights before answering the officers' questions.[7] Contrast Commonwealth v. Daniels, 366 Mass. 601, 608 (1975). There is no hint of the use of any of the techniques of interrogation criticized in the Miranda case. Miranda v. Arizona, supra at 445-448. Contrast Reck v. Pate, 367 U.S. 433, 441 (1961); Ashcraft v. Tennessee, 322 U.S. 143, 153 (1944); United States v. Hull, 441 F.2d 308, 313 (7th Cir.1971).
The motion judge hearing the tapes described the interview as logical and orderly, free of hostility, coercion, or threats. Perhaps more significantly for the present purpose, he found the defendant's answers "responsive, clear, lucid, and ready. His voice was soft, calm, composed and void of any agitation or emotion. No remark or response of Davis ... is found to be confused, incoherent; but rather his conversation is found intelligent and rational." Dr. William Shelton, a psychiatrist called to testify about the defendant's competency to stand trial, said under questioning by the judge that during his meeting with the defendant he found him communicative and possessed of a "reasonable degree of rational understanding." An effective waiver was not precluded by the defendant's limited education and intellectual ability. Commonwealth v. Daniels, supra at 606, and cases cited.[8] Compare Blackburn v. Alabama, 361 U.S. 199, 207 (1960); United States v. Hull, 441 F.2d 308, 309 (7th Cir.1971). We note here that the defendant had had years of worldly experience, including several encounters with the law in which he had four or five times been given Miranda warnings. Undoubtedly he recognized the seriousness of his situation.
*7 The motion judge, who had the benefit of seeing and hearing the defendant testify, concluded that the defendant's waiver was knowing and his statement voluntary. We agree.[9]
(b) Statements of May 5 and May 9, 1974. We skip for the moment the lineup of April 10, 1974. On May 5, Keating and Carr, in response to a telephone call from the defendant, visited him at the Plymouth County house of correction. A prison official told the defendant he was not obliged to speak to the officers but the defendant said he wanted to do so. At that point Miranda rights were carefully given and the defendant signed a Miranda card. The defendant said (without any prior suggestion) that he wanted to go before the grand jury because he believed he had not fired the effective bullet. He said he now remembered more of the incident and proceeded to amplify his April 9 statement with some details in themselves having a tendency to palliate his offense by linking Cohen to the fatal shot.[10]
On May 9, the defendant in fact appeared before a Middlesex County grand jury. The prosecutor gave the defendant Miranda warnings as he took the stand. Then the defendant told his story. The grand jury indicted.
Like the statement of April 9, the May statements were not coerced, but the question of the defendant's cognitive ability recurs and the judge's answer remained the same, as does ours. Indeed the defendant testified at the suppression hearing that counsel appointed by the court for him on April 11 had explained his rights to him that day, well before the May statements, so that he understood them well.[11]
*8 (c) Lineup. Returning under arrest from Maine on the evening of April 10, the defendant was placed in a lineup at the Medford police station and was identified by Cohen and also by Frank Palmisano, the proprietor of a service station across the street from Sam's store.[12] The failure to suppress a photograph of the lineup and testimony of the identifications, and the admission of corresponding material at trial, are attacked, first, on the ground that the defendant could not waive intelligently a right to have counsel present of which he was advised just before the lineup took place. This is answered in the terms set out above; the defendant in fact signed a paper evidencing his consent. There is no need then to advance the proposition that the defendant's Sixth Amendment right to counsel had not attached under Kirby v. Illinois, 406 U.S. 682, 689 (1972), as "adversary judicial criminal proceedings" against the defendant are conceived not to have been initiated despite his having been arrested and booked. See Flaherty v. Vinzant, 386 F. Supp. 1170, 1172 (D. Mass. 1974).[13]
*9 Second, there is criticism of the composition of the lineup as unduly suggestive, and hence impermissible constitutionally, because the men who participated resembled the defendant, not the robber as described by Cohen shortly after the incident, and because only the defendant was exhibited with a bandaged hand. As to the selection for the lineup, we need not get into details beyond saying the criterion suggested might have had the effect of singling out the defendant (see United States v. Wade, 388 U.S. 218, 232-233 [1967]), and we do not see unfairness in the criterion used, which would avoid that consequence. See generally N. Sobel, Eye-Witness Identification § 56.03 (1972). Regarding a bandage, the defendant testified on the motion that he wore none at the lineup and three other witnesses agreed; while there was testimony by one witness in a contrary sense, we see no reason to disturb the judge's finding, which accords with the defendant's own statement.
Third, a confused argument is made about the question just when Cohen saw a picture of the defendant that was published in a local newspaper, the Medford Mercury, on April 10, 1974. The matter came up at the suppression hearing and Cohen testified he believed he had not seen the photograph and accompanying article until after the lineup identification. Thus all basis for suppression fell out. The motion judge made no findings on the matter. At trial the question was renewed, and the judge chose to conduct a voir dire. Cohen first said he had seen the picture before the lineup but then corrected himself and said it was afterward. There is no suggestion that the police were aware of the publication at the time of the lineup. The judge declined to exclude evidence of Cohen's lineup identification, and in the circumstances we see no error.[14] An assessment *10 of all of Cohen's identification testimony was for the jury.[15]
2. Trial. (a) Cross-examination. The trial judge excluded questions on cross-examination of Cohen about whether he had a valid permit for the gun he fired on March 20, and about a prior arrest of Cohen for assault with a dangerous weapon (the charge had been reduced to assault and then dismissed). The defense tried to develop the theme that Cohen had a motive to put the blame for the victim's death on the defendant in order to relieve himself of such an onus. There was argument that the excluded questions had some tendency to prove bias, but this connection is hardly discernible.[16] Rather the questions seem related to establishing Cohen's criminal character, but on that footing they were inadmissible, as the possible misconduct pointed to was short of a conviction as required for impeachment under G.L.c. 233, § 21. See Commonwealth v. Turner, 371 Mass. 803, 809-810 (1977). Nor was this a case like Davis v. Alaska, 415 U.S. 308, 316-318 (1974), where the defense was held entitled to cross-examine to establish that the witness was on probation and thus subject to pressure to testify favorably to the prosecution. See also Commonwealth v. Hogan, 379 Mass. 190, 191-192 (1979). Cohen's arrest occurred in 1968 and did not survive as any threat to him at the time of trial seven years later. Compare Commonwealth v. Santos, 376 Mass. 920, 925 (1978).
Cohen had been convicted of receiving stolen property and the record of that conviction was properly used by the defense to impeach him. It was not error to exclude defense questions designed to show that Cohen had appealed the conviction but later withdrew the appeal. The defendant asserts that he was denied questions intended to show inconsistencies between Cohen's current testimony and statements *11 made by him in other judicial proceedings, but the assertion is not fortified by any demonstration of the claimed error or its significance, and so we need not consider it. See Commonwealth v. Bernier, 366 Mass. 717, 719-720 (1975).
(b) Mistrial. On the seventeenth day of trial Lieutenant Keating was called as a witness for the prosecution and testified briefly before adjournment for the day. That evening Keating suffered a heart attack and was placed in the coronary intensive care unit at Lawrence Memorial Hospital; he was unable to return to complete his direct testimony or to stand cross-examination. The judge promptly struck Keating's testimony (including a Miranda card admitted as an exhibit in connection with the testimony), and instructed the jury then and (in more general terms) in his final charge to disregard it. The defendant urges that it was error for the judge to deny his motion for a mistrial. It is generally accepted that when a witness becomes suddenly unavailable for cross-examination, the judge is not bound to declare a mistrial; in his discretion, if the likelihood of prejudice is slight, he may act just as the trial judge did here. See Best v. Tavenner, 189 Or. 46, 54-56 (1950); McCormick, Evidence 44-45 (2d ed. 1972); 5 J. Wigmore, Evidence § 1390 (Chadbourn rev. 1974). We think there was no chance of prejudice. As noted, Keating's testimony was brief; he had only gotten to the point of recounting the preliminaries to the defendant's statement of April 9  that the defendant was informed of the warrant for his arrest, given his Miranda rights, asked if he understood the rights and was willing to waive them, and asked whether he recognized two pictures handed him. The testimony had not reached any contested issue. Nevertheless the judge allowed the defense (without waiving its objection to the denial of the mistrial) to read to the jury from Keating's direct and cross-examination at the suppression hearing; and the defense chose to read extensively from that transcript. We should add that it would not have been improper for the judge, in denying the mistrial, to give due consideration to the fact that the trial had gone seventeen days. See United States v. Malinsky, *12 153 F. Supp. 321, 323 (S.D.N.Y. 1957). It is contended that Keating was an indispensable witness because of his involvement in the Auburn interrogation, but the circumstances were fully developed through the direct and cross-examination of Sergeant Carr.[17]
3. Question of G.L.c. 278, § 33E. The Commonwealth contends that this defendant, indicted for murder in the first degree and convicted of murder in the second degree, is not entitled to a special review of "the whole case for ... consideration of the law and the evidence" long required by G.L.c. 278, § 33E. This, the Commonwealth claims, results from the amendment of § 33E stated to be effective on July 1, 1979 (St. 1979, c. 346, § 2).
Section 33E, after amendment, is the equivalent of the second paragraph of that section in its earlier form but with the changes indicated (strike-through represents deletion from earlier text):
"In a capital case as hereinafter defined the entry in the supreme judicial court shall transfer to that court the whole case for its consideration of the law and the evidence. Upon such consideration the court may, if satisfied that the verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt, and remand the case to the superior court for the imposition of sentence. For the purpose of such review a capital case shall mean a case in which the defendant was tried on an indictment for murder in the first degree and was convicted of murder either in the first or second degree. After the entry of the appeal in a capital case and until the filing of the rescript by the supreme judicial court motions *13 for a new trial shall be presented to that court and shall be dealt with by the full court, which may itself hear and determine such motions or remit the same to the trial judge for hearing and determination. If a motion is so remitted, or [I]f any motion is filed in the superior court after rescript, no appeal shall lie from the decision of that court upon such motion unless the appeal is allowed by a single justice of the supreme judicial court on the ground that it presents a new and substantial question which ought to be determined by the full court."
The earlier text addressed itself aptly to the situation as it was before the founding of the Appeals Court: appeals of murder convictions of both types mentioned  first degree indictment with first degree conviction, and first degree indictment with second degree conviction  went direct to, and were entered in this court. Under the legislation connected with the creation of the Appeals Court, first degree convictions were still to go direct to this court. But appeals from second degree convictions under first degree indictments were to be entered in the Appeals Court (G.L.c. 211A, § 10), subject to our transferring them here. Id. Because of a doubt whether § 33E allowed for the special review at the hands of the Appeals Court, we regularly used our sua sponte power of transfer with respect to such appeals after they were entered in the Appeals Court. As those appeals upon transfer were entered in our court, there was conformance with the words "the entry in the supreme judicial court" appearing in the first sentence of text set out above.
The amendment of § 33E, eliminating the special review of the category of second degree convictions based on first degree indictments, may have been a response to the fact that such a conviction results in a sentence (life imprisonment with a possibility of parole after fifteen years) no more severe than sentences on convictions of various other crimes *14 for which the special review has not been provided.[18] However, the question arises whether, as the Commonwealth contends, the amendment operates upon all cases in the category where appeal is entered in this court on or after July 1, 1979.
The contention must be held erroneous because it would lead to arbitrary and unreasonable results. Take the present case. According to the Commonwealth, the special review is eliminated simply because the "entry" in this court occurred after July 1, 1979. But consider the actual table of events. The defendant was convicted on December 13, 1975, and sentenced on December 19, 1975; on the same day he filed his claim of appeal to the Appeals Court. Certificate of notice of completion of the summary of the record was filed on June 16, 1977. On March 9, 1978, the Commonwealth moved to dismiss the appeal for the defendant's failure to file his assignment of errors, but this was met by the defendant's motion to enlarge time to file the assignment, which was granted on April 19, 1978, and the assignment was filed on April 27, 1978. On June 26, 1979, the case was entered in the Appeals Court. This court on July 3, 1979, sua sponte ordered the case transferred here, and it was so entered on July 9, 1979.
The date of the "entry" in this court was a matter of chance. Even if we disregard the fortuities in the four-year progress of the appeal up to the time of our order of transfer, it is evident that that order might just as well have come, say, on June 26, 1979, with entry here the next day. To make the right to the special review turn on such oddities would not make sense, and we should not ascribe such a design to the Legislature. Thus the Commonwealth's contention is very infirm.
What, then, should be the incidence of the amendment of § 33E? As a general rule, statutes are to be read in a prospective *15 sense. See Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3 (1914). As to criminal statutes, the rule is strongly reinforced by the constitutional prohibitions of ex post facto laws. Declaration of Rights of the Massachusetts Constitution, art. 24. Constitution of the United States, art. 1, § 10. It is not entirely clear whether the § 33E amendment, if applied to crimes committed before July 1, 1979, would offend against the ex post facto clauses. We have indicated that legislation which would have the effect of changing a discretionary sentence to a mandatory one could not be validly enforced with respect to crimes antedating the law. See Commonwealth v. Harrington, 367 Mass. 13, 20-21 (1975).[19] The amendment of § 33E partakes of this character in that it cuts off the court's power to weight sundry factors and adjudge whether an offense should be reduced or a new trial ordered.[20] So also we have held against application of subsequent legislation which aggravated the punishment established by law for the particular offense when it was committed, even where that took the rather mild form of tampering with good-conduct credits. See Murphy v. Commonwealth, 172 Mass. 264 *16 (1899).[21] See also Lembersky v. Parole Bd. of the Dep't of Correction, 332 Mass. 290, 293 (1955); Greenfield v. Scafati, 277 F. Supp. 644 (D. Mass. 1967) (three-judge court), aff'd, 390 U.S. 713 (1968) (per curiam). Cf. Lindsey v. Washington, 301 U.S. 397 (1937); Kring v. Missouri, 107 U.S. 221 (1882). We must acknowledge that we find no precedent directly in point, and that there are some cases from which analogies may be drawn that would perhaps justify the application of the § 33E amendment to past crimes. See Mallett v. North Carolina, 181 U.S. 589 (1901) (State's right to appeal applied retroactively). See also People v. O'Bryan, 165 Cal. 55 (1913); State v. Witte, 243 Wis. 423 (1943). But see In re Jones, 500 P.2d 690 (Wyo. 1972).[22] Whatever conclusion might be reached on strict analysis, we think this is a field where a court does well to tread lightly, and so we are inclined, "under the influence  if not the command"[23] of the ex post facto provisions, to rule that the special review remains available where, as in the present case, the offense resulting in a second degree murder conviction upon an indictment in the first degree was committed before July 1, 1979. As to such cases we *17 shall follow our practice of sua sponte transfer to this court from the Appeals Court. The category will exhaust itself in course of time.
The record in the present case has been accorded the § 33E review. No reason appears for reducing the offense or granting a new trial.
Judgments affirmed.
NOTES
[1]  Cohen fired a second shot from the doorway of the store as the defendant escaped.
[2]  The defendant was using a .32 caliber automatic pistol, Cohen a .38 caliber revolver. A pathologist who testified for the Commonwealth stated that the size of the victim's entrance wound was consistent with a .32 caliber bullet but not with a .38 caliber bullet. According to the pathologist for the defense, no such conclusion could be reached. Blood was found on the counter suggesting that the crucial shot was fired by the defendant, as both he and the victim were positioned in front of the counter, with Cohen behind it. (See note 10, infra.)
[3]  The trial judge left to the jury the voluntariness not only of the defendant's statements, but also of the waiver of his right to remain silent. See, however, Commonwealth v. Chung, 378 Mass. 451, 458 n. 9.
[4]  A psychologist testified for the defendant about the defendant's intelligence as measured by standard tests. The "retarded" category is not reached until I.Q. 69.
[5]  On April 10 the defendant sought out Keating and told him that, contrary to what he had said the day before, he had not seen the victim standing when he left the store.
[6]  At the close of the interrogation the defendant answered affirmatively three additional questions:

1) "Delmont did you rob Sam's Variety on March 20, 1974?"
2) "Did Kenny Larkin, Billy Paskell, and Mike Barrett help you rob Sam's Variety?"
3) "Did you shoot gun at store manager in Sam's Variety on March 20, 1974?"
Asked if he felt better after discussing the incident, the defendant said:
"Yeah, I really do because it's been bugging me and everything, and I'd rather face it and get it over with, why live with it and hide for the rest of my life so you know, I feel a lot relaxed. I just hope it wasn't me that done it, it might have been me, but as far as I know that when I fired the gun it hit the cans."
[7]  The defendant at the hearing conceded that he understood his right to remain silent but claimed ignorance of the other Miranda rights.
[8]  The whole tenor of the evidence was such that the Commonwealth's omission to introduce expert evidence on its own behalf (apart from testimony about competency to stand trial) raised no such questions as were discussed in Commonwealth v. Kostka, 370 Mass. 516, 539 (1976) (Hennessey, C.J., dissenting in part) (issue of insanity).
[9]  The judge denied suppression of the added statement of April 10 (see note 5, supra) as well as the statement of April 9.
[10]  The defendant claimed to recall on May 5 that he found blood on his shoulder although he had not been shot. But compare note 2, supra. The clothing worn by the defendant on March 20 was discarded soon after the incident and was not recovered.
[11]  The defendant does not argue in this court a question raised at the suppression hearing about the propriety of the police receiving the statement of May 5, and letting the defendant go before the grand jury on May 9, without their getting in touch with counsel for the defendant. See Massiah v. United States, 377 U.S. 201 (1964). It appears that counsel's assignment ended with the probable cause hearing on April 25; the defendant initiated the meeting of May 5 and chose deliberately not to attempt to reach that attorney; Miranda warnings were given about procuring counsel; and the May statements were not more inculpatory than the April 9 statement. We leave to another day the further exploration of the issues regarding notification of counsel discussed in Brewer v. Williams, 430 U.S. 387, 405-406 (1977), and Commonwealth v. Frongillo, 359 Mass. 132, 136-137 (1971) (see also Commonwealth v. Williams, 378 Mass. 217, 227 n. 10 [1979]), and recently renewed by the New York Court of Appeals in People v. Cunningham, 49 N.Y.2d 203 (1980).
[12]  The identifications, made separately by the two witnesses, were definite. Neither was told that a suspect had been arrested or a confession given.
[13]  The defendant argues that he was willing to decline the Commonwealth's offer of counsel only because he had already made the incriminating statement of April 9 which, according to his claim, was illegally obtained. This "cat out of the bag" contention, such as it is, fails because the April 9 statement was secured lawfully.
[14]  In the absence of contrivance by the police, the fact that a witness has previously seen newspaper display of the defendant seems not itself to have figured as the basis for excluding an identification. For discussion, see United States v. Zeiler, 470 F.2d 717, 719-720 (3d Cir.1972); see also United States v. Grose, 525 F.2d 1115, 1117-1118 (7th Cir.1975); United States v. Boston, 508 F.2d 1171, 1177-1178 (2d Cir.1974), cert. denied, 421 U.S. 1001 (1975); Norris v. State, 265 Ind. 508, 511-513 (1976).
[15]  On April 6, two days before the lineup, Cohen had identified the defendant's picture in a group of six pictures, calling it a "good look alike" and saying he would like to see the man in person.
[16]  In fact the judge gave the defendant considerable scope in pursuing bias.
[17]  We are unpersuaded by the defendant's claim that he did not take the stand because Keating was unavailable for cross-examination. This was a decision for the defendant to make and does not produce error in the judge's action denying a mistrial.
[18]  The § 33E review was not applicable to a conviction of second degree murder following indictment for that offense, or for sentences of life imprisonment upon conviction of crimes other than murder where parole was available only after fifteen years. See G.L.c. 127, § 133A.
[19]  "[A] retroactive legislative change from discretionary to mandatory death sentence would be an unconstitutional ex post facto law. United States Constitution, art. 1, § 10. Declaration of Rights of the Massachusetts Constitution, art. 24. See Commonwealth v. Gardner, 11 Gray 438, 443 (1858); Commonwealth v. Phelps, 210 Mass. 78, 79-80 (1911); Lembersky v. Parole Bd. of the Dept. of Correction, 332 Mass. 290, 293 (1955); Lindsey v. Washington, 301 U.S. 397, 401 (1937). An unforeseeable judicial decision having the same effect is equally barred by the due process clause. Bouie v. Columbia, 378 U.S. 347, 353-354 (1964)."
[20]  The § 33E review is broader than the doctrine of Commonwealth v. Freeman, 352 Mass. 556, 564 (1967), under which a court may examine a point on appeal although not properly preserved below where otherwise "there is a substantial risk of a miscarriage of justice." The search under § 33E is a more general and an obligatory one for a result that may be "more consonant with justice." Commonwealth v. Seit, 373 Mass. 83, 94 (1977), quoting from Commonwealth v. Baker, 346 Mass. 107, 109 (1963). That this kind of search has not often eventuated in relief to defendants does not affect our discussion.
[21]  The court in Murphy, holding that the statute should attach only to crimes committed after its enactment, said broadly that a law is subject to the ex post facto objection if "it will increase the penalty, or operate to deprive a party of substantial rights or privileges to which he was entitled as the law stood when the offence was committed, or `in short, which, in relation to the offence or its consequences, alters the situation of a party to his disadvantage.'" Murphy v. Commonwealth, 172 Mass. 264, 269 (1899), quoting the latter words from Kring v. Missouri, 107 U.S. 221, 228-229 (1882).
[22]  The conventional explanations of the ex post facto doctrine  e.g., that to apply subsequent legislation would defeat "reliance" or "expectation" without serving a deterrent function  are analyzed in some detail in Note, Ex Post Facto Limitations on Legislative Power, 73 Mich. L. Rev. 1491 (1975). In some respects the doctrine appears to look not to the effects on the individual but to a notion of the just ordering of a legal system which is suspicious of a lawmaker who seeks to switch penal rules after the event. Cf. J. Rawls, A Theory of Justice 238 (1971).
[23]  The expression is taken from Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 537 (1958), where the constitutional provision referred to was the Seventh Amendment to the United States Constitution.


                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                       August 22, 2007
                                     TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                        Clerk of Court

 JIA Y A N G H U A ,

          Petitioner - A ppellant,
 v.

 UNIVERSITY OF UTAH; DAVID
 PERSHING, Vice President;
                                                        No. 07-4070
 U N IV ERSITY O F U TA H
                                              (D.C. No. 2:06-CV-00662-DAK)
 SOCIOLO GY DEPARTM ENT;
                                                         (D. Utah)
 FREDERICK RH OD EW ALT,
 Sociology Department Chair;
 SOCIOLO GY GR AD UA TE
 COM M ITTEE; GEORGE M ILLER,
 Graduate D irector,

          Respondents - Appellees.

                              OR DER AND JUDGM ENT *

Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.

      Jiayang Hua, an expelled sociology graduate student at the University of

Utah, filed two unsuccessful pro se lawsuits in Utah state courts against the

University and several of its officials, challenging his expulsion on both federal

      *
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G ).
This case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent except under the doctrines of law of the case,
res judicata and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and state law grounds. Unhappy with the results in his state court proceedings,

M r. Hua then filed a pro se complaint in the United States District Court for the

District of Utah, essentially attempting to appeal the state courts’ decisions. The

district court held, inter alia, that M r. Hua failed to state a claim due to the

Rooker-Feldman doctrine. Alternatively, it held that either res judicata (claim

preclusion) or the Utah statute of limitations barred his federal action. W e agree

and affirm.

                                          ***

      In M ay 1999, the Sociology Department at the University of Utah expelled

Jiayang Hua from its graduate program for failure to make sufficient progress

toward his doctoral degree. Over a year later, M r. Hua appealed this decision to

the department, which stood by its decision to expel him. M r. Hua then appealed

to the College of Social and Behavioral Science Academic M isconduct

Committee, which denied M r. Hua’s appeal in writing after granting him a full

evidentiary hearing in April 2001. Both the dean and vice president of academic

affairs reviewed and denied M r. Hua’s appeal before the University issued a final

written denial in M arch 2002.

      In August 2002, M r. Hua filed a lawsuit in state court against the

University, its vice president for academic affairs, the sociology department, and

its chair, seeking to revisit the U niversity’s decision to expel him. The U tah court

dismissed M r. Hua’s lawsuit for lack of jurisdiction under the Utah Government

                                           -2-
Immunity Act and the Utah Administrative Procedures Act. Instead of appealing

this dismissal, M r. Hua brought a second state court lawsuit in July 2003 against

the University, the sociology department, its chair, and the graduate program

director. Here, M r. Hua again sought review of the University’s decision to expel

him, though he also added claims for money damages, alleging emotional distress

and violations of his federal rights, including under the Takings Clause. The state

trial court this time held that Utah’s four-year statute of limitations barred M r.

Hua’s federal claims and res judicata barred his state claims. M r. Hua appealed

to the Utah appellate court, which affirmed; both the Utah Supreme Court and

United States Supreme Court declined to take his case.

      In August 2006, M r. Hua filed the present action in the United States

District Court for the District of Utah, seeking review of his expulsion

proceedings and state court suits, alleging violations of his federal rights, and

seeking damages. The district court held that the Rooker-Feldman doctrine

prevented it from entertaining his suit. See Bolden v. City of Topeka, Kan., 441

F.3d 1129, 1139 (10th Cir. 2006) (“The Rooker-Feldman doctrine prohibits

federal suits that amount to appeals of state-court judgments.”). Alternatively,

the district court held that res judicata (claim preclusion) foreclosed its review.

See MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005) (“The doctrine

of res judicata, or claim preclusion, will prevent a party from relitigating a legal

claim that was or could have been the subject of a previously issued final

                                          -3-
judgment.”) (internal citation omitted). Indeed, the district court held that (1) the

Utah state courts issued final judgments on the merits; (2) M r. Hua sued the same

parties as in the Utah state court proceedings; and (3) M r. Hua brought an

identical cause of action in federal court that he brought in state court. Finally,

the district court held M r. Hua’s federal lawsuit also suffered from fatal

limitations problems. See Utah Code Ann. § 78-12-25(3) (providing four-year

statute of limitations “for relief not otherwise provided by law”). Thus, the

district court dismissed with prejudice M r. H ua’s complaint, under, inter alia, 28

U.S.C. § 1915(e)(2)(B)(ii), for failure to state a claim. 1

      The charges leveled in M r. Hua’s complaint fall into three broad categories:

(1) those seeking review of his state court proceedings, alleging, for example,

abuse of discretion by Utah judges; (2) those seeking direct review of the

University’s decision to terminate him; and (3) those alleging violations of his

federal rights. Construing M r. Hua’s pro se complaint w ith due generosity, see

Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007), we affirm the district

court’s dismissal for substantially the same reasons as outlined in its well-

reasoned opinion. 2

      1
         The district court also found M r. Hua’s complaint frivolous under 28
U.S.C. § 1915(e)(2)(B)(i). Because we agree with the district court that M r. Hua
fails to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), we need not address its
alternative frivolousness ruling.
      2
          W e grant M r. Hua’s motion to make “technical corrections” to his
                                                                      (continued...)

                                           -4-
      First, as the district court explained, it is not generally our role as federal

judges to entertain appeals from state courts. See W right, M iller & Cooper, 18B

Fed. Prac. & Proc. § 4469.1 (“The ‘Rooker-Feldman’ doctrine . . . establishes a

nearly redundant limit on federal subject-matter jurisdiction. The basic theory is

that only the U nited States Supreme Court has been given jurisdiction to review a

state-court decision. The general statutes that establish original federal

subject-matter jurisdiction in the district courts do not extend to an ‘appeal’ from

a state-court judgment. This doctrine is nearly redundant because most of the

actions dismissed for want of jurisdiction also could be resolved by invoking the

claim- or issue-preclusion consequences of the state judgments.”). To the extent

that M r. Hua seeks to set aside the state court rulings against him – which he does

in asserting that the state courts applied inappropriate legal standards and in

questioning their judgments and discretion – we lack jurisdiction to hear his

claims and affirm dismissal of those portions of his appeal for lack of subject

matter jurisdiction under Rooker-Feldman.

      As to the claims that the University unfairly expelled him – claims M r. Hua

has effectively recycled through the Utah courts and now through the federal

court system – the district court properly held that the Utah state court decisions

      2
      (...continued)
opening brief.

                                          -5-
precluded M r. Hua’s federal court claims. Accordingly, we affirm dismissal of

those claims as res judicata.

      Finally, M r. Hua’s federal claims are time barred. Even if – most

generously to M r. Hua – the statute-of-limitations clock did not begin ticking

until M arch 11, 2002, when the University issued its final order upholding its

M ay 1999 decision to expel him, he did not file his complaint in the district court

until August 2006. This is clearly outside of the applicable four-year limitations

window, and we are pointed to no relevant authority indicating that M r. Hua’s

claims should be tolled. Affirmed.

                                       ENTERED FOR THE COURT

                                       Neil M . Gorsuch
                                       Circuit Judge

                                         -6-


958 P.2d 943 (1998)
State of Utah, in the interest of J.M.V. and S.M.V., persons under eighteen years of age.
J.L.V., Appellant,
v.
STATE of Utah, Appellee.
No. 970194-CA.
Court of Appeals of Utah.
May 7, 1998.
*944 Dean N. Zabriskie and Dana M. Facemyer, Provo, for Appellant.
Jan Graham and Todd A. Utzinger, Salt Lake City, for Appellee.
Martha Pierce, Salt Lake City, Guardian Ad Litem.
Ann Wasserman, Salt Lake City, for the Spencers.
Before DAVIS, P.J., WILKINS, Associate P.J., and BENCH, J.

OPINION
WILKINS, Associate Presiding Judge:
J.L.V. (Father) appeals the juvenile court's February 1997 order that granted legal custody and guardianship of his two daughters to the girls' maternal aunt and uncle. Father argues the juvenile court erred in not awarding him custody and guardianship of his daughters because the parental presumption was never rebutted. We affirm.

BACKGROUND
This appeal involves several people. Father was married to Mother until November 1994. Two girls were born to Father and Mother: J.M.V., born in July 1987, and S.M.V., born in June 1989 (the girls). The Spencers, who live in California, are the girls' maternal aunt and uncle. D.V. and M.V. are Mother's natural sons, the girls' half-brothers, and were raised as Father's stepsons.
Father and Mother's entire marriage was riddled with conflict and punctuated by verbal and physical altercations. On numerous occasions, Father verbally and physically abused Mother in front of the girls. This abuse included incidents of Father grabbing, shaking, and kicking Mother while he verbally threatened her. For example, in February 1993, in front of the girls, Father physically restrained Mother and threatened to "splatter her brains all over the wall."
Father and Mother divorced in November 1994, and Mother was awarded custody of the girls. D.V. and M.V. also continued to live with Mother.
*945 After the divorce, intense conflict between the parents continued to affect the family's relationship. For instance, in December 1994, with the girls present, Father pushed Mother against a vehicle and threatened her with bodily harm.
Mother suffered from serious depression and feared that Father would return and carry out his threats to kill her. To help allay Mother's fears, D.V. slept with a loaded gun under his pillow. The girls were well aware of Mother's fears and the threats that caused them.
Father did not visit the girls from September 1995 to March 1996, when Mother committed suicide. On the day Mother killed herself, the girls, then six and eight years old, were taken into protective custody and placed with the Spencers in California. Father was living in St. George, Utah at the time.
Soon after Mother died, the State filed a petition alleging the girls were neglected and dependent children, and a shelter hearing followed. After the hearing, the juvenile court entered findings of fact and orders. The court found that the girls were suffering severe emotional damage, indicated by extreme anxiety, depression, withdrawal, or negative aggressive behavior towards themselves or others. The court found that there was no way of protecting the girls' mental health without keeping them from Father's custody. As a result, the court found it would be contrary to the girls' welfare to live with Father and that it was in the girls' best interests to be placed in the temporary custody of the Division of Child and Family Services (DCFS). Consequently, the court ordered that the girls be placed in the temporary custody of DCFS, that DCFS provide services to reunify the girls with Father, and that DCFS evaluate Father to determine if placement with him would be appropriate. After the court entered its findings and order, the Spencers filed a motion for kinship placement.
In April 1996, the case came before the juvenile court for trial on the State's neglect and dependency petition. However, because more time was needed to take evidence, the court continued the trial until May 1996. Before the next trial date, the DCFS caseworker filed a report with the court recommending that the girls be returned to Father.
In May 1996, the matter again came before the juvenile court for trial on the State's neglect and dependency petition. Based on the DCFS report, the State filed a motion to withdraw and dismiss its petition. The girls' Guardian Ad Litem recommended that the girls continue to stay with the Spencers, and the Spencers filed a petition for custody. The court denied the State's motion to withdraw its petition and found that it would be in the girls' best interests to be placed in the temporary custody of the Spencers. The court ordered that the girls be placed in the Spencers' temporary custody and that DCFS maintain protective supervision of the girls and continue working to reunify the girls with Father. The court then set a date for a trial on the State's petition.
In June 1996, the Spencers filed a Verified Petition for Custody, requesting permanent custody of the girls. In their petition, the Spencers alleged that Father was not an appropriate caretaker for the girls and that he had emotionally abused the girls.
In July 1996, Dr. Urban of DCFS filed a letter with the court recommending that, because of the girls' response to the contact they had with Father and because of their "fragile nature," the court should "go slow on `pushing the girls' regarding visits with [Father]."
In October 1996, M.V., one of the girls' half-brothers, committed suicide. Consequently, the juvenile court moved the date for the scheduled trial to January 1997.
The trial ended in February 1997. Among its many findings of fact, the juvenile court found the following:
13. [The girls] are very troubled little girls. In their most formative years they have experienced such extreme trauma at the hands of their parents, including [Mother]'s suicide, that they are both developmentally delayed with numerous psychological illnesses as well as corresponding physical manifestations, including an increase in night terrors and psychosomatic complaints. This is particularly true for *946 [J.M.V.], who is showing signs of anxiety and serious childhood depression.
14. Under the direction of their therapist, Ms. Wills, the subject children have yet to be told how [Mother] died. This is due, in part, to the concern that they will blame her death on [Father]. In addition, the subject children have yet to be told of their brother's suicide. The children have functioned well overall psychologically and behaviorally since placement with the Spencers. However, regression occurs preceding planned visitation with [Father]. Their regression becomes more pronounced immediately prior to Court proceedings involving their placement. [J.M.V.'s] night terrors, which had essentially disappeared after the proceedings in August, have returned. [S.M.V.'s] psychosomatic complaint of leg pain and subsequent limping have also returned, and she has recently awakened crying in the morning from nightmares in which she dreamed [Father] was killing people she loved, including herself. Both daughters have expressed to the Court and their therapist that they are afraid of [Father] and do not want to return to his care.
15. The children need an extended period of time to feel absolutely safe, and to experience the security and stability necessary to enable them to heal. The children have not been amenable to treatment due to the uncertainty and disruptiveness of the litigation concerning visitation and placement. According to the children's therapist, [S.M.V.] could become a suicidal risk if she were to be returned to [Father] prior to developing a trusting relationship with him. The children's fear of visiting or being returned to [Father] prevents them from progressing in therapy. Ironically, it also prevents them from establishing a loving and secure relationship with [Father]. Therapeutically, the needed security would facilitate addressing and resolving their underlying psychological difficulties and likely make them more responsive to the reparation of their relationship with [Father]. The evidence is clear and convincing that returning the subject children to [Father] at this time would create a substantial risk of detriment to their emotional well-being.
16. It would be in the children's best interest to be told that they can remain with the Spencers indefinitely. This would remove a substantial amount of the fear they feel and allow them to commence working through their issues with their therapist concerning the suicidal deaths of [Mother] and [their] step-brother. In addition, it would allow them to view visitation with [Father] as something fun and positive, secure in the knowledge that they can remain in the Spencer[s'] custody.
17. [Father] is a practical person who focuses on getting things done, particularly involving concrete matters. His emotional sensitivity is moderately low, and he may have difficulty understanding and being aware of the sensitive feelings of his daughters. He also has demonstrated very little awareness of the negative impact of the history of marital turmoil upon his daughters. There is concern that he will continue to be disrespectful in his comments to the subject children about their deceased mother or let her memory fade. He loves his children and desires to have them in his custody. He is currently in the process of taking the necessary steps to improve his parenting skills by engaging in therapy and completing parenting classes. He has a history of being a stable and hard working employee. He does have a history of excessive use of alcohol, but currently is not drinking to the point of interfering with his ability to parent. [Father] loves his daughters and sincerely desires to parent his children. It is [Father]'s desire to move his family to his home state of Pennsylvania where he can receive help and support from his family.
18. ... The Spencers have provided the subject children with a safe, secure and loving environment. For the first time in their lives, [S.M.V.] and [J.M.V.] are living in an atmosphere devoid of anger, violence and fear. The Spencers have earnestly attempted to provide the subject children with appropriate psychological counseling, educational training, and recreational opportunities. They demonstrate sincere affection for said children and have affirmed *947 their desire to provide for said children for whatever time period is necessary to ensure their best interests.
19. It would be in the best interests of the subject children to remain in the custody of their maternal aunt and uncle while they heal from their emotional illnesses and in the process establish a relationship with [Father] which is devoid of fear.
The juvenile court then concluded:
1. That [Father]'s violent and threatening conduct towards the deceased mother in the presence of the children constituted emotional abuse of said children. The emotional abuse has traumatized [S.M.V.] and [J.M.V.] to the point of causing mental and emotional damage. Therefore, this Court concludes that the subject children are "neglected" pursuant to [Utah Code Ann.] Section 78-3a-2(16), in that they lack proper parental care by reason of the fault or habits of [Father].
. . . .
3. The return of the subject children to [Father] at this point in time would create a substantial risk of detriment to the girls' emotional well-being. This Court concludes that it is in the subject children's best interest to be placed in the custody of the Spencers and to commence a treatment plan for the establishment of a trusting and loving relationship with [Father].
Having found the allegations of abuse and neglect against Father to be true under Utah Code Ann. § 78-3a-2(16) (Supp.1995),[1] the court then awarded legal custody and guardianship of the girls to the Spencers, nunc pro tune, as of April 1, 1996, pursuant to Utah Code Ann. § 78-3a-516 (1996),[2] which grants the juvenile court authority for various dispositional alternatives.
Father appeals.

ISSUE AND STANDARDS OF REVIEW
Father argues the trial court committed reversible error when it awarded the Spencers custody of the girls because the trial court never ruled on the parental presumption and because, he argues, the evidence does not support a rebuttal of the parental presumption. Based on the parental presumption, Father argues, the trial court should have awarded him custody of the girls.
Juvenile courts have broad discretion in child custody cases; therefore, we will not disturb the juvenile court's custody determination "`if it is consistent with the standards set by appellate courts and supported by adequate findings of fact and conclusions of law.'" Duncan v. Howard, 918 P.2d 888, 891 (Utah Ct.App.1996) (citation omitted). We review the juvenile court's conclusions of law for correctness. See State v. Pena, 869 P.2d 932, 936 (Utah 1994). However, we will set aside findings of fact only if they are clearly erroneous. See Duncan, 918 P.2d at 891. To successfully challenge the juvenile court's findings of fact, Father must "`marshal all the evidence supporting the trial court's findings and then ... show the evidence to be legally insufficient to support the findings.'" Id. (citation omitted).

ANALYSIS
The parental presumption is a strong but rebuttable presumption that it is in a child's best interests to be in the custody of his or her natural parent. The parental presumption "recognizes the natural right and authority of the parent to the child's custody.'" Hutchison v. Hutchison, 649 P.2d 38, 40 (Utah 1982) (citation omitted). In addition, a parent may "rely on the parental presumption to prevent the transfer of his or her child's custody to a nonparent, unless the presumption has been rebutted or otherwise lost." State ex rel. H.R.V., 906 P.2d 913, 917 (Utah Ct.App.1995).
Showing a lack of the three parentchild characteristics articulated in Hutchison[3] is not the only way the parental presumption *948 may be rebutted or lost. For example, the parental presumption does not apply if the parent is "subject to the termination of all parental rights due to unfitness, abandonment, or substantial neglect." Hutchison, 649 P.2d at 41; cf. State ex rel. H.R.V., 906 P.2d at 917 ("[T]he parental presumption is based on the characteristics pertaining to a healthy parent-child relationship. When custody has been transferred from a natural parent to a nonparent, it is because the parent has been shown to lack those parental characteristics which give rise to the presumption." (emphasis in original)). In such cases we need not follow Hutchison's analysis because a parent who is subject to having his or her parental rights terminated "is a fortiori not entitled to custody." Hutchison, 649 P.2d at 41.
Similarly, the trial court is not obligated to follow the Hutchison analysis in cases brought before the court on abuse, neglect, or dependency petitions. See Utah Code Ann. §§ 78-3a-301 to -319 (1996 and Supp.1997) (setting forth laws regarding abuse, neglect, and dependency proceedings in juvenile court); State ex rel. R.L., 17 Utah 2d 349, 351, 411 P.2d 839, 840 (1966) (upholding trial court's decision that child's custody would remain with foster parents after declining to apply parental presumption in favor of child's natural mother). Like other cases affecting the custody of children, courts deciding abuse, neglect, and dependency cases are obligated to promote the best interests of the children involved. See id. § 78-3a-102(5)(g) (Supp.1997) (stating that purpose of juvenile court is to, "consistent with the ends of justice, strive to act in the best interests of the minor[s] in all cases and attempt to preserve and strengthen family ties where possible"); id. § 78-3a-312(3)(b) (Supp.1997) (stating that if after dispositional review hearing child is not returned to his or her parent, "court may, in its discretion, enter any ... order that it determines to be in the best interest[s] of the child"); id. § 78-3a-315(3)(c) (1996) (stating court "shall base its determination on the best interest of the child"); id. § 78-3a-314(5) (Supp.1997) (providing that in every abuse, neglect, or dependency proceeding, court shall order that child be represented by Guardian Ad Litem, who shall represent child's best interests). The Legislature has determined, as evidenced by the statutory scheme, that in cases involving a petition alleging the abuse, neglect, or dependency of a child, the parental presumption does not apply. In other words, unlike in the Hutchison line of cases, the law does not presume that it is in a child's best interests to be in the custody of the child's parent when that parent has been found by clear and convincing evidence to have neglected or abused the child, or when the child is dependent. The Legislature has determined that abuse or neglect of a child at the hands of a parent, or dependency of a child, is incompatible with the presumption that the child is best served by being in the parent's custody.
As a result, the trial court did not need to evaluate the three Hutchison characteristics in this case. Although both the State's neglect petition and the Spencers' custody motion were before the juvenile court, the court ruled only on the State's neglect petition when it found that Father had abused and neglected the girls.[4] Thus, because the court based its decision on the neglect petition rather than on the custody dispute between the Spencers and Father, the court did not need to consider the parental presumption.
We hold that as a matter of law the parental presumption did not apply to the court's determination of the girls' custody after it found by clear and convincing evidence that Father had abused and neglected the girls. Consequently, we reject Father's argument that the trial court erred by not considering the parental presumption before awarding the Spencers continued custody of *949 the girls. We therefore affirm the trial court's findings and custody order.

CONCLUSION
Because the trial court based its decision on the State's neglect petition and because the trial court found that Father had abused and neglected the girls, the parental presumption as a matter of law did not apply to the court's order awarding the Spencers continued custody of the girls. We therefore reject Father's argument and affirm the trial court's custody order.
Affirmed.
DAVIS, P.J., and BENCH, J., concur.
NOTES
[1]  This section has been renumbered as Utah Code Ann. § 78-3a-103(q)(i) (Supp.1997).
[2]  This section has been renumbered as Utah Code Ann. § 78-3a-118 (Supp.1997).
[3]  Hutchison established that to rebut the parental presumption, evidence may be shown that

a particular parent at a particular time generally lacks all three of the characteristics that give rise to the presumption: [1] that no strong mutual bond exists, [2] that the parent has not demonstrated a willingness to sacrifice his or her own interest and welfare for the child's, and [3] that the parent lacks the sympathy for and understanding of the child that is characteristic of parents generally.
Hutchison, 649 P.2d at 41.
[4]  Father has not challenged the court's finding of neglect, nor has he argued the trial court did not appropriately follow the statutes governing neglect cases.


                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                      No. 16-2194

JASNA KUHAR,

                    Plaintiff - Appellant,

             v.

DEVICOR MEDICAL PRODUCTS, INC.; JOSEPH BAIA,

                    Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:15-cv-01533-LMB-MSN)

Submitted: July 31, 2017                                          Decided: August 9, 2017

Before NIEMEYER, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

R. Scott Oswald, Kellee B. Kruse, EMPLOYMENT LAW GROUP, PC, Washington,
D.C.; Richard T. Seymour, LAW OFFICES OF RICHARD T. SEYMOUR, PLLC,
Washington, D.C., for Appellant. Christine M. Costantino, Karla Grossenbacher,
SEYFARTH SHAW, LLP, Washington, D.C., for Appellees.

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

       Jasna Kuhar appeals the district court’s order granting summary judgment to

Defendants on her age discrimination, sex discrimination, and defamation claims. We have

reviewed the parties’ briefs and the record on appeal and find no reversible error.

Accordingly, we affirm for the reasons stated by the district court in open court and in its

supplemental memorandum opinion. Kuhar v. Devicor Med. Prods., Inc., No. 1:15-cv-

01533-LMB-MSN (E.D. Va. Sept. 23, 2016 & Oct. 24, 2016). We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

                                                                               AFFIRMED

                                             2