175 Ariz. 93 (1993)
854 P.2d 126
Fred SANCHEZ and Nora Sanchez, husband and wife, Petitioners,
v.
The Honorable Franklin D. COXON, a Judge for the Superior Court of the State of Arizona, County of Pinal, Respondent, and Oscar S. SKINNER and Jeffrey A. Baugher, Real Parties in Interest.
No. CV-92-0165-PR.
Supreme Court of Arizona, En Banc.
May 20, 1993.
Surrano & Massey by Charles J. Surrano, III, Yancey N. Burnett, Larry J. Crown, Phoenix, for petitioners.
Law Offices of A. Thomas Cole by Thomas M. Larson, Casa Grande, for real parties in interest.
*94 OPINION
FELDMAN, Chief Justice.
This petition for review seeking special action relief[1] asks us to decide whether the trial court erred when it found that a town councilman's statements were not protected by an absolute legislative immunity.[2] Ariz.R.P.Spec. Act. 3.
FACTS AND PROCEDURAL HISTORY
On September 5, 1990, the town council of Mammoth, Arizona, held a regularly scheduled meeting. During this meeting, but apparently while no legislation was proposed, pending, or contemplated, Councilman Fred Sanchez criticized the Mammoth Chief of Police and another police officer. We do not quote his statements (which allegedly were false and made with knowledge of their falsity). In substance, however, the statements were that the officers did not attempt to prevent an alleged confrontation between the Mayor and Councilman Sanchez, that the officers were fingering their pistols during this confrontation, that the officers were insubordinate, and that there had been numerous complaints about the officers' conduct on previous occasions.
The police officers brought a defamation action against Sanchez and his wife (collectively "Petitioners"). Petitioners moved alternatively to dismiss or for summary judgment, arguing, inter alia, that an absolute legislative immunity protected the statements. The trial court denied these motions. Petitioners sought special action relief from the court of appeals. That court declined jurisdiction, and Petitioners filed a petition for review with this court. We granted review of the following issues:
1. Whether Arizona recognizes an absolute legislative immunity for city and town council members.
2. Whether Arizona recognizes an absolute legislative immunity for a legislator speaking to a legislative body during a formal legislative meeting.
SPECIAL ACTION JURISDICTION
Appeal after entry of judgment typically is the proper method to challenge the denial of a motion to dismiss or for summary judgment. United States v. Superior Court, 144 Ariz. 265, 269, 697 P.2d 658, 662 (1985). Special action petitions used as interlocutory appeals are discouraged. Alhambra Sch. Dist. v. Superior Court, 165 Ariz. 38, 40 & n. 3, 796 P.2d 470, 472 & n. 3 (1990). This court, however, has discretion in deciding whether to accept special action jurisdiction. State Comp. Fund v. Symington, 174 Ariz. 188, 191, 848 P.2d 273, 276 (1993). We decide whether to accept jurisdiction independent of the court of appeals' determination. See Collins v. Superior Court, 158 Ariz. 145, 145, 761 P.2d 1049, 1049 (1988); Bates v. Superior Court, 156 Ariz. 46, 48, 749 P.2d 1367, 1369 (1988).
Although the parties agree that we should accept jurisdiction, we must independently determine whether special action jurisdiction is appropriate. Maricopa County v. Superior Court, 170 Ariz. 248, 250-51, 823 P.2d 696, 698-99 (Ct.App. 1991). Numerous factors favor accepting jurisdiction in this case. The issues presented have statewide importance, Bledsoe v. Goodfarb, 170 Ariz. 256, 258, 823 P.2d 1264, 1266 (1991), are pure questions of law, State Comp. Fund, 174 Ariz. at 192-193, 848 P.2d at 277-278, and are issues of first impression for this court, Rios v. Symington, 172 Ariz. 3, 5, 833 P.2d 20, 22 (1992). Our decision on the merits terminates the litigation, Cardon v. Cotton Lane Holdings, Inc., 173 Ariz. 203, 210, 841 P.2d 198, 205 (1992), and declining jurisdiction would require Petitioners to stand trial  thereby losing much of the benefit of their claimed immunity, Henke v. Superior Court, 161 Ariz. 96, 99-100, 775 P.2d 1160, *95 1163-64 (Ct.App. 1989). Indeed, the denial of Councilman Sanchez' claimed immunity defeats the very purpose for such an immunity  encouraging free speech. Scottsdale Publishing, Inc. v. Superior Court, 159 Ariz. 72, 74, 764 P.2d 1131, 1133 (Ct.App. 1988). In light of these factors, we accept special action jurisdiction. We have jurisdiction pursuant to Ariz. Const. art. VI, §§ 5(3), 5(4), Ariz.R.P.Spec.Act. 8(b), and Ariz.R.Civ.App.P. 23.
DISCUSSION
A. Scope of this Decision
Our immunity decisions have given "conflicting signals." Chamberlain v. Mathis, 151 Ariz. 551, 557, 729 P.2d 905, 911 (1986). Thus, we note what this case does not involve. We are not presented with a claimed immunity for statements made in purely executive or judicial proceedings. Accordingly, we do not face the case-specific, factual inquiry required in deciding whether executive immunity is absolute or qualified. Id. at 556-58, 729 P.2d at 910-12.[3] Nor are we bound by case law mandating absolute judicial immunity. Chamberlain, 151 Ariz. at 558, 729 P.2d at 912.[4] As a result, the Arizona cases cited by the parties addressing judicial or executive immunity are inapposite.
The only question we decide is whether city and town council members have absolute legislative immunity for words spoken during a formal council meeting. Although the parties quote dicta from several cases,[5] they do not cite, nor have we found, any Arizona case or statute squarely addressing this issue. Thus, we write on a comparatively clean slate.
B. Legislative Immunity
By constitutional mandate, an absolute legislative immunity protects statements made by federal and Arizona legislators during formal legislative meetings. See U.S. Const. Art. I, § 6, cl. 1; Ariz. Const. Art. IV, pt. 2, § 7. In other states, this type of protection has not been uniformly applied to city council members. However, "[t]he trend of judicial decisions and legal thought is to extend the absolute privilege to communications of members of lesser legislative bodies." Noble v. Ternyik, 273 Or. 39, 539 P.2d 658, 660 (1975). This trend is best illustrated by the Restatement of Torts  a source to which we frequently turn in defamation cases. See, e.g., Turner v. Devlin, 174 Ariz. 201, 206, 848 P.2d 286, 291 (1993); Yetman v. English, 168 Ariz. 71, 77-78 n. 3, 81 n. 7, 811 P.2d 323, 329-30 n. 3, 333 n. 7 (1991); Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 491, 724 P.2d 562, 577 (1986).
In the late 1930s, the Restatement of Torts provided that an absolute immunity protected members of Congress, as well as state and territorial legislators, from defamation actions for statements made in the performance of their legislative function. Restatement of Torts § 590 (1938). This immunity, however, did not apply to "subordinate legislative bodies to which the State has delegated legislative power." Id. cmt. c. A qualified immunity protected members of these subordinate legislative bodies. Id.
The Second Restatement, published nearly forty years later, retained absolute immunity for federal and state legislators. Restatement (Second) of Torts § 590 (1977). Unlike the First Restatement, however, this absolute immunity is "applicable to members of subordinate legislative bodies *96 to which the State has delegated legislative power, such as a city council." Id. cmt. c (emphasis added). Thus, under the Second Restatement, city and town council members are protected by an absolute immunity.[6] The First Restatement now represents the minority rule. Restatement (Second) of Torts § 590 cmt. c.[7]
The stated rationale supporting absolute immunity for council members varies but frequently includes attracting qualified council members, council members' need for candor, and the chilling effect accompanying a qualified privilege. See, e.g., O'Donnell v. Yanchulis, 875 F.2d 1059, 1063 (3d Cir.1989) (construing Pennsylvania law); Noble, 539 P.2d at 661; Cornett v. Fetzer, 604 S.W.2d 62, 63 (Tenn. Ct. App. 1980). We agree with the Oregon Supreme Court's observation that "a substantial number of capable people would be reluctant to serve if their statements, made in the course of their legislative duties, were... privileged only if the finder of fact found the statements were not made maliciously." Noble, 539 P.2d at 661. A qualified privilege would also hinder debate and discussion. See id.
We are mindful of the abuses that can accompany any grant of immunity. As Judge Learned Hand commented:
It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.
Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950). Self-discipline and the power of the vote to defeat abusers of the privilege "must be the ultimate reliance for discouraging or correcting such abuses." Tenney v. Brandhove, 341 U.S. 367, 378, 71 S.Ct. 783, 789, 95 L.Ed. 1019 (1951).
Adopting a qualified, rather than an absolute, immunity in the context of this case would compel judicial inquiry into the motives for statements made by council members *97 during often heated debates. Such an intrusive and probing inquiry would come at too high a cost in light of its chilling effect. See Gregoire, 177 F.2d at 581. Without absolute immunity, it could be argued that only the foolish or irresponsible would serve as council members. Absolute immunity avoids discouraging qualified and otherwise willing individuals from seeking city or town council membership.
Nor is any good reason advanced for the proposition that city or town council members should be more inhibited in debate than state or federal legislators.
Many local law-makers receive little or no compensation and, at times, legislate on matters of more immediate importance to their electorate than state or federal legislators. Such legislation should be based on all relevant information  both favorable and unfavorable  and subjected to the most vigorous debate possible.
In light of these important interests, and at least under the facts of this case, we adopt the absolute immunity concept of the Restatement (Second) of Torts § 590. Because the Arizona legislature delegated legislative powers to city and town councils, A.R.S. § 9-240, such councils are "subordinate legislative bodies to which the State has delegated legislative power," Restatement (Second) of Torts § 590 cmt. c. Councilman Sanchez' statements were made by a town council member at a formal council meeting during the course of that meeting. Therefore, the statements are protected by an absolute immunity. See, e.g., Grady v. Scaffe, 435 So.2d 954, 955 (Fla.Ct.App. 1983); Gidday v. Wakefield, 90 Mich. App. 752, 282 N.W.2d 466, 468-69 (1979); Richardson v. McGill, 273 S.C. 142, 255 S.E.2d 341, 343-44 (1979).[8]
C. Legislative vs. Executive Function
Respondents contend that absolute immunity does not apply because Councilman Sanchez was not acting as a legislator but rather as an executive or an administrator when he made the challenged statements. Specifically, Respondents urge that no legislation was proposed, pending, or contemplated when the statements were made and that the content of the statements (complaints about police officers' official conduct) was executive or administrative rather than legislative. Without deciding whether all actions by city or town council members are legislative, we hold that Councilman Sanchez acted as a legislator when he spoke at the Mammoth town council meeting.
The specific content of the challenged statements does not make such speech executive or administrative. An absolute legislative privilege applies to legislators "performing a legislative function although the defamatory matter has no relation to a legitimate object of legislative concern." Restatement (Second) of Torts § 590 cmt. a (emphasis added). When Councilman Sanchez made the statements, he was a legislator speaking to a legislative body during a formal legislative meeting  clearly a legislative function. Id.; cf. Acevedo v. Pima County Adult Probation Dep't, 142 Ariz. 319, 322, 690 P.2d 38, 41 (1984) (discussing "judicial acts"). It is the occasion of the speech, not the content, that provides the privilege. See, e.g., Polson v. Davis, 635 F. Supp. 1130, 1148 (D.Kan. 1986) (construing Kansas law), aff'd on other grounds, 895 F.2d 705 (10th Cir.1990); Grady, 435 So.2d at 955; Williams v. School Dist., 447 S.W.2d 256, 267 (Mo. 1969), overruled on other grounds by Bass v. Nooney Co., 646 S.W.2d 765 (Mo. 1983). Any other rule would frustrate the purposes for which immunity is granted. Thus, we reject the claim that, due to the nature of the statements, Councilman Sanchez acted in an executive or administrative manner when he spoke at the council meeting.
CONCLUSION
We do not favor immunity from common law liability. See Grimm v. Arizona Bd. of Pardons & Paroles, 115 Ariz. 260, 264-66, 564 P.2d 1227, 1231-33 (1977). *98 Lack of responsibility can breed lack of care. There are situations, however, when legal principles strongly favor unrestrained freedom of speech over countervailing concerns. Legislative debate is one of these rare situations.
It is said that in the British House of Commons  the mother of all legislative bodies  the opposing benches are separated by the length of two arms, the length of two swords, and six inches so that words are the only weapons in debate. To be effective, these words must be unrestrained. Thus, we hold that Councilman Sanchez' statements are absolutely privileged. We vacate the trial court's order denying Petitioners' motion to dismiss or for summary judgment. This case is remanded to the trial court for the entry of judgment for Petitioners.
MOELLER, V.C.J., and CORCORAN, ZLAKET and MARTONE, JJ., concur.
NOTES
[1]  In Arizona, relief formerly obtained by writs of certiorari, mandamus, or prohibition is now obtained by "special action." Ariz.R.P.Spec.Act. 1.
[2]  "Immunity" and "privilege" are often used interchangeably. In light of Chamberlain v. Mathis, 151 Ariz. 551, 554 n. 1, 729 P.2d 905, 908 n. 1 (1986), we use "immunity" throughout this opinion.
[3]  See also Ryan v. State, 134 Ariz. 308, 311, 656 P.2d 597, 600 (1982); Portonova v. Wilkinson, 128 Ariz. 501, 503, 627 P.2d 232, 234 (1981); Grimm v. Arizona Bd. of Pardons & Paroles, 115 Ariz. 260, 265, 564 P.2d 1227, 1232 (1977).
[4]  See also Green Acres Trust v. London, 141 Ariz. 609, 613, 688 P.2d 617, 621 (1984); Western Technologies, Inc. v. Sverdrup & Parcel, Inc., 154 Ariz. 1, 4, 739 P.2d 1318, 1321 (Ct.App. 1986); Todd v. Cox, 20 Ariz. App. 347, 348-50, 512 P.2d 1234, 1235-37 (1973).
[5]  Compare Ross v. Duke, 116 Ariz. 298, 301, 569 P.2d 240, 243 (Ct.App. 1977) (absolute immunity "arises in ... legislative proceedings."), with Carlson v. Pima County, 141 Ariz. 487, 492, 687 P.2d 1242, 1247 (1984) (no absolute immunity "for public officers and employees of the state and its political subdivisions.").
[6]  See also 53 C.J.S. Libel & Slander § 76 at 142-43 (1987) (as a general rule, absolute legislative immunity applies to "all legislative bodies, whether federal, state, municipal or local") (footnotes omitted); 50 Am.Jur.2d Libel & Slander § 222 at 733 (1970) (although some courts apply qualified immunity to municipal councils, "other courts hold or recognize that at least under some circumstances members of a municipal council ... are entitled to the complete defense afforded by absolute privilege for utterances made by them during the course of official proceedings.") (footnotes omitted).
[7]  It is unclear when the Second Restatement became the majority view. By 1955, "[i]n the majority of the comparatively few cases wherein the defense of absolute privilege was raised, the courts ... have held or recognized that at least under some circumstances members of governing bodies of political subdivisions are entitled to the complete defense afforded by this privilege." Annotation, Libel and Slander: Statements or Utterances by Member of Municipal Council, or of Governing Body of Other Political Subdivision, in Course of Official Proceedings, as Privileged, 40 A.L.R.2d 941, 943 (1955).
[8]  We leave open possible further application or extension of the rule of absolute immunity in cases that fall short of this factual situation. See Restatement (Second) of Torts § 590 cmt. a.


103 F.3d 135
NOTICE:  Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Sharon E. JOELSON, Appellant,v.Jesse BROWN, in his official capacity as Secretary of theUnited States Department of Veterans Affairs, Appellee.
No. 96-1012.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 22, 1996.Decided Nov. 27, 1996.

Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.
PER CURIAM.

1
Sharon E. Joelson appeals the district court's adverse grant of summary judgment in this disability-based employment discrimination action.  Having carefully reviewed the record and the materials submitted by the parties, we conclude the district court's decision is clearly correct and the issues do not warrant a comprehensive opinion.  Finding no reversible error, we affirm for the reasons stated in the district court's memorandum opinion.  See 8th Cir.  R. 47B.


707 F.2d 1391
Government of Virgin Islandsv.Toussaint
82-3161
UNITED STATES COURT OF APPEALS Third Circuit
12/15/82

D.V.I., O'Brien, J.

AFFIRMED


                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                           April 2, 2013
                        UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                           Clerk of Court
                                    TENTH CIRCUIT

 JEFFREY L. REAGLE,
                 Petitioner–Appellant,                          No. 12-5183
           v.                                      (D.C. No. 4:09-CV-00507-GKF-PJC)
 JUSTIN JONES, Director,                                        (N.D. Okla.)
                 Respondent–Appellee.

                ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before LUCERO, McKAY and MURPHY, Circuit Judges.

       Petitioner, a state prisoner proceeding pro se, seeks a certificate of appealability to

appeal the district court’s denial of his § 2254 habeas petition. An Oklahoma jury

convicted Petitioner of possessing a firearm after a former conviction of a felony,

aggravated assault and battery on a police officer, resisting a police officer, and

discharging a firearm in a public place. Petitioner was sentenced to life imprisonment.

His conviction and sentence were affirmed on direct appeal.

       In his federal habeas petition, Petitioner raised twelve grounds of error, each of

       *
         This order 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.
which had been presented to and rejected by the Oklahoma Court of Criminal Appeals.1

Petitioner argued: (1) the trial court erred in permitting the prosecution to introduce

evidence of prior bad acts; (2) the trial court erred in denying defense counsel’s request

for a competency exam; (3) the trial court erred in refusing to instruct the jury on his

theory of defense; (4) the trial court erred in permitting the prosecution to introduce

evidence obtained from an unlawful search; (5) Petitioner received ineffective assistance

of counsel; (6) the prosecution engaged in prosecutorial misconduct; (7) Petitioner’s

sentence was excessive; (8) cumulative error requires reversal; (9) Petitioner was

wrongfully convicted of three counts of assault and battery on a police officer because he

had excusable and justifiable cause; (10) the Second Amendment prohibits his

prosecution for possession of a firearm after conviction of a felony; (11) the use of

Petitioner’s prior felony convictions to enhance his sentence is unconstitutional based on

the prohibition against double jeopardy; and (12) the prosecution committed perjury

during the trial. The district court concluded that the state court had not unreasonably

applied Supreme Court precedent in rejecting these claims in the state court proceedings,

and the district court accordingly denied the petition for relief under 28 U.S.C. §

2254(d)(1).

       After thoroughly reviewing the record and Petitioner’s filings on appeal, we

       1
        In his habeas petition, Petitioner actually asserted thirteen grounds of error.
However, ground thirteen is identical to ground seven: “Appellant’s sentence was
excessive and should be modified.” (R. Vol. I at 36 (capitalization omitted); see also id.
at 38.)

                                             -2-
conclude that reasonable jurists would not debate the district court’s denial of habeas

relief. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       Petitioner raises two additional arguments in his brief. He first argues the district

court erred in denying his request for an evidentiary hearing. Petitioner contends that he

“showed that an investigatory [hearing] was necessary to fully litigate his case.” (Br. at

10 (capitalization omitted).) However, because each of Petitioner’s claims in his petition

can be resolved on the basis of the record alone, we conclude the district court did not

abuse its discretion. See Hooks v. Workman, 606 F.3d 715, 731 (10th Cir. 2010).

       Petitioner then argues his conviction and sentence should be dismissed or vacated

as a result of the district court’s failure to set a hearing date within five days of

Respondent’s response, as required by 28 U.S.C. § 2243. A review of the record reveals

the district court did not dispose of Petitioner’s petition until October 10, 2012—more

than three years after Petitioner filed his reply to Respondent’s response in opposition to

Petitioner’s habeas petition. Construing Petitioner’s pro se appeal liberally, as we must,

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), we interpret Petitioner’s argument

as a due process claim. See Wise v. Commandant, 82 F. App’x 636, 638 (10th Cir. 2003)

(construing the petitioner’s claim that “the district court erred by delaying its disposition

of his habeas petition until 761 days after he filed his traverse” “as a due process claim”).

“‘[T]he remedy for a due process violation caused by inordinate delay of a district court is

not habeas relief, but a writ of mandamus directing the district court to act or rule on the

pending matter.’” Id. (quoting United States v. Wiktor, 146 F.3d 815, 819 (10th Cir.

                                               -3-
1998)) (alteration in original). Because the district court ruled on Petitioner’s petition,

“no mandamus directing the district court to act was requested or required.” Id. at 639.

The question, then, is “whether the district court’s . . . delay prejudiced [Petitioner].” Id.

at 638. In light of the district court’s denial of Petitioner’s habeas petition and our denial

of his request for a certificate of appealability, Petitioner can show no prejudice as a result

of the delay.2 Id. at 639.

       For substantially the same reasons given by the district court and state court, we

DENY Petitioner’s request for a certificate of appealability and DISMISS the appeal. All

other pending motions are DENIED.3

                                                    ENTERED FOR THE COURT

                                                    Monroe G. McKay
                                                    Circuit Judge

       2
         Having determined Petitioner cannot show the requisite prejudice, we do not
decide whether the nearly three-year delay in disposing of Petitioner’s petition was
impermissible. See Johnson v. Rogers, 917 F.2d 1283, 1285 (10th Cir. 1990) (concluding
a fourteen-month delay in deciding the petitioner’s habeas petition was impermissible, but
emphasizing that “[e]ach situation must be considered on its own facts”). The record on
appeal does not indicate the circumstances that may have justified the district court’s
delay and is therefore insufficient for us to make this determination.
       3
        Contrary to Petitioner’s belief, Respondent was not obligated to respond to his
combined brief and application for a certificate of appealability. 10th Cir. R. 22.1(B). As
explained in the instructions to litigants proceeding without counsel, attached to
Petitioner’s brief, “It is not a default or concession in any way if the appellee does not
respond.” (Br. at 3 (bold type omitted).)

                                              -4-


IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-81,138-01

IN RE LONNIE BROWN, Relator

ON APPLICATION FOR A WRIT OF MANDAMUS
CAUSE NO. A-36,453 IN THE 70TH DISTRICT COURT
FROM ECTOR COUNTY

            Per curiam.

O R D E R

            Relator has filed a motion for leave to file a writ of mandamus pursuant to the original
jurisdiction of this Court. In it, he contends that he filed an application for a writ of habeas corpus
in the 70th District Court of Ector County, that more than 35 days have elapsed, and that the
application has not yet been forwarded to this Court.
            In these circumstances, additional facts are needed. Respondent, the District Clerk of Ector
County, is ordered to file a response, which may be made by submitting the record on such habeas
corpus application, submitting a copy of a timely filed order which designates issues to be
investigated (see McCree v. Hampton, 824 S.W.2d 578, 579 (Tex. Crim. App. 1992)), or stating that
Relator has not filed an application for a writ of habeas corpus in Ector County. Should the response
include an order designating issues, proof of the date the district attorney’s office was served with
the habeas application shall also be submitted with the response. This application for leave to file
a writ of mandamus shall be held in abeyance until Respondent has submitted the appropriate
response. Such response shall be submitted within 30 days of the date of this order.

Filed: April 9, 2014
Do not publish


927 F.2d 594
Geshwindv.Garrick
NO. 90-7560
United States Court of Appeals,Second Circuit.
JAN 11, 1991
Appeal From:  S.D.N.Y., 734
F.Supp. 644

1
AFFIRMED.


                                                                            FILED
                              NOT FOR PUBLICATION                            DEC 17 2015

                                                                         MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS

                               FOR THE NINTH CIRCUIT

CLEAN TECH PARTNERS, LLC,                         No. 14-15156

             Plaintiff - Appellant,               D.C. No.1:13-cv-01409-AWI

  v.
                                                  MEMORANDUM*
ELECTRONIC RECYCLERS
INTERNATIONAL, INC., et al.,

             Defendants - Appellees.

                     Appeal from the United States District Court
                         for the Eastern District of California
                   Anthony W. Ishii, Senior District Judge, Presiding

                             Submitted December 10, 2015**
                               San Francisco, California

Before: CLIFTON and OWENS, Circuit Judges, and MOSKOWITZ, Chief District
Judge.***

       *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
         The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
       ***
         The Honorable Barry Ted Moskowitz, Chief Judge, United States District
Court for the Southern District of California, sitting by designation.
      Clean Tech Partners, LLC, (“Clean Tech”), appeals from the district court’s

order denying discovery, compelling arbitration, and dismissing the case. Clean

Tech argues the order should be vacated on the ground that the district court erred

in denying its request for limited discovery relating to the validity of a Stock

Transfer Agreement (“STA”). We review the district court’s decision denying

discovery for an abuse of discretion. Hallett v. Morgan, 296 F.3d 732, 751 (9th

Cir. 2002).

      The dispute in this case arises out of an arbitration provision in the STA,

entered into between Clean Tech and Appellees John and Tammie Shegerian. John

Shegerian is the Chairman and Chief Executive Officer of Appellee Electronic

Recyclers International, Inc. (“ERI”), and Tammie Shegerian is ERI’s Chief

Financial Officer. Pursuant to the STA, the Shegerians agreed to purchase ERI

stock owned by Clean Tech. Although the STA contains an arbitration provision,

Clean Tech filed a complaint in the Eastern District of California alleging, inter

alia, breach of contract, fraud, RICO violations, and securities fraud stemming

from the transaction. The district court denied Clean Tech’s motion for limited

discovery, compelled arbitration, and dismissed the case.

      As an initial matter, Clean Tech’s appeal is not moot even though the parties

arbitrated Clean Tech’s claims following the district court’s decision. An appeal is

moot if no live case or controversy remains at the time of appeal. NASD Dispute

                                           2
Resolution, Inc. v. Judicial Council of Cal., 488 F.3d 1065, 1068 (9th Cir. 2007). A

case or controversy exists on appeal so long as a favorable decision on the merits

can give an appellant effective relief. Id. Here, Clean Tech’s appeal is not moot

because a decision vacating the district court order would give Clean Tech an

opportunity to potentially contest the validity of the STA before a district judge

rather than an arbitrator. See Haig Berberian, Inc. v. Cannery Warehousemen, 535

F.2d 496, 498 n.1 (9th Cir. 1976) (holding that an appeal was not moot because the

arbitration award would be unenforceable if the court agreed with the appellant that

the dispute was not arbitrable).

      Reaching the merits, we hold that the district court did not abuse its

discretion when it denied Clean Tech’s request for discovery. Clean Tech failed to

demonstrate how discovery would produce evidence indicative of the STA’s

invalidity both at the proceedings below and in its arguments on appeal. See

Hallett, 296 F.3d at 751 (“[B]road discretion is vested in the trial court to permit or

deny discovery, and its decision to deny discovery will not be disturbed except

upon the clearest showing that denial of discovery results in actual and substantial

prejudice to the complaining litigant.”) (quoting Goehring v. Brophy, 94 F.3d

1294, 1305 (9th Cir. 1996)). The district court properly denied discovery based on

Clean Tech’s bare assertions that the STA was invalid.

      AFFIRMED.

                                           3


544 U.S. 936
LANEv.UNITED STATES.
No. 04-8772.
Supreme Court of United States.
March 21, 2005.

1
C. A. 4th Cir. Certiorari denied. Reported below: 114 Fed. Appx. 543.


In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3256

State of Wisconsin,

Plaintiff-Appellee,

v.

Hotline Industries, Inc.,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-C-0398-C--Barbara B. Crabb, Judge.

Argued August 8, 2000--Decided December 29, 2000

 Before Bauer, Coffey, and Manion, Circuit Judges.

 Bauer, Circuit Judge. This case involves an
award of attorney’s fees to the State of
Wisconsin under 28 U.S.C. sec. 1447(c), the fee-
shifting provision governing improper removal.
The principal issue is whether sec. 1447(c),
which authorizes payment of "actual" attorney’s
fees "incurred" in resisting removal, permits
salaried government attorneys to recover at
prevailing market rates. The district court
concluded that it does. Because we believe that
the provision limits a fee award to actual
outlays, we vacate the award and remand for
further proceedings.

I.

 Hotline Industries, Inc., a Minnesota
corporation, owns and maintains an old railroad
ore dock on Lake Superior that is adjacent to a
public boat ramp maintained by the City of
Superior, Wisconsin. When Hotline began
installing piers off the dock and advertising a
marina development, the State of Wisconsin sought
a preliminary injunction in state court to enjoin
Hotline from constructing any more piers.
According to the state, Hotline never obtained
the permits required by state law for placing
structures in navigable waterways. The state also
complained that the piers obstructed boat traffic
around the public boat ramp and constituted a
public nuisance. Hotline removed this case to
federal district court. See 28 U.S.C. sec. 1441.
The district court set a hearing date for the
state’s preliminary injunction motion, and the
state moved to remand the action to state court.
See 28 U.S.C. sec. 1447(c).

 Although the hearing was held, the motion for
preliminary injunction was never addressed
because Hotline could not establish a basis for
federal jurisdiction (states are not citizens for
purposes of diversity jurisdiction, and there was
no federal question). The court advised Hotline
that the removal appeared groundless, and that it
could either file a response to the state’s
remand motion or stipulate to a remand. Hotline
stipulated to the remand, and the court issued a
remand order. The state then filed a motion for
costs and fees under sec. 1447(c), attaching
affidavits from an assistant attorney general
that claimed an hourly billing rate of $200 for
nearly 28 hours that she and another assistant
devoted to the removal proceedings. The court
accepted the $200 hourly figure as a reasonable
market rate for the government attorneys, and
awarded the state $5,583.60 for attorney’s fees.
From this decision Hotline appeals.

II.

 Hotline limits its appeal to the award of fees;
we have jurisdiction to review this award. Tenner
v. Zurek, 168 F.3d 328, 329 (7th Cir. 1999). We
review the district court’s fee award for abuse
of discretion, Garbie v. DaimlerChrysler Corp.,
211 F.3d 407, 410 (7th Cir. 2000), but to the
extent that the district court’s decision rests
on its interpretation of sec. 1447(c), our review
is de novo. See Eli Lilly & Co. v. Natural
Answers, Inc., ___ F.3d ___, No. 00-1375, 2000 WL
1735075, at *9 (7th Cir. Nov. 21, 2000).

 Hotline first argues that the district court
lacked jurisdiction to award attorney’s fees
after it remanded the case to state court.
Focusing on sec. 1447(c)’s language, Hotline
contends that the award had to be included in the
very same order remanding the case, and the
district court’s remand order did not mention an
award. The plain wording of sec. 1447(c) does not
resolve the question; it provides only that "an
order remanding the case may require payment of
actual expenses, including attorney fees,
incurred as a result of the removal." But the
statute does not purport to be exclusive, and it
contains no language to suggest that there cannot
be a supplemental order. Several courts have
directly rejected Hotline’s argument, holding
that district courts retain jurisdiction to
consider collateral matters after remand and that
attorney’s fees may be awarded under a separate
order. Stallworth v. Greater Cleveland Reg’l
Transit Auth., 105 F.3d 252, 257 (6th Cir. 1997);
Mints v. Educational Testing Serv., 99 F.3d 1253,
1257 (3d Cir. 1996); Moore v. Permanente Group,
Inc., 981 F.2d 443, 445 (9th Cir. 1992); see
Citizens for a Better Env’t v. Steel Co., 230
F.3d 923, 927 (7th Cir. 2000). Hotline attempts
to distinguish this line of cases by observing
that the remand order in the present case was
based on a voluntary stipulation. But Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990),
held that a plaintiff’s voluntary dismissal did
not divest the court of jurisdiction to assess
fees under Fed. R. Civ. P. 11. See Szabo Food
Serv., Inc. v. Canteen Corp., 823 F.2d 1073,
1076-79 (7th Cir. 1987). Although Cooter & Gell
dealt with Rule 11 sanctions, its underlying
principle applies in the context of sec. 1447(c).
See Willy v. Coastal Corp., 503 U.S. 131, 136 &
n.2 (1992). A district court has jurisdiction to
award attorney’s fees under sec. 1447(c) even if
the removing party voluntarily withdraws its case
and stipulates to a remand.

 Hotline next contends that the state did not
incur any reimbursable attorney’s fees because
its lawyers already were on the government
payroll as salaried employees. But salaried
government lawyers, like in-house and non-profit
counsel, do incur expenses if the time and
resources they devote to one case are not
available for other work. See Hamilton v. Daley,
777 F.2d 1207, 1213 (7th Cir. 1985) (affirming
fee award under 42 U.S.C. sec. 1988 to state’s
attorneys for their representation of "prevailing
defendants"); Napier v. Thirty or More
Unidentified Fed. Agents, 855 F.2d 1080, 1092-93
(3d Cir. 1988) (affirming fee award under Fed. R.
Civ. P. 11 to government for time of assistant
U.S. attorney in defending a frivolous lawsuit);
see also Central States, Southeast & Southwest
Areas Pension Fund v. Central Carthage Co., 76
F.3d 114, 115-16 (7th Cir. 1997) (affirming award
under ERISA fee-shifting statute to prevailing
pension fund for its staff attorneys’
representation); see also Softsolutions v.
Brigham Young Univ., 1 P.3d 1095, 1106 n.5 (Utah
2000) (collecting federal and state cases). To
deny reimbursement under these circumstances
would indirectly penalize the institution, be it
public or private, for providing its own legal
counsel throughout a case.

 Even if fees are recoverable, Hotline argues,
they exceed whatever amount was allowed under
sec. 1447(c). Section sec. 1447(c) provides that
"[a]n order remanding the case may require
payment of just costs and any actual expenses,
including attorney fees, incurred as a result of
the removal." The district court construed sec.
1447(c) to authorize a fee award based on the
prevailing rate in Madison, Wisconsin for lawyers
specializing in similar work. "From a purely
practical standpoint," the court wrote, "it makes
sense to compensate government lawyers in the
same manner as privately retained counsel rather
than undertaking a calculation of the actual
costs incurred."

 In using the market rate as the measure of
compensation, the district court followed the
general rule for calculating fee awards made
under numerous statutes authorizing a "reasonable
attorney’s fee as part of the costs." This rule,
applied in Blum v. Stenson, 465 U.S. 886, 895
(1984), holds that "reasonable fees" under fee-
shifting statutes such as 42 U.S.C. sec. 1988
"are to be calculated according to the prevailing
market rates in the relevant community,"
regardless of whether the plaintiff is
represented by a private law firm or a legal aid
society. See also Independent Fed’n of Flight
Attendants v. Zipes, 491 U.S. 754, 758 n.2 (1989)
(observing that "fee-shifting statutes’ similar
language is ’a strong indication’ that they are
to be interpreted alike") (citation omitted);
Burlington v. Dague, 505 U.S. 559, 562 (1992)
(extending "our case law construing what is a
’reasonable’ fee . . . uniformly to all
[similarly worded fee-shifting statutes]").
Congress enacted such fee-shifting statutes to
encourage lawyers to take meritorious cases and
thereby promote private enforcement of the law.
See Pennsylvania v. Delaware Valley Citizens’
Council, 478 U.S. 546, 560 (1986); Blum 465 U.S.
at 893-94. By using market rates as a basis to
calculate attorney’s fees, Congress intended that
nonprofit legal aid organizations (which have no
billing rate) would receive no less in fee awards
than lawyers working in the private sector. Blum,
465 U.S. at 894. This general rule has been
applied even when the victorious party is
represented by salaried government counsel. See,
e.g., Hamer v. Lake County, 819 F.2d 1362, 1365
n.9 (7th Cir. 1987); Hamilton, 777 F.2d at 1213;
State of Illinois v. Sangamo Constr. Co., 657
F.2d 855, 861-62 (7th Cir. 1981); United States
v. Big D Enters., Inc., 184 F.3d 924, 936 (8th
Cir. 1999); Napier, 855 F.2d at 1092-93.

 But Fogerty v. Fantasy, Inc., 510 U.S. 517
(1994), in our words, "squelched" any inclination
to treat all fee-shifting statutes as if they
were minor variations on sec. 1988. Stomper v.
Amalgamated Transit Union, Local 241, 27 F.3d
316, 318 (7th Cir. 1994). Fogerty involved the
interpretation of 17 U.S.C. sec. 505, the
attorney’s fee provision of the Copyright Act.
Although sec. 505 tracks 42 U.S.C. sec. 2000e-
5(k), the attorney’s fee provision in Title VII
of the Civil Rights Act of 1964, the Court held
that both statutes have unique historical
contexts and interpretations that cannot be
generalized to one another. 510 U.S. at 522-25.
After Fogerty, "[d]ifferent statutes receive
individual analysis," or should. Stomper, 27 F.3d
at 318; see Citizens for a Better Environment,
230 F.3d at 931.

 Section 1447(c) is unusual among fee-shifting
statutes. Unlike the numerous statutes that
authorize the recovery of "reasonable" attorney’s
fees, see, e.g., Delaware Valley Citizens’
Council, 478 U.S. at 562; Marek v. Chesny, 473
U.S. 1, 43 (1985) (appendix to Brennan, J.,
dissenting), sec. 1447(c) expressly limits fee
awards to actual outlays-- specifically, to "any
actual expenses, including attorney fees,
incurred" (emphasis added). The mention of
"actual" and "incurred" is significant. Neither
word appeared in the statute’s earlier version
that authorized only "the payment of just costs."
As amended in 1988, sec. 1447(c) now explicitly
includes "attorney fees" among the "actual
expenses" that can be awarded. The statutory
change makes clear that sec. 1447(c) constitutes
an alternative means to reimburse the victorious
party without resorting to Rule 11. The
legislative history of this change is scanty (a
mere two paragraphs), but it reveals that "the
proposed amendment to section 1447(c) will ensure
that a substantive basis exists for requiring
payment of actual expenses incurred in resisting
an improper removal; civil rule 11 can be used to
impose a more severe sanction when appropriate."
H.R. Rep. No. 889, 100th Cong., 2d Sess. 72,
reprinted in 1988 U.S.C.C.A.N. 5982, 6033.

 Only a few fee-shifting statutes explicitly
limit recoveries to actual outlays. For example,
the Uniform Relocation Assistance and Real
Property Acquisition Policies Act, 42 U.S.C. sec.
4654, will "reimburse" prevailing claimants for
attorney’s fees "actually incurred" in litigating
condemnation proceedings brought by the
government. See United States v. 122.00 Acres of
Land, 856 F.2d 56, 58 (8th Cir. 1988). Similarly,
the Equal Access to Justice Act, 28 U.S.C. sec.
2412(d)(1)(A), authorizes monetary recovery for
attorney’s fees "incurred" as a result of
unjustified federal action, see TGS Int’l, Inc.
v. United States, 983 F.2d 229, 230 (Fed. Cir.
1993); United States v. Paisley, 957 F.2d 1161,
1164 (4th Cir. 1992), and an analogous statute
contained in the Internal Revenue Code permits
recovery of attorney’s fees "paid" or "incurred"
in successful challenges to tax related actions,
26 U.S.C. sec. 7430(c)(1)(B)(iii); see Marre v.
United States, 38 F.3d 823, 828-29 (5th Cir.
1994). These three statutes, all of which aim to
check or deter unjustified governmental conduct,
permit parties to be reimbursed for fees actually
incurred in achieving victory. But cf. Raney v.
Federal Bureau of Prisons, 222 F.3d 927, 934
(Fed. Cir. 2000) (en banc) (citing the Freedom of
Information Act, the Privacy Act, and Fed. R.
Civ. P. 37(a)(4) as examples in which "the courts
have neither interpreted the ’incurred’ term . .
. to restrict or limit the payment of fees to
those actually incurred, nor prevented market-
rate fees from being awarded").

 Congress envisioned a similar reimbursement
scheme under sec. 1447(c). This provision
specifies that the fees awarded must be the
"actual" fees that were "incurred." This
formulation more closely approaches the Uniform
Relocation Act or the Equal Access to Justice Act
than the civil rights statutes that speak of a
"reasonable attorney’s fee as part of the costs."
Cf. Neal v. Honeywell, Inc., 191 F.3d 827, 833
(7th Cir. 1999) (concluding that the formula in
the False Claims Act authorizing "reasonable
attorneys’ fees" as part of "damages" has
"greater affinity to sec. 1988 than to the Equal
Access to Justice Act"). Indeed, we have likened
sec. 1447(c) to Fed. R. Civ. P. 37(a)(4), the
fee-shifting rule requiring the loser in certain
discovery disputes to pay his opponent’s legal
expenses. Both rules contemplate that the victor
should recoup his full outlay. As we reiterated
in Garbie, 211 F.3d at 411, "The rationale of
fee-shifting rules is that the victor should be
made whole--should be as well off as if the
opponent had respected his legal rights in the
first place." Improper removal prolongs
litigation (and jacks up fees). Under the
American Rule parties bear their expenses in one
court system, "but when their adversary
wrongfully drags them into a second judicial
system the loser must expect to cover the
incremental costs." Id. For the State of
Wisconsin, those incremental costs include its
actual attorney’s fees incurred (a proportional
share of the salaries of its attorneys handling
the removal) plus related overhead costs.

 We vacate the judgment as to the amount of
attorney’s fees awarded to the state and remand
so that the district court may determine the
actual amount of fees incurred. The state bears
the burden of proving these amounts. The district
court, however, has discretion "to tailor the
documentation requirement" according to the
stakes involved, see Garbie, 211 F.3d at 411;
Ustrak v. Fairman, 851 F.2d 983, 987 (7th Cir.
1988), lest the resources devoted to detailing
entitlements outstrip the expenses received under
sec. 1447(c).

Vacated and Remanded


706 F.2d 1549
71 A.L.R.Fed. 78, 13 Fed. R. Evid. Serv. 883
UNITED STATES of America, Plaintiff-Appellee,v.Harold HAIMOWITZ, Defendant-Appellant.
No. 81-6011.
United States Court of Appeals,Eleventh Circuit.
June 13, 1983.

1
Lacy Mahon, Jr., Mahon, Mahon & Farley, Jacksonville, Fla., for defendant-appellant.

2
Elizabeth E. Hoyt, John E. Steele, Asst. U.S. Attys., Jacksonville, Fla., for plaintiff-appellee.

3
Appeal from the United States District Court for the Middle District of Florida.

4
Before GODBOLD, Chief Judge, RONEY, Circuit Judge, and PITTMAN*, District Judge.

PITTMAN, District Judge:

5
In this case the defendant appeals his conviction on one count for conspiracy and on eight substantive counts for possession of false and fraudulent documents in connection with the fraudulent obtaining and misapplication of the proceeds of a Small Business Administration (SBA) loan.  The defendant raises numerous issues on appeal.  We consider the defendant's points seriatim and affirm his conviction.

6
Appellant Harold Haimowitz, Irving R. Bowen, Jr., Frederick W. Bower, Frederick E. Bacon, Harold Bloom, and Sam L. Silberstein were indicted on January 23, 1980.  It was an eighteen count indictment.  Two of the defendants, Irving R. Bowen, Jr. and Frederick W. Bower, were subsequently severed;  as a result of these severances, counts twelve and eighteen of the original indictment were severed.  Of the remaining sixteen counts the appellant, Harold Haimowitz, was charged in nine counts either individually or with one of the defendants with criminal acts occurring from on or about October 1, 1979 through August 31, 1980.1

7
In late September or early October, 1979, Peter Abbott contacted appellant Haimowitz, a Jacksonville attorney, for assistance in the purchase of a restaurant in the Jacksonville area.  Within a few days Abbott met Haimowitz at his law office and told him he was looking for a restaurant in the $50,000 to $100,000 price range.  Haimowitz telephoned an associate who was chairman of the zoning board and requested he show Abbott some available restaurants.  Abbott was shown several restaurants, including Swain's Charbroiled Steakhouse.  Because Swain's was in the $300,000 to $325,000 price range, Abbott was told to recontact Haimowitz.  When Abbott informed Haimowitz about Swain's, Haimowitz said he might invest in it personally and wanted to inspect the building.  When Abbott protested that it was impossible for him to procure the purchase price, Haimowitz told him not to worry.

8
Abbott and Haimowitz inspected Swain's and returned to Haimowitz's law office.  Haimowitz told Abbott that he would take 10% ownership of the restaurant and that a loan could be obtained from the SBA for the purchase and renovation.  Abbott then told Haimowitz that he could not apply for an SBA loan because he previously had gone into bankruptcy and was a convicted felon for vehicular homicide.  While Abbott was a convicted felon, he had not been convicted of vehicular homicide.  Abbott testified on cross-examination that he had been involved in numerous criminal acts involving other false and fraudulent SBA loans, acts of arson, and trafficking in narcotics.  Nevertheless, Abbott agreed to have an SBA loan "package" prepared by Robert Flude of Atlanta while Haimowitz agreed to obtain an estimate from a contractor, to draft the purchase agreement, and to obtain an equipment appraisal and an insurance breakdown.

9
In November, 1979, Haimowitz and Abbott met with a representative of Swain's Charbroiled Steakhouse, at which time Haimowitz negotiated the selling price of the restaurant.  Abbott then obtained a loan package from Flude, giving Flude false information about his background.  In addition to the false information provided by Abbott, Haimowitz telephoned Flude and directed some changes in the information supplied by Abbott in order to make the SBA package more attractive.  Abbott received the final SBA package from Flude and took it to Haimowitz's office, where Haimowitz provided the purchase agreement, appraisals of the land, building and equipment, an insurance breakdown, and an inflated estimate for the renovation work.  Abbott and Haimowitz also prepared and included a fraudulent letter of recommendation and employment verification, which documents formed the basis for Counts Two and Three of the indictment against Haimowitz.

10
The loan proposal was submitted to several Jacksonville-area banks, including the American National Bank, where defendant Bacon was employed as a Vice-President.  The American National Bank ultimately approved the loan, with Abbott as sole owner of the restaurant.  Defendant Bacon had the application hand carried to the SBA office.

11
The SBA agreed to insure the loan if Abbott used $210,000 of his personal funds as capital injection, obtained insurance, provided a bondable contractor and architect, and had the liquor license transferred.  Additionally, of the $450,000 the bank agreed to loan, $192,847 was earmarked to be spent on renovating and remodeling the restaurant.  Construction funds were to be retained in escrow by the bank and money released through draws supplied by the contractor.

12
Various instruments prepared by Haimowitz and used to feign compliance with the loan terms formed the basis for various counts of the indictment against Haimowitz.  These included (1) a forged receipt for $30,000 as down payment received for renovation and remodeling work (Counts Five and Nine);  (2) a forged receipt for $161,304 as payment received for restaurant inventory and equipment purchases (Counts Six and Eight);  and (3) a forged receipt for $24,822.33 as prepaid insurance premiums (Counts Seven and Ten).

13
On January 4, 1980, the loan closing was held at the law offices of the attorney for American National Bank.  Of the $450,000 loan, about $170,000 was disbursed to the sellers, about $75,000 was given to Abbott as working capital, and $192,847 was held by the bank in escrow for construction work.

14
When the original contractor could not provide the required performance bond, Haimowitz met with defendant Harold Bloom, president of Blosam Contractors, Inc., who agreed to sign a "stipulated sum" contract whereby the necessary construction work would be done for $192,847.  It was agreed, however, that Blosam would do the work for $100,000, and the remainder would be kicked back to Abbott and Haimowitz.  Three draws were made from the bank for the renovation work, for which Abbott would receive from the bank a check payable to Abbott and Blosam.  Thereafter, Blosam paid a portion of each check to Abbott, who in turn paid a portion of the kickback to Haimowitz, to-wit:  $20,000 to $25,000.

15
Although Haimowitz was not charged in the substantive counts based on this kickback scheme, this scheme, together with the acts involved in the scheme to obtain the SBA loan, formed the basis of the conspiracy count (Count One) against Haimowitz.

I. DENIAL OF MOTION TO SUPPRESS

16
Appellant contends that prejudicial error resulted from the district court's denial of appellant's motion to suppress evidence seized from his law office.  As a result of the denial, the Government introduced as evidence Haimowitz's personal files of (1) Abbott's SBA loan application;  (2) the incorporation of Abbott's Restaurant;  (3) various suits by creditors against Abbott;  (4) Haimowitz's personal notebooks of telephone messages;  and (5) copies of letters to various persons.  Appellant offers five reasons for which the search warrant should have been held improperly issued.

A. Staleness of Probable Cause

17
The Affidavit for Search Warrant avers that Peter Abbott stated that on or about July 22, 1980 he was in Haimowitz's office and observed a file containing many documents relating to the loan application in question herein.  Judi Greenhut, a former secretary of appellant, also stated that as of June, 1980, there existed a file in Haimowitz's office containing the loan documents in question.  The affidavit was signed August 21, 1980.

18
The appellant maintains that because there was a seven and one-half month time lapse between the loan closing on January 4, 1980 and the August 21, 1980 date of the affidavit, the information contained in the affidavit was stale.

19
In United States v. Weinrich, 586 F.2d 481 (5th Cir.1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979), the appellants, convicted on drug conspiracy charges, argued that information relied upon in a wiretap application was fatally stale.  The first informant's tip was given on November 10, 1976, one hundred days prior to the application, and the second tip came on January 18, 1977, thirty days prior to the application.

20
In upholding the legality of the wiretap, the court noted:

21
The function of a staleness test in the search warrant context is not to create an arbitrary time limitation within which discovered facts must be presented to a magistrate.  Rather, the assay focuses on one relevant part of the determination that reasonable probable cause exists to warrant the issuance of an order to perform a wiretap or make a search.  Out-of-date information as to a single transaction could be seen to describe no more than an isolated event in the past.  Such an affidavit would not create probable cause to believe that similar or other improper conduct is continuing to occur. On the other hand, information which demonstrates a chain of related events covering a broad span of time continuing to the current period may furnish a most reliable indicia of present activity, thereby clearly demonstrating that probable cause exists for the order to intrude.

22
* * *

23
* * *

24
"In general, the basic criterion as to the duration of probable cause is the inherent nature of the crime.  The Circuits hold that where an affidavit recites a mere isolated violation it is not unreasonable to believe that probable cause quickly dwindles with the passage of time.  On the other hand, if an affidavit recites activity indicating protracted or continuous conduct, time is of less significance."

25
Id. at 491 (quoting Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir.1973)).  In the present case, information regarding the presence of fraudulent documents in Haimowitz's office was as recent as one month before the affidavit was signed.  Further, the nature of the offense charged and the place searched compel the conclusion that the information in the affidavit was not stale.  The documents in question reasonably could lead a person to conclude that they pertained to activities the records of which were likely to be maintained in the office.  See list infra.    This conclusion is further supported by the statement of Haimowitz's former secretary, Judi Greenhut, who averred that the practice of the office was to maintain documents indefinitely.  It was not unreasonable for the issuing magistrate to conclude that the documents were present in Haimowitz's office as of the date of the application.

B. Aguilar/Spinelli Challenge

26
In order to withstand fourth amendment scrutiny, the affidavit must provide the magistrate with enough essential facts to enable him to exercise his independent judgment and perform his function as a detached and neutral magistrate.   See Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969);  Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

27
Aguilar devised a two-part test of the sufficiency of an affidavit based on hearsay information:  first, the affidavit must provide information regarding the reliability of the information provided by the informant;  second, the affidavit must provide information regarding the credibility of the informant.   See United States v. Lefkowitz, 618 F.2d 1313, 1316 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980).

28
As in Lefkowitz, the affidavit in question indicates that Abbott personally observed the documents in question in Haimowitz's office.  The affidavit further relates events at which Abbott was himself present.  This satisfied the first Aguilar requirement.

29
The affidavit does not set forth the fact that Abbott himself had been convicted of felonies and engaged in numerous bad acts.  Nevertheless, the affidavit here contains much data that point to Abbott's credibility.  The affidavit contains detailed, firsthand information that is specific in its allegations, and is therefore "self-corroborating".   Lefkowitz, 618 F.2d at 1316 (quoting United States v. Banks, 539 F.2d 14, 17 (9th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626 (1976)).   See also Spinelli, 393 U.S. at 417, 89 S.Ct. at 589.  Some information supplied by Abbott, particularly with respect to the presence of fraudulent documents in Haimowitz's office, is corroborated in the affidavit by statements made by Judi Greenhut, Haimowitz's former secretary, whose credibility is unassailed.

30
We conclude that the affidavit is sufficient on its face to support the finding of probable cause made by the magistrate.

C. Franks v. Delaware Challenge

31
Haimowitz argues that the affidavit is insufficient because the omission of facts concerning Abbott's prior felony convictions and bad acts may have led the magistrate to a misconception of Abbott's credibility.

32
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the court held that in order to challenge a facially valid affidavit,2

33
the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine.  There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.  They should point out specifically the portion of the warrant affidavit that is claimed to be false;  and they should be accompanied by a statement of supporting reasons.  Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.  Allegations of negligence or innocent mistake are insufficient.  The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.  Finally, if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.

34
Id. at 171, 172, 98 S.Ct. at 2684 (footnote omitted).

35
At the outset, we note that Haimowitz's motion to suppress contains nothing more than conclusory allegations, unaccompanied by any offer of proof, that by his omission3 the affiant intended to mislead the magistrate with respect to Abbott's credibility.  Appellant claimed that "the affiant signing the Affidavit for Search Warrant intentionally misled the issuing magistrate as to the reliability of the informant, Peter R. Abbott."    He asserted as "inescapable" the conclusion that such must have been the intent.  He argued there was not "one single averment on the affiant's part as to Peter R. Abbott's reliability, an oddity in and of itself when an affidavit for a search warrant is based on hearsay information from an informant."    The reason for the affiant's deletion of this area, it is alleged, "is that affiant, an agent of the Federal Bureau of Investigation, knew Peter R. Abbott was about as unreliable a person as has ever been known."    Appellant contended that the F.B.I. had had contact with the individual called Peter R. Abbott for years, and at the time of the execution of the affidavit, knew of his extensive criminal record.  These were conclusory allegations, unsupported by an offer of proof.

36
Further, we conclude that even if the magistrate had known of Abbott's prior acts, the affidavit would still have supported a finding of probable cause for the reasons set forth supra, i.e., the firsthand character of Abbott's statements, coupled with Judi Greenhut's corroboration.

37
D. "Mere Evidence"

38
Appellant's fourth reason for asserting that the search warrant was illegal is that the papers were "mere evidence" of a crime, rather than instrumentalities of the crime, fruits, or contraband, and they could not be seized under Gouled v. United States, 255 U.S. 298, 310, 41 S.Ct. 261, 265, 65 L.Ed. 647 (1921).  This distinction prohibiting seizure of items with only evidential value and allowing seizure of instrumentalities, fruits, or contraband was rejected by the Supreme Court in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).  See Fed.R.Crim.P. 41(b) (property constituting evidence of a crime may be subject to seizure under a search warrant).

39
The appellant also argues that the admission into evidence of his papers effectively compelled him to testify against himself in violation of the fifth amendment, citing Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) and Gouled v. United States, 255 U.S. 298, 306, 41 S.Ct. 261, 264, 65 L.Ed. 647 (1921).  The Supreme Court rejected this argument in Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), holding that the search of an attorney's office for business records, their seizure, and subsequent introduction into evidence did not violate the fifth amendment.  Although the records in Andresen contained incriminating statements the attorney had voluntarily committed to writing, he was never required to say or produce anything, and no compulsion to speak, other than the inherent psychological pressure to respond at trial to unfavorable evidence, was present.

E. General Search

40
The appellant's final argument is also meritless.  Appellant avers that the search warrant constituted a "general search", see, e.g., Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), in that the documents listed in the affidavit were available either in the public records or in a collateral file maintained by the American National Bank, or the affidavit failed to show probable cause to believe that certain documents were actually in Haimowitz's office.

41
The warrant provided for the seizure of the following items from Haimowitz's office:

Description of Property to be seized:

42
1.   The following items pertaining to the application of Abbott's Restaurant, Inc., also known as Abbott, Inc. and Abbott's Restaurants, Inc. for a $450,000 loan from the American National Bank of Jacksonville and for a Small Business Administration guarantee of that loan:

43
loan applications;  lists of collateral;  letters on "Hotels of Distinction" stationery signed by Virginia Blasi;  contracts for the purchase and sale of Swain's Steakhouse;  receipts for the purchase of restaurant equipment;  letters and receipts from Morris, Gordon & Sons;  personal history statements of Peter Abbott;  contracts and quotes for the remodeling of Swain's Steakhouse, later known as Abbott's Restaurant;  letters of appraisal for the real property known as Swain's Steakhouse;  Small Business Administration statements regarding preconditions to be satisfied by the borrower before the issuance of the loan;  disbursement sheets;  correspondence and memoranda regarding arrangements to pay money to Fred Bower of the Small Business Administration and to Fred Bacon of the American National Bank of Jacksonville in connection with approval of the loan and loan guarantee;  cards in the Roledex file on the secretary's desk nearest to the door to Harold Haimowitz' personal office containing the names of officials of the Small Business Administration;  correspondence and memoranda regarding arrangements to have Paul Akin do an appraisal of property located at 5800 Phillips Highway, Jacksonville, Florida;  books and records showing the amount and disposition of monies paid to Harold Haimowitz by Peter Abbott;  blank stationery of Hotels of Distinction and Morris, Gordon & Sons;  telephone messages from Fred Bower, Fred Bacon, Harold Bloom, Peter Abbott and Paul Akin during the period from October 1979 through June 1980;  books records, and documents showing or tending to show an intent to deceive and/or knowledge of false statements made to the American National Bank of Jacksonville and to Small Business Administration on the part of Harold Haimowitz, together with other fruits, instrumentalities, and evidence of crime described in the attached affidavit.

44
2. The black IBM Selectric typewriter with self-correcting feature which is located on the secretary's desk used by Theresa Pinson, said desk having Theresa Pinson's name plate thereon, which is located in the common office area of Suite 1001, is on the Bay Street side of the common area and is on the second secretary's desk from the end of the common area on the right hand side as determined by facing Bay Street.

45
Compare Andresen, supra, 427 U.S. at 480 n. 10, 96 S.Ct. at 2748 n. 10, wherein a similar list was held not to constitute a "general warrant".  The observations of the Supreme Court in Andresen are particularly relevant in the case sub judice:

46
Petitioner also suggests that the specific list of the documents to be seized constitutes a "general" warrant.  We disagree.  Under investigation was a complex real estate scheme whose existence could be proved only by piecing together many bits of evidence.  Like a jigsaw puzzle, the whole "picture" of petitioner's false-pretense scheme with respect to Lot 13T could be shown only by placing in the proper place the many pieces of evidence that, taken singly, would show comparatively little.  The complexity of an illegal scheme may not be used as a shield to avoid detection when the State has demonstrated probable cause to believe that a crime has been committed and probable cause to believe that evidence of this crime is in the suspect's possession.  The specificity with which the documents are named here contrasts sharply with the absence of particularity in Berger v. New York, 388 U.S. 41, 58-59 [87 S.Ct. 1873, 1883, 18 L.Ed.2d 1040] (1967), where a state eavesdropping statute which authorized eavesdropping "without requiring belief that any particular offense has been or is being committed;  nor that the 'property' sought, the conversations, be particularly described," was invalidated.

47
Id.

48
The warrant in question narrowed and identified the documents subject to seizure, thereby minimizing the danger of a random search.  It also identified with adequate particularity the conspiracy under investigation.   See United States v. Bithoney, 631 F.2d 1, 2 (1st Cir.1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981).

49
The court finds no merit to appellant's argument that the fact that the documents sought were available from other sources renders the warrant an impermissible general search.  General warrants, allowing "a general, exploratory rummaging in a person's belongings," are prohibited by the requirement of a " 'particular description' of the things to be seized."   Andresen, 427 U.S. at 480, 96 S.Ct. at 2748 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971)).  This requirement was met in the present case.  There is no allegation of general rummaging in Haimowitz's office outside the scope of the warrant's authorization.  The specificity present in the description of property to be seized obviated the problem of a general search.   See Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965) (The specificity requirement " 'makes general searches ... impossible and prevents the seizure of one thing under a warrant describing another....  [N]othing is left to the discretion of the officer executing the warrant.' ")  (quoting Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927)), quoted in Andresen, 427 U.S. at 480, 96 S.Ct. at 2748.

II. RESTRICTION OF CROSS-EXAMINATION

50
Appellant next complains that his right to confrontation, U.S. Const. amend. VI, was violated when the district court limited his cross-examination of witness Abbott.  In particular, appellant sought to impeach Abbott's credibility with respect to his testimony that Haimowitz had instigated many of the illegal acts, by demonstrating that Abbott had previously engaged in the execution of fraudulent documents in Huntsville, Alabama, involving a lawyer and his secretary.  Appellant also complains that efforts to cross-examine Abbott on matters relating to (1) the source of monies invested in the restaurant venture, (2) prior fraudulent bank loans involving Abbott, and (3) governmental protection of Abbott's assets from judgment creditors were either prohibited or severely limited by the district court.

51
Serious restrictions of a defendant's right to cross-examine a witness can eviscerate the defendant's sixth amendment right to confront adverse witnesses and compel the reversal of a conviction.   United States v. Berkowitz, 662 F.2d 1127, 1138 (5th Cir.1981) (citing Davis v. Alaska, 415 U.S. 308, 315-18, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974)).  Although the extent of cross-examination on an appropriate subject is within the sound discretion of the trial court and will not be disturbed on review unless there is abuse of such discretion, there is "a sphere which a trial judge may not impinge, for the 'discretionary authority to limit cross-examination comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.' "   United States v. Tolliver, 665 F.2d 1005, 1008 (11th Cir.)  (quoting United States v. Elliott, 571 F.2d 880, 908 (5th Cir.), cert. denied sub nom.  Hawkins v. United States, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978)), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982).

52
We have carefully examined the record and conclude that the district court gave the appellant ample opportunity to cross-examine Abbott and expose facts from which the jury could draw fair inferences regarding Abbott's credibility.  The district court limited detailed excursions into collateral matters;  this was a proper exercise of the district court's discretion and did not deprive the defendant of his rights to confrontation.   See United States v. Cohen, 631 F.2d 1223, 1226 (5th Cir.1980).  The appellant was able to achieve his desired purpose of impeaching Abbott's testimony despite specific restrictions placed on his cross-examination by the trial court.4   See United States v. Lewis, 676 F.2d 508, 512 (11th Cir.), cert. denied, --- U.S. ----, 103 S.Ct. 313, 74 S.Ct. 291 (1982).  Appellant's claim that the trial court "constant[ly] limit[ed]" his cross-examination of Abbott is not supported by the record.

III. DENIAL OF SURREBUTTAL

53
Appellant's third specification of error is that the district court committed prejudicial error in refusing to allow the defendant the opportunity to find and present good character witnesses in surrebuttal to counter the character testimony of two listed government witnesses presented in rebuttal.

54
Appellant had taken the witness stand to deny the allegations of his involvement in the loan scheme.  The government called two witnesses in rebuttal, Herbert Kanning, a Jacksonville attorney who had known the appellant for ten years, and Thomas D. Treece, a Jacksonville attorney who had previously been a law partner of the appellant.  Both witnesses testified adversely to the appellant's reputation in the community for truth and veracity and as to their own opinion regarding the appellant's credibility.

55
After the government closed, there was a side bar conference regarding procedural matters unrelated to this appeal.  The district judge then informed the jury that the presentation of testimony and evidence had concluded, and dismissed them until the next morning.  The defendant's attorney then stated that he would like to have "some time to locate at the most two witnesses to testify" regarding the defendant's credibility.  The district court agreed with the prosecution that surrebuttal was within the discretion of the court, and denied the request, further noting that "the Court having announced that the testimony and evidence had been concluded would perhaps attach undue significance to that presentation."

56
"Although a criminal defendant cannot be compelled to take the stand in his own defense, once he chooses to testify 'he places his credibility in issue as does any other witness.' "   United States v. Lollar, 606 F.2d 587, 588 (5th Cir.1979) (citations omitted).  Thus, the district court correctly allowed the government to call witnesses to testify that the defendant's reputation for truth and veracity were bad and as to their own opinion regarding the defendant's credibility.   Id. at 588, 589.

57
Whether or not to allow evidence in surrebuttal is a matter within the sound discretion of the district court;  the district court's decision not to allow surrebuttal may not be disturbed unless such discretion was abused.   See, e.g., United States v. Sadler, 488 F.2d 434, 435 (5th Cir.)  (per curiam), cert. denied, 417 U.S. 931, 94 S.Ct. 2642, 41 L.Ed.2d 234 (1974).  In the present case, the trial court properly limited the rebuttal witnesses' testimony to the defendant's reputation and the witnesses' opinions regarding his truth and veracity.  This prevented the government from introducing new matters that may have prompted the need for surrebuttal on behalf of the defense.  See id.    Because the issue of the defendant's truthfulness was placed in issue upon his testimony, the government injected no new issue, and there was no abuse of the trial court's discretion to deny surrebuttal.

IV. SINGLE v. MULTIPLE CONSPIRACIES

58
Appellant's final contention is that the district court erred in failing to grant appellant's motion to dismiss Count One for duplicity.   See generally Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).  Appellant specifically urges that the "first" conspiracy concerned the acts leading to the obtaining of the SBA loan, the "second" relating to the acts surrounding the subsequent use of the proceeds.

59
The Fifth Circuit has consistently held that a single conspiracy may exist "even though the agreement that constitutes it has several objectives and aims at the commission of several offenses."    United States v. Rodriquez, 585 F.2d 1234, 1249 (5th Cir.1978) (citing United States v. Elliott, 571 F.2d 880 (5th Cir.1978)), aff'd on rehearing, 612 F.2d 906 (5th Cir.)  (en banc), cert. denied sub nom.  Albernaz v. United States, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980).  An examination of the indictment reveals the true character of the conspiracy charged herein.  The acts alleged leading up to the obtaining of the loan were the necessary precursors to the acts performed to reduce the loan monies to possession.  The indictment charges only one overall conspiracy in which Haimowitz was involved at each stage.

60
AFFIRMED.

*
 Honorable Virgil Pittman, U.S. District Judge for the Southern District of Alabama, sitting by designation

1
 Count One of the indictment charged that
defendants herein, and Peter Abbott, did knowingly and willfully conspire, combine, confederate and agree among themselves, and with others, both known and unknown to the grand jury, to defraud the United States, that is, the Small Business Administration, an agency of the United States, and to violate the laws of the United States, to-wit:
a) To make material false statements and reports in applications for loans and advances, for the purpose of influencing the action of a bank, the deposits of which were then insured by the Federal Deposit Insurance Corporation, in violation of Title 18, United States Code, Section 1014.
b) To possess false, forged, altered and counterfeit writing and documents, with the intent to defraud the United States and agencies thereof, and for the purpose of enabling another to obtain money from the United States or an agency thereof, in violation of Title 18, United States Code, Section 1002.
c) To make and use a false writing and document knowing the same to contain false, fictitious and fraudulent statements and entries in matters within the jurisdiction of the Small Business Administration, an agency of the United States, in violation of Title 18, United States Code, Section 1001.
d) To misapply more than $100 of the monies, funds, and credits of a bank, the deposits of which were then insured by the Federal Deposit Insurance Corporation, by an officer, and employee of said bank, in reckless disregard of the interests of said bank, in violation of Title 18, United States Code, Section 656.
Among the manner and means by which the defendants would and did carry out the conspiracy were the following:
1) Defendant, Harold Haimowitz, used his position as an attorney, past experience in business and real estate, and knowledge of the community to:  create false, fictitious and fraudulent documents, writings, applications and reports;  recruit necessary, willing and cooperative persons and firms to join the conspiracy;  provide the legal documents, contracts and writings, both true and false which were essential to the conspiracy;  counsel, advise and oversee the general operation of the conspiracy;  induce and inveigle innocent third parties to rely and act upon the representations, pretenses, promises and documentation provided by the conspirators.
* * *

2
 In Franks, the high court specifically addressed the question of when a defendant is entitled to an evidentiary hearing regarding an affidavit in support of a search warrant.  Id., 438 U.S. at 155, 156, 98 S.Ct. at 2676.  The Franks rationale, however, has been used to test the validity of a search warrant on appeal.   See United States v. Astroff, 578 F.2d 133 (5th Cir.1978) (en banc).   See also Lefkowitz, 618 F.2d at 1317.    Astroff is binding precedent in this court.   Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc)

3
 Franks dealt with an affirmative false statement, rather than an omission as in the present case.  Because there appears no reason to differentiate between an affirmative statement and a misleading omission, we assume, without deciding, that the principles of Franks permits an attack on warrants allegedly deficient as a result of such an omission.   See Lefkowitz, 464 F.Supp. 227, 233 (C.D.Cal.1979);  aff'd, (9th Cir.) 618 F.2d 1313, 1317 n. 3

4
 As a result of the district court's evidentiary rulings, the jury was given ample information from which to draw inferences regarding Abbott's reliability.  The jury knew Abbott's testimony was given under an agreement with the government whereby Abbott was to plead guilty to a single count in a related case in return for freedom from prosecution on any of the offenses arising out of the present case.  The jury was also aware that Abbott's sentencing on the guilty plea had been continued, and that the sentencing judge would be advised of his cooperation with the government
With regard to prior offenses, the jury was informed that Abbott had eight criminal convictions in Boston, Massachusetts and one criminal conviction in Jacksonville, Florida.  In addition to convictions, the jury knew that Abbott had been the middleman in a Boston cocaine transaction, had had an automobile burned in Boston, and had received other fraudulent bank loans, which were repaid out of insurance funds following fraudulent arson, in Boston.
The jury was also cognizant of the details of Abbott's involvement in governmental immunity programs.  The jury knew that Abbott received immunity in Boston for all crimes he disclosed to authorities, that at the time of trial he was being paid $1,300 per month and had been paid $11,000 during the previous 10-11 months by the government, and that he had been relocated by the government under an assumed name.  The jury was also aware that the government would attempt to place Abbott on the Witness Protection Program for his assistance in this case, wherein during a previous tenure Abbott had received $29,000 from the government.


264 P.3d 1059 (2011)
STATE
v.
LONG.
No. 105796.
Court of Appeals of Kansas.
December 2, 2011.

Decision Without Published Opinion
Affirmed.