818 F.2d 1443
23 Fed. R. Evid. Serv. 141
UNITED STATES of America, Plaintiff-Appellee,v.George DADANIAN and Jean Dadanian, Defendants-Appellants.
Nos. 85-5095, 85-5248.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Sept. 3, 1986.Decided June 4, 1987.

Howard L. Weitzman and Jerald W. Newton, Santa Monica, Cal., for defendants-appellants.
Fred Heather and Janet Goldstein, Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before CHAMBERS and KOZINSKI, Circuit Judges, and STRAND,* District Court Judge.
CHAMBERS, Circuit Judge:

1
This appeal arises from the conviction of George and Jean Dadanian, brothers, for mail fraud and running an illegal gambling business.  See 18 U.S.C. Secs. 1341, 1955.  George Dadanian was also convicted of interstate travel in aid of a racketeering enterprise and racketeering.  See 18 U.S.C. Secs. 1952, 1962(c).  Appellants challenge their convictions on several grounds.  We find that none of these grounds warrants reversal and affirm.

BACKGROUND

2
This prosecution was the result of the Dadanians' involvement in a fraudulent scheme to acquire a poker license in the City of Bell, California.

3
John Pitts, the Bell City Administrator and Peter Werrlein, a Bell City Councilman, persuaded the City of Bell to authorize poker playing and to grant one poker club license in the city to the California Bell Club (CBC) in which they held a secret fifty-one percent interest.  Initially Kevin Kirwan held Pitts' and Werrlein's interest on their behalf.  A dispute arose between Kirwan and Pitts, and Pitts decided to change his front man from Kirwan to George Danadian.  In order to preserve the appearance that Kirwan was selling his club interest to Dadanian rather than transferring Pitts' hidden interest, the Dadanians paid Kirwan with money he was to return to them "under the table."    George Dadanian and Kirwan traveled from Los Angeles to Las Vegas where they executed the documents for the interest transfer.

4
When the Dadanians applied to the Bell city council for approval to hold an interest in the CBC, they failed to disclose their interest was secretly held for Pitts.  George Dadanian held Pitts' interest in exchange for which Pitts agreed to assist the Dadanians in acquiring a second poker club license in the City of Bell.  Also, it was decided Pitts would receive $5,000 a month from the CBC distributions paid to the Dadanians.  Pitts entered into a plea agreement with the government and testified against the Dadanians at trial.

ADMISSION OF PLEA AGREEMENT TERMS

5
The Dadanians first contend that the district court erred in admitting Pitts' testimony that his plea agreement provided he would "truthfully and honestly cooperate with the government" and in admitting the agreement itself.  They argue this evidence constituted impermissible vouching for Pitts.

6
Because the Dadanians did not object at trial to this portion of Pitts' testimony or to admission of the agreement, "we may not review this evidentiary ruling unless appellant[s] can demonstrate that the admission of the evidence was plain error affecting [their] substantial rights.  Fed.R.Crim.P. 52(b)."   United States v. Hurt, 795 F.2d 765, 773 (9th Cir.1986), modified, 808 F.2d 707 (1987).  "Plain error is shown if the evidence was inadmissible and its admission affected the outcome and [defendants'] right to a fair trial."   United States v. Houser, 804 F.2d 565, 570 (9th Cir.1986).

7
Vouching may occur if the prosecution places the prestige of the government behind the witness or indicates that information not before the jury supports the witness's testimony.   Lawn v. United States, 355 U.S. 339, 359-60 n. 15, 78 S.Ct. 311, 323 n. 15, 2 L.Ed.2d 321 (1958).  Only the first type of vouching is at issue here.

8
The Dadanians' reliance on United States v. Roberts, 618 F.2d 530 (9th Cir.1980) to demonstrate impermissible vouching is misplaced.  In Roberts the prosecutor during closing argument referred to evidence not in the record by declaring that a detective had monitored the trial testimony of a government witness.  The jury could naturally infer that the detective had personal knowledge of relevant facts and was satisfied that these facts were accurately stated by the witness.  We found the inference to be improper vouching for the credibility of a government witness.

9
No such vouching occurred here.  The government did not offer personal assurances of Pitts' veracity.  The government did not point to evidence outside the record or create an improper inference as to Pitts' credibility.  We have upheld the admission of "truthful testimony" portions of a cooperation agreement with the government where the agreement was relevant to material facts at issue and the party to the agreement was subject to cross examination as to his motives.   See United States v. Rohrer, 708 F.2d 429, 433 (9th Cir.1983).  We do so again here.  The agreement was relevant to the material facts at issue and Pitts was subject to extensive cross-examination.  As admission of the terms of the plea agreement was proper, appellants have failed to demonstrate plain error.

INEFFECTIVE ASSISTANCE OF COUNSEL

10
The Dadanians argue also that trial counsel should have objected to the introduction into evidence of Pitts' plea agreement with the government.  They contend failure to do so constituted ineffective assistance.  We reject this argument.  Since admission of the terms of the agreement was proper, failure to make the objection did not fall below an objective standard of reasonableness.   Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984).  Moreover, this failure did not prejudice the Dadanians so that it was reasonably likely to have altered the outcome of their trial.   Id., at 694, 104 S.Ct. at 2068.

SUFFICIENCY OF THE MAIL FRAUD CONVICTIONS

11
The mail fraud counts of the indictment charged the mailing of false statements of economic interest by Pitts to the California Fair Political Practices Commission.  In completing the statements, Pitts failed to disclose his hidden interest in and income from the California Bell Club.  Count Nine also charged the mailing of a letter by Pitts to a plaintiff in a lawsuit filed by the limited partners of the CBC against the Danadians alleging the secret ownership arrangement.  Enclosed with the letter was a copy of a false economic interest form.  The letter urged Pitts be dismissed from the lawsuit.

12
The Dadanians contend there is insufficient evidence to support their convictions for mail fraud because the government failed to establish that the mailings were reasonably foreseeable.  They also contend the mailing by Pitts of false statements of economic interest was in his official capacity and "legally compelled."

13
In reviewing a claim for insufficient evidence, this court must determine after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt.   United States v. Stewart, 770 F.2d 825, 831 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 888, 88 L.Ed.2d 922 (1986), [citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ].

14
The elements of mail fraud are:  (1) a scheme or artifice to defraud;  and (2) use of the mails in furtherance of the scheme.   United States v. Vaughn, 797 F.2d 1485, 1492-93 (9th Cir.1986).  One causes the mail to be used when he "does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended."   Pereira v. U.S., 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-63, 98 L.Ed. 435 (1954).

15
"It is well settled ... that so long as one participant in a fraudulent scheme causes a use of the mails in execution of the fraud, all other knowing participants in the scheme are legally liable for that use of the mails."   United States v. Toney, 598 F.2d 1349, 1355 (5th Cir.1979), cert. denied, 444 U.S. 1033, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980).

16
In viewing the evidence in the light most favorable to the government, a jury could reasonably find that the Danadians could have foreseen that Pitts, as Bell City Administrator, would file statements of economic interest with the Fair Political Practices Commission.  Since the concealment of Pitts' CBC financial interest was the cornerstone of the scheme to defraud, it was reasonably forseeable that Pitts would falsify and mail his economic interest statements to ensure nondisclosure.  Similarly, the mailing of the letter denying Pitts' interest in CBC to the limited partners who had sued the Dadanians was reasonably forseeable.  A rational jury could have found beyond a reasonable doubt that the Dadanians knew of the scheme to defraud and that the mail was used in furtherance thereof.

17
We reject appellants' contention that their mail fraud convictions are invalid under Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960) because the mailings were "legally compelled."    In Parr the mailing of tax assessments which did not contain misrepresentations was held not to be an unlawful execution of a fraudulent scheme to embezzle school district funds since the defendants were required by law to assess and collect taxes, and because the tax assessments were neither alleged nor proved to be illegal, excessive or padded.   Id., at 387, 391, 80 S.Ct. at 1181, 1183.  Here Pitts' statements of economic interest, while required by law to be filed, were false on their face.  Unlike Parr, these false statements were made in furtherance of the scheme to keep secret that Dadanian held the CBC interest for Pitts.   See United States v. Bagnariol, 665 F.2d 877, 899 (9th Cir.1981) (per curiam), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982).

18
SUFFICIENCY OF THE INDICTMENT THE TRAVEL ACT COUNT

19
George Dadanian argues his conviction on the Travel Act count, 18 U.S.C. Sec. 1952,1 must be set aside because the indictment did not allege sufficiently the third element of the offense.

20
We review the sufficiency of an indictment de novo.  United States v. Benny, 786 F.2d 1410, 1414 (9th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986).  "[T]he indictment must allege the elements of the offense charged and the facts which inform the defendant of the specific offense with which he is charged."   United States v. Lane, 765 F.2d 1376, 1380 (9th Cir.1985) (citing Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962)).   Accord United States v. Gray, 809 F.2d 579, 583 (9th Cir.1987).  Also, "the indictment must provide the defendant with a description of the charges against him in sufficient detail to enable him to prepare his defense and plead double jeopardy at a later prosecution."   Lane, 765 F.2d at 1380.  "An indictment which tracks the offense in the words of the statute is sufficient if those words fully, directly, and expressly set forth all the elements necessary to constitute the offense intended to be proved."   United States v. Tavelman, 650 F.2d 1133, 1137 (9th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1429, 71 L.Ed.2d 649 (1982).

21
An indictment under the Travel Act requires allegations of three elements:  (1) interstate commerce or use of an interstate facility;  (2) with intent to promote an unlawful activity;  and (3) a subsequent act in furtherance of that activity.    Tavelman, 640 F.2d at 1138 (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974)).

22
The indictment in this case is adequate.  It alleged that on or about January 22, 1981, (1) George Dadanian traveled interstate between California and Nevada;  (2) with intent to promote a violation of Secs. 67 and 68 of the California Penal Code (specifically bribery and receiving bribes);  and (3) thereafter did promote, manage, carry or, facilitate and commit these crimes, in violation of 18 U.S.C. Sec. 1952.

23
The third allegation that Dadanian did promote, manage, carry or facilitate the crime of interstate travel with the intent to promote bribery in violation of Sec. 1952 provided Dadanian with a sufficient description of the charges against him.  The indictment tracked the offense in the words of the statute and set forth adequately the third element of subsequent acts in furtherance of interstate commerce.  These allegations are sufficient to state a violation of 18 U.S.C. Sec. 1952.

24
AN ILLEGAL GAMBLING BUSINESS UNDER 18 U.S.C. Sec. 1955

25
The Dadanians contend the California Bell Club was not an illegal gambling business within the meaning of 18 U.S.C. Sec. 19552 since its operation was not in violation of state gambling laws as provided in Sec. 1955(b)(1)(i).  This argument presents a question of first impression.

26
We begin the analysis with the premise that criminal statutes are to be construed narrowly, FCC v. American Broadcasting Co., 347 U.S. 284, 296, 74 S.Ct. 593, 600-01, 98 L.Ed. 699 (1954).  In construing a statute in a case of first impression we look first to the language of the statute itself, and second to the statute's legislative history.   See Brock v. Writers Guild of America, West, Inc., 762 F.2d 1349, 1353 (9th Cir.1985).  The plain meaning of the words used controls, absent a clearly expressed legislative intent to the contrary.   Powell v. Tucson Air Museum Foundation of Pima County, 771 F.2d 1309, 1311 (9th Cir.1985).  Our review is de novo.  See United States v. Louisiana-Pacific Corp., 754 F.2d 1445, 1447 (9th Cir.1985).

27
The expressed purpose of Congress in enacting Sec. 1955 was to confer federal jurisdiction over "illegal gambling."    (see, e.g., H.R.Rep. No. 1549, 91st Cong., 2d Sess. 53 (1970), U.S.Code Cong. & Admin.News 1970 p. 4007;  S.Rep. No. 617, 91st Cong., 1st Sess. 73 (1969)).  The statute focuses on the operation of an "illegal gambling business" which is "a violation of the law of a state or political subdivision in which it is conducted."

28
California state law permits the operation of poker clubs if authorized by local law.  Cal.Penal Code Sec. 337 (West 1970).  The Bell Municipal Code Secs. 4220-4237 authorizes the operation of gambling establishments provided those establishments comply with the Bell gambling ordinance.  That ordinance requires full disclosure of all persons with an interest in a gambling operation.  City of Bell, Cal.Mun.Code Sec. 4222 (1978).  Section 4237 requires that any interest, acquisition or transfer in a card club be disclosed and specifically prohibits the transfer of an interest without the consent and permission of the Bell City Council.  Section 1100 of the Bell Municipal Code provides that violation of any of the above provisions is a misdemeanor.  The gambling operation in this case, the California Bell Club, involved the violation of the Municipal Code of the City of Bell inasmuch as the Dadanians violated its disclosure laws.

29
The Dadanians' contention that the CBC held a facially valid gambling license and therefore was a business not in violation of state law is specious.  As this court stated in United States v. Polizzi, 500 F.2d 856, 871 (9th Cir.1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975) which considered and rejected a similar argument as it related to 18 U.S.C. Sec. 1952, "Acceptance of this construction ... would effectively emasculate the statutory scheme of requiring the disclosure of the identities of the persons who would be involved in the gambling enterprise."    The disclosure requirement of the Bell Municipal Code surely is designed to prevent the infiltration of criminal elements into gambling in the City of Bell.  Acceptance of the construction offered by the Dadanians would afford a shield to criminal activity never intended.

30
Moreover, the legislative intent of Sec. 1955 is to single out for federal prohibition "the element of gambling operations involving the corruption of local law-enforcement officials ... and to make it possible for the Federal government to intervene where local and State governments have become ... incapable of law enforcement by reason of the corruption of responsible officials."    S.Rep. No. 617, 91st Cong., 1st Sess. 74 (1969).  The statute was intended to aid and supplement local law enforcement efforts.  116 Cong.Rec. 591 (1970).  The collusion between the Dadanians and the local corrupt city administrator Pitts is one of the kinds of conduct Sec. 1955 contemplated. The plain language of the statute and its legislative history support this construction.  We find no legislative intent to the contrary.

31
We conclude that Sec. 1955 was intended to reach the conduct engaged in by the Dadanians.  The government must show under Sec. 1955 that the California Bell Club is a gambling business conducted in violation of state or local law.  This it has done.

CLAIM OF SIXTH AMENDMENT VIOLATION

32
Finally, the Dadanians claim that their sixth amendment rights under the confrontation clause were violated by the district court's failure to allow cross examination of Pitts about his maximum jail time exposure.  This argument has no merit.

33
While the sixth amendment guarantees criminal defendants the right to cross-examine adverse witnesses to uncover bias and to expose motive in testifying, the right is not absolute.   Reiger v. Christensen, 789 F.2d 1425, 1433 (9th Cir.1986).  A trial judge's imposition of limits on defense counsel's inquiry into the potential bias of a prosecution witness is proper when based on concern about confusion of the issues or where the interrogation is repetitive or only marginally relevant.   Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

34
The Dadanians' reliance on Van Arsdall is misplaced.  There the trial court prohibited all inquiry into the possibility that a government witness would be biased as a result of the state's dismissal of a pending criminal charge.  The Supreme Court found this ruling violated defendants' rights secured by the confrontation clause.

35
The facts of Van Arsdall do not remotely resemble the facts present here.  Pitts was subject to extensive cross-examination about the terms of his agreement with the government.  Defense counsel elicited the fact that in exchange for Pitts' cooperation the government agreed to dismiss nine mail fraud counts and illegal gambling and racketeering charges.  On cross-examination Pitts admitted he had lied to the FBI investigator who first questioned him, had perjured himself repeatedly, and falsified his income tax returns.  Defense counsel was afforded more than an adequate opportunity to expose Pitts' potential bias and motive in testifying.  The amount of jail time Pitts faced is at best marginally relevant.  The Dadanians' sixth amendment rights were not violated.

36
AFFIRMED.

*
 Honorable Roger G. Strand, United States District Judge for the District of Arizona, sitting by designation

1
 18 U.S.C. Sec. 1952 provides in part:
(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to--
(1) distribute the proceeds of any unlawful activity;  or
(2) commit any crime of violence to further any unlawful activity;  or
(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $20,000 or imprisoned for not more than five years, or both.

2
 Section 1955 provides, in part:
(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both.
(b) As used in this section--
(1) "illegal gambling business" means a gambling business which--
(i) is a violation of the law of a State or political subdivision in which it is conducted;  (ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business;  and (iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.


IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-92-051-CR

GARY SALAZAR,

	APPELLANT

vs.

THE STATE OF TEXAS,

	APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT

NO. 0911274, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

PER CURIAM
	A jury found appellant guilty of murder and assessed punishment at imprisonment
for thirty-seven years.  Tex. Penal Code Ann. § 19.02 (West 1989).  We will affirm.
	On the night of February 8, 1991, members of an Austin street gang called the
"Latin Kings" threw a bottle at a car driven by Mark Gonzales, a member of a rival gang called
the "Brothas."  A chase ensued during which one of the "Latin Kings" pointed a pistol at
Gonzales.  Later that night, Gonzales went to appellant's house and told him what had happened.
Appellant, also a member of the "Brothas," armed himself with a sawed-off shotgun.  Appellant,
Gonzales, and a third man then drove to the house occupied by Gabriel Loera, one of the "Latin
Kings" involved in the earlier incident.  As the three "Brothas" drove slowly past Loera's house
in a pickup truck, appellant fired several shots with the shotgun, fatally wounding Michael
Rangel.
	Rangel was a longtime friend of Loera, but was not a member of any gang.  On
the night in question, he and his wife stopped by Loera's house to visit, and Rangel was standing
in the front yard talking with Loera when appellant and his comrades drove past.  From all that
appears in the record, Rangel had the misfortune of being in the wrong place at the wrong time.
	In his third point of error, appellant complains of rulings by the district court
excluding testimony from three witnesses, one of whom was his mother, Mary Salazar.  Salazar
would have testified that shots were fired at her house from passing cars on December 30, 1990,
January 6, 1991, and June 17, 1991.  Salazar did not know who fired these shots, but she had
heard that it was members of the "Latin Kings."  Appellant knew about these incidents, but was
not present when they occurred.
	Appellant argues that Salazar's testimony was relevant to show appellant's state of
mind on the night of the charged offense.  See Tex. Penal Code Ann. § 19.06(a) (West Supp.
1993).  This argument is plainly without merit as it relates to the June 1991 incident, because it
took place after the shooting for which appellant was on trial.  We also believe that the district
court could reasonably conclude that the December 1990 and January 1991 incidents were also
irrelevant, as there was no evidence linking the deceased to them in any way.  Furthermore, Mary
Salazar's testimony would have added nothing to that of Austin police officer Mark Gil, who
described the drive-by shootings at Salazar's house and testified that threats against appellant's
family had been made by members of the "Latin Kings."  See Tex. R. Crim. Evid. 403.
	Appellant also contends that he should have been permitted to introduce the
testimony of Austin police officers Hipolito and Zahara.  The record does not clearly reflect what
the officers' testimony would have been.  Tex. R. Crim. Evid. 103(a)(2); Tex. R. App. P. 52(b).
Apparently, Hipolito made an entry in police records that the shootings at Mary Salazar's house
were gang-related, while Zahara was one of the officers who investigated the June 1991 incident.
The relevance of the officers' proposed testimony is not established.
	We hold that the district court did not abuse its discretion by excluding the
proffered testimony of Mary Salazar and officers Hipolito and Zahara.  The third point of error
is overruled.
	The driver of the pickup from which appellant fired the fatal shots testified that
someone shot at them as they drove past Loera's house and that appellant returned fire.
Accordingly, the district court's charge to the jury included an instruction on the use of deadly
force in self-defense.  Tex. Penal Code Ann. § 9.32 (West Supp. 1993).  The court limited the
self-defense instruction by including a charge on provoking the difficulty.  In point of error four,
appellant complains that the court erred by refusing his request for an instruction on his right to
arm himself.  The requested instruction read:

You are instructed further in connection with the law of self defense that if you
find from the evidence that shortly prior to the killing the defendant reasonably
apprehended an attack upon his person by the deceased or another acting with him,
then the fact that the defendant armed himself with a gun would in wise [sic] lessen
his right of self defense because he would have a right to arm himself if he
reasonably feared an attack.

	When the trial court limits the defendant's right to self-defense by giving an
instruction on provoking the difficulty, the jury should be advised that the defendant's right of
self-defense is not necessarily abridged by the fact that he carried arms to the scene of the
difficulty if the evidence supports the instruction.  Young v. State, 530 S.W.2d 120, 122 (Tex.
Crim. App. 1975); Brunson v. State, 764 S.W.2d 888, 890-91 (Tex. App.--Austin 1989, pet.
ref'd).  Whether a trial court reversibly errs by failing to instruct the jury on the defendant's right
to arm himself turns on whether the evidence raised the issue.  Williams v. State, 580 S.W.2d
361, 363 (Tex. Crim. App. 1979).  Appellant argues that "[t]he evidence clearly showed through
the testimony of Officer Gil that the Appellant and his family were still in danger from the Latin
Kings and that Mark Gonzales was in imminent danger."
	We will assume for the purpose of this opinion that the attack on Gonzales earlier
that night and the drive-by shootings during the preceding months gave appellant an arguable basis
for fearing an attack by members of the "Latin Kings."  But the jury instruction requested by
appellant, and that he now argues should have been given, conditioned appellant's right to arm
himself on a jury finding that he "reasonably apprehended an attack upon his person by the
deceased or another acting with him."  There is no evidence in the record from which the jury
could have made such a finding.  It was undisputed that Michael Rangel was not a member of the
"Latin Kings" or any other gang, and there was no evidence that he was involved in the earlier
drive-by shootings.  Gonzales testified that Rangel was not involved in the attack against him.
In the absence of any evidence to support the requested instruction, no error is shown.  Point of
error four is overruled.
	In point of error one, appellant urges that the district court erred by failing to
request the assignment of another judge to hear appellant's motion for recusal.  See Tex. Gov't
Code Ann. § 74.059(c)(3) (West 1988).  After the first witness testified, the jury was removed
and the district judge stated for the record that it had come to his attention that he had represented
the deceased in a criminal case several years previously.  Defense counsel made an oral motion
for recusal on the ground that "the Court's rulings and decisions on motions and admissibility of
evidence may, in some way at some time, be affected by your Honor's representation of the
deceased in the past."  See DeBlanc v. State, 799 S.W.2d 701, 705 (Tex. Crim. App. 1990)
(motion for recusal should be in writing and filed ten days before trial or hearing).  The motion
was overruled and trial resumed.  The next morning, before the jury was brought to the
courtroom, the judge stated that he had arranged for the appointment of a judge to hear the recusal
motion and asked defense counsel if she desired to have a hearing.  Counsel replied that, after
researching the question and speaking to appellant, she was "satisfied with the proceedings as
already had and we are not asking for [a hearing] at this point."
	Appellant argues that the district court erred by failing to immediately stop the trial
when the oral motion for recusal was made.  Any error was waived, however, when appellant
withdrew the motion the following day.  Point of error one is overruled.
	Appellant's second point of error asserts that his trial counsel's withdrawal of the
recusal motion constituted ineffectiveness.  To prevail on this point, appellant must demonstrate
that counsel's decision was outside the wide range of professionally competent assistance and that,
but for this decision, the result of the trial probably would have been different.  Hernandez v.
State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986).  Appellant satisfies neither burden.
	Appellant makes no effort in his brief to show that the district judge's previous
representation of the deceased was a proper ground for recusal.  In the absence of any showing
that the recusal motion would or should have been granted, appellant does not demonstrate that
counsel's decision to withdraw the motion constituted ineffectiveness.
	Appellant also fails to demonstrate harm as a result of counsel's decision.
Appellant notes that twenty-eight of the State's thirty-four trial objections were sustained by the
court, while only three of appellant's sixteen trial objections were sustained.  This statistical
comparison proves nothing, however, in the absence of a showing that the court's rulings were
incorrect.  Appellant also cites four instances in which he claims the district court displayed
partiality in favor of the State.  Each instance involves a ruling by the court on an objection by
the prosecutor or by defense counsel.  Appellant does not cite any authority to support the
conclusion that these rulings were improper.  We have carefully reviewed the record and find
appellant's allegation of partiality or favoritism on the part of the district court to be baseless.
Point of error two is overruled.
	The judgment of conviction is affirmed.

[Before Chief Justice Carroll, Justices Aboussie and Jones]
Affirmed
Filed:   April 21, 1993
[Do Not Publish]


751 F.2d 373
U.S.v.Zogaib
NO. 83-1447
United States Court of Appeals,second Circuit.
SEP 04, 1984

1
Appeal From:  E.D.N.Y.

2
AFFIRMED.


62 N.J. Super. 250 (1960)
162 A.2d 601
ALICE EULE, PLAINTIFF-APPELLANT,
v.
EULE MOTOR SALES AND RUSSELL A. BOERTZEL, DEFENDANTS-RESPONDENTS.
Superior Court of New Jersey, Appellate Division.
Argued June 21, 1960.
Decided July 6, 1960.
*251 Before Judges PRICE, SULLIVAN and FOLEY.
*252 Mr. William V. Breslin argued the cause for plaintiff-appellant (Mr. William J. Scanlon on the brief).
Mr. Edward C. Hillis argued the cause for defendant-respondent Russell A. Boertzel (Messrs. Marley, Winkelried & Hillis, attorneys).
Mr. William R. Morrison argued the cause for defendant-respondent Eule Motor Sales (Messrs. Morrison, Lloyd & Griggs, attorneys).
The opinion of the court was delivered by FOLEY, J.A.D.
Plaintiff suffered personal injuries when a motor vehicle owned by Eule Motor Sales, a partnership, and operated by her husband Joseph Eule, collided with an automobile owned and operated by Russell A. Boertzel in Fairlawn, New Jersey. Joseph Eule was a general partner in Eule Motor Sales.
Plaintiff instituted this action against Eule Motor Sales and Boertzel; the partners, Joseph Eule and Arthur McKeever, were not joined as defendants. The answer filed in behalf of Eule Motor Sales denied that Joseph Eule was driving on the business of the partnership at the time of the accident and alleged affirmatively that the husband and wife relationship precluded a recovery against the partnership. Boertzel answered denying his liability and also filed a crossclaim against Eule Motor Sales based on the Joint Tortfeasors Contribution Law. N.J.S. 2A:53A-1 et seq.
After the case had been pretried and discovery completed, Eule Motor Sales moved for summary judgment under R.R. 4:58. Both the nonagency and interspousal immunity defenses were argued in a memorandum which accompanied this motion. The motion was granted by the trial court "for the reasons set forth in the oral arguments and supported by the brief of said defendant." Plaintiff appealed.
Preliminarily, we deem it advisable to define the scope of our opinion. The basic attack upon the judgment, as it *253 appears in plaintiff's brief, is that plaintiff should be permitted by "decisional law" to maintain an action against the partnership notwithstanding the fact that her husband was a member thereof. Additionally, the thesis projected in the brief is that interspousal immunity should be abolished in all tort actions. However, at the commencement of the oral argument counsel for plaintiff announced that, in light of the present state of the law, he would refrain from taking such a broad position but would confine his argument to a wife's right to maintain a tort action against a partnership of which her husband is a member, reserving, however, the right to urge upon the Supreme Court that interspousal immunity in all tort actions should be abolished. We shall restrict our treatment of the problem to the area delimited by counsel.
The theme espoused by plaintiff is that since her action is against the partnership entity as distinguished from the individual members thereof, her right of action should be viewed as if the partnership were a corporation, in which case the action would be maintainable. Cf. 1 Fletcher, Corporations, § 33 (1931). This contention is founded on the premise that in a case such as this a partnership is regarded as a jural entity.
The philosophy of Mazzuchelli v. Silberberg, 29 N.J. 15 (1959), is otherwise. There the court, after an extensive review of authorities, concluded that for the purposes of the Workmen's Compensation Act a partnership may not be deemed a jural entity. Id., 29 N.J., at pp. 19-24. In so holding the court made reference to what might be interpreted as a contrary view expressed in Felice v. Felice, 34 N.J. Super. 388 (App. Div. 1955). In Felice the Appellate Division permitted a recovery on a workmen's compensation claim by an employee against a partnership, of which her husband was a member, upon the theory that in the purview of the Workmen's Compensation Law, having in mind the beneficent social intention of the Legislature, the employee-wife's contract of employment was with a jural entity and *254 not with her husband individually. The Supreme Court in Mazzuchelli approved the result in Felice but said:
"We add that there is no conflict with the actual holding in Felice v. Felice, 34 N.J. Super. 388 (App. Div. 1955). * * * The result was a fair adjustment between a wife's ancient inability to sue her husband for tortious injury and the statutory policy that the consequences of industrial injury be deemed to be a business expense. The observations there made with respect to the relationship between the partners and an employee were unnecessary for the decision. * * *" 29 N.J., at p. 24
We find that the rationale of Mazzuchelli applies to the case sub judice and accordingly hold that for the purposes of this action the partnership is not a jural entity.
This inevitably brings into focus the relationship between the husband's interest in the partnership and the statutory immunity from suit for tortious injuries brought by the wife. In Koplik v. C.P. Trucking Corp., 27 N.J. 1 (1958), Justice Francis speaking for the court in noting that the common law, which denied redress between husband and wife by action at law or in equity, has been diluted in the various states and in England by "married persons" statutes, nevertheless held that R.S. 37:2-5 which recites that "Nothing in this chapter contained shall enable a husband or wife to contract with or to sue each other, except as heretofore, and except as authorized by this chapter," clearly debarred an action by the wife against her husband in a tort case, even though the tort was antenuptial in origin. In Koplik the court defined the ratio decidendi of actions between spouses thus:
"* * * the crucial criterion is simply whether the litigants are husband and wife. If so, the public policy of the State, as reflected in the statute, bans the action." 27 N.J., at p. 7.
The determination of whether Joseph Eule is in fact a real party in interest thus becomes focally significant and involves a survey of the rights and obligations of a general *255 partner, and specifically the rights and obligations of the plaintiff's husband with respect to the net assets of this partnership. In the very nature of the partnership agreement he was entitled to 50% of the net assets; hence if such assets should be diminished to satisfy a judgment recovered by the wife against the partnership, the husband's share therein would be reduced pro tanto. On the other hand if the partnership assets proved to be insufficient to satisfy the judgment, Joseph Eule's joint and several liability as a partner would require him to respond to his wife personally. R.S. 42:1-15.
Since, in either event, maintenance of this action by the wife would in effect deprive the husband of the benefits of the interspousal immunity granted by R.S. 37:2-5, we hold that for the purposes of conforming with the public policy implicit in the statute the husband must be regarded as a "litigant" and a real party in interest, and consequently that the action falls within the interdiction of the statute.
Lastly, plaintiff argues that, independent of the issue of interspousal immunity, a factual question was presented as to whether Joseph Eule was on the business of the Eule Motor Sales at the time of the accident. In view of our determination of the partnership's nonliability the agency of its driver is a moot question.
Affirmed.


        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             CLAY DAWKINS,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D14-167

                               [June 1, 2016]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Raag Singhal, Judge; L.T. Case No. 01010399CF10A.

  Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

   Clay Dawkins appeals his sentence after the trial court found that he
willfully and substantially violated his probation, and sentenced him to
serve twenty years in the Department of Corrections. Dawkins argues that
the sentence is illegal because the trial court relied upon material
misinformation regarding the amount of gain-time that Dawkins would
receive, and the substance of Dawkins’s original plea agreement. We
disagree, and affirm.

   After reviewing the record, including the sentencing hearing, we are
satisfied that the trial court did not rely upon any presumed amount of
gain-time that Dawkins would receive, instead stating that it “can’t tell [the
Department of Corrections] what to do with their credits and all of that,”
and only stating what it believed Dawkins’s sentence “could be” with gain-
time.

   Additionally, we do not read the record to support the contention that
the trial court was misinformed regarding the substance of Dawkins’s
original plea agreement.
   Therefore, we affirm Dawkins’s judgment and sentence. However, as we
stated in Jackson v. State, 925 So. 2d 1168, 1170 n.2 (Fla. 4th DCA 2006):

      Although there is no evidence that the court was mistaken,
      [the defendant] can file a motion for reduction of the sentence
      pursuant to [Florida Rule of Criminal Procedure] 3.800(c) after
      our mandate issues if he believes that the trial court may be
      inclined to lessen his sentence.

   Dawkins has available the same opportunity in this case, should he so
choose.

   Affirmed.

WARNER and FORST, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.

                                    2


DISMISS; and Opinion Filed July 9, 2019.

                                                                In The
                                          Court of Appeals
                                   Fifth District of Texas at Dallas
                                                      No. 05-18-01300-CV

                                          LARRY DAVIS, Appellant
                                                    V.
                                      CREST AT PARK CENTRAL, Appellee

                                On Appeal from the County Court at Law No. 2
                                            Dallas County, Texas
                                    Trial Court Cause No. CC-18-05139-B

                                         MEMORANDUM OPINION
                                     Before Justices Bridges, Brown, and Nowell
                                              Opinion by Justice Brown
          Appellant appeals from the trial court’s October 24, 2018 order setting the supersedeas

bond in a forcible detainer case.1 Typically, we would treat this appeal as a motion to review the

amount of the supersedeas bond. However, as detailed below, this issue is now moot.

          After reviewing the clerk’s record, the Court instructed appellant to file, by May 28,

2019, a letter brief addressing our jurisdiction over this appeal. We cautioned appellant that

failure to comply may result in dismissal of the appeal without further notice. As of today’s

date, appellant has not filed a response.

          The trial court signed the judgment in the underlying forcible detainer case on October

18, 2018. A judgment in a forcible detainer case may not be stayed under any circumstances unless
     1
      On October 18, 2018, the trial court signed a final judgment in the underlying forcible detainer case. Appellant timely appealed that
judgment, and it was assigned appellate cause number 05-18-01299-CV. That appeal remains pending.
the appellant files a supersedeas bond in the amount set by the trial court within ten days of the date

the judgment is signed. See TEX. PROP. CODE ANN. § 24.007. Because the underlying forcible

detainer judgment can no longer be stayed, review of the order setting the bond is now moot.

See Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999) (appellate court cannot

decide moot controversy). Accordingly, we dismiss this appeal for want of jurisdiction. See

TEX. R. APP. P. 42.3(a).

                                                       /Ada Brown/
                                                       ADA BROWN
                                                       JUSTICE

181300F.P05

                                                 –2–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

LARRY DAVIS, Appellant                               On Appeal from the County Court at Law
                                                     No. 2, Dallas County, Texas
No. 05-18-01300-CV         V.                        Trial Court Cause No. CC-18-05139-B.
                                                     Opinion delivered by Justice Brown. Justices
CREST AT PARK CENTRAL, Appellee                      Bridges and Nowell participating.

       In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

       It is ORDERED that appellee CREST AT PARK CENTRAL recover its costs of this
appeal from appellant LARRY DAVIS.

Judgment entered this 9th day of July, 2019.

                                               –3–


863 F.Supp. 929 (1994)
Joseph ROBERSON d/b/a Roberson Orchards; James R. Roberson d/b/a Roberson Orchards, Plaintiffs,
v.
E.I. DUPONT DE NEMOURS & CO., Defendant.
Civ. No. 93-3092.
United States District Court, W.D. Arkansas, Harrison Division.
September 26, 1994.
*930 J. Bruce McMath, McMath Law Firm, W. Evans Benton, Little Rock, AR, for plaintiffs.
W. Michael Adams, J. David Garrett, James C. McMichael, Jr., Shreveport, LA, James M. Moody, Wright, Lindsey & Jennings, Little Rock, AR, for defendant.

MEMORANDUM OPINION
H. FRANKLIN WATERS, Chief Judge.
Joseph and James R. Roberson d/b/a Roberson Orchards, plaintiffs in this case, have filed state law claims for negligence, strict liability and breach of warranty against defendant E.I. DuPont. These causes of action concern Dupont's fungicide products marketed under the brand name of Benlate 50 DF.
DuPont filed a motion for partial summary judgment seeking dismissal of plaintiffs' state law claims to the extent that these claims are premised upon a showing of inadequate labeling or packaging. DuPont argues that such claims are expressly preempted by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C.A. §§ 136-136y (1980 and West Supp.1994).

I. FACTUAL BACKGROUND
In 1986, DuPont began to manufacture and distribute Benlate as a fungicide. On September 1, 1989, the EPA placed a stop order on the sale, use and removal of Benlate, because it was claimed that "EPA has reason to believe that you have been selling this pesticide in an adulterated condition which constitutes an unlawful act under section 12(a)(1)(e) of FIFRA, 7 U.S.C.A. § 136j(a)(1)(e)." (Pls.' Resp.Def.'s Mot.Part. Summ.J., Ex. 684). According to the EPA, "[a]nalytical results showed numerous batches of Benlate and Tersan to be significantly contaminated with atrazine," an herbicide. The Robersons claim that this herbicide contamination did great harm to their peach orchards.
*931 According to the Robersons' summary judgment materials, the atrazine contamination occurred in 1988 and 1989 when the Benlate was being manufactured by a DuPont contract manufacturer, Terra International, Inc. It appears that prior to producing Benlate, Terra had produced a herbicide called Prozine which is composed of Atrazine and Prowl. Terra attempted to clean out the traces of Atrazine and Prowl from its plant equipment by flushing it with starch and sugar. The contaminated starch and sugar was then used during Benlate production as inert matter. The starch and sugar were used at measured rates so as to achieve contamination levels no greater than 20 parts per million. It appears that DuPont was aware of this process.
According to the Robersons' summary judgment materials, the Benlate label contained an error in the proper application rate which resulted in rates of application at three times the intended intensity. Second, the Robersons have offered materials showing that there were defects in Benlate's packaging process that led to leaks and exposure of Benlate to warm, humid air which in turn led to the increased formation of phytotoxic compounds harmful to crops. All of the above allegedly caused great damage to the Robersons' peach orchards.
There are also materials before the court tending to show that DuPont specifically knew some of the above facts when it registered its product with the EPA, and it learned about others thereafter; that DuPont never reported these facts to the EPA; and that DuPont failed to notify the EPA and other parties of the growing evidence that the defects in its product were having negative effects on crops.

II. FIFRA REGULATORY SCHEME
Because it will be relevant to the court's discussion, a very brief explanation of the regulatory scheme created by FIFRA is in order. Under FIFRA, no pesticide may be sold in the United States unless registered with the EPA. A manufacturer wishing to market its product must first petition the EPA for registration. 7 U.S.C.A. § 136a. The applicants for registration are responsible for submitting certain performance data and draft product labels. The required elements of these draft labels are set forth in great detail. See 40 C.F.R. §§ 158.100-158.740 (1993). As will be discussed in greater detail later, the EPA does not generally attempt to independently verify the test data provided. The pesticide manufacturer must include a copy of a proposed label as part of the registration petition. 7 U.S.C.A. § 136a(c)(1)(C) (1980 and West Supp.1984). If the label is not adequate or accurate, the pesticide is "misbranded," and the manufacturer is subject to various civil and criminal penalties, including revocation of registration. Id. § 136(q).
In contrast to the detailed statutory and regulatory regime concerning labeling and registration, the provisions for packaging are much less so. FIFRA provides only that
(c) ... The Administrator, after notice and opportunity for hearing, is authorized
*   *   *   *   *   *
(3) to establish standards ... with respect to the package, container, or wrapping in which a pesticide or device is enclosed for use or consumption, in order to protect children and adults from serious injury or illness resulting from accidental ingestion or contact with pesticides or devices regulated by [FIFRA] as well as to accomplish the other purposes of [FIFRA]
Id. § 136w(c)(3). To the best of the court's knowledge, the only EPA packaging regulation concerns child-resistant packaging. 40 C.F.R. § 152.152 (1993).
With this brief exposition of FIFRA's regulatory scheme, the court can now proceed to discuss the pre-emption issues presented by this case.

III. FIFRA PRE-EMPTION
FIFRA has an express pre-emption clause. In essence, FIFRA permits States to regulate the sale and use of pesticides more strictly than FIFRA does. However, States are prohibited from imposing any requirements on labeling or packaging of pesticides *932 "in addition to or different from" those required by FIFRA. The relevant pre-emption language is as follows.
§ 136v. Authority of States
(a) In general
A State may regulate the sale or use of any federally registered pesticide or device in the State, but only if and to the extent the regulation does not permit any sale or use prohibited by this subchapter.
(b) Uniformity
Such State shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under [FIFRA].
7 U.S.C.A. § 136v.

IV. NEGLIGENCE AND STRICT LIABILITY
This court has previously held that FIFRA expressly pre-empts state law failure to warn claims that are premised upon inadequate labeling, if the label is EPA-approved. DerGazarian v. Dow Chem. Co., 836 F.Supp. 1429, 1447 (W.D.Ark.1993). Such failure to warn claims are expressly pre-empted by § 136v, because they are "requirements for labeling or packaging in addition to or different from those required by" FIFRA.
FIFRA apparently has an identical preemptive effect on state claims premised upon inadequate packaging, despite the meager federal regulation of packaging in comparison with labeling described above. Certainly, nothing in the text of § 136v indicates that court's should distinguish between FIFRA's pre-emptive effect on inadequate labeling claims and its pre-emptive effect on inadequate packaging claims, although it is troublesome to pre-empt state law causes of action in an almost entirely unregulated field.
Therefore, to the extent that the Robersons negligence and strict liability claims are premised upon inadequate failure to warn or inadequate packaging, they are pre-empted.

V. ESTOPPEL
The Robersons have placed materials before the court tending to show that DuPont did not place before the EPA all the relevant available information on Benlate, but instead intentionally concealed material facts. Specifically, the Robersons allege that DuPont was aware (1) that the ingredients of its product were not accurately stated on the label; (2) that its product was three times denser than labeled so that the application rate was in error; and (3) that the packaging leaked and was inadequate. If this is true, DuPont may be estopped from asserting pre-emption of packaging and labeling claims.
This holding is required to protect the integrity of the pesticide regulation process. The extent to which the FIFRA registration process depends on the integrity of the manufacturer has been discussed at length in Burke v. Dow Chem. Co., 797 F.Supp. 1128 (E.D.N.Y.1992).
Despite [] efforts to rationalize and strengthen the statute, EPA still relies on manufacturers for information about the safety of their products. It does not conduct independent testing. Much of the information known to the manufacturer is withheld from the public. As two students of the field have noted,
the basic structure of FIFRA remains unchanged. The production of data to support a pesticide registration is controlled by the registrant, and this data may be withheld from the public as a trade secret.
Id. at 1134 (citations omitted). The court goes on to state that,
Unless alerted by the manufacturer to dangers or the need for special restrictions in the use of the product, it is unlikely that EPA will assume the burden of deciding whether a product should not be sold to the public or used in the home. While no [pesticide] may be sold in the United States unless registered with EPA, it is applicants for registration who are responsible for submitting performance data and draft product labels to EPA. The data that must be submitted depends on the nature of the pesticide and its intended use. EPA does not attempt to independently verify the test data provided, but does determine if the testing methodology *933 reportedly used is "acceptable" in light of generally accepted scientific standards.
Id. at 1135 (citations omitted).
In Hurley v. Lederle Lab. Div. of Am. Cyanamid, 863 F.2d 1173, 1179-80 (5th Cir. 1988), the court held that a manufacturer who withholds information under such a scheme no longer receives pre-emption protection. Although Hurley deals with the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. §§ 301-392 (1972 and West Supp. 1994), rather than FIFRA, it is an appropriate case to consider. First of all, as the Hurley court describes, the registration procedures under the two statutes are similar in that they both depend upon the integrity of the manufacturer.
In the area of approved warnings, although the FDA takes an active role in designing the warning, it remains a partially passive agency. That is, it accepts information given by manufacturers proposing the licensing of a particular vaccine, and determines the proper warning based upon the information provided.
Id. at 1179 (citations omitted). In addition, both statutes contain express pre-emption clauses. 21 U.S.C.A. § 343-1. (1972 and West Supp.1994).
Where there is evidence that a manufacturer has withheld material facts, the Hurley court decided to deal with the issue in the following manner.
We believe that this issue should be presented to the jury in the form of special interrogatories, questioning whether and what information the manufacturer withheld from the FDA, if any, and whether possession of this information would have materially altered the content of the FDA's warning.
Id.
In Burke, supra, the court never expressly addressed and decided whether pre-emption would be available to a manufacturer who withheld information from the EPA, but more than once the court voiced its concern that allowing pre-emption would "permit a manufacturer that was ... aware of dangers to refrain from informing EPA of needed changes in its product's label and then to hide behind the very label it knew to be inadequate." Id., 797 F.Supp. at 1141.
This court shares the concerns voiced in Burke and Hurley. Therefore this court holds that DuPont may be estopped from asserting FIFRA pre-emption to the extent that it withheld material facts from the agency, either at the time of registration or thereafter. Whether or not the factual predicate for estoppel exists will be submitted to the jury if the evidence warrants.
It should be noted that, unlike the interrogatories recommended by the Fifth Circuit in Hurley, it will not be necessary for the jury to determine whether the information withheld would have led the EPA to materially alter the content of Benlate's warning, because (1) such a determination would be entirely outside the competence of this court or the jury; and (2) requiring such a difficult determination would present a serious hindrance to the critical goal of preventing the corruption of the pesticide registration process.
It cannot be said that this holding either undermines the exclusive federal control of pesticide labeling and packaging or frustrates the purposes of FIFRA pre-emption. If it turns out that material information was withheld from the EPA, then inadequate packaging or labeling claims based on those facts will not interfere with any EPA determination. Quite simply, the EPA will have never made any determination at all with regard to the facts withheld.
In fact, the court's holding today actually furthers federal control of pesticide labeling and packaging. It will aid the EPA in guarding the integrity of the registration process by giving pesticide manufacturers an incentive to place all relevant facts before the EPA, and to err on the side of over-inclusion, lest they lose the coveted benefits of FIFRA pre-emption. In this way, today's holding actually helps the EPA perform its role as the exclusive government body, federal or state, that regulates the labeling and packaging of pesticides.

VI. BREACH OF EXPRESS AND IMPLIED WARRANTIES
An action for breach of express warranty that relies upon statements made on an *934 EPA-approved label is not pre-empted, even though FIFRA prohibits "any [state] requirements for labeling." Ministry of Health v. Shiley, 858 F.Supp. 1426 (C.D.Cal. 1994); Jillson v. Vermont Log Buildings, 857 F.Supp. 985 (D.Mass.1994).
This result is compelled by Cipollone v. Liggett Group, ___ U.S. ___, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). In Cipollone, a plaintiff brought an action for breach of express warranty based on cigarette advertising statements. Seven justices found these claims were not pre-empted. The plurality opinion explained that the express warranty claim based on advertising statements was not pre-empted, even though the statute in question expressly pre-empted state imposed-requirements on advertising. The simple reason was that "the `requirements' imposed by an express warranty claim are not `imposed under State law,' but rather imposed by the warrantor." ___ U.S. at ___, 112 S.Ct. at 2622. That is, the terms of the express warranties are not state-imposed requirements, but rather "contractual commitment[s] voluntarily undertaken." Id., ___ U.S. at ___, 112 S.Ct. at 2622.
The Fourth Circuit does not agree with this analysis of Cipollone. In Worm v. American Cyanamid Co., 5 F.3d 744, 748-49 (4th Cir.1993), the court held that FIFRA pre-empts express warranty claims based on statements made on an EPA-approved label. The Fourth Circuit distinguished Cipollone on the grounds that advertising statements made by a cigarette manufacturer are voluntary, whereas labeling statements made by a pesticide manufacturer are required by FIFRA and approved by the EPA. Thus, labeling statements under FIFRA are not self-imposed in the way that the advertising statements were in Cipollone.
This court is unconvinced by the Fourth Circuit's reasoning. First of all, the critical point of Cipollone is that the terms of the warranty were not state-imposed. In Cipollone, the terms of the express warranty were self-imposed by the manufacturer in its advertising, and in this case they are imposed by the EPA on the product's labeling. In neither case are the terms of the warranty imposed by the state which would be the only action prohibited by FIFRA pre-emption. Thus, this court concludes that the breach of express warranty claims should survive the summary judgment motion, even to the extent that they depend on statements made on the EPA-approved label. The court recognizes that this issue presents a close question and will revisit the issue if it should become necessary to do so upon the making of the proper post-judgment motions.
In any case, it is easy to overstate the mandatory nature of labeling statements mandated by FIFRA. FIFRA does require that certain kinds of statements be made on a pesticide label, but EPA does not dictate the detail of these labels or test their accuracy in any stringent fashion. Their content depends in great degree on the discretion of the manufacturer. By way of contrast, in Cipollone, a statute expressly mandated, word-by-word, the content of a warning label on smoking and health. That is a true example of a mandatorily-imposed labeling statement.
Turning now to implied warranty claims, these depend entirely on obligations imposed by state law. Thus, they are pre-empted to the extent that these implied warranties guarantee the adequacy of the pesticide's labeling or packaging. Papas v. Upjohn, 985 F.2d 516, 519-20 (11th Cir.1993); contra Ministry of Health v. Shiley, 858 F.Supp. 1426 (C.D.Cal.1994).

VII. BREACH OF FIFRA DUTIES
In their response, the Robersons argue that Dupont violated various FIFRA duties unrelated to labeling and packaging. They further argue at length that FIFRA creates "standards of care that are independent bases for Plaintiffs' claims." Specifically, the Robersons argue that Dupont violated FIFRA when it sold a pesticide that differed in composition from the composition described to the EPA, 7 U.S.C. § 136j(a)(1)(C); sold a pesticide that was adulterated, id. § 136j(a)(1)(E); knowingly falsified reports or other records, id. § 136j(a)(2)(M); added a substance to their product that defeated the purposes of FIFRA, id. § 136j(a)(2)(O); falsified testing information, id. § 136j(a)(2)(Q); and failed to take reasonable *935 steps to inform persons possessing a pesticide of recall, id. § 136q(b)(4)(D). The Robersons add that "[a]ll of these duties, and others not listed here, exist independently of FIFRA's labeling and packaging requirements and are not pre-empted." (Pls.' Resp. Mot.Part.Summ.J. at 17) (emphasis added).
The Robersons are correct that state law may sometimes utilize federal law to establish standards of care. In Arkansas, for instance, the violation of a statute or regulation can constitute evidence of negligence, although it never constitutes negligence per se. See e.g. Bussell v. Mo. Pac. R.R., 237 Ark. 812, 376 S.W.2d 545 (1964).
The Robersons argue that this court can utilize FIFRA provisions to create state law standards of care, because the courts of Arkansas would do so and because they are not pre-empted from doing so. The Robersons raised these issues in their response to DuPont's motion for summary judgment, but the court need not address them yet as DuPont never moved to dismiss these claims in its motion for summary judgment.[1]

VIII. CONCLUSION
This court holds that (1) FIFRA pre-empts any negligence, strict liability or implied warranty claims premised upon failure to warn, inadequate labeling or inadequate packaging; (2) But DuPont may be estopped from asserting pre-emption if it withheld material information from the EPA about packaging or labeling.
IT IS SO ORDERED.

ORDER
On this 23rd day of September, 1994, upon consideration of defendant's motion for partial summary judgment, the court finds for the reasons set forth in a memorandum opinion of even date that said motion should be and hereby is denied.
IT IS SO ORDERED.
NOTES
[1]  If and when these issues come before the court, the parties may find it useful to consult the following sources: Restatement (Second) of Torts § 286-88 (1965); 57A Am.Jur.2d Negligence §§ 743-752 (1989).


Honorable Ralph Prince
Criminal District Attorney
Box 2403
Longview, Texas
                                Opinion No. Ww-773
                                Rc:   Questions concerning
                                      House,&11 48, Acts
                                      56th Legislature,   Se-
                                      cond Called Session,
                                      relating  to issuance
                                      of marriage licenses
Dear Mr. Prince:                      by the County Clerk.
          You have requested an opinion concerning
House Bill 48, Acts 56th Legislature,~,.Second Call-
ed Session, 1959, Chapter 20, Page X13, on the
following  three questions which we quote from
your request:
                  "Question 1: Must the doctor's
         certificate     and written parental con-
         sent provided for in,Sec.     (a) be &&
         nowled ed or should it be sworn to as
         F5Tzmhzvit?
                "Question 2: Must the clerk re-
         tain all original      marriage licenses
         returned to him, only those issued
         on doctor's   certificate     and written
         parental consent, or in g instance?

         years?   If,,not,   what requirements   may
         he waive?
Hon. Ralph Prince,       Page 2 (WW-773)

              The relevant   port:ons   of House Bill   No. 48 are
as follows:
                 “Section 1. Article  4605 of the
          Revised Civil Statutes of Texas, 1925,
          is amended to read as follows:
                   “‘Article     4605. Consent of parent
           or guardian and issuance of license.
                   ” I (a).    Any unmarried male of the
           age of twenty-one (21) years or upwards,
           or any unmarried female of the age of
           eighteen (18) years or upwards and not
           otherwise disqualified,          is capable of
           contracting      and consenting to marriage;
           but no female under the age of eighteen
           (18) years and no male under the age of
           twenty-one (21) years shall enter into
           the marriage relation,         nor shall any li-
           cense issue therefor,         except upon the
           consent and authori’ty expressly given
           by the parent or guardian of such’under-
           age applicant       in the presence of the author-
          ,ity issuing such license;           ‘provided fur-
           ther that if the certificate           of a duly
           licensed medical doctor or osteopath,
           acknowledged before an officer           authorized
           by law to take acknowledgments and stat-
           ing that such parent or guardian is unable
          by reason of health or incapacity             to be
           present in person, is presented to such
           licensing     authority,     the license may issue
           on the written consent of such parent or
           guardian, acknowledged in the same manner
           as the accompanying medical certificate.
          Any such certificate          and written permission
           shall be retained by the official            issuing
           the marriage      license,    together with the
           returned license.          Nothing herein shall be
           construed to effect         the issuance of a
           marriage license       in a seduction prosecu-
           tion.     If ‘a minor has neither parent or
           guardian,      then the clerk shall not issue
           a license without the consent of the county
           judge,of     the county of the residence         of such
           minor, such consent to be in writing ana
           signed and acknowledged b,y such county judge.
Hon. Ralph Prince,     Page   3 (W’b773)

                   "l(b).     The county clerk,'upon       appli-
          cation in writing signed and sworn to in
          person before him by both of the parties to
          be married setting forth their places of
          residence       and setting forth their full names
          and ages as the same appear upon a certi-
          fied copy of birth certificate,            or upon a
          current motor vehicle operator's,             chauffeur's,
          or commercial license or upon a current voter's
          registration       certificate,      or upon a current
          passport or visa or upon any other certifi-
          cate, license or document issued by or exist-
          ing pursuant to the laws of any nation or of
          any state or other governmental subdivision
          thereof,     when each sudh document accepted as
          proof of identity         and age is described with
          reasonable particularity           in the application,
          shall also set forth that such persons to be
          married are not disqualified            or incapable
          of entering into the marriage relation,              nor
          of the relationship          prohibited   by law, and
          being ,satisfied       of the truth and sufficiency
          of such application          and that there is no legal
          impediment to such marriage, and aft,er ap-
          plicatlon      for such marriage license has is-
          sued, shall issue the license a,uthorizing
          such marriage;         provided however, that in
          the event the male party is under the age
          of twenty-one (21) years or the female party
          is under the age of eighteen (18) years such
          application       shall have been on file in the
          County C'lerk's office          for a period of not
          less than three (3) days.

                 "l(c).   Provided however that the county
          judge in his discretion   may waive the re-
          quirements listed   in (a) and (b) above.'"
          With regard to your first    question,  it is our
opinion that, whatever might be said in favor of a re-
quirement that these documents be sworn to the re-
quirement of paragraph (a) of 'House Bill 46 is plainly
that the physician's     certificate  and parental consent
be,acknowledged   'before an officer'  authorized by law
to take acknowledgments",     rather than being sworn to.
        With regard    to your Question      2, it was held in
                                                                     ..

Hon. Ralph Prince,    page 4 (WW-773)

Attorney General’s Opinion No. WW-751 (1959) that
House Bill No. 4% does’ not direct the Clerk to retain
the returned marriage license   in any instance;    accord-
ingly, only your Question 1, just discussed,     and Ques-
tion 3 remain open fork determination  in the present
opinion.
           With regard to your Question 3, it is our
opinion that paragraph (c) of Section 1 of Hous,e Bill
48, in stating “provided however, that the county
 judge in his discretion       hay waive the requirements list-
ed in (a) and (b) above’“, is intended to vest in the
county judge authorit        to waive all requirements con-
tained in paragraphs “ia) and (b)of         Section 1. There
remains the question of which provisions           of paragraphs
 (a) and (b) constitute       “re uirements” within the con-
templation of paragraph (~7.          It is sufficient   to say,
however, without undertaking to en,umerate these pro-
visions individually,       that the effect    of paragraph (c)
is that all acts whi,ch by virtue of House Bill 48, Sec-
tion 1, are required to ,be performed by any person as
a condition, for the proper issuance of, a marriag~e license,
may be held by the county judge in his discretion            to be
unnecessary for such issuance.          Thus, for example, para-
graph (c) is applicable--though         not exclusively   so--
to the requirement contained in paragraph (b) that the
clerk shall not.issue       a license   to certain applicants
unless the application       shall hive been on file in the
count?? clerk’s  office,for      a period of not less than
three” days.

                        SUMMARY

          (1)   Paragraph (a) of Section 1
                of House Bill 48, Acts 56th
                Legislature,    Second Called
                Session,    1959. Chapter 20,
                Page 113, requires- th,at the
                physician’s    certificate  and
                written parental ‘consent
                provided for therein trust
                be acknowledged rather than
                being sworn to.

          (2)   Paragraph (c)   of Section 1
                of House Bill   4% vests in
Hon. Ralph Prince,   page 5 (w-773)

          the county judge authority  to
          waive all oequirements contain-
          ed in paragraphs (a) and (b) of
          Section 1 of House Bill 48.

                          Very truly   yours,
                          WILL WILSON
                          Attorney General 'of Texas

LH:ms
APPROVED:
OPINIONCOMMITTEE
W. V. Geppert, Chairman
Grundy Williams
John Reeves
C. Dean Davis
Bob Eric Shannon
REVIEWEDFOR THE ATTORNEY
                       GENERAL
BY: Leonard Passmore


8 Kan. App. 2d 311 (1983)
657 P.2d 589
PURITAN-BENNETT CORPORATION and PURITAN-BENNETT AERO SYSTEMS CO., Appellants,
v.
ROBERT J. RICHTER, Appellee.
No. 53,695
Court of Appeals of Kansas.
Opinion filed January 20, 1983.
Rolland Exon and Thomas E. Ruzicka, of Gardner, Davis, Kreamer, Norton, Hubbard & Ruzicka, of Olathe; James Borthwick and John K. Brungardt, of Blackwell, Sanders, Matheny, Weary & Lombardi, of Kansas City, Missouri, for the appellants.
Mark R. Singer, of Romain, Burger & Singer, of Overland Park, and Irving Achtenberg, of Achtenberg, Achtenberg & Belzer, P.C., of Kansas City, Missouri, for the appellee.
Before SPENCER, P.J., PARKS, J. and HARRY G. MILLER, District Judge Retired, assigned.
Petition for review denied 233 Kan. 1092 (1983).
PARKS, J.:
Plaintiffs, Puritan-Bennett Corp. and Puritan-Bennett Aero Systems Co., brought this action for injunctive relief against their former employee, Robert Richter, seeking enforcement of restrictive covenants in defendant's employment contract. The trial court held that the contract not to compete was unenforceable for a lack of consideration but issued a permanent injunction premised on common law against disclosure of trade secrets. Plaintiffs appeal the court's refusal to enforce the contract and the scope of the injunction against disclosure.
Defendant Richter was first offered employment with plaintiffs on October 29, 1973. The oral offer was confirmed in writing the following day and subsequently accepted by defendant in a letter dated November 2. In reliance upon the validity of the contract of employment, defendant sold his house and terminated his job in Wisconsin, purchased a residence in the metropolitan Kansas City area, enrolled his son in school, and established residence locally, all prior to December 17, 1973.
On December 17, defendant reported to work and was asked during the day to fill out and sign some routine employment and insurance forms in the personnel office. At that time defendant was also asked to sign a document entitled "Hiring Agreement" which contains the covenants plaintiffs now seek to enforce. *312 Upon inquiry, Richter was told by an employee in the personnel office that execution of the agreement was a condition of employment but no management officials of the company ever advised Richter that his employment was so conditioned. Defendant signed the contract.
Richter was initially employed as project engineer in a division of plaintiffs' business principally involved in the development, manufacture and sale of emergency oxygen breathing equipment in aircraft. Defendant's employment was terminable at will but he remained with the company for over seven years and was quite successful in his work, receiving various promotions and job title changes. At the time of his resignation on March 20, 1981, he was director of engineering. Shortly after resigning, Richter notified plaintiffs that he had accepted a position with Scott Aviation, plaintiffs' principal competitor in the narrow field of aircraft emergency oxygen equipment. Plaintiffs sought a preliminary injunction to prohibit defendant's employment by Scott and although that relief was denied, the court did enjoin defendant from disclosing trade secrets of the plaintiffs. After a hearing on the merits of plaintiffs' request for permanent injunction, the court held that the scope of the anti-competition clauses of the "Hiring Agreement" was reasonable and not inimical to the public policy of this state but that the agreement was not supported by sufficient consideration to be enforceable. The court also held that plaintiffs had a protectable interest at common law in preventing the disclosure of their trade secrets or confidential information but that this interest could not prevent employment of a former employee by a competitor. The court entered an injunction prohibiting defendant from "disclosing or discussing any aspect of [substituted plaintiffs'] business which pertains to plaintiffs' research, development, production or sales technique of gaseous and chemical aircraft emergency oxygen equipment."
The provisions of the hiring agreement which plaintiffs sought to enforce stated as follows:
"4. That in addition to my acquaintance with the various aspects of any of the aforesaid items of commercial property of the Company, my activities in its employ may give me information about similar activities of others within the Company as well as with confidential information, data, records, practices and other trade secrets of it, exemplified by, but not restricted to, compositions, details of methods of preparation, varied uses and methods of *313 application, of its products, its customers, their specifications, and uses and methods of application, and formulations made, of products bought from the Company; all of which are hereinafter referred to as its `trade secrets'.
"5. Not to disclose to others during my employment or at any time thereafter except as the Company may authorize in writing or a Court order may require, any information concerned with any of the Company's aforesaid commercial property or trade secrets, or any information connected with any aspect of the Company's business; and that this restriction against disclosure similarly applies to prevent me from submitting for publication in any scientific, trade, or other journal any such aforesaid information as any part or the whole of any item or article submitted for publication therein, without written approval of one duly authorized by the Company to so approve.
....
"9. I will not render services directly, or indirectly, to any organization competitive with the conduct of the business of the Company, for a period of one year after termination with the Company."
Antidisclosure and anticompetition covenants ancillary to a contract of employment freely entered into with full knowledge, are valid and enforceable if the restraint contained therein is reasonable under the facts and circumstances of the particular case. Eastern Distributing Co., Inc. v. Flynn, 222 Kan. 666, 670, 567 P.2d 1371 (1977). The trial court found the covenant in this case to be reasonable and that point is not disputed on appeal. However, the court held that there was no consideration supporting the enforceability of the hiring agreement, reasoning that the consideration for the original employment contract was independent of the "Hiring Agreement" while Richter's continued employment following execution of the agreement was insufficient to support the agreement.
All contracts to be enforceable must be supported by consideration. Dugan v. First Nat'l Bank in Wichita, 227 Kan. 201, 211, 606 P.2d 1009 (1980). There was ample evidence to support the trial court's conclusion that Richter and Puritan-Bennett did not agree to the covenant not to compete as part of the original contract of employment. Richter's job had been offered and accepted in writing six weeks before he ever saw or knew about the covenant not to compete. The salary was agreed to and the company paid the Richter's expenses for a house-hunting trip to the area. In reliance on the contract, Richter sold his house in Wisconsin, moved his family to Kansas City, bought a new house and enrolled his son in school. Only after reporting for work was he asked to sign the covenant not to compete. The written hiring *314 agreement provided no new benefits to Richter other than those accruing to all employees and thus did not supplement or define the original agreement. Finally, the hiring agreement cannot be viewed as the completion of an incomplete contract since there was no evidence the contract was incomplete or that the parties left terms open for later resolution. In sum, there was abundant support for the trial court's view of the hiring agreement as separate and independent of the original contract of employment. Thus, the consideration needed to support the enforceability of the agreement containing the covenants of nondisclosure and noncompetition would have to consist of some burden or benefit outside the original contract to hire. Plaintiffs contend that this element was supplied by their continued employment of Richter for seven years after the agreement was executed because his employment was terminable at will.
Whether continued employment is adequate consideration to support the imposition of a restrictive covenant not to compete contained in a written contract for an indefinite term of employment when the initial contract contained no restrictive covenant and was terminable at will is a question of considerable disagreement. The authorities are split on the issue (See Annot., 51 A.L.R.3d 825) although most states hold that continued employment may be adequate consideration under certain circumstances. For example, if immediate termination would follow refusal to sign a covenant not to compete (Matlock v. Data Processing Sec., Inc., 607 S.W.2d 946 [Tex. Civ. App. 1980], aff'd as modified 618 S.W.2d 327 [Tex. 1981]), or the employee has enjoyed a significant length of service and substantial benefits after signing the covenant (Davies & Davies Agcy., Inc. v. Davies, 298 N.W.2d 127 [Minn. 1980]), continued employment has been held to be sufficient consideration to support a restrictive covenant executed after the initial employment contract began. Other states have held continued employment to be inadequate consideration as a matter of law when it is unaccompanied by a beneficial change in the employee's status at the time the covenant is executed (Maintenance Specialties, Inc. v. Gottus, 455 Pa. 327, 314 A.2d 279 [1974]), or when it appears that the covenant not to compete was not a freely bargained for term or condition of employment. (PEMCO Corp. v. Rose, ___ W. Va. ___, 257 S.E.2d 885, 890 [1979]).
*315 After reviewing these authorities, we hold that continued employment should not as a matter of law be disregarded as consideration sufficient to uphold a covenant not to compete. Ordinarily, the presence of a benefit or detriment to a promisor, sufficient to constitute consideration, is a question of fact, as is the question of what constitutes consideration when that issue is controverted. Evco Distributing, Inc. v. Brandau, 6 Kan. App.2d 53, 59, 626 P.2d 1192, rev. denied 230 Kan. 817 (1981). Without doubt, employers rely upon the continued loyalty of an employee as signified by his signature on a covenant not to compete in dispensing responsibility and rewards. Thus, an employee who has been retained, promoted and entrusted with company secrets for a significant time after execution of such a covenant has received a benefit to which he was not automatically entitled. The particular facts of this case were not controverted. Defendant was given consistent promotions, increased responsibilities and greater importance in company operations after signing the covenant not to compete. Moreover, he had been advised that his continued employment was conditioned upon execution of the hiring agreement when he signed it. We hold that the trial court erred in holding that Richter's continued employment after execution of the agreement was insufficient consideration to support the restrictive covenants and conclude that the contract should have been enforced.
Defendant has argued that even were we to conclude that the hiring agreement was enforceable, the issue of enforceability is moot because the one-year term of the covenant not to compete has since run. We disagree. An appeal will not be dismissed as moot unless it clearly and convincingly appears the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose and an idle act insofar as rights involved in the action are concerned. Reeves v. Board of Johnson County Comm'rs, 226 Kan. 397, 405, 602 P.2d 93 (1979). An action to enforce a restrictive covenant lies within the equitable jurisdiction of the court. A district court sitting in equity may devise a remedy which extends or exceeds the terms of a prior agreement between the parties if it is necessary to make the injured parties whole. Levitt Corp. v. Levitt, 593 F.2d 463, 469 (2nd Cir.1979). Thus, if an agreement is unreasonable in scope but otherwise enforceable, the court may alter its terms *316 to shape a remedy which affords the plaintiff the contemplated protection. Eastern Distributing Co., Inc. v. Flynn, 222 Kan. at 675. Likewise, the protective purpose of an agreement which is undoubtedly reasonable but incorrectly denied enforcement by the trial court should be carried out as much as possible on remand. For example, in American Eutectic Weld. Alloys Sales Co., Inc. v. Rodriguez, 480 F.2d 223, 229 (1st Cir.1973), the First Circuit reversed the district court's denial of a preliminary injunction to prohibit plaintiff's former employee from working for a competing firm in contravention of his covenant not to compete, and remanded with directions for the district court to determine whether relief beyond the terms specified in the agreement was necessary. Accord, Premier Industrial Corp. v. Texas Industrial Fastener Co., 450 F.2d 444, 448 (5th Cir.1971) (court ordered injunction against competition to extend to one year from date district court entered judgment). In sum, since we have held that the contract in question should have been enforced, the question remains whether plaintiff is entitled in equity to an extension of the term of noncompetition. Thus, this case is not moot but must be remanded to district court.
Further underscoring the need for remand is plaintiffs' complaint concerning the scope of the injunction entered by the court. Based on the common law interest in trade secrets (Koch Engineering Co. v. Faulconer, 227 Kan. 813, 610 P.2d 1094 [1980]), the court issued a general nondisclosure injunction against defendant. However, the hiring agreement also contained provisions against disclosure and these provisions were not limited in time. Thus, because we have now held the hiring agreement enforceable, the district court must consider whether broader injunctive relief against disclosure is compelled by the terms of the contract.
The judgment of the district court is reversed and the cause remanded for consideration of what, if any, further relief is required consistent with this opinion.


                                                               November 26, 2013

                                 JUDGMENT

                 The Fourteenth Court of Appeals
                            KEVIN ELLIS, Appellant

NO. 14-12-00635-CV                      v.

           RELIANT ENERGY RETAIL SERVICES, LLC, Appellee
                 ________________________________

       This cause, an appeal from the final judgment in favor of appellee, Reliant
Energy Retail Services, LLC, signed, July 9, 2012, was heard on the transcript of
the record. We have inspected the record and find the trial court erred in granting
traditional summary judgment in favor of Reliant on its claims. We therefore order
that the portions of the judgment granting judgment as to appellee Reliant’s claims
are REVERSED and ordered severed and REMANDED for proceedings in
accordance with this court’s opinion.

    Further, we find no error in the remainder of the judgment and order it
AFFIRMED.

      We order appellee, Reliant Energy Retail Services, LLC, to pay all costs
incurred in this appeal.

      We further order this decision certified below for observance.


                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             March 23, 2007
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 05-20581

UNITED STATES OF AMERICA

                Plaintiff - Appellee

     v.

KENNETH GREEN, also known as Sherrod Sylvester McClain

                Defendant - Appellant

          Appeal from the United States District Court
           for the Southern District of Texas, Houston
                         No. 4:98-CR-311

Before BARKSDALE, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     In August 1998, the defendant-appellant, Kenneth Green, was

charged by indictment as “John Doe” with making a false statement

on a passport application in violation of 18 U.S.C. § 1542.         The

indictment specifically alleged that the defendant “stated and

represented in the Form DSP-11, ‘Application for a United States

Passport,’ that he was in fact Sherrod Sylvester McClain when,

     *
        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.

                                -1-
then and there, Defendant knew that he was not Sherrod Sylvester

McClain.”   Along with the passport application, Green submitted

an application for a Texas identification card that bore right

and left thumbprints and a photograph, also purporting to be

those of McClain.

     At the time of the indictment, Green was known to law

enforcement officials only by McClain, the alias he had used to

commit the underlying offense of making a false statement on a

passport application.    Post-indictment, agents entered the

information they had on Green, including his physical

description, into the National Crime Information Center system.

Because agents suspected that the defendant was involved in drug

trafficking, copies of the warrant and photographs of the subject

were given to a Houston police sergeant involved with a drug task

force in December 1998, and to a Drug Enforcement Administration

agent in January 1999.    On August 30, 2002, agents ran a records

check using the defendant’s alias, but the effort turned up no

new information.

     In September 2002, agents used fingerprint technology to

match the unknown thumbprints from the Texas identification card

application with those of Green, whose thumbprints were on file

with the FBI.   Agents also compared a photograph of Green with

the one on the application and determined they were the same

person.   That same month, agents retrieved Green’s arrest records

from Waller County, Texas.

                                 -2-
     In October 2002, agents learned and verified that Green was

incarcerated in the Wisconsin Department of Corrections and had

been there since 2000.   In October 2003, agents received Green’s

booking photograph and fingerprint card from Wisconsin

authorities.   Thereafter, agents gathered the necessary

documentation and sent Green’s prints to the Immigration and

Customs Enforcement (“ICE”) forensic laboratory for comparison.

In August 2004, the agents received confirmation from ICE of

Green’s identity.

     In September 2004, a detainer was placed on Green at the

Wisconsin facility where he was incarcerated.    On November 16,

2004, the United States Attorney filed an application for writ of

habeas corpus ad prosequendum, requesting that Green be brought

before the United States District Court for the Southern District

of Texas.   On January 4, 2005, Green made his initial appearance

in the district court.

     On February 18, 2005, Green filed a motion to dismiss the

indictment, arguing that the post-indictment delay violated his

Sixth Amendment right to a speedy trial.   On March 8, 2005, the

district court denied Green’s motion.

     Following a stipulated bench trial in March 2005, Green was

convicted and sentenced to one month in prison, to be served

concurrently with an existing state court sentence and to be

followed by three years of supervised release.

     Green now appeals his judgment of conviction and sentence,

                                -3-
arguing that the district court erred in denying his motion to

dismiss the indictment.    Green contends that the post-indictment

delay, from the issuance of the indictment in August 1998 to the

filing of the detainer on Green in September 2004, violated his

Sixth Amendment right to a speedy trial.

       Green’s speedy trial claim is controlled by the four-factor

balancing test in Barker v. Wingo, 407 U.S. 514 (1972).     Under

that test, the court considers: (1) the length of the delay; (2)

the reason for the delay; (3) the defendant’s diligence in

asserting his Sixth Amendment right; and (4) the prejudice to the

defendant caused by the delay.    United States v. Cardona, 302

F.3d 494, 496 (5th Cir. 2002) (citing Barker, 407 U.S. at 530-

33).

       In Doggett v. United States, 505 U.S. 647 (1992), the

Supreme Court clarified how the four factors are to be weighed

and the burden each party carries.     The threshold inquiry is

whether the delay is long enough to trigger a speedy trial

analysis.    United States v. Bergfeld, 280 F.3d 486, 488 (5th Cir.

2002) (citing Doggett, 505 U.S. at 651-52).     Generally, a post-

accusation delay approaching one year is sufficient.     Id. (citing

Doggett, 505 U.S. at 652 n.1).

       “If a court undertakes a full Barker-analysis, it evaluates

the first three factors (delay-length; reason for it; diligence

in asserting right) in order to determine whether prejudice will

be presumed or whether actual prejudice must be shown.”     United

                                 -4-
States v. Frye, 372 F.3d 729, 736 (5th Cir. 2004).      “In all of

this, courts do not engage in a rigid analysis, but engage in the

‘functional analysis of the right in the particular context of

the case.’”    Id. (quoting Barker, 407 U.S. at 522).

     In analyzing Green’s Sixth Amendment claim, the district

court recognized that it was required to engage in a full Barker-

analysis because of the length of the post-indictment delay.

See Tr. of Mot. Hr’g at 43, United States v. Green, No. H-98-CR-

311 (S.D. Tex. Mar. 8, 2005).   Green’s counsel told the district

court that Green was relying entirely on the presumption of

prejudice for his claim.    See id. at 4.   This statement, along

with the court’s finding that there was absolutely no evidence of

actual prejudice, required the court to balance the first three

factors under Barker and Doggett to determine if prejudice would

be presumed.    See id. at 43-47.

     In addressing the first two factors, the district court

found that “the Defendant contributed to the problems

significantly because he admittedly used false information and as

a result he was indicted as a John Doe.     Clearly, his efforts to

prevent the Government from figuring out who he was contributed

to the delay in the Government’s figuring out who he was.”      Id.

at 43.   The court also found that “there were periods of time in

which the Government had available to it the means of resolving

that confusion that it did not avail itself of as early as it

                                    -5-
might have done.”    Id.    The court concluded “that there was a

relatively short period of delay that is attributable to some

degree of governmental negligence[,]” but attributed the “much

longer period of delay . . . to a combination of the Defendant’s

efforts to hide his identity and the Government’s failure,

although they made attempts to find the Defendant, to locate

him.”   Id. at 46.   The court found that there was “certainly no

degree of culpability [by the Government] that is higher than a

low degree of negligence.”      Id.   Finally, in addressing the third

factor, the court found that Green had diligently asserted his

constitutional right.      Based on these factors, the court

concluded that although “[a] combination of those factors makes

this a relatively close case” on whether it should presume

prejudice, it did not “see a basis for dismissing the

indictment.”   Id. at 47.

     Having reviewed the briefs, the district court’s oral

ruling, and the pertinent portions of the record, we find no

errors of law or fact warranting reversal.       Essentially for the

reasons stated by the district court, we agree that the length of

the delay attributable to the government’s negligence, even when

considered in light of the defendant’s assertion of his right, is

not sufficient for a presumption of prejudice.       Cf. United States

v. Serna-Villarreal, 352 F.3d 225, 232 & 233 n.5 (5th Cir. 2003),

cert. denied, 541 U.S. 981 (2004) (stating that “this Court and

                                   -6-
others generally have found presumed prejudice only in cases in

which the post-indictment delay lasted at least five years” and

noting that “[t]he portion of the post-indictment delay

attributable to government negligence in Doggett, Bergfeld, and

Cardona, was six years, five years, and five years,

respectively”).1   Accordingly, because Green relied solely on

presumptive prejudice and because he cannot show actual

prejudice, the judgment of the district court is affirmed.

     AFFIRMED.

     1
        Although Green argues that this circuit’s decision in
Serna-Villarreal conflicts with the Supreme Court’s decision in
Barker, it is a well-established rule that one panel of this
court may not overrule a prior panel’s decision, absent an en
banc or intervening Supreme Court decision. See United States v.
Treft, 447 F.3d 421, 425 (5th Cir.), cert. denied, 127 S. Ct. 555
(2006). We therefore decline to consider this argument any
further on appeal.

                                -7-