                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                     FOR THE ELEVENTH CIRCUIT
                                                U.S. COURT OF APPEALS
                                                  ELEVENTH CIRCUIT
                     __________________________        May 5, 2005
                                                   THOMAS K. KAHN
                            No. 03-14285                CLERK
                         Non-Argument Calendar
                      _________________________

                    D. C. Docket No. 02-00554-CR-3-1

UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

     versus

ENRIQUE ZERDUCHE,

                                               Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (May 5, 2005)

Before EDMONDSON, Chief Judge, HULL and WILSON, Circuit Judges.
PER CURIAM:

       Defendant-Appellant Enrique Zerduche appeals his convictions for drug

trafficking, in violation of 21 U.S.C. §§846 and 841(a)(1), (b)(1)(B)(vii), and the

121-month sentence imposed. No reversible error has been shown; we affirm.

       Defendant contends that the district court committed reversible error when it

removed a juror and replaced her with an alternate over the objection of counsel.

After Defendant’s trial had began and the testimony of the first witness was heard,

the district court judge sua sponte discussed the behavior of one of the jurors with

counsel for the government and the defense. The judge stated that he was

extremely distracted by the fidgeting and squirming of one juror and inquired

whether they, too, were bothered. The government responded affirmatively and

noted that the conduct had begun almost immediately. Defense counsel had

noticed nothing. The court also stated that it did not believe this juror was “paying

any attention.” Defense counsel suggested that it may be appropriate to admonish

the jury to pay attention, but it would otherwise object to excusing the juror on

that basis.1 The court declared, for the record, that it had

               observed this juror continuously yawning, squirming,
               moving around, even getting up out of her chair, putting

   1
     Counsel for a co-defendant also objected to excusing the juror without further inquiry of the
juror or some general instruction to the jury.

                                                2
             her head down between her legs, not paying attention to
             the witness. She’s a distraction, and I believe that it’s in
             the interests of both the government and the defense that
             this juror be excused. And I’m going to excuse her and
             substitute an alternate.

The government stated that it would research the issue of juror discharge over

lunch, but the court proceeded immediately to discharge the juror.

      A district court’s decision to remove a disruptive juror during trial is

reviewed for abuse of discretion. See United States v. Fajardo, 787 F.2d 1523,

1525-26 (11th Cir. 1986). Fed.R.Crim.P. 24(c)(1) allows the court to replace a

juror who is “unable to perform” or “disqualified from performing” his duties with

an alternate. “The trial court’s discretion in removing a juror ‘is not to be disturbed

absent a showing of bias or prejudice to the defendant ... or to any other party.’”

Id. at 1525 (citation omitted). We apply an abuse of discretion standard of review

to the decision to excuse a disruptive juror for good reason: “the degree of

disruption is gauged better by first-hand impressions rather than the review of a

cold record.” Id. at 1526. In this context, prejudice includes discharge of a juror

“‘without factual support, or for a legally irrelevant reason.’” Id. at 1525 (citation

omitted).

      Defendant complains that the district court removed the juror without

making inquiry of the juror in question on the nature of the problem, without

                                           3
questioning other jurors to see if they were distracted by the conduct the court

observed, or without seeking to correct the problem with instructions to the jury

on the issue. According to Defendant, without first engaging in one or more of

these acts, the district court could have no factual support for removal.

      The factual support for the district judge’s decision -- the disruptive

behavior of the juror observed by the court -- was stated for the record. We cannot

say that the continuous acts of “yawning, squirming, moving around, getting up

out of her chair, putting her head down between her legs, not paying attention to

the witness” that were observed and found by the court to be extremely distracting

fail to provide adequate factual support for removal. See Fajardo, 787 F.2d at

1626 (upholding removal of juror for disruptive conduct consisting of blowing

nose, loudly snorting, and wiping nose with sleeve). And a trial judge who

observes disruptive juror behavior and determines such behavior is distracting is

under no obligation to make further inquiry. See United States v. Bradley, 173

F.3d 225, 230 (3rd Cir. 1999) (district court had legitimate basis to dismiss juror,

without further inquiry, where court itself noticed juror sleeping).

        The record discloses -- and Defendant alleges -- no bias toward either party

on the part of the judge in effecting the removal. Defendant shows no bias or

prejudice sufficient to disturb the district court’s exercise of discretion.

                                           4
      Defendant also raises for the first time on appeal a Blakely-based

constitutional challenge to his sentence, Blakely v. Washington, 124 S.Ct. 2531

(2004). Since the filing of briefs in this appeal, the Supreme Court extended

Blakely to the federal sentencing guidelines. United States v. Booker, 125 S.Ct.

738 (2005). Under Blakely (now Booker), Defendant contends that the factual

allegations underlying his sentencing enhancements for obstruction of justice and

possessing a dangerous weapon during the offense were neither charged in the

indictment nor proved to the jury beyond a reasonable doubt. He also argues that

the quantity of marijuana attributed to him at sentencing was not alleged in the

indictment. Because Defendant raises this issue for the first time on appeal, we

review his claim only for plain error. See United States v. Cotton, 122 S.Ct. 1781,

1785 (2002); United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005).

      In United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005), petition for

cert. filed (U.S. Feb 23, 2005) (No 04-1148), we recognized that an enhancement

imposed under a mandatory guidelines system based on facts found by the judge

that went beyond those admitted by the defendant or found by the jury constituted

Booker error. Id. at 1298-99. And, because of Booker, we concluded that that

error is now plain. Id. at 1299.

                                         5
      But more than error that is plain must be shown before we may exercise our

discretion to correct; the complainant must also show that the plain error affects

substantial rights. United States v. Olano, 113 S.Ct. 1770, 1777-78 (1993). And

as Rodriguez explains, the plain error in this context is not the use of extra-verdict

enhancements; it is “the use of extra-verdict enhancements to reach a guidelines

result that is binding on the sentencing judge.” Id. at 1301. Rodriguez failed to

show the prejudice required for plain error relief: he could show no “reasonable

probability of a different result if the guidelines had been applied in an advisory

instead of binding fashion.” Id.

      Defendant’s claim fails for the same reason: Defendant has not met his

burden of showing that the Booker error in his case affected the outcome of his

sentencing. See id. at 1301, 1306. Defendant proffers nothing to show that a

reasonable probability exists that the sentencing judge would have imposed a more

lenient sentence had the guidelines been applied in an advisory and non-binding

fashion. See id. at 1301.

      AFFIRMED.

                                          6


635 F.2d 118
1980-81 Trade Cases  63,651, 7 Fed. R. Evid. Serv. 845
HYDROLEVEL CORPORATION, a New York Corporation,Plaintiff-Appellee-Cross-Appellant,v.The AMERICAN SOCIETY OF MECHANICAL ENGINEERS, INC., a NewYork Corporation, Defendant-Appellant-Cross-Appellee.
Nos. 664, 665, Dockets 79-7254, 79-7260.
United States Court of Appeals,Second Circuit.
Argued March 12, 1980.Decided Nov. 24, 1980.Rehearing and Rehearing En Banc Denied Jan. 22, 1981.

Harold R. Tyler, Jr., New York City (Patterson, Belknap, Webb & Tyler, Richard D. Parsons, Frederick T. Davis, Steven C. Charen, New York City, of counsel), for defendant-appellant-cross-appellee.
Carl W. Schwarz, Washington, D.C.  (Metzger, Shadyac & Schwarz, Stephen P. Murphy, William H. Barrett, Washington, D.C., Donald J. Williamson, P.A., New York City, Michael F. Rehill, Newark, N.J., of counsel), for plaintiff-appellee-cross-appellant.
Before LUMBARD, FRIENDLY and MESKILL, Circuit Judges.
LUMBARD, Circuit Judge:

1
The American Society of Mechanical Engineers (ASME) appeals from a judgment of $7.5 million, entered in the Eastern District of New York on February 14, 1979, Judge Weinstein presiding.  The jury found that ASME had participated in a conspiracy to restrain trade in violation of § 1 of the Sherman Act, 15 U.S.C. § 1, and assessed damages at $3.3 million.  Judge Weinstein deducted from that figure $800,000 paid in settlement by other defendants and then trebled the remainder, awarding total damages of $7.5 million.  We affirm the judgment of liability on a theory different from that of the district court, and remand for a new trial on damages, with instructions regarding the treatment of the settlement payments and the assessment of legal fees.

I. FACTS

2
ASME is a tax-exempt technical and scientific society founded in 1880 and based in New York.  It has more than 90,000 members, drawn from all fields where mechanical engineers are active-including industry, academia, insurance and government-and has an annual operating budget of over $12 million.  It conducts educational and research programs, publishes a national magazine devoted to mechanical engineering, and, principally important to this case, promulgates over 400 codes and standards.  Those codes have great influence in the profession and the marketplace.  Indeed, they have been incorporated by reference into federal, state, and local laws and regulations.1  Although ASME employs a full-time staff, much of its work is done by volunteers from its membership who participate in ASME as individuals, not as representatives of their employers.  Over 10,000 such volunteers participate in the many ASME committees and sub-committees that draft, revise, and interpret ASME's codes.  The question in this appeal is whether ASME is liable for the restraint of trade that resulted when two of its highly placed volunteers caused it to issue a misinterpretation of one such code so as to frustrate competition at the expense of Hydrolevel Corporation.

3
At all relevant times, the Boiler and Pressure Vessel Code set standards for the performance of various components of steam and water boilers and pressure vessels.  Section IV of the Code set standards specifically for components of heating boilers, including a device whose name wholly describes its function: the low-water fuel cut-off.  If the water inside a boiler drops below a level that is sufficient to moderate the boiler's temperature, the boiler will "dry fire" and can explode.  A low-water fuel cut-off cuts off fuel to the boiler, and thus stops it, when the water reaches a certain low point.  To ensure that the cut-off operates before the water reaches a dangerously low level, Paragraph HG-605 of Section IV of the Code required that each boiler "have an automatic low-water fuel cut-off so located as to automatically cut off the fuel supply when the surface of the water falls to the lowest visible part of the water-gauge glass" attached to the outside of the boiler.

4
The leading manufacturer of cut-offs for the last fifty years has been McDonnel & Miller, Inc.  (M&M), of Chicago, which annually makes 70%-85% of the sales of "float" cut-offs.  The literal nomenclature of this area of mechanical engineering almost wholly explains function: when water in the boiler falls to the critical level, a floating bulb falling with the water trips a switch mechanically linked to the bulb and thus cuts off the fuel.  Hydrolevel began in 1965 to manufacture and market a "probe" cut-off which, as its name suggests, penetrates into the water in the boiler.  So long as water covers an electrode in the probe, a completed electrical circuit will cause fuel to flow to the boiler; when the water drops below the probe, the circuit is broken and the fuel stops.

5
Without entering the engineering debate over which kind of cut-off is better, an obviously irrelevant question in this appeal, it must be said that neither was flawless.  The one flaw that is relevant was that found in the probe cut-off: because boiling water bubbles and surges inside the boiler, it intermittently falls below the probe and cuts off the fuel although still at a safe level.  Hydrolevel therefore incorporated into its probe cut-off a time-delay element that allowed fuel to continue flowing for sixty to ninety seconds after the water fell below the probe.  This reduced the fluctuations in the fuel supply caused by bubbling and surging, but still cut off the fuel before the boiler could dry fire if the water actually fell to a critically low point.

6
In early 1971, a major purchaser of cut-offs, Brooklyn Union Gas Co., had decided to change to Hydrolevel's time-delay probe after years of purchasing M& M's float.  At the same time, M&M arranged to use ASME code interpretation procedures to stifle Hydrolevel's competition.  John W. James, the Vice-President in charge of Research at M&M, was the Vice-Chairman of the Section IV Subcommittee of ASME which drafted, revised, and interpreted Section IV of the Boiler and Pressure Vessel Code.  The Chairman of the Subcommittee was T. R. Hardin, an Executive Vice-President of Hartford Steam Boiler Inspection and Insurance Company (Hartford), the country's leading underwriter of boiler insurance.2  In March 1971 James and Hardin, along with James Solon, the President of M&M, and Eugene Mitchell, its Vice-President of Sales, decided to send to the Boiler and Pressure Vessel Committee a letter inquiring whether a cut-off with a time-delay met the standard of Paragraph HG-605.  James and Hardin drafted a letter of inquiry that they believed would elicit a negative answer.  On April 12, Mitchell signed the letter and sent it to W. Bradford Hoyt, the Secretary of the Boiler and Pressure Vessel Committee, who was a full-time ASME officer.  The letter asked, after paraphrasing Paragraph HG-605:

7
Is it the intent of this statement that the cut-off operate immediately when the boiler water level falls to the lowest visible part of the water-gauge glass, or is it permissible to incorporate a time-delay feature in the cut-off so that it will operate after the boiler water level reaches some point below the visible range of the gauge glass?

8
As Secretary of the Boiler and Pressure Vessel Committee, Hoyt processed such written inquiries according to § 8 of the Boiler and Pressure Vessel Committee Procedure.  Many inquiries could be answered with form letters authorized in § 8.01.  For inquiries that could not be answered by a form reply, § 8.02 provided that the "Secretary shall immediately refer such matters to the Chairman of the proper Subcommittee or to a Special Committee appointed by the Chairman or Vice-Chairman in cases where no other procedure is evident."  The April 12 inquiry from M&M could not be answered with one of the form letters under § 8.01, so Hoyt referred it under § 8.02 to Hardin, the "Chairman of the proper Subcommittee."

9
ASME's procedures then put Hardin in unsupervised control of its response to the inquiry.  Under § 8.02, an inquiry that could "be answered by direct reference to the Code" would receive an "unofficial communication" from ASME.  In such instances, "the subcommittee or special committee chairman shall outline the reply to be sent by the Secretary."  An inquiry that could not be answered with an unofficial communication would receive, under the other subsections of § 8.02, the attention of the entire subcommittee.  Hardin, however, treated the April 12 inquiry as one requiring only an unofficial communication and, accordingly, only his attention.  ASME provided no review of Hardin's discretion to respond unofficially to the inquiry.  He drafted a reply and sent it to Hoyt, who on April 29 sent an answer to Mitchell, which in pertinent part stated as follows:

10
A low-water fuel cut-off is considered strictly as a safety device and not as some kind of an operating control.  Assuming that the water gauge glass is located in accordance with the requirements of Par. HG-602(b), it is the intent of Par. HG-605(a) that the low-water fuel cut-off operate immediately and positively when the boiler water level falls to the lowest visible part of the water gauge glass.

11
There are many and varied designs of heating boilers.  If a time delay feature were incorporated in a low-water fuel cut-off, there would be no positive assurance that the boiler water level would not fall to a dangerous point during a time delay period.

12
The second paragraph of this letter does not follow from the first.  Whether a cut-off with a time-delay will assure that the water level will not fall dangerously low during the delay depends upon where on the boiler the cut-off is positioned vis-a-vis the water-gauge glass.  If the cut-off is positioned sufficiently above the lowest permissible water level, a cut-off with a time-delay could assure, even allowing for the delay, that the fuel supply would stop by the time the water fell to the lowest visible part of the water-gauge glass.  The letter's first paragraph takes the distance between the cut-off and water-gauge glass into account by referring to Paragraph HG-602(b), which sets the location of the water-gauge glass on the boiler.  The second paragraph does not take that distance into account and therefore draws its misleading conclusion.

13
Despite that failure in logic, the ASME answer proved to be valuable M&M propaganda.  M&M included a copy of the April 29 answer in its booklet entitled "The Opposition-Who They Are, How to Beat Them," which M&M distributed to its salesmen.  Further, a message from Mitchell in the booklet described Hydrolevel's cut-off and its time-delay and stated:

14
A time-delay of any kind in the firing device circuitry would very definitely be against the ASME Code which clearly stipulates the firing device must be shut down at the lowest visible portion of the gauge glass.  A time delay would defeat the intent of the ASME Code and this should definitely be brought to the attention of anyone considering the device which included a time delay in the low water cut-off circuitry.

15
Not surprisingly, copies of ASME's April 29 answer soon reached the hands of customers in the cut-off market.

16
Hydrolevel first learned about the April 29 answer in January, 1972, from an erstwhile customer.  Hydrolevel's Vice-President, Dominic DeLeonardis, requested a copy of the letter from Hoyt.  On February 8, an Assistant Secretary of the Boiler and Pressure Vessel Committee, R. D. Sutton, sent to DeLeonardis a letter that quoted both substantive paragraphs of the April 29 answer but did not reveal, pursuant to ASME's policy of maintaining inquirers' anonymity, that the inquirer had been M&M.  After seeing the April 29 letter and recognizing its second paragraph as misleading, and believing that ASME itself had distributed the letter to the cut-off market, Hydrolevel's President, Russel Rymer, complained to Hoyt on March 23, 1972 that the letter had seriously impaired Hydrolevel's sales.  Rymer urged that ASME send to whomever might have received the letter a statement that a cut-off with a time-delay can meet the Boiler and Pressure Vessel Code.  In response, Hoyt placed the matter of the April 29, 1971 letter on the agenda for the next meetings of the Boiler and Pressure Vessel Committee and Subcommittee, May 4 and 5, 1972.

17
When the Subcommittee met on May 4, James presided, having succeeded to the chairmanship after Hardin resigned.  Among many items of business at this meeting, which like all ASME committee and subcommittee meetings was public, the Subcommittee discussed Rymer's complaint.  During that discussion James stepped down from the chair.  The Subcommittee voted to "confirm the intent of the first paragraph" of the April 29 letter.  James reported this recommendation to the Committee meeting on May 5, along with the Subcommittee's recommendations on other matters.  The Committee voted to send Hydrolevel an "official communication", rather than simply reaffirm the first paragraph, and it appointed two Committee drafters.  The drafters proposed, the Committee approved, and on June 9, 1972 Hoyt sent to Rymer a letter that reversed the implication of the April 29 answer by stating "there is no intent in Section IV to prohibit the use of low water fuel cutoffs having time delays in order to meet the requirements of Par. HG-605(a)."3

18
Two years later, on July 9, 1974, the Wall Street Journal printed an article called "Knocking the Competition-How Rival's Use of 'Industry Code' Report Created Problems for Tiny Company."  The article reported Hydrolevel's difficulties in attempting to sell a cut-off which the market still believed did not meet the Code, and it suggested that "a marketing ploy" by M&M had created that belief.  It also reported that James had known about the inquiry-but did not report that James in fact had helped draft the inquiry-and it implied that a conflict of interest existed between James's position at M&M and on the Subcommittee.

19
The article's suggestions of impropriety prompted ASME's Professional Practice Committee to investigate, but it never discovered James's implication in the April 12 inquiry.  On the facts before it, the Committee concluded that Hoyt, Hardin, and James had each acted properly.  The Committee reopened its investigation, however, in March 1975, after James revealed for the first time, while testifying before the Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, that he had helped draft the April 12 inquiry and that he had destroyed his correspondence with Hardin after learning about the Wall Street Journal investigation from Hoyt.  Upon the advice of ASME's counsel, the Committee deferred further action pending this lawsuit, which Hydrolevel commenced on August 23, 1975, against ASME, M&M, and Hartford.  In early 1979, Hydrolevel sold all its assets except this suit for $86,000 salvage value.

20
M&M settled with Hydrolevel for $725,000; Hartford settled for $75,000, leaving ASME to go to trial alone.4  The district court first tried the issue of liability, and on January 30, 1979, after a seven-day trial, the jury found that ASME had conspired to restrain trade in the cut-off market.  The same jury then heard evidence on the issue of damages.  Hydrolevel presented three experts who offered estimates of Hydrolevel's injuries, ranging from $2,358,000 to $7,436,300 based on harms forecast as far in the future as 1988.  ASME's only expert witness on damages disputed the methods of computation used by Hydrolevel's experts but offered no alternative damage estimates.  ASME's principal defense was that Hydrolevel's losses had been caused by inadequate sales promotion and a defective product rather than by any ASME misrepresentation.

21
On February 2, 1979, the jury found that Hydrolevel had suffered damages of $3.3 million.  Judge Weinstein reduced the damages by the $800,000 settlements to.$2.5 million, trebled that, and entered a judgment for $7.5 million.  He also denied attorneys' fees for Hydrolevel.  ASME appeals from the liability verdict and the damage assessment; Hydrolevel cross-appeals from Judge Weinstein's deduction of settlements before trebling and his refusal to grant attorneys' fees.

II. LIABILITY

22
We affirm the jury's verdict of liability under § 1 of the Sherman Act, a verdict based upon a finding that ASME had conspired with others to restrain trade unreasonably in the low-water cut-off market by disparaging Hydrolevel's cut-off through a misinterpretation of the Boiler and Pressure Vessel Code.  Given the effect and intent of the April 29 interpretive letter and its subsequent misuse by M&M, the restraint was surely unreasonable: it intentionally misinterpreted the Code so as to prevent Hydrolevel from selling its product.  The more troublesome question, which we also decide in favor of Hydrolevel, is whether ASME may be held liable as a conspirator because of the acts of its agents.

23
Although we affirm the jury's verdict, we do so on a theory different from that embodied in the instructions to the jury.  In its Request Number 28, Hydrolevel requested that Judge Weinstein charge the jury that ASME would be responsible for its agents' actions if they acted within the scope of their apparent authority, even if they did not intend to benefit ASME.  Judge Weinstein, however, rejected that view and instructed the jury that ASME was not liable for its agents' acts unless (1) ASME ratified those acts or (2) the agents had acted to advance ASME's interests.  He charged:Now the law holds a corporation responsible for the unlawful act of its agents or officers but only when those unlawful acts are performed within the scope of the authority of the officers and on behalf of the corporation.

24
If the officers or agents act on behalf of interests adverse to the corporation or acted for their own economic benefit or the benefit of another person or corporation, and this action was not ratified or adopted by the defendant, their misconduct cannot be considered that of the corporation with which they are associated.

25
The argument on this appeal centered on whether the evidence justified a verdict for Hydrolevel under either of the district court's theories.  We need not resolve that dispute, for we hold that the district court erred in refusing Hydrolevel's requested jury instruction that incorporated an apparent authority theory.

26
The district court charged the jury that ASME could be held liable only if the jury found that ASME had ratified the acts of its agents or if the agents had acted to advance ASME's interests.  That is the appropriate theory for conventional torts.  See Restatement (2d) of Agency §§ 235, 236.  The conduct at issue here, however, is far closer to the torts discussed in § 247 (defamation); § 248 (interference with business relations); § 257 (misrepresentation); and §§ 261 and 262 (fraud).  None of these sections ties the principal's liability to a requirement that the agent act at least in part for the principal's benefit, and several expressly reject such a requirement.  See § 257, comment d; § 261, comment a; § 262.  Under these sections it is likewise immaterial that the agent knows the transaction to be a sham.  See § 261, comment a and illustration 3.  The leading case holding the principal liable where the agent commits fraud while acting within the scope of his apparent authority, although without intention to benefit the principal, is Mr. Justice Stone's opinion in Gleason v. Seaboard Air Line Co., 278 U.S. 349, 49 S.Ct. 161, 73 L.Ed. 415 (1929), which since then has not been questioned.

27
The reasons for this stringent treatment of intentional torts are not difficult to find.  Such torts arise from and are enhanced by the agent's appearance of authority.  Third persons-here the customers to whom M&M's circulated the misleading ASME letter-are entitled to rely on that appearance.  Moreover, as stated in § 247, dealing with defamation, the act of the agent "is effective, in part at least, because of the personality" of the principal.  Or, as said in § 261, comment a, dealing with fraud:

28
(L)iability is based upon the fact that the agent's position facilitates the consummation of the fraud, in that from the point of view of the third person the transaction seems regular on its face and the agent appears to be acting in the ordinary course of the business confided to him.

29
Imposing liability on the principal will induce greater care to prevent misconduct by agents occupying especially sensitive or responsible positions that invite reliance-a consideration of great importance in cases such as this where misuse of quasi-official standards and codes can so easily injure competitors.

30
Hardin's conduct here was essentially a fraud, a willful and knowing misrepresentation of the Code.  The victims, however, were those customers to whom he knew M&M would circulate the letter as well as, ultimately and most seriously, the plaintiff.  This difference from the more usual situation in which the injured party relies directly on the culpable misrepresentations can hardly be material.  In Ricketts v. Pennsylvania R. Co., 153 F.2d 757, 759 (2d Cir. 1946), we held that there is "no distinction in principle" between the situation in which the agent deceives the third person "and one in which the agent deceives, not the third person, but his principal."  Alternatively, the tort could be regarded as "injurious falsehood."  See Prosser, Torts § 128 at 915-26 (4th ed. 1971); Restatement (2d) of Torts § 623A.  As to this, the Restatement (2d) of Agency tells us, § 248 comment b, that where "harm to business relations is accomplished by defamation or other methods of untruthful publicity, a servant with apparent authority to make statements binds his employer, irrespective of his motive...."5

31
A conspiracy to restrain trade is so similar to fraud, injurious falsehood, and tortious interference with business relations that application of the Restatement rules governing those torts is appropriate.  Moreover, ASME's widespread influence through its Code carries with it a corresponding duty to guard against the misuse of such influence.  It is difficult to see how a trade association should be treated any differently than a business competitor, especially when it is the association's standing and influence that makes the conspiracy effective and possible.  In a variety of contexts, trade associations are obligated to take suitable precautions to avoid antitrust violations.  See Symposium, Trade and Professional Associations: The Antitrust Combat Zone, 46 Antitrust L.J. 638 (1977).  While ASME may have no alternative to staffing its committees with business people having practical knowledge, there is a corresponding duty to be aware of and guard against the temptations thus afforded by inherent conflicts of interest.  Absent some internal review procedures, no individual should be empowered to rule dispositively on the fitness of a competitor's product.  When an organization has placed a person in a position to do what Hardin did, without any check or supervision, it must bear the consequences.

32
Two considerations opposing this more stringent rule of liability warrant brief mention: the treble damages provision in § 4 of the Clayton Act and the non-profit, voluntary aspects of trade associations such as ASME.  The first consideration suggests that broad agency theories of liability are inappropriate where treble damages are required.  For example, in United States v. Ridglea State Bank, 357 F.2d 495 (5th Cir. 1966), the court rejected an expansive agency doctrine in a case under the False Claims Act, 31 U.S.C. § 231 et seq.  (1976), because the Act's double damages provision provides "a recovery wholly out of proportion to actual loss."  357 F.2d at 500.6

33
In our view, the treble damages accorded under the antitrust laws are distinguishable.  In contrast to a private antitrust action, the United States need not suffer actual damages before collecting penalties under the False Claims Act.  See United States v. Cherokee Implement Co., 216 F.Supp. 374, 375 (N.D.Iowa 1963), and cases cited therein.  The comparatively more punitive False Claims Act award includes not only a double damage remedy but also fixed forfeitures for each violation of the act.  See Ridglea, supra, 357 F.2d at 499.

34
Beyond this, restraint of trade was, under the common law, a variety of business tort that was remedied through restitution.  See Comment, Private Treble Damage Antitrust Suits: Measure of Damages for Destruction of All or Part of a Business, 80 Harv.L.Rev. 1566 (1967).  See also Standard Oil Company of New Jersey v. United States, 221 U.S. 1, 50-69, 31 S.Ct. 502, 511519, 55 L.Ed. 619 (1911); Williamson v. Columbia Gas & Electric Corp., 110 F.2d 15, 17-18 (3d Cir. 1940).7  Full restitution of plaintiffs' losses is a no less central objective of the treble damage provision than the encouragement of private antitrust enforcement.  See Illinois Brick Co. v. Illinois, 431 U.S. 720, 746-47, 97 S.Ct. 2061, 2074-2075, 52 L.Ed.2d 707 (1977); Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 485-87, 97 S.Ct. 690, 695-697, 50 L.Ed.2d 701 (1977); K. Elzinga & W. Breit, The Antitrust Penalties 66-67 (1966); Comment, supra, at 1566-67.

35
Unlike the False Claims Act penalties, where damages are doubled although the government's losses are readily ascertainable, the trebling of damages under the antitrust laws reflects congressional recognition of the difficulty of proving antitrust damages.  See Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., supra, 429 U.S. at 486 n. 10, 97 S.Ct. at 2066 n. 10; K. Elzinga & W. Breit, supra, at 67; Comment, supra, at 1566.  Thus, we see no reason why the treble damage provision of the Clayton Act should compel a restricted view of agency law.

36
That brings us to the second consideration affecting ASME's liability: whether ASME's unique structure or status should mandate a different result.  We conclude that it should not.  ASME's reliance on Coronado Coal Corp. v. United Mine Workers, 268 U.S. 295, 45 S.Ct. 551, 69 L.Ed. 963 (1925), is misplaced; that decision held that an international union may not be held liable for a Sherman Act violation by leaders of a local where, under the constitution of the International, it could only accept authority for the action by express ratification.  Id. at 304, 45 S.Ct. at 554.  ASME's protest that its status as a professional organization requires more flexible treatment than would be accorded an ordinary corporation is similarly unpersuasive.  Dicta indicating more flexible and lenient treatment of professional organizations in Goldfarb v. Virginia State Bar, 421 U.S. 773, 788-89, 95 S.Ct. 2004, 2013-2014, 44 L.Ed.2d 572 (1975), and National Society of Professional Engineers v. United States, 435 U.S. 679, 696, 98 S.Ct. 1355, 1368, 55 L.Ed.2d 637 (1978), concern the antitrust consequences of such organizations' regulation of their own members.  See generally Handler, Antitrust-1978, 78 Colum.L.Rev. 1363, 1364-68 (1978).  The dicta of those cases refer only to uniform regulation of the professional conduct of an association's members.  By contrast, this case involves the radically different situation where a professional organization having great economic influence is implicated in a conspiracy to restrain competition to the injury of third parties and the public.  See, e. g., United States v. Hilton Hotels Corp., 467 F.2d 1000 (9th Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 938, 35 L.Ed.2d 256 (1973) (corporation criminally liable for boycott participation by purchasing agent disobeying express instruction and motivated by personal pique against boycott target); Northern California Pharmaceutical Ass'n v. United States, 306 F.2d 379-86 (9th Cir. 1962) (professional organization subject to Sherman Act where its activities are of precisely the sort that Act condemns).

37
For ASME to be liable, then, Hydrolevel had to demonstrate only that ASME's agents acted within their apparent authority when participating in the conspiracy; it did not have to demonstrate that they also acted in part to benefit ASME or that ASME later ratified their actions.  The district court's charge required either one of those two additional aspects and consequently was more favorable to ASME than it should have been.  As the jury found for Hydrolevel on a charge that was more favorable to the defendant than the law requires, we affirm the judgment on liability.III. ALLEGED TRIAL ERRORS

38
ASME argues that several errors at trial require reversal of the jury's liability determination.  Principally, ASME asserts that the district court erred in admitting four pieces of evidence: the July 1974 Wall Street Journal article that contained a concise and apparently corroborating account of Hydrolevel's charges; references to the FTC and Senate Subcommittee investigations of Hydrolevel's charges; the deposition of John Bonner, the chairman of a plumbing supply company, who had been included in ASME's list of possible expert witnesses but who gave testimony damaging to ASME in his pretrial deposition and was never called at trial; and finally, the alleged hearsay testimony of DeLeonardis on conversations with potential Hydrolevel customers who indicated concern that Hydrolevel's device did not meet ASME requirements.  We find no error in the admission of this evidence.

39
The most serious objection raised by ASME concerns the Wall Street Journal article.  But, to the extent that the article addressed the circumstances attending M&M's April 12 inquiry and ASME's April 29 response, its account was considerably less damning than the facts developed at trial.  More important, the article was admitted only to demonstrate the state of mind of those who reacted to it: Hoyt's advising James about the article and James' response in destroying the ASME correspondence file on the subject were relevant to Hydrolevel's ratification argument.  The Journal article led the ASME directors to call for an investigation that Hyrdolevel asserts was never meant to uncover anything.  To avoid any undue prejudice, Judge Weinstein instructed the jury initially that the article was not admitted for the truth of its assertions and, in his charge, directed the jury not to read it at all.  Taken together, those considerations suggest that admission of the article did not constitute error.

40
The remaining evidentiary objections are without merit.  Mere mention of the FTC investigation and Senate hearings was not impermissibly prejudicial in light of the court's strong cautionary instructions.  The Bonner deposition was admitted for the limited purpose of indicating how the April 29 letter might be interpreted in the industry.  Although the district court never certified Bonner as an expert, there is no doubt that Bonner, as a businessman, engineer, and potential ASME expert, was qualified to provide expert testimony.  Finally, the alleged DeLeonardis hearsay regarding responses of potential customers is excepted from the hearsay rule by Fed.R.Evid. 803(3).  "Statements of a customer as to his reasons for not dealing with a supplier are admissible for this limited purpose ...." Herman Schwabe, Inc. v. United Shoe Machinery Corp., 297 F.2d 906, 914 (2d Cir.), cert. denied, 369 U.S. 865, 82 S.Ct. 1031, 8 L.Ed.2d 85 (1962) (citations and footnote omitted); J. Weinstein and M. Berger, Weinstein's Evidence P 803(3)(03) (1979).

41
In addition to its evidentiary objections, ASME asserts that Hydrolevel's counsel's misstatements and emotionalism during summation require a new trial.  We do not agree.  Judge Weinstein's rulings regarding the summation were well within his discretion.  ASME's trial counsel had ample opportunity to set the record straight during his own summation.  In any event, on retrial of damages it should be made clear that misstatements of evidence and extravagant and hyperbolic language and displays of emotion of Hydrolevel's counsel must be avoided.

IV. DAMAGES

42
We reverse the judgment as to damages and remand for a new trial.  The jury returned a verdict of $3.3 million; but, as ASME argues, the verdict was excessive and should not stand.  Although the trial judge did not say in so many words that the damage verdict was excessive, he was obviously of the view that the verdict was excessive.  In passing on ASME's motion to set aside the verdict and on Hydrolevel's motion for counsel fees, and in directing judgment on the verdict, the trial judge did all he could to reduce the judgment, short of granting a new trial or directing a remittitur in lieu of a new trial.  First, the judge deducted the $800,000 already paid in settlements from the $3,300,000 before trebling-which, for reasons stated below, we find to be error.  Next, the judge denied the application for counsel fees on the ground that with such a large judgment the grant of counsel fees was not necessary.  This also we find to be error.

43
Review of the record leads to the inescapable conclusion that the verdict was grossly excessive.  Hydrolevel had operated at a loss in each of the six years preceding the April 1971 letter and it continued to do so in the years following the June 1972 letter of retraction.  Hydrolevel's experts were permitted to testify to long-term damage estimates extending to the year 1988 on the tenuous theory that it would take that long to recover fully from the April 1971 interpretation.  Moreover, these estimates were based on the assumption that Hydrolevel would gain 10 to 25% of the market, although it had never at anytime reached 1% of the market.  Thus, the experts estimated loss profits for eight years ranging from $2,358,000 to $4,406,300 and lost going concern figures in excess of $3,000,000.8

44
The estimates of the experts regarding lost sales were open to serious question for two additional reasons: they relied on lost sales in the international market due to M&M's exclusive distributorship with Honeywell-an agency relationship whose relevance to lost sales was never explained-and to alleged predatory pricing by M&M as to which there was no evidence.

45
But we see no need to detail all the uncertainties and errors in the presentation of the plaintiff's damage evidence.  ASME's responsibility for the damage caused Hydrolevel by the conspiracy extends only to those damages incurred during the period when M&M was able to mislead customers and potential customers about the interpretation of the ASME code standards.  The June 1972 letter was a retraction of the April 1971 interpretation.  It stated:

46
This will advise that there is no intent in Section IV to prohibit the use of low water fuel cutoffs having time delays in order to meet the requirements of Par. HG-605(a).  This paragraph relates itself to Par. HG-602(b) which specifically delineates the location of the lowest visible part of the water gauge glass.

47
If a means for retarding control action is incorporated in a low-water fuel cutoff, the termination of the retard function must operate to cutoff the fuel supply before the boiler water level falls below the visible part of the water gauge glass.

48
The draft of the retraction was sent to over 300 people active in the boiler market.  Thereafter, Hydrolevel distributed the June 1972 letter to customers and potential customers.  As ASME's sole contribution to the conspiracy was the April 1971 letter, a suitable retraction of the misinterpretation in the April 1971 letter was all that was required to free it from further liability for any damages caused by the conspiracy.  Thus, its responsibility for damages was at an end when it provided Hydrolevel with the means of correcting the false impressions caused by the April 1971 letter which M&M had been using.  Although ASME never sought at trial to limit the liability for damages by reason of the June 1972 letter, apparently because the district court framed the issues along other lines which made such a limitation seem inconsistent with the position asserted by ASME throughout the trial, the issue of limitation of damages is available to ASME upon a retrial to determine damages.9

49
As the record on retrial may be more complete on this issue, we leave it to the district court to determine whether the jury should be instructed regarding a time limitation on damages or whether there are factual issues as to the retraction and its effectiveness which the jury must first decide before assessing damages.  There are clues in Hydrolevel's summation and in DeLeonardis's testimony that Hydrolevel believed the retraction to have been somehow defective, but those arguments were never developed at trial.  One asserted difficulty is that the retraction did not refer to the April 1971 letter, but rather to a later interpretation of that letter sent to Hydrolevel that was dated February 8, 1972.  Although DeLeonardis suggested that further steps by ASME, such as publication of a retraction, would have helped Hydrolevel, the record shows no evidence of Hydrolevel ever having complained that the letter was insufficient or ever having requested further aid.  Finally, Hydrolevel demonstrated that the second paragraph of the retraction was inserted largely at the urging of James, but Hydrolevel's argument in summation failed to describe what harm that second paragraph could have caused.  The record does reveal two attempts by Hydrolevel to use the June 1972 retraction to repair its reputation.  We leave the consideration of these possible claims to the trial court.

50
Consequently, we hold that, if on retrial no further proof is offered regarding ASME's retraction, the district court should instruct the jury to consider only damages incurred from April 1971, the date of the initial misrepresentation, until a reasonable time after June 9, 1972, the date of Hoyt's correction letter.

51
As stated above, it was error for the district court to deduct the $800,000 already paid in settlement, from the jury verdict, before trebling the verdict.  The district court should first treble the amount of the jury's verdict and then subtract the $800,000 already paid in settlements.  In Flintkote Co. v. Lysfjord, 246 F.2d 368 (9th Cir. 1957), the Ninth Circuit presented three convincing reasons for trebling damages before deducting settlement proceeds.  First, the antitrust laws provide that the plaintiff should receive three times the proven actual damages.  If settlement proceeds are deducted before trebling, the plaintiff's total award is less than what the law allows.  Since antitrust defendants are joint tort-feasors, each is liable to complete the total deserved damages irrespective of fault.  Second, as discussed above, one purpose of the trebling provision is to encourage private plaintiffs to bring suit.  Any ultimate recovery totaling less than three times proven damages would weaken the statutory incentive through judicial construction.  Third, deduction of settlement proceeds before trebling would discourage settlement by making litigation relatively more profitable for plaintiffs: every dollar received in settlement would cause a three dollar reduction in the judgment at trial.  Accord, Semke v. Enid Automobile Dealers Assoc., 320 F.Supp. 445 (W.D.Okl.1970); Bal Theatre Corp. v. Paramount Film Distributing Corp., 206 F.Supp. 708 (N.D.Cal.1962); Note, Contribution and Antitrust Policy, 78 Mich.L.Rev. 889, 906 n.87 (1980).  We find that reasoning persuasive.

52
The district court also erred in denying reasonable attorneys' fees to Hydrolevel.  Section 4 of the Clayton Act, 15 U.S.C. § 15 (1976), expressly requires such an award.  Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531 n.2 (3d Cir.), cert. denied, 429 U.S. 825, 97 S.Ct. 78, 50 L.Ed.2d 87 (1976).  In determining fees, consideration should be given to any amounts that may have been paid to Hydrolevel's counsel from the settlement money or by the settling parties, and the amount of time spent in preparing the case against M&M and Hartford, both of whom were far more culpable than ASME.10

53
A restriction of expert testimony on damages, limitation of the period for which ASME is responsible, and a charge by the court which provides some specific guidance beyond mere generalities should result in a verdict more in keeping with the harm Hydrolevel suffered and ASME's unintentional participation.

54
We thus affirm the judgment on liability.  We reverse the judgment on damages and remand for a redetermination of damages and counsel fees in accordance with this opinion.  Jurisdiction is retained.

1
 See, e. g., 12 N.Y. Code R. & Reg. §§ 4-1.9, 4-1.10 (1979)

2
 International Telephone and Telegraph had just acquired a controlling interest in Hartford.  At the same time, M&M was initiating what were to become successful negotiations to be acquired by the same firm.  ITT completed its acquisition of M&M in December of 1971

3
 The text of the June 9, 1972 letter is reprinted in Section III of this opinion

4
 The jury was not told about M&M's and Hartford's settlements, and the district court charged the jury, "Do not speculate on why ITT or Hartford Steam or anybody else, individual or institution, is not in the case.  You have only one issue before you.  Is this defendant liable?  That's all."  See Fed.R.Evid. 408

5
 Again, if Hydrolevel had sued ASME for what the New York courts have called a "prima facie tort," see W. Prosser, Torts § 130 at 953-54, we see no possible basis on which a verdict in its favor could properly be disturbed on the ground of lack of authority on the part of Hardin.  Hydrolevel originally sought to hold ASME liable for trade libel, tortious interference with business relations, and violation of New York's Donnelly Act, N.Y.Gen.Bus.L. § 340 (McKinney 1968), which proscribes, inter alia, agreements for the purpose of establishing or maintaining monopolies and "(f)or the purpose of unlawfully interfering with the free exercise of any activity in the conduct of any business, trade or commerce."  With court approval, Hydrolevel abandoned all of its state law claims before trial

6
 See also Asphalt Industries, Inc. v. Commissioner, 384 F.2d 229 (3d Cir. 1967) (corporation held not liable for tax fraud penalties caused by fraudulent acts of its president against the interest of the corporation).  Restatement (2d) Agency § 217C also restricts the imputation of liability for punitive damages but says that the rule there stated does "not apply to the interpretation of special statutes such as those giving triple damages, as to which no statement is made."  § 217C, comment c

7
 The treble damage formula itself seems to have been taken from an early English antimonopoly statute.  See "An act concerning monopolies and dispensation with penal laws and forfeitures thereof," 21 Jac.  I. c. 3 1623; K. Elzinga & W. Breit, The Antitrust Penalties 63-64 (1976)

8
 Although ASME did not object to these damage estimates when they were introduced, it did move at the close of the plaintiff's damage case to strike the plaintiff's experts' computations "as based entirely on supposition and guesswork."  Judge Weinstein denied that motion

9
 Nor did ASME ever argue to the jury the significance of the June 1972 letter

10
 We note that the matter of contribution among joint tortfeasors in antitrust suits is before the Supreme Court in Wilson P. Abraham Construction Corp. v. Texas Industries, Inc., 604 F.2d 897 (5th Cir. 1979), cert. granted sub nom.  Texas Industries Inc. v. Radcliffe Materials, --- U.S. ----, 101 S.Ct. 351, 66 L.Ed.2d 213 (1980).  See also Professional Beauty Supply, Inc. v. National Beauty Supply, Inc., 594 F.2d 1179 (8th Cir. 1979); Note, Contribution in Private Antitrust Actions, 93 Harv.L.Rev. 1540 (1980); Note, Contribution and Antitrust Policy, 78 Mich.L.Rev. 890 (1980)


552 F.Supp. 8 (1982)
Mrs. Flossie NEWKIRK, Plaintiff,
v.
Mr. James ALLEN and Mrs. McInerney, Defendants.
No. 82 Civ. 2291 (HFW).
United States District Court, S.D. New York.
November 29, 1982.
*9 Joseph Scott, Jr., New York City, for plaintiff.
John S. Martin, Jr., U.S. Atty., S.D.N.Y., by Jorge Guttlein, New York City, for defendants.

MEMORANDUM DECISION
WERKER, District Judge.
This is a defamation action in which plaintiff seeks to recover $9,000.00 in damages from two employees of the Veteran's Administration Hospital ("V.A. Hospital") in Montrose, New York. The action originally was commenced in the New York State Supreme Court and subsequently was removed by defendants pursuant to 28 U.S.C. § 1442(a)(1). Jurisdiction properly is predicated upon 28 U.S.C. § 1442(a)(1). See S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 35 (2d Cir.1979) (citations omitted). The matter presently is before the court on defendants' motion for summary judgment pursuant to Fed.R. Civ.P. 56.

FACTS
At all times relevant to this action, plaintiff was employed as a nursing assistant at the V.A. Hospital. Defendant James Allen ("Allen") was employed as a staff nurse on plaintiff's ward. As a staff nurse, Allen was in charge of the nursing personnel on his ward and, as part of his duties, was required to record in writing any incident that occurred on his ward involving an employee for whom he was responsible. These reports became part of the employee's file and occasionally formed the basis for disciplinary action against the employee. Defendant Dorothy McInerney ("McInerney") was the coordinator of the building to *10 which plaintiff and Allen were assigned. One of McInerney's responsibilities was to notify her immediate supervisor and the nursing office of any reports of employee incidents.
Plaintiff's claims arise out of a memorandum written by Allen, in which he reported that plaintiff had confronted him, had used profane language and had acted in an irrational manner. Allen had been instructed by Gloria Wilkens ("Wilkens"), his immediate supervisor, to write the memorandum after he had informed her of the incident. The memorandum was addressed to both Wilkens and McInerney. After McInerney received a copy of the memorandum, she placed it in plaintiff's file. Sometime thereafter, McInerney was asked to deliver plaintiff's file to the nursing office. Disciplinary action against plaintiff subsequently ensued.

DISCUSSION
Summary judgment may be granted only when it is clearly demonstrated to the court that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is the movant's burden to show that there is no dispute as to any material fact. E.g., Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 444 (2d Cir.1980); Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975). In support of their motion, defendants have submitted affidavits setting forth the events and activities that form the basis of plaintiff's complaint. None of the statements of material facts contained in those affidavits have been contested by plaintiff.[1] The matter therefore is ripe for summary judgment.
The sole issue presented on this motion is whether defendants are immune from liability in this case. Under the doctrine of official immunity, federal officials are absolutely immune from liability for common-law torts allegedly committed during the performance of any official duties that require the exercise of judgment or discretion. E.g., Barr v. Matteo, 360 U.S. 564, 569-76, 79 S.Ct. 1335, 1338-42, 3 L.Ed.2d 1434 (1959); Huntington Towers, Ltd. v. Franklin Nat'l Bank, 559 F.2d 863, 870 (2d Cir.1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 726, 54 L.Ed.2d 756 (1978); Liguori v. Alexander, 495 F.Supp. 641, 648 (S.D.N.Y.1980).[2] The purpose of the rule of official immunity is to allow governmental officials the freedom
to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those dutiessuits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.
Barr v. Matteo, 360 U.S. 564, 571, 79 S.Ct. 1335, 1339, 3 L.Ed.2d 1434 (1959).
In this case, there is no dispute that the activities of which plaintiff complains were within defendants' line of duty. Nevertheless, plaintiff argues that, because defendants were following V.A. Hospital rules and the instructions of their superiors, there was no room for defendants to exercise discretion in the performance of these activities. Plaintiff's argument only begs *11 the question. In any employment situation, whether governmental or not, an employee's authority is defined by the rules of his employer. Indeed, to accept plaintiff's argument, would be to hold that the protections of the immunity doctrine extend only to higher-ranking officials who formulate rules and delegate responsibility and not to lower-level employees who follow those rules and perform the duties delegated to them. It is well established, however, that the scope of the coverage of the immunity doctrine is not so limited. Id. at 573, 79 S.Ct. at 1340.
With respect to the discretion requirement of the immunity doctrine, the Second Circuit has stated that
[t]here is no litmus paper test to distinguish acts of discretion, ... and to require a finding of `discretion' would merely postpone, for one step in the process of reasoning, the determination of the real question  is the act complained of the result of a judgment or decision which it is necessary that the Government official be free to make without fear or threat of vexatious or fictitious suits and alleged personal liability?
Ove Gustavsson Contracting Co. v. Floete, 299 F.2d 655, 659 (2d Cir.1962) (citations omitted), cert. denied, 374 U.S. 827, 83 S.Ct. 1862, 10 L.Ed.2d 1050 (1963); see Huntington Towers, Ltd. v. Franklin Nat'l Bank, 559 F.2d 863, 870 (2d Cir.1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 726, 54 L.Ed.2d 756 (1978).
In essence, then, once it is established that the official was acting within the scope of his authority, the only issue left to be decided is whether the purposes of the immunity doctrine best would be fulfilled by cloaking the particular act complained of with immunity from civil tort liability. The court finds that, in this case, that question must be answered in the affirmative. In order to provide adequate medical services and as a matter of policy, supervisory employees of V.A. Hospitals must be accorded the freedom to report unprofessional and improper conduct on the part of medical staff members without the fear of being subjected to a lawsuit. This decision is in no way contrary to the holding of Estate of Burks v. Ross, 438 F.2d 230 (6th Cir.1971), upon which plaintiff heavily relies. Although the Burks court held that nurses in a Veterans Administration hospital did not enjoy the protections of official immunity, id. at 235, the issue presented in that case was whether the nurses could be held liable for negligence in the care of a patient. Id. at 231. Since the focus in each case is on the particular act complained of, e.g., Huntington Towers, Ltd. v. Franklin Nat'l Bank, 559 F.2d 863, 870 (2d Cir.1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 726, 54 L.Ed.2d 756 (1978); Ove Gustavsson Contracting Co. v. Floete, 299 F.2d 655, 659 (2d Cir.1962), cert. denied, 374 U.S. 827, 83 S.Ct. 1862, 10 L.Ed.2d 1050 (1963), Burks is totally inapposite to the case at bar. Accordingly, defendants' motion for summary judgment is granted.

CONCLUSION
For the reasons discussed above, defendants' motion for summary judgment is granted, and the complaint is dismissed on the merits. Defendants are directed to submit a judgment on notice within ten (10) days after the entry of this order.
SO ORDERED.
NOTES
[1]  In addition to affidavits, defendants also have submitted a statement of the material facts as to which they contend there is no genuine issue to be tried, as is required by rule 3(g) of the local rules of this court. S.D.N.Y.R.Civ.P. 3(g). Plaintiff does not contest any of the facts asserted in that statement nor has she submitted a rule 3(g) statement of her own. Plaintiff therefore is deemed to have admitted the facts as set forth in defendants' rule 3(g) statement. Id.
[2]  In Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), the Court held that federal officials enjoy only a qualified immunity from liability for constitutional torts. Id. at 485, 98 S.Ct. at 2899-2900. That decision, however, has no effect on the rule of absolute immunity from common-law tort liability. E.g., Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Inst., 566 F.2d 289, 293 (D.C. Cir.1977) (en banc), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160 (1978); Liguori v. Alexander, 495 F.Supp. 641, 648 (S.D.N.Y. 1980).


537 U.S. 979
WINKERv.McDONNELL DOUGLAS CORP.
No. 02-5996.
Supreme Court of United States.
October 21, 2002.

1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

2
C. A. 8th Cir. Certiorari denied.


780 F.2d 1023
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.(The decision of the Court is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter.)LOUIS CHARLES SHEPTIN, Petitioner-Appellant,v.TONY YOUNG, WARDEN, AND ATTORNEY GENERAL OF THE UNITEDSTATES, Respondents-Appellees.
85-5658
United States Court of Appeals, Sixth Circuit.
11/4/85

AFFIRMED
W.D.Tenn.
ORDER
BEFORE:  KEITH and KENNEDY, Circuit Judges; and EDWARDS, Senior Circuit Judge.

1
Sheptin moves for counsel on appeal from the district court's order dismissing his petition for federal habeas corpus relief concerning the conditions of his confinement.  This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit.  After an examination of the record and Sheptin's informal brief, this panel agrees unanimously that oral argument is not needed.  Rule 34(a), Federal Rules of Appellate Procedure.

2
Sheptin was a prisoner at the Memphis, Tennessee Federal Correctional Facility when he filed his petition challenging the conditions of his confinement.  He filed numerous pleadings but allegedly failed to serve copies of these pleadings and exhibits on the other parties.  The district court entered an order requiring Sheptin to explain his failure to serve these documents.  When seven months passed without Sheptin responding to the order, the district court entered an order dismissing the case.

3
The general rule is that dismissal is a harsh sanction and should only be ordered in cases showing a clear record of delay or contumacious conduct by the plaintiff.  Carter v. City of Memphis, Tennessee, 636 F.2d 159, 161 (6th Cir. 1980).  After an examination of the record, we agree with the conclusions of the district court that Sheptin's conduct shows both a clear record of delay and contumacious behavior.  So the district court did not abuse its discretion when it dismissed the case.

4
The motion for counsel is denied.  The judgment of the district court is affirmed under Rule 9(d)(3), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.


982 F.2d 525
NOTICE:  Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.Kenneth CLAY, Appellant,v.Bill ARMONTROUT, Appellee.
No. 92-2182EM.
United States Court of Appeals,Eighth Circuit.
Submitted:  December 16, 1992.Filed:  January 7, 1993.

Before JOHN R. GIBSON, Circuit Judge, BRIGHT, Senior Circuit Judge, and FAGG, Circuit Judge.
PER CURIAM.

1
Kenneth Clay appeals the district court's denial of his petition for writ of habeas corpus.  The district court adopted the magistrate judge's report holding that Clay's claims were procedurally barred and without merit.  Clay's arguments that his claims are not procedurally barred are foreclosed by contrary holdings in  Coleman v. Thompson, 111 S. Ct. 2546, 2566-67 (1991), and  Daniels v. Jones, 944 F.2d 429, 430-31 (8th Cir. 1991).  We thus affirm the district court.  See 8th Cir.  R. 47B.


Joshua James Carl Jamieson a/k/a Joshua Jamieson v. State

COURT
OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-216-CR

JOSHUA JAMES CARL JAMIESON

    APPELLANT
A/K/A JOSHUA JAMIESON
V.
THE STATE OF TEXAS

        STATE
------------
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
------------
MEMORANDUM OPINION(1)
------------
Appellant Joshua James Carl
Jamieson appeals his conviction for driving while intoxicated, felony
repetition. In a single point on appeal, appellant contends the evidence is both
legally and factually insufficient to support the conviction. We will affirm.
The evidence supporting the verdict
shows that David Kervin, a second year law student, and his date were driving to
her car at around 11:00 p.m. In his rear-view mirror, David noticed a car
approaching and that it made a "severe kind of swerve." Appellant, the
driver of the swerving vehicle, pulled along side David's car and began making
gestures. David rolled down his window, but found it difficult to understand
what the driver was saying because appellant's speech was slurred, jumbled, and
laced with profanities. As David and his date continued to her car, appellant
continued communicating with David and making threats.
David pulled into a gas station.
Appellant then pulled his vehicle into the gas station, exited his vehicle, and
made a "beeline" for David. David, fearing for his safety, hit
appellant. They were separated quickly by some bystanders, and the police were
called.
Officer M. T. Riggs arrived at the
scene and found appellant standing outside David's car, screaming and yelling at
David and his date as they sat inside the vehicle. Officer Riggs was a six-year
veteran of the Fort Worth Police Department and a member of the
driving-while-intoxicated unit. Officer Riggs immediately noticed appellant had
a strong odor of alcohol about his person, slurred speech, unsteady balance, and
bloodshot eyes.
While Officer Riggs was gathering
information about a possible assault, the information led him to believe that
appellant had committed the offense of driving while intoxicated. David, his
date, and appellant all told Officer Riggs that appellant had been operating a
motor vehicle that night. David stated that based on appellant's mental and
physical condition, appellant was either insane or drunk and that "drunk
was the most obvious."
Based upon this information,
Officer Riggs asked appellant to perform the standardized field sobriety tests.
Appellant demonstrated six out of six clues of intoxication on the horizontal
gaze nystagmus test, eight out of eight intoxication factors on the
walk-and-turn evaluation, and three out of four possible factors indicating
intoxication on the one-leg-stand test. On the walk-and-turn evaluation, Officer
Riggs noticed that appellant could not balance while listening to the
instructions, follow the instructions regarding when to begin, walk without
stopping to steady himself on several steps, follow the heel to toe
instructions, maintain balance while walking without using his arms to balance,
or turn correctly and take the correct number of steps. Additionally, appellant
almost fell on the turn. During the one-leg-stand test, Officer Riggs observed
appellant sway while balancing, put his foot down several times, and use his
arms for balance.
Officer Riggs formed the opinion
that appellant had lost the normal use of his mental and physical faculties as a
result of the introduction of alcohol into his body and that appellant had been
operating a vehicle in a public place. He placed appellant under arrest. A
search of appellant's vehicle yielded two empty cans of light beer and a nearly
empty bottle of Boone's Farm wine.
There was no video made at the
scene because the video camera in Officer Riggs's police car was out of order. A
videotape was made at the police station, where appellant refused to give a
breath specimen and to perform the field sobriety tests. While being taped and
responding to questioning, appellant stated he had consumed two beers that
evening and that he had come from The Wreck Room, a bar on Seventh Street.
Appellant was also shown on videotape losing his balance at one point and
appearing unsteady on his feet another time.
In contending the evidence is
legally and factually insufficient to support his conviction, appellant argues
that the videotape recorded at the police station demonstrates that he was able
to answer all booking questions asked of him without slurring, confusion, or
delay and that he was able to stand without swaying or support. He claims that
the tape contradicts Officer Riggs's testimony to a degree that no rational
trier of fact could have found the necessary elements of DWI beyond a reasonable
doubt.
A person commits the offense of
driving while intoxicated if the person is intoxicated while operating a motor
vehicle in a public place. Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). In
order to establish the offense of driving while intoxicated, the State must
prove that (1) the person did not have the normal use of mental or physical
faculties by reason of the introduction of alcohol; or (2) the person had a
blood alcohol concentration of 0.08 or more. Id. § 49.01.
The jury, as fact finder, is the
sole judge of the credibility of witnesses and the weight to be given their
testimony. See Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App.
2002); Rodriguez v. State, 45 S.W.3d 685, 688 (Tex. App.--Fort Worth
2001), aff'd, 93 S.W.3d 60 (Tex. Crim. App. 2002). Here, the jury chose
to believe the testimony of David Kervin and Officer Riggs, which was within its
discretion. The jury also observed the video tape, and while the tape did show
appellant able to answer questions without any apparent slurring, confusion, or
delay, the tape also showed appellant losing his balance and becoming unsteady
on two occasions. From the evidence presented, we conclude the jury could have
found the necessary elements of DWI beyond a reasonable doubt. Applying the
appropriate standards of review, we hold that the evidence is both legally and
factually sufficient to support appellant's conviction for the offense of
driving while intoxicated, felony repetition. See Cardenas v. State, 30
S.W.3d 384, 389-90 (Tex. Crim. App. 2000); McDuff v. State, 939 S.W.2d
607, 614 (Tex. Crim. App.), cert. denied, 522 U.S. 844 (1997); Narvaiz
v. State, 840 S.W.2d 415, 423 (Tex. Crim. App. 1992), cert. denied,
507 U.S. 975 (1993) (all addressing legal sufficiency review); Johnson v.
State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Cain v. State, 958
S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d
126, 129 (Tex. Crim. App. 1996) (all addressing factual sufficiency review). We
overrule appellant's sole point on appeal and affirm the trial court's judgment.

PER CURIAM

PANEL F: WALKER, HOLMAN, and
GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 17, 2003

1.  See Tex. R. App. P. 47.4.


625 F.3d 516 (2010)
UNITED STATES of America, Plaintiff-Appellee,
v.
A.J. KELLY, Defendant-Appellant.
No. 09-3712.
United States Court of Appeals, Eighth Circuit.
Submitted: May 12, 2010.
Filed: November 22, 2010.
*517 Jennifer L. Gilg, AFPD, argued, Michael F. Maloney, AFPD, on the brief, Omaha, NE, for appellant.
Michael D. Wellman, AUSA, argued, Deborah R. Gilg, U.S. Attorney, on the brief, Omaha, NE, for appellee.
Before BYE, MELLOY, and SHEPHERD, Circuit Judges.
BYE, Circuit Judge.
A jury convicted A.J. Kelly of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and Kelly was sentenced to 115 months' imprisonment followed by three years of supervised release. Kelly appeals his conviction on the ground there was insufficient evidence of his possession or control of a firearm. Kelly also challenges a special condition of his supervised release barring him from possessing any material which "contains nudity or that depicts or alludes to sexual activity or depicts sexual arousing material," arguing this condition is not reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a) and is overbroad in violation of his rights under the First Amendment. Although we reject Kelly's sufficiency-of-evidence argument and affirm his conviction, we find merit in his arguments regarding the special condition and remand for further consideration of such condition and resentencing.

I
While executing a search warrant at Kelly's residence in Omaha, Nebraska, on April 21, 2008, law enforcement discovered a Colt .22 caliber pistol, some ammunition, and a 2007 receipt for the sale of ammunition, all wrapped in a towel and placed inside three plastic bags. The items were found on top of a basement closet high in the rafters. Also found in the basement was a Cricket telephone bill issued in Kelly's name. It is undisputed that the only two individuals who resided at the house were Kelly and his elderly ailing father.
Upon discovery of the gun, Sergeant Jonathan Waller of the Omaha Police Department read Kelly his Miranda rights and spoke to him after Kelly had agreed to waive them. According to Waller, Kelly admitted during the interview the pistol had been given to him by his grandfather seven years ago. Initially Kelly insisted he had not touched the gun for years, but when Waller confronted him with the ammunition sale receipt dated 2007, Kelly *518 admitted to handling the gun a few times during the intervening years. Although Kelly conceded he was a convicted felon, Waller recalled, he did not believe the law prohibiting felons from possessing firearms applied to the family heirloom pistol given to him by his grandfather.
At trial, Kelly vehemently disputed Waller's account of their conversation. He denied telling Waller the pistol was his grandfather's gift or making any statements concerning the handling of the pistol on prior occasions. According to Kelly, he took responsibility for the gun only after Waller had threatened to charge Kelly's father if Kelly himself did not claim the gun. Speculating about the potential owner of the gun, Kelly noted his grandfather had lived at the house several years ago and three of his siblings, too, had access to the house during the relevant period.
Kelly was indicted on June 18, 2008, on two counts: felon in possession of firearm and a criminal forfeiture count under 18 U.S.C. § 924(d). He was convicted on the first count following a single-day jury trial; he was found guilty on the forfeiture count by the judge. On November 16, 2009, the district court sentenced him to 115 months' imprisonment, the upper point of his 92-115 months Guidelines range, and imposed a three-year term of supervised release, subject to several special conditions of supervision. Kelly is to serve his sentence consecutive to the 35 to 50 years' sentence he received on a state-court conviction for sexual assault of a child earlier that year. Apparently because Kelly had two sexual assault convictions, the district court restricted his access to sexually explicit materials through a broadly-phrased provision challenged on this appeal. Kelly timely appealed both his conviction and his sentence.

II
We begin with the easier question of whether Kelly's conviction was supported by sufficient evidence. "We review a challenge to the sufficiency of evidence de novo, considering the evidence in the light most favorable to the government." United States v. Gentry, 555 F.3d 659, 664 (8th Cir.2009). Because it does not appear Kelly moved for judgment as a matter of law or for a new trial, the court could review the claim of insufficient evidence for plain error. United States v. Anderson, 570 F.3d 1025, 1029 (8th Cir. 2009); Boone v. Moore, 980 F.2d 539, 542 n. 3 (8th Cir.1992). However, because the record is not entirely clear about these procedural facts and because the government does not assert forfeiture of the issue, we choose to apply the usual standard for evaluating sufficiency-of-evidence claims. See United States v. Ojeda-Estrada, 577 F.3d 871, 875 (8th Cir.2009) (choosing to overlook potential forfeiture of full review of the sufficiency-of-evidence claim "out of an abundance of caution" where both parties were uncertain as to whether Rule 29 motion was ever made and the transcript was unreliable due to certain irregularities). Thus, we must affirm the conviction if "any rational jury could have found the defendant guilty beyond a reasonable doubt." Id. at 874 (citing United States v. Inman, 558 F.3d 742, 747 (8th Cir.2009)).
"Felony possession of a firearm requires proof of three elements: (1) a prior felony conviction; (2) knowing possession of a firearm; and (3) an interstate nexus." United States v. Jones, 266 F.3d 804, 813 (8th Cir.2001). Kelly lodges his sufficiency-of-evidence challenge only with respect to the second, knowing possession element. In support of his argument, he points to "inconclusive" results of the DNA testing and asserts that Sergeant Waller's testimony *519 concerning Kelly's confession is unverified and unreliable.
We make short work of Kelly's argument. Whether well-founded or not, Kelly's doubts about Waller's credibility are not for us to resolve. "It is axiomatic that we do not review questions involving the credibility of witnesses, but leave credibility questions to the jury." United States v. Montano, 506 F.3d 1128, 1133 (8th Cir. 2007) (internal quotation marks and citation omitted). As it was free to do, the jury in this case chose to credit the testimony of Sergeant Waller that Kelly had admitted to being the pistol's owner. See United States v. One Star, 979 F.2d 1319, 1321 (8th Cir.1992). The jury was also entitled not to attach excessive significance to the "inconclusive" results of the DNA testing, especially where those results did not positively exclude Kelly, and indeed found Kelly's DNA in several locations on the pistol. Therefore, we conclude Kelly's conviction for being a felon in possession of a firearm was supported by sufficient evidence.
It leaves Kelly's second claim for reliefthe argument that the district court exceeded its discretion in imposing special condition of supervision 15. The condition in question prohibits Kelly from
possess[ing] [or] hav[ing] under his . . . control any material, legal or illegal, that contains nudity or that depicts or alludes to sexual activity or depicts sexually arousing material. This includes, but is not limited to, any material obtained through access to any computer, including a computer for employment purposes, or any other material linked to computer access or use.
Judgment at 5.
District courts have broad discretion in imposing conditions of supervised release, as long as each condition "1) is reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a); 2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in § 3553(a); and 3) is consistent with any pertinent policy statements issued by the Sentencing Commission." United States v. Bender, 566 F.3d 748, 751 (8th Cir.2009) (citing 18 U.S.C. § 3583(d) and United States v. Boston, 494 F.3d 660, 667 (8th Cir.2007)) (internal quotation marks omitted). In Kelly's view, the condition in question fails both the first and the second prong of the test.
We first address Kelly's argument as to special condition 15 not being reasonably related to § 3553(a) sentencing factors. We review the condition for abuse of discretion. United States v. Davies, 380 F.3d 329, 332 (8th Cir.2004). "A condition is reasonably related to the statutory factors if tailored to the nature and circumstances of the offense, the defendant's history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant's educational, vocational, medicinal, or other correctional needs." United States v. Fenner, 600 F.3d 1014, 1026 (8th Cir.2010) (internal quotation marks and citation omitted). Courts can impose special conditions of supervised release not directly related to the offense for which the defendant is being sentenced where "the special conditions are related to another offense that the defendant previously committed." United States v. Smart, 472 F.3d 556, 559 (8th Cir.2006) (approving the imposition of sex-offender-related conditions as part of a sentence for felon in possession of a firearm where the defendant was previously convicted of two sexual abuse offenses, was still on probation for one of them, and was sought on an arrest warrant for violating the conditions of probation). However, in crafting any special conditions, district *520 courts must be careful to conduct an inquiry "on an individualized basis," looking at the specific facts of the defendant's criminal history and his particular offenses. United States v. Davis, 452 F.3d 991, 995 (8th Cir.2006). Courts may not impose special conditions categorically on all individuals convicted of certain offenses. Id. Following this principle in United States v. Davis, we invalidated a condition effectively preventing the defendant from having unsupervised contact with his own daughter where there was no evidence the defendant was guilty of child abuse and the court imposed the condition solely on the basis of the defendant's underlying conviction for receipt of child pornography. Id. at 995-96. Similarly, in United States v. Bender, we disapproved a special condition prohibiting the defendant convicted of a sex crime from possessing sexually stimulating materials based on the district court's abstract belief that sex offenders "need to have a very tight rein" and have "[no] business reading a Playboy magazine." 566 F.3d at 752. Instead, we require a particularized showing of the need for the condition in each case.
Our review of the record in Kelly's case indicates the district court intended simply to "follow the special conditions of supervised release set out in the sentencing recommendation." The sentencing recommendation does not shed better light on the reasons for imposing special condition 15. The probation officer recommended this and other sex-offender-related conditions "because it is unclear what conditions his state sentence will impose on him." Although Kelly lodged specific objections to several conditions, including special condition 15, the court summarily overruled all objections, leaving for the probation office to decide whether any of the conditions were relevant or necessary at a later time.
The lack of ad hoc findings in this case violates the principle of individualized fact-finding mandated by Bender. No more granular than the district court's analysis of the condition, the probation officer's rationale for the restriction was based solely on the character of Kelly's previous convictions the reasoning prohibited by this court in Davis. Deficient in these respects, the condition fails the requirement of reasonable relationship to the sentencing factors.
Turning to the related contention that the proscription in question involves greater deprivation of liberty than is reasonably necessary and is overbroad in violation of Kelly's First Amendment rights, we review the district court's actions de novo. United States v. Asalati, 615 F.3d 1001, 1006 (8th Cir.2010). Notwithstanding broad discretion of the court to fashion special conditions of supervised release, "we are particularly reluctant to uphold sweeping restrictions on important constitutional rights." United States v. Crume, 422 F.3d 728, 733 (8th Cir.2005).
No one would dispute the well-established proposition that obscene speech is not covered by the First Amendment and may therefore be proscribed. See Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The mercurial test for defining obscenity is set forth in Miller v. California:
(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
*521 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (internal quotation marks and citations omitted).
It is likewise undisputed that "nudity alone is not enough to make material legally obscene." Jenkins v. Georgia, 418 U.S. 153, 161, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). "[W]here a ban could apply to any art form that employs nudity, . . . a defendant's exercise of First Amendment rights [is] unconstitutionally circumscribed or chilled." United States v. Loy, 237 F.3d 251, 266 (3d Cir.2000); see also United States v. Simons, 614 F.3d 475, 483 (8th Cir.2010) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 208-12, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975)). Guided by this principle, we recently invalidated a special condition of supervised release prohibiting the defendant, a registered sex offender, from possessing "any material, legal or illegal, that contains nudity or that depicts or alludes to sexual activity or depicts sexually arousing material." Simons, 614 F.3d at 483. We were concerned with the breadth of such a provision, which, if applied mechanically, would prohibit the defendant from "viewing a biology textbook or purchasing an art book that contained pictures of the Venus de Milo, Michelangelo's David, or Botticelli's Birth of Venus, all of which depict nudity." Id. We also rejected the suggestion, urged by the government, that we could entrust the task of curing constitutional infirmity for each individual application of the condition to the probation office. Id. at 485.
Our decision in Simons alone would be fatal to special condition 15. The language of special provision 15 is virtually identical to the provision invalidated in that case. Even so, we write separately to emphasize a more basic reason why the condition in question is overbroad. While the focus of our opinion in Simons was on depicting sexual activity, alluding to sexual activity provides an even more persuasive ground for invalidating special provision 15, since it encompasses an even broader swath of materials.[1]
The verb "to allude" means "to refer casually or indirectly; make an allusion." Random House Webster's College Dictionary (2d ed.1999). The noun "allusion" is in turn defined as "a passing or casual reference to something, either directly or implied; the act of alluding." Id. The proscription on materials alluding to sexual activity, then, comprises not only materials that depicting sexual activitywhich, by and large, are limited to video, still-image, or sculpture formatsbut also print materials, however benign and devoid of lascivious ethos, which make a passing reference to sexual activity.
Caught within the net cast by this phrase would be the Bible, with its "Thou shalt not commit adultery" directive, see Exodus 20:14, and other references to copulation contained in abundance in the Old Testament, see, e.g., Genesis 19:30-36 (a story of Lot's daughters "laying" with their father and getting pregnant as a result); Genesis 38:13-24 (a story of Tamar trading sex with Judah for ownership of a goat); Genesis 38:8-10 (the sin of Onan, who "spilt his seed upon the ground" rather than try to impregnate his brother's wife, as his brother asked him to); numerous works of classical literature like Anne Frank's The Diary of a *522 Young Girlwhich Kelly could not even prescreen given the absence of sexual content rating system for books; and, most perversely, laws outlawing certain forms of sexual conduct and, for that matter, even this very opinion. The sweeping reach of this proscription is magnified by its strict-liability phrasing, which makes Kelly responsible for all materials in his possession, even if he has not read or looked at them. Worse, the rule would prevent Kelly from even possessing contraceptives, thereby threatening his constitutionally protected privacy right to decide "`whether to . . . beget a child.'" Carey v. Population Servs., Int.'l, 431 U.S. 678, 685, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) (quoting Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972)). These few examples demonstrate the condition imposed on Kelly has a "substantial range of applications to activity protected by the First Amendment." Turchick v. United States, 561 F.2d 719, 721 (8th Cir.1977). Despite other "unprotected activities it legitimately prohibits," such condition is constitutionally overbroad. Id.
Recognizing the overbreadth problems posed by this phrasing, the government has previously conceded the point in a similar case. United States v. Cabot, 325 F.3d 384, 386 (2d Cir.2003) (approving of the government's concession that a condition barring the defendant from possessing matter that "depicts or alludes to sexual activity" or "depicts minors under the age of eighteen" is too broad). In this case, however, the government chose to resist Kelly's arguments by emphasizing the reprehensible nature of his misconduct. See Red Br. at 12 ("The Special Condition may be extraordinary, but so is the defendant."). But convicted individuals "do not forfeit all constitutional protections by reason of their conviction." Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Even for those imprisoned, "[t]here is no iron curtain drawn between the Constitution and the prisons of this country." Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Since a convicted individual does not shed his right to freedom of speech and religion under the First and Fourteenth Amendments, Bell, 441 U.S. at 545, 99 S.Ct. 1861 (citing Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974); Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972); Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964)), the government's attempt to rescue the condition is unavailing.

III
For these reasons, we affirm Kelly's conviction but vacate special condition 15 and remand to the district court for further proceedings consistent with this opinion.
SHEPHERD, Circuit Judge, concurring in part, dissenting in part, and concurring in the judgment.
I am pleased to concur with the majority's decision holding (1) that there was sufficient evidence to support Kelly's conviction for possession or control of a firearm and (2) that the district court failed to make an individualized showing of the need for special condition 15 in this case. Further, I agree with the majority's action of affirming the conviction but vacating special condition 15 and remanding to the district court.
I dissent from the majority's extended discussion as to the overly broad nature of special condition 15 as our decision in United States v. Simons, 614 F.3d 475 (8th Cir.2010), alone, is sufficient to invalidate the special condition.
NOTES
[1]  Additionally, assessing whether materials "allude" to sexual activity calls for the exercise of subjective judgment that makes the condition vulnerable to a void-for-vagueness challenge. However, because Kelly did not pursue this argument on appeal, we will not address it here. Cf. Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) (implying that courts do not have an obligation to raise sua sponte a constitutional issue that is not of jurisdictional significance).