Filed 9/26/17
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION FIVE

In re J.P., a Person Coming Under         B281438
the Juvenile Court Law.                   (Los Angeles County
                                          Super. Ct. No. BK05050)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

        Plaintiff and Respondent,

        v.

C.P.,

        Defendant and Appellant.

      APPEAL from an order of the Superior Court of Los
Angeles County, Stephen C. Marpet, Commissioner. Reversed
and remanded with directions.
      Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Office of the County Counsel, Mary C. Wickham, County
Counsel, R. Keith Davis, Assistant County Counsel, and David
Michael Miller, Deputy County Counsel, for Plaintiff and
Respondent.
       The mother of a dependent child in a group home
placement filed a Welfare and Institutions Code section 3881
petition seeking, inter alia, reappointment of counsel. The
juvenile court scheduled a hearing on the petition, but did not
appoint counsel to represent mother at the hearing. At the
section 388 hearing, the juvenile court ruled on mother’s petition,
but again did not appoint counsel to represent mother. The
juvenile court’s error in failing to timely appoint counsel for
mother resulted in a miscarriage of justice, and we reverse.

       FACTUAL AND PROCEDURAL BACKGROUND
      J.P. is the youngest of nine children. All his siblings were
involved in dependency proceedings at one time or another, and
two found adoptive homes several years before J.P. was born.
J.P. was born in 2006 and has been in the juvenile dependency
system almost his entire life. From 2007 to May 2011, he
remained with C.P. (mother) under a family maintenance plan.
He was removed from mother’s home in May 2011 after she was
arrested for assaulting her boyfriend with a deadly weapon. The
court appointed counsel to represent mother at the detention
hearing. After a contested jurisdiction and disposition hearing in
March 2012, the court sustained the petition’s allegations, denied
mother reunification services, issued a three-year restraining
order limiting mother’s contact with J.P. to monitored visits, and
directed the Department of Children and Family Services (DCFS)

1       All statutory references are to the Welfare and Institutions
Code.

                                  2
to address permanency planning and implementation under
section 366.26 at the next hearing.2
       Adoption was originally identified as the permanent plan
for J.P., but his mental and emotional health never stabilized to
the point where a long-term foster home, let alone a prospective
adoptive home, could be identified. Between November 2011 and
July 2014, J.P. attempted suicide and had numerous involuntary
psychiatric hospitalizations. He suffered from enuresis and
encopresis, was quick to anger and tantrum, and was prescribed
a regimen of psychotropic medications.
       Legal guardianship was the next identified permanent
plan, and the court appointed J.P.’s foster parent as his legal
guardian in November 2013. After J.P. made another suicide
attempt, the guardian—believing she could not provide a safe
home for J.P.—requested termination of the guardianship. The
most recent permanent plan called for long-term foster care with
a nonrelative. J.P. has resided in a group home for more than
three years, since his removal from the legal guardian’s care in
May 2014. In J.P.’s more than six years in out-of-home
placements, mother’s visits with him have remained monitored.
       On May 7, 2014, the juvenile court conducted a detention
hearing on the section 387 subsequent petition to remove J.P.
from the home of his legal guardian. Neither mother nor
mother’s counsel was present, but the court relieved mother’s
counsel. Nothing in the court minutes or the DCFS report for
that hearing provides an inkling as to why mother’s counsel was

2    In re Rebecca H. (1991) 227 Cal.App.3d 825, 838.

                                3
relieved.3
       Mother still attended most of J.P.’s juvenile court hearings
after counsel was relieved. She consistently visited J.P. in his
group home.
       On November 3, 2016, mother filed a section 388 petition
requesting reappointment of counsel, family reunification
services, and extended and liberalized visits with J.P., including
“unmonitored off ground visits and overnight visits.” At the time
she filed the petition, she was entitled to two, one-hour monitored
visits per month at the group home. DCFS did not have the
discretion to liberalize the visitation schedule. Mother attached
five letters of support to her petition: three from individuals at
J.P.’s group home who were regularly interacting with mother
and child; one from the counselor at her methadone maintenance
program; and one from J.P.’s oldest sibling, who was interested in
exploring J.P.’s long-term placement with him.
       A review hearing had previously been scheduled for
November 8, 2016. On that date, a “Last Minute Information”
report was filed, summarizing interviews by J.P.’s Court
Appointed Special Advocate (CASA) with the child’s group home
therapist and family specialist. Both individuals noted mother
had been visiting every other week for the past six months.
Group home staff felt it would benefit the child to see mother
more; they relied on mother “to help console [J.P.] when he is
having an outburst;” they noted mother’s “influence on [J.P. was]
supportive and in alignment with his treatment plan” and she
presented “a calming influence” on him. The CASA noted every

3     The reporter’s transcript for that hearing is not part of the
appellate record before us.

                                 4
time mother visited, J.P. “states . . . he wants to see his mom
more and wish[es] it could be unmonitored.”
       The juvenile court began the November 8, 2016 hearing by
asking counsel for DCFS if he wished to be heard concerning
mother’s petition. DCFS’s counsel, who acknowledged he had not
seen the section 388 petition, recited events concerning mother
going back five years, suggested mother’s visits were responsible
for J.P.’s “[deterioration] to the point where [the child] could not
stay in a foster home” and stated DCFS “has very strong beliefs
that . . . any further . . . visitation would be detrimental to [J.P.]
at this time without a full hearing.” Without asking for the views
of minor’s counsel, the juvenile court agreed to set a hearing. At
that point, the following exchange occurred:
       “[Minor’s Counsel]: Would the court be inclined to appoint
counsel for mother based on her having a 388 hearing.
       “[DCFS’s Counsel]: The court’s been denying that.
       “The Court: I’m not going to appoint counsel. [¶] We’ll set
it over for a hearing.”
       The section 388 hearing was conducted as scheduled on
December 8, 2016. J.P. was present with his CASA. The social
worker’s report for the section 388 hearing reiterated the positive
reports from J.P.’s group home concerning mother’s increased
involvement with the child and acknowledged the increased
contact was beneficial to him. The report criticized mother’s
minimization of the event that led to J.P.’s removal from her
home more than five years earlier as well as mother’s denial of
extensive DCFS involvement. The social worker recommended a
family reunification plan and increased visitation.
       The juvenile court initially acknowledged to mother and
J.P. the progress it saw in the current report was “very exciting.”

                                  5
The court announced it would grant the section 388 petition,
order six months of reunification services, and continue with
monitored visits with DCFS discretion to liberalize. J.P.’s
counsel immediately asked for unmonitored visits on the group
home premises. The juvenile court responded, “Good idea,” but
then DCFS’s counsel asked to be heard and requested that J.P.
leave the courtroom.
      It is not necessary to recite the arguments made by DCFS’s
counsel, but by the time he asserted mother needed a psychiatric
evaluation to determine whether she should be on medication,
minor’s counsel appropriately interrupted and asked the juvenile
court to “please make a ruling to appoint mother a lawyer.” The
juvenile court responded, “I’m thinking about it as we’re talking,”
but did not appoint counsel for mother, did not continue the
hearing, and did not order unmonitored visits on the group home
premises. Instead, the juvenile court advised, “we’ll have an
attorney who represented you in the past get in touch with you.
She’s not here now.”4 When mother asked the juvenile court
commissioner to repeat the attorney’s name, he replied, “You’re
an experienced litigant in my courtroom.”
      Minor’s counsel also objected on mother’s behalf to the
“plethora of services” the juvenile court ordered for mother and
asked “that if the court is going to order her into all these
services [I request] that we put it over, allow her to have counsel
to represent her.” Before the juvenile court could address this
request, DCFS’s counsel interrupted to argue “these are the

4    The court minutes reflect, “The court will appoint Ms.
Fahrenholz to represent the mother. Ms. Fahrenholz was not
present when the court called and or concluded the case.”

                                 6
services that the court would have been asked to order if she
[were] given services [years ago].”
       J.P.’s CASA then advised that the child wished to address
the court. When J.P. was brought back into the courtroom, the
court told him, “Your mom filed papers today. I want more time.
I want her to ultimately get more involved in your life and look to
a future possibly of getting back with your mom. I told her that
I’m going to allow that to happen and she’s going to start to have
more contact with you and do some things and hopefully we’ll
come back and see how things are progressing. . . .” The juvenile
court then said to J.P.: “Now I want to hear from you. What do
you want to say?” J.P.’s response: “I want to go home.”
       Mother timely appealed, challenging the juvenile court’s
denial of her requests to reappoint counsel before the section 388
hearing and for unmonitored visits with J.P.
       During the pendency of this appeal, we asked counsel to
advise this court, “Whether, and if so to what extent, the juvenile
court has made any further orders respecting [mother’s]
visitation with J.P. following the order made at the December 8,
2016 hearing. Appellate counsel for mother and DCFS
responded. DCFS’s counsel provided copies of orders for the
following dates, and we take judicial notice of them: January 24,
2017, April 25, 2017, and June 8, 2017.
       The January 24, 2017 minutes reflect that appointed
counsel advised she may have a conflict and a section 388
petition filed by mother was denied without a hearing. On April
25, 2017, mother was present without appointed counsel. The
juvenile court granted DCFS’s section 388 petition and
terminated family reunification services for mother. Mother’s
visits with J.P. were to be once per week for two hours, with

                                 7
DCFS discretion to liberalize. Mother again appeared on June 8,
2017, without appointed counsel. Visitation orders for her
remained the same.

                            DISCUSSION
I.     The Juvenile Court Erred in Failing to Reappoint
       Counsel Before the Section 388 Hearing
       The juvenile court is statutorily required to appoint counsel
for the parent of a child who is in an out-of-home placement (or as
to whom the petitioning children and family services agency is
recommending an out-of-home placement) if the parent “is
presently financially unable to afford and cannot for that reason
employ counsel . . . unless the court finds that the parent . . . has
made a knowing and intelligent waiver of counsel as provided in
this section.” (§ 317, subd. (b).)
       Once appointed, counsel “shall represent the parent . . . at
the detention hearing and at all subsequent proceedings before
the juvenile court. Counsel shall continue to represent the
parent . . . unless relieved by the court upon the substitution of
other counsel or for cause. . . .” (§ 317, subd. (d).)
       As our colleagues in Division One observed 24 years ago,
“There is nothing vague or ambiguous about the legislative
command—in the absence of a waiver, the juvenile court must
appoint an attorney to represent an indigent parent at the
detention hearing and at all subsequent proceedings, and the
attorney shall continue to represent the parent unless relieved by
the court upon the substitution of other counsel or for cause.” (In
re Tanya H. (1993) 17 Cal.App.4th 825, 829; see also In re Kristin
H. (1996) 46 Cal.App.4th 1635, 1659 (Kristin H.); In re Malcolm
D. (1996) 42 Cal.App.4th 904, 914.)

                                 8
       Despite the unambiguous statutory mandate, the juvenile
court relieved mother’s appointed counsel on May 7, 2014.5
Mother was then without representation for more than two years.
During that time, J.P. resided primarily in a group home and
only briefly in several foster homes.
       Nothing in the record suggests mother’s counsel ever
should have been relieved; but as soon as mother asked for the
reappointment of counsel in her section 388 petition, her right to
court-appointed counsel, if she could not afford an attorney, was
“unqualified.” (In re Tanya H., supra, 17 Cal.App.4th at pp. 831-
832.)6
       Nonetheless, at the hearing on November 8, 2016, when
minor’s counsel reminded the court of mother’s request for an
attorney, the immediate response by DCFS’s counsel on the
record was, “The court’s been denying that.”7 And the court did.

5      Mother did not appeal from that ruling, although it is not
clear from the record before us when or how she was given notice
of the court’s decision to relieve her counsel—neither mother nor
her court-appointed attorney was present on May 7, 2014. In this
appeal, DCFS has not suggested mother ever knowingly waived
her right to counsel or that appointed counsel was removed for
cause.

6     See also California Rules of Court, rule 5.534(c): “At
each hearing, the court must advise any self-represented . . .
parent . . . of the right to be represented by counsel and, if
applicable, of the right to have counsel appointed, subject to a
claim by the court or the county for reimbursement as provided
by law.”

7     In its respondent’s brief, DCFS wrote, “DCFS expressed no
opinion regarding the issue [mother’s request for appointment of

                                9
       Although mother had the support of minor’s counsel and
J.P.’s CASA at the December 8, 2016 hearing on her section 388
petition, she did not have the assistance of counsel. It was not
until the end of that portion of the hearing, after minor’s counsel
broached the subject for the third time, that the juvenile court
announced it would appoint counsel for mother going forward.

II.   The Error Resulted in a Miscarriage of Justice
      A.     Standard of Review
      The harmless error standard has long applied to an
appellate court’s review of the denial of a parent’s statutory right
to counsel. (Kristin H., supra, 46 Cal.App.4th at pp. 1667-1668.)
Citing People v. Watson (1956) 46 Cal.2d 818, 836, the Kristin H.
court held a parent who is denied the statutory right to counsel
must demonstrate a reasonable probability that a more favorable
result “‘would have been reached in the absence of the error.’”
(Kristin H., supra, 46 Cal.App.4th at p. 1668; see also In re
Malcolm D., supra, 42 Cal.App.4th at p. 919; In re Nalani C.
(1988) 199 Cal.App.3d 1017, 1028; In re Justin L. (1987) 188
Cal.App.3d 1068, 1078.)8
      The Supreme Court’s analyses in In re Celine R. (2003) 31
Cal.4th 45 (Celine R.) and In re James F. (2008) 42 Cal.4th 901

counsel] below and takes no position on appeal,” but then cited to
the page in the reporter’s transcript where DCFS’s counsel
expressed his opinion that the juvenile court should not appoint
an attorney to represent mother.

8     See also In re Ronald R. (1995) 37 Cal.App.4th 1186, 1195,
where the Court of Appeal applied the harmless error standard to
review the juvenile court’s erroneous decision to permit appointed
counsel for a parent to withdraw.

                                 10
(James F.) solidify application of the harmless error standard. In
Celine R., the Supreme Court held, “The California Constitution
prohibits a court from setting aside a judgment unless the error
has resulted in a ‘miscarriage of justice.’ (Cal. Const., art. VI,
§ 13.) We have interpreted that language as permitting reversal
[under the harmless error standard] only if the reviewing court
finds it reasonably probable the result would have been more
favorable to the appealing party but for the error. (People v.
Watson[, supra,] 46 Cal.2d [at p. 836].) We believe it appropriate
to apply the same test in dependency matters.” (Celine R., supra,
31 Cal.4th at pp. 59-60; see also In re Andrew S. (1994) 27
Cal.App.4th 541, 550.)
       In James F., the Supreme Court discussed whether to
apply structural error and reverse a juvenile court decision
without a finding of harm or to reverse only if the harmless error
analysis demonstrated the ruling resulted in a miscarriage of
justice. In choosing the latter approach, the Supreme Court
suggested reviewing courts miss the mark when they first
conclude an error is structural and then decide for that reason
not to engage in a harmless error analysis. Instead, an error
should be found to be structural only when it “‘def[ies] analysis by
“harmless-error” standards’” and cannot “‘be quantitatively
assessed in the context of other evidence presented in order to
determine whether [they were] harmless . . . .’” (James F., supra,
42 Cal.4th at p. 917.)9

9     The passage reads, “Although the procedural error . . .
caused no actual harm to [father], the Court of Appeal
nonetheless concluded that the error was structural and therefore
precluded harmless error analysis. But the United States
Supreme Court has explained that most structural defects ‘defy

                                11
       The harmless error analysis applies in juvenile dependency
proceedings even where the error is of constitutional dimension.10
(See, e.g., In re Brenda M. (2008) 160 Cal.App.4th 772, 777
(Brenda M.); In re Mark A. (2007) 156 Cal.App.4th 1124, 1146
[citing cases] (Mark A.).) In both Mark A. and Brenda M., the
juvenile court erred by ordering the fathers to testify after they
invoked their Fifth Amendment privilege against self-
incrimination. When each father refused to obey the order, the
juvenile court levied evidentiary sanctions, striking testimony in
Mark A. and precluding the father in Brenda M. from presenting
any evidence or cross-examining witnesses.
       The Court of Appeal in each matter engaged in a harmless
error analysis and affirmed the order in Mark A., but reversed in
Brenda M.11 The Brenda M. court explained why the harmless
error analysis yielded different results: “In Mark A. . . . the

analysis by “harmless-error” standards.’ (Arizona v. Fulminante
([1991]) 499 U.S. [279,] 309.) Errors that can ‘be quantitatively
assessed in the context of other evidence presented in order to
determine whether [they were] harmless beyond a reasonable
doubt’ (id. at p. 308) generally are not structural defects. (See
United States v. Gonzalez-Lopez ([2006]) 548 U.S. [140,] 149, fn. 4
[‘here, as we have done in the past, we rest our conclusion of
structural error upon the difficulty of assessing the effect of the
error’].)” (James F., supra, 42 Cal.4th at pp. 916-917.)
10    Our Supreme Court has left for another day the issue of
whether “the appropriate harmless error standard is harmless by
clear and convincing evidence rather than harmless beyond a
reasonable doubt.” (James F., supra, 42 Cal.4th at p. 911, fn. 1.)

11    Different panels in Division Three of the Fourth Appellate
District decided Mark A., supra, 156 Cal.App.4th 1124 and
Brenda M., supra, 160 Cal.App.4th 772.

                                12
juvenile court ordered some of the mother’s testimony stricken as
a sanction for the father’s refusal to testify. The appellate panel
concluded the error was harmless because ‘[c]onsideration of the
testimony wrongfully stricken would only have bolstered the
court’s jurisdictional finding.’ [Mark A., supra, 156 Cal.App.4th
at p. 1146.] Here, we do not know how the preparer of the [Social
Service Agency] reports would have testified on cross-
examination or whether cross-examination might have impaired
the preparer’s credibility. Thus, we cannot say the juvenile
court's error in precluding cross-examination of the preparer was
harmless beyond a reasonable doubt.” (Brenda M., supra, 160
Cal.App.4th at p. 777.)
       The harmless error analysis is by definition a case-by-case
analysis. Particularized analysis is critical. In juvenile
dependency proceedings, no error—even one of constitutional
dimension—can be examined based solely on legal principles (no
matter how venerable) or only from the parent’s perspective. The
reviewing court also must evaluate the effect of the error on the
best interests of the child. This is so even though “[a] parent’s
interest in the companionship, care, custody and management of
his children is . . . ranked among the most basic of civil rights.”
(In re Marilyn H. (1993) 5 Cal.4th 295, 306 (Marilyn H.).)
       A balancing of interests is required because “[c]hildren . . .
have fundamental interests of their own that may diverge from
the interests of the parent. [Citation.] [¶] Our task is to
interpret the statutory scheme as a whole in a manner that
balances the interest of parents and children in each other’s care
and companionship, with the interest of abandoned and neglected
children in finding a secure and stable home.” (In re Jasmon O.
(1994) 8 Cal.4th 398, 419; see also In re Justice P., supra, 123

                                 13
Cal.App.4th at p. 191 [“the very nature of determining a child’s
best interests calls for a case-by-case analysis, not a mechanical
rule”].)
       As our Supreme Court noted in James F., “We cannot
agree . . . that prejudice is irrelevant in a dependency proceeding
when the welfare of the child is at issue and delay in resolution of
the proceeding is inherently prejudicial to the child.” (James F.,
supra, 42 Cal.4th at p. 917.) Accordingly, because we conclude
the juvenile court’s error here is “amenable to harmless error
analysis rather than a structural defect requiring reversal of the
juvenile court’s orders without regard to prejudice” (id. at p. 915),
we proceed with the harmless error analysis.

       B.    Harmless Error Analysis
       To analyze the prejudicial effect of the juvenile court’s
refusal to appoint counsel for mother in advance of the section
388 hearing, we look to the purpose behind that provision:
“[S]ection 388 is vital to the constitutionality of our dependency
scheme as a whole.” (In re Kimberly F. (1997) 56 Cal.App.4th
519, 528.) The standard for evaluating the merits of a section
388 petition is the best interests of the child. (Id. at p. 526; see
also § 388, subd. (d).) “[A] primary consideration in determining
the child’s best interests is the goal of assuring stability and
continuity.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) The
petitioning parent has the burden to establish changed
circumstances to justify changed orders that will promote the
best interests of the child. (Ibid.; see also Marilyn H., supra, 5
Cal.4th at p. 309.)
       The juvenile court properly found mother made a prima
facie showing of changed circumstances under section 388 and,

                                 14
accordingly, scheduled a hearing. That finding gave her “a due
process right to a full and fair hearing on the merits. [Citation.]
‘Due process generally requires . . . that parents be given the
right to present evidence, and to cross-examine adversarial
witnesses, such as the caseworker and persons whose hearsay
statements are contained in the reports, “i.e., the right to be
heard in a meaningful manner.””’ (In re Hunter W. (2011) 200
Cal.App.4th 1454, 1463-1464.)
       The failure to appoint counsel for mother deprived her of
her due process right and prejudicially affected the manner in
which the section 388 hearing was conducted. The facts
concerning changed circumstances and the benefit to J.P.’s well-
being strongly favored mother’s request for more liberal visits,
particularly unmonitored visits with the child in his secure group
home setting. Significantly, mother had the support of J.P.’s
counsel, therapist, other treatment providers at the group home
and CASA, as well as J.P. himself. DCFS, on the other hand,
focused only on mother’s shortcomings as a parent and as a less-
than-compliant participant in dependency proceedings with her
other children. Although the social worker’s report for the
section 388 petition acknowledged the benefits to J.P. of
increased contact with mother, counsel for DCFS dwelled on
mother’s past conduct and the reasons the juvenile court
sustained the dependency petition in the first place.
       Had the court appointed counsel to represent mother, that
attorney could have kept the hearing focused on the matters at
issue in a section 388 hearing: changed circumstances and the
best interests of the child. Counsel would have a better ability to
highlight the benefits to J.P. of granting increased and more
liberalized visitation. Counsel would also be better equipped to

                                15
communicate with the social worker and the attorneys
representing the child and DCFS. If needed, counsel could call
the social worker and perhaps group home witnesses to testify
and would not have permitted the juvenile court to hear only
arguments by DCFS’s attorney. (See, e.g., In re Lesly G. (2008)
162 Cal.App.4th 904, 915 [“Due process generally requires . . .
that parents be given the right to present evidence, and to cross-
examine adversarial witnesses, such as the caseworker and
persons whose hearsay statements are contained in the reports,
‘i.e., the right to be heard in a meaningful manner’”]; see also
In re Sara D. (2001) 87 Cal.App.4th 661, 673 [“We cannot
speculate as to the substance or effect the testimony . . . would
have had . . . . Such testimony may have had an impact on the
court’s decision. . . . [¶] [The error] requires reversal”].)
        The social worker’s report for the December 8, 2016 hearing
and the Last Minute Information filed November 8, 2016 were
received into evidence, and they supported mother’s request—
echoed by J.P.’s counsel—for unmonitored visits on the premises
of the child’s group home. DCFS presented no current evidence
addressing the best interests of the child to rebut that evidence.
“[I]t seems manifest that, had [mother] been represented by
counsel . . . [the orders would] have been challenged . . . . Thus,
the juvenile court’s failure to ensure [mother] was represented by
appointed counsel in this case deprived her of opportunities she
should have had to challenge the court’s orders and findings . . .
and created fundamental unfairness that violated minimum due
process requirements.” (In re Katheryn S. v. Superior Court
(2000) 82 Cal.App.4th 958, 972-973 (Katheryn S.).)

                                16
III.    Directions on Remand
       “[T]he purpose of child dependency proceedings is not to
punish persons who have committed acts of abuse; it is to serve
the child’s best interests.” (In re Kiesha E. (1993) 6 Cal.4th 68,
81; see also Katheryn S., supra, 82 Cal.App.4th at p. 974 [“were
we merely concerned with the propriety of [mother’s] conduct, we
would have no compunction about denying her any relief. But we
are not primarily concerned with [mother’s] conduct in this
proceeding. Rather, our paramount concern is for her [child]”].)
       Given the passage of time and perhaps additional changed
circumstances, this court is not in a position to make new orders
in the first instance. Rather, we remand to the juvenile court
with directions to appoint counsel for mother immediately,
permit appointed counsel to file a new section 388 petition, and
vacate the orders of December 8, 2016, January 24, 2017, April
25, 2017, and June 8, 2017, insofar as they addressed mother’s
visitation and family reunification plans. (See, e.g., In re Emilye
A. (1992) 9 Cal.App.4th 1695, 1707, fn. 9 [“reversal . . . simply
requires that the proceedings be reconducted because the parents
were not properly represented”]; In re M.F. (2008) 161
Cal.App.4th 673, 682 [“The error in this matter necessitates that
the proceedings return to ‘square one’”].)
       Pending the hearing on a new section 388 petition, the
juvenile court is encouraged to maintain at a minimum mother’s
current visitation plan, which calls for weekly, two-hour
monitored visits. In all other respects, the juvenile court’s orders,
particularly those concerning J.P.’s adult sibling, M.D., and
CASA, are not affected by this decision.

                                 17
                         DISPOSITION
      The order of the juvenile court is reversed, and the matter
is remanded to the juvenile court as indicated above in section
III.
              CERTIFIED FOR PUBLICATION

                                     DUNNING, J. 

I concur:

            KRIEGLER, Acting P. J.


      Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.

                                18
In re J.P.
B281438

BAKER, J., Concurring

      I concur in the result, and in what I understand to be the
core of the majority’s holding: The juvenile court’s considered
decision to deprive C.P. (Mother) of counsel to prepare and argue
her Welfare and Institutions Code section 388 petition—the
culmination of a two-year deprivation of counsel—was wrong and
demands remediation. I write separately to highlight two points
regarding the unique impact that a deprivation of the right to
appointed counsel can have (and had here) on the fairness of
dependency proceedings.

                                   I
      The majority cites In re Kristin H. (1996) 46 Cal.App.4th
1635 for the proposition that “[t]he harmless error standard has
long applied to an appellate court’s review of the denial of a
parent’s statutory right to counsel.” I have my doubts that In re
Kristin H. is a reliable guide in this case—in that case, unlike
this one, the mother was not deprived of counsel; instead, her
claim was that her appointed attorney provided ineffective
assistance. (In re Kristin H., supra, at pp. 1658, 1667-1668.) But
regardless, the majority holds the error here is of both statutory
and constitutional (due process) dimension, whereas the courts in
In re Kristin H. and the other deprivation of counsel cases the
majority cites were concerned only with a violation of the
statutory right to counsel.12 (See, e.g., In re Malcolm D. (1996) 42
Cal.App.4th 904, 914; In re Ronald R. (1995) 37 Cal.App.4th
1186, 1197; In re Andrew S. (1994) 27 Cal.App.4th 541, 546-547,
549; In re Nalani C. (1988) 199 Cal.App.3d 1017, 1026; see also In
re Justin L. (1987) 188 Cal.App.3d 1068, 1077 [no issue of a
wrongful deprivation of counsel; error asserted was that the
juvenile court improperly denied parent self-representation].)
      I agree there can be cases at the margins where the
consequences of error are so apparent as to permit a fairly
reliable counterfactual assessment whether harm results from
the wrongful absence of appointed counsel. If an unrepresented
parent, for instance, files a Welfare and Institutions Code section
388 petition to argue the Third Amendment to the United States
Constitution requires a juvenile court to terminate jurisdiction
over a dependent child, appointment of even Clarence Darrow

12    Constitutional errors in dependency proceedings are
generally amenable to review for harmlessness. But the Court of
Appeal cases the majority cites for that proposition are not
deprivation of counsel cases, and the high court has more than
once drawn a distinction between constitutional errors generally,
and constitutional error that results from a deprivation of
counsel. (United States v. Gonzalez-Lopez (2006) 548 U.S. 140,
150 (Gonzalez-Lopez); Custis v. United States (1994) 511 U.S.
485, 496; Arizona v. Fulminante (1991) 499 U.S. 279, 306-308;
Chapman v. California (1967) 386 U.S. 18, 23; see also In re
Angela C. (2002) 99 Cal.App.4th 389, 395; In re Amy M. (1991)
232 Cal.App.3d 849, 867-868.) And while it is true that the
dependency context differs from the criminal context, that truism
does nothing to grapple with the difference that remains, even in
the dependency arena, between constitutional errors that involve
a total or prolonged absence of appointed counsel, and
constitutional errors that do not.

                                 2
would not make a difference. The majority also makes a fair
argument that this is a case at the opposite margin, one where
the pernicious consequences of the absence of appointed counsel
are so obvious as to permit a conclusion that the juvenile court’s
error must have resulted in prejudice.
      But I believe there is a grey area between the margins
where the difference appointed counsel might have made during
a dependency proceeding will be more difficult to reliably assess.
(See Gonzalez-Lopez, supra, 548 U.S. at p. 150 [erroneous
deprivation of counsel has “‘consequences that are necessarily
unquantifiable and indeterminate’” and “[h]armless-error
analysis in such a context would be a speculative inquiry into
what might have occurred in an alternate universe”]; cf. In re
James F. (2008) 42 Cal.4th 901, 914-915 [concluding an “error in
the procedure used to appoint a guardian ad litem for a parent in
a dependency proceeding . . . . does not necessarily require ‘a
speculative inquiry into what might have occurred in an
alternate universe’”], emphasis added.)13 Indeed, the majority
opinion tends to bear this out, as it cannot avoid fairly
speculative language to describe the consequences of even the
clear error in this case: appointed counsel “could have kept the
hearing focused,” “would have a better ability” to make
arguments, and “would . . . be better equipped” to communicate
with the parties.

13    The parent in In re James F. was represented by counsel
throughout the proceedings. (In re James F., supra, 42 Cal.4th at
pp. 906-910.) The error asserted on appeal was that the juvenile
court appointed a guardian ad litem for the parent without
advising the parent of the purpose or consequences of the
appointment. (Id. at p. 910.)

                                3
       Our Supreme Court has said we should not import the
structural error doctrine “wholesale, or unthinkingly” into the
dependency context. (In re James F., supra, 42 Cal.4th at pp.
915-916.) That is right, and I do not advocate for a wholesale
importation of the doctrine. But for cases in which there is an
egregious deprivation of the foundational right to counsel, we
should do more thinking. When a counterfactual inquiry appears
too difficult to responsibly undertake, or a counterfactual
conclusion relies on inferences that really amount to guesswork,
the bias should be in favor of reversal.

                                  II
       The majority’s directions on remand are to immediately
appoint counsel for mother, to permit appointed counsel to file a
new Welfare and Institutions Code section 388 petition, and to
vacate certain additional court orders as they relate to mother’s
visitation and family reunification plans. These are all
appropriate directions, and I agree with them. I am compelled to
add a few words, however, regarding the juvenile court’s task on
remand to account for the possibility that the error in failing to
appoint counsel in connection with Mother’s Welfare and
Institutions Code section 388 petition may have infected
subsequent dependency proceedings.
       The new petition that today’s decision permits Mother to
file can appropriately address both the facts as they existed at
the time the uncounseled petition was heard in December 2016,
as well as any intervening developments since that time that
bear on Mother’s visitation with J.P. and his best interests. If it
is the case, for instance, that Mother’s attorney believes the
juvenile court’s failure to grant her unmonitored visitation at the

                                 4
December 2016 hearing contributed to subsequent developments
that may have been unfavorable to Mother, that is an issue
counsel may appropriately raise. And if such an issue is raised,
the juvenile court would greatly facilitate further appellate
review, if any, by making the following findings on the record
after considering the newly-filed petition: (1) what visitation
order the court would have made on the facts as they existed in
December 2016; (2) the reasons for the visitation order the court
makes considering current conditions; and (3) to the extent these
two findings differ, an explanation of the reasons for the
difference, including any impact the prior deprivation of counsel
may have had on subsequent developments.

                           BAKER, J.

                                5


631 F.3d 581 (2011)
Keven A. McKENNA, Plaintiff, Appellant,
v.
Sandra POWELL, in her representative capacity; George Healy, in his representative capacity, Defendants, Appellees.
No. 10-1820.
United States Court of Appeals, First Circuit.
Heard January 3, 2011.
Decided January 27, 2011.
*582 Keven A. McKenna pro se, with whom Keven A. McKenna, P.C. was on brief.
Michael W. Field, Special Assistant Attorney General, for appellees.
Before TORRUELLA, STAHL and HOWARD, Circuit Judges.
PER CURIAM.
Plaintiff Keven McKenna appeals from an order dismissing his federal court action under the so-called Younger doctrine. See Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (requiring district courts to stay or dismiss a federal action in favor of continued prosecution of related state litigation). Defendants Sandra Powell, director of the Rhode Island Department of Labor and Training, and George Healy, chief judge of the Rhode Island Workers Compensation Court, contend that dismissal was required in light of ongoing state judicial proceedings.
Having read the briefs and record with care, we think this case is a paradigm for Younger abstention. We see no reason to expand upon the magistrate judge's thoughtful report and recommendation, McKenna v. Powell, No. 10-017, 2010 WL 2474037 (D.R.I. Apr. 28, 2010), subsequently adopted by the district court, McKenna v. Powell, No. 10-017, 2010 WL 2346619 (D.R.I. June 9, 2010). See, e.g., Mir-Yepez v. Banco Popular de P.R., 560 F.3d 14, 15 (1st Cir.2009) ("We consistently have espoused the view that when a lower court accurately takes the measure of a case, applies the correct legal rules, and articulates a convincing rationale, `an appellate court should refrain from writing at length to no other end than to hear its own words resonate.'" (quoting Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d 218, 220 (1st Cir.1996))). Accordingly, we summarily affirm the judgment below. See 1st Cir. Loc. R. 27.0(c).
Affirmed.


Order                                                                                Michigan Supreme Court
                                                                                Lansing, Michigan

  March 8, 2011                                                                                Robert P. Young, Jr.,
                                                                                Chief Justice

  141992                                                                                Michael F. Cavanagh
                                                                                Marilyn Kelly
                                                                                Stephen J. Markman
                                                                                Diane M. Hathaway
                                                                                Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                                        Brian K. Zahra,
            Plaintiff-Appellee,                                                                                Justices

  v                                                                SC: 141992
                                                                   COA: 291535
                                                                   Wayne CC: 08-016290-FC
  DESHAWN CARTER,
          Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the September 21, 2010
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

                          I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          March 8, 2011                       _________________________________________
           p0228                                                              Clerk


Filed 10/5/15 P. v. Vargas CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H041848
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. Nos. 213738, C1482392)

         v.

JUAN JOSE VARGAS,

         Defendant and Appellant.

         In case No. 213738, the county probation department filed a petition for
revocation of community supervision in February 2014, alleging that defendant failed to
maintain contact with the probation department and failed to report to the probation
department as directed. According to the petition, defendant was originally convicted in
2013 for violating Penal Code sections 496d and 594, subdivisions (a) and (b)(1),1 was
sentenced to two years in prison, and was released in January 2014 on post-release
community supervision (PRCS).
         On March 24, 2014, defendant admitted that he violated PRCS. The trial court
reinstated PRCS with modified terms to include 30 days in jail, with 16 days credit. The
court set a review hearing for April 22, 2014.

         1
             All further statutory references are to the Penal Code unless otherwise indicated.
       Defendant did not appear at the April 22, 2014 review hearing, and PRCS was
summarily revoked. On October 20, 2014, defendant admitted that he violated PRCS.
The trial court reinstated PRCS with modified terms to include 180 days in jail, with
180 days credit.
       In the meantime, in June 2014, defendant was charged by information in case
No. C1482392 with child endangerment (§ 273a, subd. (a)) and misdemeanor being
under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)).
The offenses allegedly took place on or about May 1, 2014. The information further
alleged that defendant had a prior strike (§§ 667, subds. (b)-(i), 1170.12), and that he had
served two prior prison terms (§ 667.5, subd. (b)).
       The information was later amended to charge count 1, child endangerment
(§ 273a, subd. (a)), as a misdemeanor. Defendant pleaded no contest to the amended
count and to the count for being under the influence of a controlled substance (Health &
Saf. Code, § 11550, subd. (a)). Defendant entered his pleas with the understanding that
he would be placed on probation for four years with various terms and conditions,
including that he serve 10 months in jail.
       According to the probation officer’s report, which was based on a police report,
defendant was at a park on May 1, 2014, with a two-year-old child. A witness reported
that defendant appeared to be under the influence of something and was not paying
attention to the child. The witness later observed defendant in the bathroom completely
naked in front of a sink. The witness reported the incident to the facility staff. A staff
member heard defendant slamming and hitting something and cursing. The staff member
called the police. The police spoke with defendant, who appeared to be under the
influence of a stimulant. Defendant stated that he was homeless and that he used the
restroom to wash up. He also stated that he and the child had slept on a relative’s
driveway the previous night, but he could not tell the officers the name or location of the
relative. Defendant appeared confused and had difficulty speaking. He could not tell the

                                              2
officers the location of the child’s mother or the ages of his other children. The child was
dirty and was sitting in a filthy stroller. Defendant was arrested and the child was
released to the care of child protective services.
       On November 21, 2014, the sentencing hearing was held on the child
endangerment and controlled substances convictions. The trial court suspended
imposition of sentence and placed defendant on probation for four years with various
terms and conditions, including that he serve 10 months in jail, with 229 days credit.
Defendant was ordered to pay various fines and fees. The court also entered a protective
order for the child.
       On December 8, 2014, defendant filed a notice of appeal and request for certificate
of probable cause in case Nos. 213738 (the PRCS case) and C1482392 (the child
endangerment and controlled substances case). The court denied the request for the
certificate.
       We appointed counsel to represent defendant in this court. Appointed counsel has
filed a brief in this court which states the case and facts but which raises no issues.
       We sought to notify defendant of his right to submit written argument in his own
behalf within 30 days. Defendant listed his mailing address as “transient” on his notice
of appeal. Following inquiries by this court, defendant’s appellate counsel executed a
declaration on May 20, 2015, explaining counsel’s efforts to locate defendant. Counsel
was not able to locate defendant or otherwise obtain contact information for him. This
court mailed notification to defendant’s last known address, the county jail, on May 21,
2015. We have received no communication from defendant.
       Defendant’s notice of appeal does not specify the date of the order or judgment
being appealed. In case No. 213738, the notice of appeal is timely only as to the
October 20, 2014 order in which the trial court reinstated PRCS with modified terms.
We requested supplemental briefing from the parties regarding the date of the judgment
or order being appealed from, and whether the record on appeal was incomplete. The

                                              3
parties agreed that defendant may be appealing from the October 20, 2014 order, and that
the record on appeal should include a reporter’s transcript of the oral proceedings on that
date. This court ordered the record augmented accordingly.
       In case No. C1482392, the notice of appeal is timely as to the November 21, 2014
judgment (order of probation). The record reflects that the trial court entered a protective
order on that date protecting the child from defendant. The parties agreed in
supplemental briefing that the record on appeal should include the protective order, and
this court ordered the record augmented.
       The November 21, 2014 protective order includes a stay-away order that does not
specify the number of yards that defendant must stay away from the protected child. It
states that defendant “must not come within [blank] yards of the” protected child. We
will remand the matter for the limited purpose of the trial court specifying the distance
that defendant must stay away from the protected child.
       Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006)
40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no
arguable issue on appeal.
                                      DISPOSITION
       In case No. 213738, the October 20, 2014, order is affirmed.
       In case No. C1482392, the judgment is reversed and the matter is remanded for the
limited purpose of the trial court specifying in the protective order the distance that
defendant must stay away from the protected child.

                                              4
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

__________________________
MIHARA, J.

__________________________
GROVER, J.


829 F.Supp. 420 (1993)
EDMONDSON AND GALLAGHER, et al., Plaintiffs
v.
ALBAN TOWERS TENANTS ASSOCIATION, et al., Defendants.
Civ. A. No. 93-1090.
United States District Court, District of Columbia.
July 30, 1993.
*421 David John Branson, Daniel J. Culhane, Kaye, Schlor, Fierman, Hays & Handler, Washington, DC, for plaintiffs.
James B. Rosenthal, Arent, Fox, Kintner, Plotkin & Kahn, Washington, DC, for defendants.

MEMORANDUM OPINION
SPORKIN, District Judge.
This action is before the Court after being removed from the District of Columbia Superior Court. The complaint was brought by Edmondson & Gallagher ("E & G"), a Virginia real estate company, against the Alban Towers Tenants Association ("ATTA"), Vera *422 Ruser, who is President of ATTA, and the partners of the law firm Foley, Hoag & Eliot ("Foley"). E & G alleges that Defendants wrongfully prevented it from buying the Alban Towers apartment building in Washington, D.C., through a carefully orchestrated scheme spanning almost three years.
E & G's claims arise from its contract to buy the Alban Towers apartment building from Georgetown University. Under the District of Columbia Rental Housing Conversion and Sale Act, §§ 45-1601 et seq. (the "Act"), that contract was subject to ATTA's right of first refusal. ATTA attempted to exercise its right but failed to obtain the necessary financing. Georgetown sued ATTA in the Superior Court of the District of Columbia to clear title to the project and E & G intervened in Georgetown's action against ATTA. The Superior Court order was decisively determined in favor of Georgetown. On appeal, that decision was affirmed. Despite the favorable court decision, the "downturn" in the economy between the original contract and the favorable determination in court made it impossible for E & G to obtain financing and complete its purchase of Alban Towers.
In this suit, E & G seeks to recover the profits it claims it lost because its contract with Georgetown fell through. E & G alleges (1) tortious interference with contractual relations, (2) two counts of abuse of process, (3) malicious prosecution, (4) violations of the federal Racketeer Influenced Corrupt Organization Act ("RICO"), 18 U.S.C. § 1962 et seq., and (5) conspiracy to commit RICO violations. E & G seeks compensatory damages of $6,000,000 and punitive damages of $20,000,000.
Before the Court is Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment. On July 21, 1993, a hearing was held on Defendants' motion. For the reasons stated below, Defendants' motion will be granted.

I. FACTUAL BACKGROUND
In 1986, E & G entered into a contract with Alban Towers Limited Partnership ("Georgetown")[1] to purchase Alban Towers, an apartment building in the District of Columbia. The contract acknowledged that under the D.C. Rental Housing Conversion and Sale Act the tenants had right of first refusal against any prospective purchaser of Alban Towers.
That Act provides that "[b]efore an owner of a housing accommodation may sell the accommodation ... the owner shall give the tenant an opportunity to purchase the accommodation at a price and terms which represent a bona fide offer of sale." D.C.Code § 45-1631(a). The purpose of this ordinance is to give tenants some rights to continue living in their apartments when the owners determine they want to convert a rental project to condominium housing. Under the Act, tenants are entitled to at least 120 days to negotiate a contract of sale, D.C.Code § 45-1640(2), and a 15-day period in which to exercise a right of first refusal, D.C.Code § 45-1637.
After receiving Georgetown's offer of sale, the tenants of Alban Towers incorporated as the Alban Towers Tenants Association for the purpose of purchasing Alban Towers. ATTA retained Richard Gross, a partner in the law firm of Foley, Hoag & Eliot, to assist in negotiating and financing the deal.[2] ATTA also chose a development company, HDS, Inc., to devise a plan for redeveloping Alban Towers, obtain financing for the redevelopment, and secure the $650,000 deposit required by the proposed contract ultimately agreed upon between Georgetown and ATTA.
The negotiation period for Alban Towers began on August 12, 1986, and ended on December 30, 1986. The final draft of the proposed contract between ATTA and Georgetown provided that:
"[n]ot later than 5:00 p.m. on Thursday, December 30, 1986, purchaser shall deliver to seller an irrevocable letter of credit in *423 the amount of six hundred and fifty thousand dollars ... or shall deposit with Real Title Company, Inc. the sum of six hundred and fifty thousand dollars in cash, as an earnest money deposit with respect to the property[.]"[3]
Sometime between the afternoon of December 30 and the close of business on December 31, 1986, a deposit check for $650,000 was delivered on behalf of ATTA to Real Title Company, Inc. for Georgetown. Because the check was unfunded, it did not satisfy ATTA's obligation under its proposed contract with Georgetown. Georgetown, informed of this development, treated the negotiations with the ATTA as over.
On January 5, 1987, ATTA, through Mr. Gross, filed a Notice of Exercise of Rights of First Refusal with the District of Columbia Recorder of Deeds. This had the effect of clouding title on the project. On February 2, 1987, Georgetown filed a complaint in Superior Court of the District of Columbia seeking a declaration that Georgetown be permitted to sell Alban Towers to E & G. On February 6, 1987, the Recorder of Deeds expunged ATTA's Notice of Exercise of Rights of First Refusal. E & G intervened in Georgetown's suit against ATTA, seeking a declaratory judgment and asserting claims against ATTA for tortious interference with contractual relations and tortious interference with business relations.
On October 6, 1988, Judge Henry Greene of the D.C. Superior Court granted summary judgment in favor of Georgetown and partial summary judgment in favor of E & G,[4] and held that those parties were "free to close on their third-party contract for the purchase of Alban Towers." Alban Towers Limited Partnership v. Alban Towers Tenants Association, No. 87-822, slip op. at 18. ATTA moved for reconsideration which Judge Greene denied. ATTA then appealed. On December 1, 1989, the Court of Appeals affirmed Judge Greene's order, Alban Towers Tenants Association v. Alban Towers Limited Partnership, No. 88-1488, slip op. at 2 (D.C.Ct.App.). By the time the Court of Appeals issued its opinion in December 1989, the real estate market had "turned down" and E & G could no longer obtain financing.
Three years later, in December 1992, with new counsel, Plaintiff brought this action against ATTA, Ruser and Gross in the Superior Court of the District of Columbia, alleging tortious interference with contractual relations and abuse of process. The complaint was removed to this Court in June 1993 after Plaintiff amended its complaint, adding an additional claim for abuse of process and two counts under the Federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962 et seq.

II. THE RICO CLAIMS
E & G alleges that ATTA, Vera Ruser and Richard Gross engaged in an elaborate scheme of bribery and deceit "which was intended to delay or prevent the sale of Alban Towers to extort money from Edmondson & Gallagher and Georgetown."[5] Plaintiff contends that this "scheme" constituted a RICO violation under 18 U.S.C. § 1962(c).
RICO provides that:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.
18 U.S.C. § 1962(c).
In order to establish a pattern of racketeering activity under RICO, a plaintiff "must show that the racketeering predicates are related and that they amount to or pose a threat of continued criminal activity." H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 2900, 106 L.Ed.2d 195 (1989) (emphasis in original).
*424 E & G lists a variety of predicate acts spanning approximately three years, including the following: preventing the sale and rehabilitation of commercial real property worth over $16,000,000; attempting to defraud Georgetown by delivering a bad check; attempting to commit extortion by improperly clouding title to Alban Towers; using interstate commerce facilities for extortion; submitting fraudulent affidavits to the court; bribing witnesses and deliberately concealing materials sought to be discovered in a lawsuit. Plaintiff alleges that these acts, taken together, constitute a scheme of racketeering activity in violation of RICO.
The Court finds that, under the circumstances of this case, these alleged acts do not demonstrate a pattern of racketeering. Rather, what is alleged is a single scheme, directed at a single victim, and resulting in a single, distinct injury  namely, the alleged interference with the contractual rights of E & G vis a vis Georgetown. This is insufficient to state a claim under RICO. See, e.g., Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1516 (10th Cir.1990) (No claim where single scheme to accomplish "one discrete goal" directed at one individual with no potential to extend to other persons or entities).
Although RICO is an important law which has done much good to combat organized crime, too many private litigants have distorted the law in an effort to reach activities RICO was never intended to address. It is a blatant misapplication of RICO's treble damages remedy to seek to reach ordinary commercial activities such as that alleged by E & G. See, e.g., Menasco, Inc. v. Wasserman, 886 F.2d 681, 684 (4th Cir.1989), Pyramid Sec. Ltd. v. International Bank, 726 F.Supp. 1377, 1385 n. 8 (D.D.C.1989), aff'd, 924 F.2d 1114 (D.C.Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 85, 116 L.Ed.2d 57 (1991).[6] As the Ninth Circuit has observed, "RICO was intended to combat organized crime, not to provide a federal cause of action and treble damages to every tort plaintiff." Oscar v. University Students Co-Op. Ass'n, 965 F.2d 783, 786 (9th Cir.) cert. denied, ___ U.S. ___, 113 S.Ct. 655, 121 L.Ed.2d 581 (1992).
Although the alleged predicate acts in this case spanned approximately three years, from early 1987 until late 1989, duration alone is not enough to demonstrate continuity for a RICO claim. This time period reflects the litigation process between Georgetown, E & G and ATTA. Alleging multiple predicate acts which took place over a three-year period and which were part of a single litigation process will not magically transform what at best are state tort claims into a federal RICO action.[7]
Based on the facts of this case, it is clear there is no basis for a RICO claim. ATTA asserted its statutory right of first refusal in the summer of 1986. Between August and December 1986 ATTA, primarily through Richard Gross, conducted negotiations with Georgetown. When the Georgetown-ATTA negotiations failed, Georgetown sought declaratory relief to clear title. E & G intervened in the suit and ATTA filed a counterclaim against Georgetown. The litigation ended in December 1989 when the D.C. Court of Appeals affirmed the Superior Court's order in favor of Georgetown. Even if it could be established that the Defendants devised a "scheme," it would have been to accomplish one discrete goal, not a conspiracy in violation of RICO.
Real estate developers face many risks when they proceed with condominium conversions. *425 That tenants may choose to exercise rights conferred to them under consumer protection laws must be factored into the developers' decisions. For tenants to pursue these rights is entirely foreseeable and it would defeat these worthwhile consumer protection laws to permit disappointed developers to assert RICO claims against tenants who aggressively seek to exercise these important rights conferred upon them. RICO simply has no office in cases of this kind.

III. COMMON LAW CLAIMS
What remains, then, are Plaintiff's claims for tortious interference with contractual relations, abuse of process and malicious prosecution.
As with respect to the RICO allegations, Plaintiff's common law claims are based on the attempts of ATTA, Vera Ruser, and Richard Gross to exercise the tenants' rights to purchase Alban Towers through the ensuing three-year litigation.
Though unsuccessful, the tenants' attempt to purchase Alban Towers was through rights conferred under D.C. law. There is no suggestion that when ATTA entered into negotiations with Georgetown to purchase Alban Towers it did not intend to complete the purchase. The crux of Plaintiff's complaint is that the deposit made on ATTA's behalf to meet its contractual rights with Georgetown had no funds behind it. While not salutary, this act alone does not give rise to the multiple causes of action asserted by E & G. Nor do Defendants' subsequent efforts to defend themselves and assert a counterclaim in the litigation initiated by Georgetown provide a basis for Plaintiff's common law claims.[8]
First, the Plaintiff is barred from pursuing these claims at this juncture under the doctrine of laches and in the interest of finality of judgment. The gravamen of Plaintiff's common law claims is that ATTA had no legitimate basis on which to defend the first lawsuit or assert counterclaims and that it did so only to prevent the E & G-Georgetown deal from proceeding.[9] If ATTA's defense was as frivolous as Plaintiff suggests, E & G should have pursued its claims in that suit. Litigation must come to an end. Should this Court's disposition of Plaintiff's RICO claim give rise to another lawsuit alleging that Plaintiff's claim was frivolous? If the answer is yes, then of course this litigation would continue for years to come and could possibly spawn further litigation. Without particularized and discrete circumstances, parties cannot be permitted to piggyback one lawsuit on another in an endless series of litigation. Such "parasitic" lawsuits must be foreclosed.
There is no reason for Plaintiff to be asserting its common law claims in the instant lawsuit. It knew of its rights at the time of the original action initiated by Georgetown against ATTA. Indeed, E & G filed third-party claims against ATTA, specifically asserting tortious interference with its contractual and business relations. Since Judge Greene's decision did not address those claims, Plaintiff had the opportunity to subsequently pursue them in that litigation. Plaintiff deliberately chose not to go forward with that litigation. Rather, Plaintiff attempted to negotiate a cash settlement with ATTA so that it could proceed with its development. Indeed, Plaintiff offered ATTA $1.6 million to give up its rights in the project. It is ironic that if ATTA had accepted Plaintiff's *426 offer of $1.6 million, E & G would not now be suing Defendants for $26 million.
There is little excuse in E & G's failure to pursue its claims in the first lawsuit. E & G made a strategic business decision to negotiate rather than pursue its tort claims in court. That E & G's strategy failed does not give it the right to reassert the same tort claims in a second suit some six years later.
Plaintiff's claims are also suspect because of Plaintiff's lack of privity with the Defendants. Georgetown is the real party in interest in the case. The District of Columbia's Rental Housing Conversion and Sale Act provides that a tenant organization shall have at least 120 days to negotiate a contract with a building owner, D.C.Code § 45-1631. If Georgetown wished to extend the negotiation period, it could have done so. E & G had no rights in the negotiation between Georgetown and ATTA and could not have compelled Georgetown to terminate negotiations with ATTA. Thus, if any party has suffered clear, direct injury in the case, it is Georgetown. Yet Georgetown has chosen not to file suit and there is nothing in the record indicating that Georgetown has assigned any of its rights to E & G.
The ensuing lawsuit between Georgetown and ATTA did not make E & G a third party beneficiary of the outcome of that lawsuit. Since E & G intervened in the lawsuit, it is difficult to understand how E & G now has the right to assert tort claims based on the original lawsuit. In short, E & G is now impermissibly attempting to exercise rights it never had and was never assigned.[10]

IV. NOERR-PENNINGTON
Defendants actions in defending their rights are protected by the First Amendment to the U.S. Constitution which protects the rights of citizens to petition the government to seek redress of grievances. Thus, a person cannot be held liable as a result of his or her filing a good-faith lawsuit or administrative claim or otherwise seeking governmental redress. See Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); accord, Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). This principle has become known as the Noerr-Pennington Doctrine.
While this right was first recognized by the Supreme Court in the context of antitrust litigation, it has been extended beyond that context. "[I]f a person has a protected right to bring an objectively-based antitrust claim against a competitor, the same protection must be afforded to others who bring other such objectively-based claims and allegations before a government agency or court." Whelen v. Abell, 827 F.Supp. 801, 803 (D.D.C.1993). See also Havoco of America, Ltd. v. Hollobow, 702 F.2d 643, 649 (7th Cir.1983).
In addition, while Noerr-Pennington is generally applied to protect plaintiffs who have petitioned the government for redress, there is no reason the doctrine should not be extended to protect a party who attempts to exercise a statutory right and then must defend that right in subsequent litigation filed against it.
The immunity provided under Noerr-Pennington is qualified by a so-called "sham exception." Under the sham exception, otherwise protected activity does not qualify for Noerr-Pennington immunity "if it is a mere sham to cover an attempt to interfere directly with the business relationships of a competitor." Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, ___ U.S. ___, ___, 113 S.Ct. 1920, 1928, 123 L.Ed.2d 611 (1993), Whelen v. Abell, 827 F.Supp. 801, 803 (D.D.C.1993).
In Professional Real Estate Investors, the Supreme Court articulated a two-prong test to determine whether the "sham exception" applies:
First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the *427 merits. If an objective litigant could conclude that the suit is reasonably calculated to elicit a favorable outcome, the suit is immunized ... Only if challenged litigation is objectively meritless may a court examine the litigant's subjective motivation. Under this second part of our definition of sham, the court should focus on whether the baseless lawsuit conceals an attempt to interfere directly with the business relationships of a competitor through the use of the governmental process  as opposed to the outcome of that process  as an anticompetitive weapon.
Professional Real Estate Investors, ___ U.S. at ___, 113 S.Ct. at 1928.
In this case, Defendants pursued their right to purchase Alban Towers. When Georgetown sued to clear title, ATTA defended itself. Though they may have made mistakes during the litigation, the tenants had the right to defend the suit in pursuit of their intent to purchase the building. This Court does not find that ATTA's counterclaim against Georgetown can in anyway be considered a "sham action" against Plaintiff, who was not a named party in the counterclaim.

V. CONCLUSION
While the Court is ruling in favor of Defendants, the behavior of ATTA and its counsel is far from exemplary. Judge Greene found that ATTA tendered an unfunded check to Georgetown. Alban Towers Limited Partnership v. Alban Towers Tenants Association, No. 87-822, (D.C. Oct. 7, 1988). In addition, some of Plaintiff's allegations about the conduct of Mr. Gross are troublesome. In rendering its decision today, this Court is in no way condoning such behavior if the allegations are in fact true.
However, to permit this lawsuit to proceed would be a severe blow to the rights created by the District of Columbia Rental Housing Conversion and Sale Act of 1980, the purpose of which is to strengthen "the legal rights of tenants or tenant organizations to the maximum extent permissible under the law." D.C.Code § 45-1661. Tenants' associations seeking to exercise the rights provided by the Act will undoubtedly falter and misstep. Such groups often are put together quickly on a reactive ad hoc basis by tenants unsophisticated in commercial real estate transactions. These highly vulnerable persons should not be punished if they err or are represented by overly zealous counsel. Whether or not E & G were ultimately successful, if this suit is permitted to go forward, it will have a chilling effect on future tenants associations' pursuit of their rights. Indeed, this case resembles a so-called "SLAPP"  "strategic lawsuits against public participation"  suit in which parties attempt to use litigation as a weapon to punish community activists for exercising their rights.[11]
E & G, if it could meet the appropriate standing requirements, had ample opportunity to challenge the arguments and conduct of ATTA during the first litigation filed by Georgetown in 1987. To permit E & G to pursue this action where it seeks $26 million against a tenants association for exercising rights conferred by law would ironically be a greater abuse of process than the one Plaintiff claims it has been subjected to in this case. Accordingly, Defendants' Motion to Dismiss is granted. An appropriate order accompanies this opinion.

ORDER
Presently before the Court is Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgement. Upon consideration of Defendants' motion and Plaintiff's opposition thereto, and after conducting a hearing on the matter on July 21, 1993, for the reasons stated in the foregoing Memorandum Opinion, it is this 30 day of July, 1993 hereby
ORDERED that Defendants' Motion is granted. It is
FURTHER ORDERED that this matter is dismissed with prejudice.
NOTES
[1]  The real party in interest is Georgetown University which owns Alban Towers.
[2]  Approximately sixty partners of Foley have been named as individual defendants by E & G. However, only the activity of Mr. Gross is at issue in this case.
[3]  Alban Towers Limited Partnership v. Alban Towers Tenants Association, No. 87-822, slip op. at 8 (D.C.Super.Ct. Oct. 7, 1988).
[4]  Judge Greene's decision did not address the tort claims asserted by E & G.
[5]  Plaintiff's First Amended Complaint, ¶ 89.
[6]  See also Committee to defend the United States Constitution v. Moon, 776 F.Supp. 568 (D.D.C. 1991) (alleged scheme to achieve one instance of economic injury would not amount to a RICO claim).

Furthermore, Congressional intent indicates that RICO remedies are available only in relation to activities having some association with "racketeering" as that term is used in ordinary discourse. Exeter Towers Associates v. Bowditch, 604 F.Supp. 1547 (D.Mass.1985). See also HMK Corp. v. Walsey, 828 F.2d 1071, 1075 (4th Cir. 1987) cert. denied, 484 U.S. 1009, 108 S.Ct. 706, 98 L.Ed.2d 657 (1988) ("The existence of a pattern ... depends on context, particularly on the nature of the underlying offenses. Attention to the nature of the underlying offenses is necessary because the heightened civil and criminal penalties of RICO are reserved for schemes whose scope and persistence set them above the routine.")
[7]  See HMK, 828 F.2d at 1075 (no RICO claim though alleged fraudulent scheme spanned four years).
[8]  In its counterclaims, ATTA sought declaratory and injunctive relief which would prevent Georgetown from selling Alban Towers to E & G and allow ATTA to purchase the building. Additionally, ATTA sought monetary damages from Georgetown but not from E & G.
[9]  E & G also claims that Defendants tendered the bad check on December 31, 1986  one day after the December 30 deadline set forth in ATTA's proposed contract with Georgetown. E & G further alleges that Defendants tried to cover up the late tender and that their actions to do so demonstrate bad faith and illicit motivation behind ATTA's actions.

Even if true, Plaintiff's allegations in this regard provide scant evidence that ATTA's efforts to purchase Alban Towers were not in earnest. Moreover, Judge Greene did not find the timing issue to be of any moment; his decision turned on the fact that the check tendered by ATTA was unfunded, not on when the bad check was tendered. Apparently, Georgetown's rejection of the deal and termination of the negotiations with ATTA were also based on the insufficiency of the funds, not on the timing of the check's delivery.
[10]  To permit a contractor to assert rights such as Plaintiff pursues in this case would also allow subcontractors to pursue their lost expectations. The D.C. law would certainly become a dead letter if tenants could be made subject to the contingent and speculative contract expectancies of such remote parties.
[11]  This case would not be the first time a real estate developer filed such a suit against an individual or organization who opposed the developer's projects. See e.g., Westfield Partners, Ltd. v. Hogan, 740 F.Supp. 523, 525 (N.D.Ill.1990).


124 F.3d 205
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.United STATES of America, Plaintiff-Appellee,v.Antonio Green, Defendant-Appellant.
No. 97-1221.
United States Court of Appeals, Seventh Circuit.
July 17, 1997.

Appeal from the United States District Court for the Eastern District of Wisconsin
ORDER
After being indicted on one count of possession with intent to distribute cocaine in excess of 500 grams in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, Antonio Green filed a motion to suppress evidence seized from his vehicle during a stop by Milwaukee police.  The magistrate judge recommended denying Green's motion to which Green did not object.  The district court then adopted the recommendation.  Green entered a conditional guilty plea preserving his right to appeal.  The district court entered the judgment of guilty and sentenced Green to 65 months' imprisonment.  Green appeals the denial of his motion to suppress asserting that Milwaukee police officers made an unreasonable investigatory stop of his vehicle, the cocaine retrieved from his vehicle was not in plain view, and he was constructively arrested following the traffic stop.  For the following reasons, the district court is affirmed.
At the motion to suppress hearing, Milwaukee Police Detective, Rayford Wesson, testified that on April 24, 1996, he received information from a confidential informant that Green had called him about a large quantity of drugs for distribution the next day.  The informant also told Detective Weston that Green often transported drugs in a "Blazer-type" vehicle.  Detective Weston testified that he received another phone call on April 24 from a second confidential informant stating that Green also contacted him about a large quantity of drugs Green would have the next day.  The second informant stated the Green would be transporting the drugs in a black 4-wheel drive vehicle.  Prior to the informants contacting Detective Weston, Weston testified that he was familiar with Green's reputation for drug trafficking "on a larger scale than most street dealers are associated with."1
Detective Weston also testified to the reliability of the confidential informants.  He stated that he had worked with the first informant for two years on cases which included at least three controlled buys resulting in arrests and convictions.  The informant also helped the police locate fugitives and connected the police with at least five people who conducted controlled buys.  Detective Weston testified that he had worked with the second confidential informant on a limited basis because the informant worked mainly with the FBI.  Detective Weston explained that this informant had worked with the Milwaukee police with narcotics investigations on at least two prior occasions and helped police with information leading to the execution of search warrants.  Detective Weston testified that to the best of his knowledge, neither informant had ever given false--information to the Milwaukee Police Department.
On April 25, 1996, the day after the confidential informants' phone calls, Detective Weston and other Milwaukee police officers conducted a surveillance of Green's business.  When they arrived at Green's store, they noticed a black Chevy Blazer parked in front and ran a check of the license plate, which listed the vehicle as Green's.  One of the officers established that Green's vehicle registration was suspended and the license plate was expired.  This officer then informed the other officers of the plate and registration status.
Approximately thirty minutes after the surveillance began, Green exited his business and got into the driver's side of the Blazer with another person, Jarvis Robinson, who sat in the front passenger seat.  The officers were in four police vehicles following Green for at least fifteen minutes as he drove evasively and erratically, i.e., through parking lots, changing directions in an alley, against traffic, and making U-turns.  At this time, the officers were in contact with each other via police radio.  Due to Green's irregular driving, including looking over his shoulder at the police, Detective Weston lost sight of the Blazer twice.  Detective Weston then ordered Officers Jason Smith and David Dalland to stop Green because Detective Weston believed Green was transporting drugs.  Detective Weston testified that he based his decision to stop Green on the information obtained from the informants, Green's "suspicious driving habits," Green's expired plate and suspended registration, and the way Green looked over his shoulder when the police officers were following him.
Officer Smith testified that he and Officer Dalland pulled Green over per Detective Weston's order after they activated the squad car's lights.  Officer Smith testified that after the Blazer came to a stop, he approached the driver's side while Officer Dalland went to the passenger side.  As Officer Smith approached the driver's side, he observed Green lean forward.  Specifically, Officer Smith testified that he saw Green's shoulder shift toward his feet and could see his head dip down.  Smith testified that, based on his experience with the narcotics section of the Milwaukee Police Department, he suspected that Green may have a concealed weapon or narcotics.  Officer Smith then removed Green from the vehicle and did a pat-down search for weapons.  He did not find any weapons, but led Green to the rear of the vehicle asking for Green's driver's license and information about the Blazer's ownership.
Officer Smith then directed Green to remain at the back of the Blazer with Officer Dalland.  Robinson was also at the back of the Blazer and testified that "they made us go sit on the back bumper of the truck...."2  Officer Smith returned to the driver's side to inspect the area where Green had leaned forward.  Smith looked through the open driver's side door and bent down to examine the area under the driver's seat where he saw a white plastic bag.  Officer Smith testified that the bag was an open plastic freezer bag with a white powdery substance inside.  Based on his experience, Officer Smith testified that he concluded the substance was cocaine.  After Officer Smith notified Officer Dalland of the discovery, Green and Robinson were placed under arrest and handcuffed.  At that time, Officer Smith also issued Green a citation for operating a vehicle with a suspended registration.
Robinson also testified at the suppression hearing, stating that he and Green left Green's store separately, meeting later after Robinson went to his mother's house.  He testified that he and Green were going to get food before watching an NBA game at a sports bar.  Robinson stated that they were driving around for a few moments then parked along the side of the road when two police officers approached them.  Robinson testified that the police demanded that they put their hands up and that he and Green were then handcuffed after they were taken to the back of the truck.
The district court concluded that Robinson's credibility was suspect because he gave ambiguous answers on cross examination and testified that he did not recall everything that happened on April 25, 1996.  On the other hand, the district court concluded that Detective Weston's and Officer Smith's testimony regarding Green's erratic and evasive driving was more credible and that Green's driving tactics demonstrated that he was attempting to avoid the police contact "at all costs."
First, the government contends that Green's appeal should be dismissed because Green failed to file objections with the district judge regarding the magistrate judge's recommendation to deny the motion to suppress.  We have held that the failure to file objections to a magistrate's recommendation waives the issue on appeal.  United States v. Brown, 79 F.3d 1499, 1504 (7th Cir.), cert. denied, 117 S.Ct. 196 (1996).  Here, Green concedes that he failed to object to the magistrate's recommendation, but maintains that this court has the authority to decide his appeal on equitable grounds.  See id. at 1504-05.   In Brown, we acknowledged that the waiver rule is not jurisdictional and therefore should not be applied if the ends of justice are defeated.  Id.

1
In fact, Green did not object to the magistrate's recommendation, thereby waiving his argument on appeal.  To the extent that Green could argue that the government "waived" his waiver by entering into a conditional plea agreement, an issue not raised by defendant on appeal, we conclude in any event that Green's appeal would fall on the merits.

2
In general, Green argues that the police officers did not have reasonable suspicion to conclude that the stop of his Blazer was warranted.  Even though legal determinations of reasonable suspicion and probable cause are reviewed de novo, see Ornelas v. United States, 116 S.Ct. 1657, 1663 (1996), in the context of a motion to dismiss, we review the district court's findings of historical facts for clear error.  United States v. Stribling, 94 F.3d 321, 323 (7th Cir.1996).  In order for police to make an investigatory stop the "officer must be able to point to specific and articulable facts" giving rise to a reasonable suspicion of criminal activity.  Terry v. Ohio, 392 U.S. 1, 21-22 (1968).  This court's focus involves the events leading up to the stop and whether the historical facts viewed from the standpoint of an objectively reasonable police officer amount to reasonable suspicion.  Omelas, 116 S.Ct. at 1661-62.

3
Green specifically contends that the confidential informant's tips to the police were unreliable.  The Supreme Court discussed the reliability of informants' tips as they relate to reasonable suspicion, concluding that "if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable."  Alabama v. White, 496 U.S. 325, 330 (1990).  Giving due weight to the inferences drawn by Detective Weston, it is evident that the two confidential informants were reliable.  Detective Weston testified that they had successfully worked for him in the past.  He also testified that there was no indication that the confidential informants gave false information to the police.  The confidential informants' information included the exact day that Green would have drugs for distribution and that Green drove a black 4-wheel drive vehicle.  The informants indicated that the source of information was from Green himself, not a secondary source.

4
In addition, the information received from the trusted confidential informants was just one factor supporting Detective Weston's reasonable and articulable suspicion that Green was engaged in drug trafficking.  The information from the informants was corroborated by Green's erratic driving and his traffic violations.  In United States v. Ocampo, 890 F.2d 1363, 1368 (7th Cir.1989), we evaluated facts involving a tip from an informant who received information from a secondary source, along with corroborating factors, concluding that the Terry stop was supported by reasonable suspicion.  Here, taken together, the surveillance of Green, the information from reliable sources, and Green's traffic violations amount to reasonable suspicion that Green was involved in drug trafficking.

5
Green also asserts that the police officers used his expired plate and suspended registration as a pretext to search his Blazer for drugs.  In Whren v. United States, 116 S.Ct. 1769 (1996), the Supreme Court held that the decision to stop a vehicle is reasonable where the police have probable cause to believe that a traffic violation has occurred;  the actual motivations of the officers play no role in the probable cause analysis.  Id. at 1772-74;  Valance v. Wisel, 110 F.3d 1269, 1275 (7th Cir.1997).  In this case, the police had probable cause to believe that Green had committed traffic violations after they discovered that his registration was suspended and that his license plate had expired;  therefore, Green's pretext argument fails.

6
Next, Green asserts that there was no probable cause to search his Blazer because the cocaine was not in plain view.  The plain view doctrine allows the police to conduct warrantless seizures of incriminating evidence if (1) "the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed;" (2) the item is in plain view;  and (3) the incriminating character of the item is immediately apparent.  Horton v. California, 496 U.S. 128, 136-37 (1990).

7
First, the stop was legitimate under Terry based on information Officer Weston relied upon, as discussed above.  The cocaine was in plain view, as the driver side door was left ajar enabling Officer Smith to stand outside the Chevy Blazer and permissibly observe the bag of cocaine.  See United States v. Willis, 37 F.3d 313, 316 (7th Cir.1994) (citing Texas v. Brown, 460 U.S. 730, 739-40 (1983)) (no legitimate expectation of privacy of interior of vehicle that may be viewed from the outside by a diligent police officer).  Last, the incriminating character of the cocaine was immediately apparent to Officer-Smith, who had worked in the narcotics section of the Milwaukee Police Department and testified that he recognized that the open bag contained cocaine.

8
Officer Smith's search of Green's Blazer was also justified as a protective search.  See United States v. Evans, 994 F.2d 317, 320-21 (7th Cir.1993).  In Evans, we concluded that a defendant's furtive gesture of leaning forward in the driver's seat caused the officers to encounter a specific fear that the defendant was armed.  Id. at 319-21.   Here, Officer Smith testified that Green shifted his shoulder and leaned forward toward his feet, a similar movement made by the defendant in Evans.   This, along with Officer Smith's experience and the nature of the stop, provide a reasonable basis for a protective search of the area where Green may have placed a weapon in which he could gain immediate control.  See Michigan v. Long, 463 U.S. 1032, 1049 (1983);  Valance, 110 F.3d at 1277.

9
Last, Green contends that he was handcuffed after the police initially stopped him and, thus, was constructively arrested.  However, the district court found that Green's allegation had no factual basis, concluding that Green and Robinson were escorted to the rear of the Blazer and Officer Dallandn remained with them while Officer Smith conducted the search.  The district court also concluded that Robinson's testimony corroborated Officer's Smith when Robinson said "they made us go sit on the-back bumper of the ntruck...."  The court relied upon Officer Smith's testimony indicating the defendants were handcuffed and placed under formal arrest after he found the cocaine, not Robinson's testimony that they were immediately handcuffed.  We give special--deference to findings based upon credibility determinations;  the district court's choice among competing witnesses is almost never clearly erroneous.  See United States v. Robinson, 14 F.3d 1200, 1204 (7th Cir.1994).  As such, the district court did not clearly error in determining that the police testimony was believable and more credible than Robinson's account.

10
For the foregoing reasons, the district court is AFFIRMED.

1
 Motion to Suppress Hearing Transcript at 20

2
 Motion to Suppress Hearing Transcript at 75