844 S.W.2d 178 (1992)
Kevin Bruce GARRETT, Plaintiff/Appellee,
v.
MAZDA MOTORS OF AMERICA, Defendant, and Matthews Oldsmobile, Cadillac, Mazda, Inc., Defendant/Appellant.
Court of Appeals of Tennessee, Middle Section, at Nashville.
July 31, 1992.
Application for Permission to Appeal Denied December 7, 1992.
*179 Michael A. Walker, Jamestown, for plaintiff/appellee.
William T. Alt, Elizabeth G. Alt, Chattanooga, for defendant/appellant.
Application for Permission to Appeal Denied by Supreme Court December 7, 1992.

*180 OPINION
CANTRELL, Judge.
There are two questions involved in this appeal: (1) Where, under the state's Lemon Law, Tenn. Code Ann. § 55-24-201, et seq., the trial judge orders the manufacturer to take back an automobile and refund the sales price to the purchaser, may the trial judge also award damages against the dealer? and (2) Did the dealer's agent make actionable misrepresentations to the purchaser concerning the automobile? We answer both questions in the affirmative and affirm the judgment of the trial court.

I.
On October 12, 1988, the plaintiff purchased a Mazda RX-7 with 14,582 miles on it from the defendant dealer. A salesman said the car had been used as a demonstrator and that he, himself, had used it for his personal use and had "babied it to death." The salesman did not disclose that the car had been stolen from the dealer and driven 10,000 miles before the thief was apprehended nor that the dealer had to replace the engine after the car had been driven only approximately 3,000 miles.
The plaintiff got a new car warranty and purchased a warranty extension. Three weeks after the purchase, the plaintiff wrecked the car causing $3,217.30 in damages. The car used an excessive amount of oil and the plaintiff complained that the engine smoked and was noisy, the cooling system leaked, and the clutch slipped. At 27,639 miles the dealer agreed to replace the engine.
The purchaser continued to have problems with the engine, however, and experienced other mechanical problems with the door locks, the sun roof, and the tape player. The dealer attempted without success to repair the car several times. Plaintiff's attorney contacted the manufacturer and learned for the first time that the car had been stolen and subsequently recovered from the thief. Plaintiff offered to rescind the transaction but the dealer told him to contact the manufacturer or the bank. The plaintiff continued to drive the car and wrecked it again causing over $3,000 in damages. In 1990, the plaintiff quit driving the car when he discovered that the underside of the car got red hot in ordinary driving. The plaintiff had driven the car over 48,000 miles.
The plaintiff sued the manufacturer and the dealer for breach of warranty and for rescission pursuant to the Tennessee Lemon Law, Tenn. Code Ann. § 55-24-201, et seq. After a bench trial, the Circuit Court of Putnam County entered a judgment against the manufacturer requiring it to accept return of the car and refund the purchase price less approximately $4,000, which the court estimated was the value of the use to the plaintiff. The court also entered a judgment against the dealer for fraud and breach of contract in the amount of $4,000 plus $10,000 in punitive damages.

II.
The manufacturer has not appealed from the judgment entered against it. The dealer, however, asserts on appeal that the doctrine of election of remedies bars the plaintiff from recovering anything after the court rescinded the contract.
Under certain circumstances, a plaintiff may be required to elect between inconsistent remedies. Barnes v. Walker, 191 Tenn. 364, 234 S.W.2d 648 (1951). The purpose of requiring an election is to prevent a double recovery for a single wrong. Purcell Enterprises, Inc. v. State, 631 S.W.2d 401 (Tenn. App. 1981). In applying the rule, courts have said a party cannot repudiate a contract on one hand and claim the benefits of the contract on the other. Isaacs v. Bokor, 566 S.W.2d 532 (Tenn. 1978); Tidwell v. Chattanooga Boiler & Tank Co., 163 Tenn. 420, 43 S.W.2d 221 (1931). The remedies, however, must be truly inconsistent. Holder v. Martin, 219 Tenn. 165, 407 S.W.2d 461 (1966). There is nothing inconsistent between a claim for rescission of a contract and a claim for fraud in procuring the contract. Silvers v. TTC Industries, Inc., 395 F. Supp. 1312 (M.D.Tenn. 1970), affd. 513 F.2d 632 (6th Cir.1975). Similarly, claims for rescission and for punitive damages are not inconsistent. *181 Hutchison v. Pyburn, 567 S.W.2d 762 (Tenn. App. 1977).
In addition to these principles, the statute creating the remedy under the state's Lemon Law says that the remedy it provides (requiring the manufacturer to accept return of the vehicle and refund the purchase price, Tenn. Code Ann. § 55-24-203) shall not limit the remedies otherwise available to the consumer. Tenn. Code Ann. § 55-24-210(a). Thus, we think the trial judge was justified in requiring the manufacturer to accept the car and refund a portion of the purchase price and ordering the dealer to pay a judgment for damages to the purchaser under some other theory.[1] The only restriction on the right to pursue both remedies is imposed in Tenn. Code Ann. § 55-24-210(b) where the statute requires a plaintiff to prove fault in order to recover more than a refund on the purchase price.

III.
The dealer also asserts that the representations made prior to the sale come under the heading of general sales talk and that there is no causal connection between the representations and the injury.

A.
With respect to the statements made to the plaintiff prior to the sale, we think they cross over the line between "puffing" or "sales talk" and actual misrepresentations. The dealer's sales person represented to the buyer that the car had been used as a demonstrator  primarily by the salesman himself  and had "been babied to death," when in fact, the car had been stolen and driven 10,000 miles by a thief. While we agree with the Supreme Court's observation in Simmons v. Evans, 185 Tenn. 282, 206 S.W.2d 295 (1947), that the difficulty in fraud cases is in applying the general principles to a particular set of facts, we think the dealer had a duty to disclose the fact of the theft. "A party to a contract has a duty ... to disclose any material fact affecting the essence of the ... contract, unless ordinary diligence would have revealed the undisclosed fact." Lonning v. Jim Walter Homes, 725 S.W.2d 682 at 685 (Tenn. App. 1986). See also Simmons v. Evans, 185 Tenn. 282, 206 S.W.2d 295 (1947). A failure to disclose material facts when one is under a duty to make disclosure amounts to fraud. Dozier v. Hawthorne Development Co., 37 Tenn. App. 279, 262 S.W.2d 705 (1954).

B.
In addition, we think a seller who induces a purchaser to buy an article of property by misrepresenting or concealing a material fact is liable for the damages that are the natural and proximate result of the fraud. See 37 Am.Jur.2d Fraud and Deceit § 351. The evidence shows that the fraudulent representations and concealment by the dealer induced the plaintiff to purchase the defective vehicle resulting in extended inconvenience and the ultimate necessity to sue for rescission and damages. There is a causal connection between the fraud and the injury.
The dealer also contends that, since the trial judge found that the only defects in the car were manufacturing defects, there is no causal link between the misrepresentations and the plaintiff's harm. We, however, are not persuaded that all of the difficulties the plaintiff experienced with the car relate to manufacturing defects. A part of the troubles experienced by plaintiff were related to the concealed history of the vehicle.
The judgment of the court below is affirmed and the cause is remanded to the Circuit Court of Putnam County for any further proceedings that may become necessary. Tax the costs on appeal to the appellant.
TODD, P.J., and LEWIS, J., concur.
NOTES
[1]  While the trial judge awarded damages against the dealer for "breach of contract" we think theory supported by the proof is fraud in the procurement of the contract. That is the only theory which would justify the award of punitive damages. See B.F. Meyers & Son v. Evans, 612 S.W.2d 912 (Tenn. App. 1980).


660 N.E.2d 319 (1995)
Keith and Mary HALL, Petitioners,
v.
INDIANA DEPARTMENT OF STATE REVENUE and Kenneth L. Miller, Commissioner, Respondents.
No. 49S10-9503-TA-336.
Supreme Court of Indiana.
December 27, 1995.
Concurring and Dissenting Opinion January 2, 1996.
Certiorari Denied May 20, 1996.
*320 Andrew C. Maternowski, Indianapolis, for petitioners.
Pamela Carter, Attorney General, David A. Arthur, Deputy Attorney General, Indianapolis, for respondents.
Concurring and Dissenting Opinion of Justice DeBruler January 2, 1996.
Certiorari Denied May 20, 1996. See 116 S.Ct. 1828.

ON PETITION FOR REVIEW
SHEPARD, Chief Justice.
The Indiana Department of State Revenue assessed over eleven million dollars in drug taxes against a couple who illegally possessed some 300 pounds of marijuana. The couple now seeks to avoid that tax liability by claiming the assessment was a second jeopardy for the same offense. We conclude that they may not.

I. History of the Case
On February 12, 1993, police entered and searched the home of petitioners Keith and Mary Hall. During their inspection of the Halls' property, police discovered a bale of marijuana weighing approximately 300 pounds. They arrested the Halls and charged them with felony possession of marijuana.
Four days later, appellee Indiana Department of State Revenue assessed the Controlled Substances Excise Tax (CSET) against the Halls in the amount of $5,691,320.[1] The Department also assessed a 100 percent penalty because the Halls' did not pay the CSET when they first possessed the drug. Ind.Code Ann. § 6-7-3-11(a) (West Supp.1994). The Halls' total CSET liability was thus $11,382,640.[2] On the same day, the Marion County Sheriff's Department garnished Mary's wages and seized the Halls' property as partial payment of their CSET liability. Appellant's Petition to Set Aside Final Determination, ¶2.
Subsequent to the assessment, Keith pled guilty to the charge of possessing marijuana and was convicted of a class D felony. The State dismissed the criminal charge against Mary.
The Halls sent a letter of protest to the Department, contesting their tax liability. The Department held a hearing and denied the Halls' protest. Subsequently, the Halls petitioned the Indiana Tax Court for review of the assessment, claiming the CSET violated their privileges against self-incrimination, as well as their double jeopardy, due process *321 and equal protection rights afforded by the United States and Indiana Constitutions.[3]
On October 11, 1994, the Tax Court issued its opinion in this action and three companion cases addressing the same issues. Hall v. Indiana Dep't of State Revenue (1994), Ind. Tax, 641 N.E.2d 694; Bailey v. Indiana Dep't of State Revenue (1994), Ind.Tax, 641 N.E.2d 695; Clifft v. Indiana Dep't of State Revenue (1994), Ind.Tax, 641 N.E.2d 682; Hayse v. Indiana Dep't of State Revenue (1994), Ind.Tax, 641 N.E.2d 698. The court ruled that the CSET did not violate the Halls' privileges against self-incrimination or their rights to equal protection and procedural due process. The court did conclude, however, that the CSET was Keith's second jeopardy, imposed in violation of the Fifth Amendment, and set aside his tax liability. It held further that no violation of Mary's right against double jeopardy occurred because she had suffered no criminal sanction before or after her CSET assessment.
Both the Halls and the Department petitioned this Court for review, which we granted. The following issues are presented:
1. Whether the CSET assessment was a second jeopardy in violation of the Halls' double jeopardy rights under the Fifth Amendment to the U.S. Constitution;
2. Whether the CSET compels self-incrimination in violation of the Fifth Amendment to the U.S. Constitution; and,
3. Whether the CSET assessment abrogated the Halls' procedural due process rights afforded by the Fourteenth Amendment to the U.S. Constitution.

II. Constitutionality of the CSET
Like the taxpayer in today's case of Bryant v. State (1995), Ind., 660 N.E.2d 290, the Halls claim their CSET assessment was the second jeopardy imposed against them for the same offense. In Bryant, we followed the U.S. Supreme Court's recent analysis in Montana Dep't. of Revenue v. Kurth Ranch, ___ U.S. ___, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), and concluded that a CSET assessment is a jeopardy. We reached this decision only after evaluating the CSET's deterrent purpose, high rate of taxation, prerequisite of the commission of a crime and penal nature objectives. Ultimately, we concluded that, when combined with the CSET's criminal sanction, Bryant had indeed been twice placed in jeopardy.
Because the nature of the Halls' claim mirrors that of Bryant, our Bryant analysis is applicable. We note that Mary was subjected to neither criminal prosecution nor punishment, and therefore conclude the CSET was her only jeopardy. Her Fifth Amendment rights were not offended. By contrast, Keith was convicted for felony drug possession after the Department's CSET assessment. The CSET was therefore his first jeopardy and the criminal action a second jeopardy in violation of the Double Jeopardy Clause.[4]
The Halls also argue that the CSET unconstitutionally compels self-incrimination and that the tax assessment denied their rights to procedural due process. We addressed issues identical to these in today's decision in Clifft v. Indiana Dep't. of State Revenue (1995), Ind., 660 N.E.2d 310. The analysis emerging from Clifft leads us to hold that the CSET violates neither the Halls' privilege against self-incrimination nor their rights to procedural due process afforded by the Fifth and Fourteenth Amendments.

III. Conclusion
We affirm the decision of the Tax Court with respect to the Halls' self-incrimination *322 and due process claims. We affirm the Tax Court's denial of Mary's double jeopardy claim. We reverse as to Keith's double jeopardy claim and reinstate the CSET assessment.[5]
DICKSON and SELBY, JJ., concur.
DeBRULER, J., concurs in result and dissents with separate opinion to follow.
SULLIVAN, J., concurs and dissents with separate opinion.

ON PETITION FOR REVIEW
SULLIVAN, Justice, concurring and dissenting.
As explained in part II of my dissent today in Bryant v. State (1995), Ind., 660 N.E.2d 290 (Sullivan, J., dissenting), I believe the majority errs in holding that an administrative assessment of a tax can constitute a first punishment for double jeopardy purposes.[6] As such, I believe that Keith Hall's criminal conviction is not contrary to the Double Jeopardy Clause. However, payment of the CSET assessed would constitute a second punishment of Keith Hall and would therefore be barred by Department of Revenue of Montana v. Kurth Ranch, ___ U.S.___, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (tax on the possession of illegal drugs assessed after the state has imposed a criminal penalty for the same conduct violated Double Jeopardy Clause).
I agree with the majority that no second jeopardy occurred in Mary Hall's case and that the CSET violates neither the Halls' privilege against self-incrimination nor their due process rights.
DeBRULER, Justice, concurring and dissenting.
I would affirm the entire decision of the Tax Court in this case. Mary's double jeopardy claim is properly denied in light of the fact that she was not subjected to a first jeopardy in the criminal prosecution which was initiated and then dismissed. Keith's double jeopardy claim, however, has merit. At the time the Tax Court ruled, Keith had been punished as a result of the criminal proceeding against him, and property of Keith and Mary worth roughly $40,000 had been seized by the Marion County Sheriff pursuant to the tax warrant the Department issued with its jeopardy assessment. I agree with the Tax Court that the holding in Department of Revenue v. Kurth Ranch, ___ U.S. ___, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), commands the conclusion reached by the Tax Court that further tax collection efforts by the Department would subject Keith to a second punishment prohibited by the Double Jeopardy Clause. I find this case different from today's case of Bryant v. State (1995), Ind., 660 N.E.2d 290, in which the taxpayer, while being first subjected to a punishment in a criminal prosecution, had at no time paid any of the tax nor had the taxpayer been subject to any collection efforts by revenue agents.
NOTES
[1]  The Department calculated the CSET by multiplying the weight of the marijuana, roughly 142,283 grams, by the statutorily prescribed amount of $40 per gram. Ind.Code Ann. § 6-7-3-6 (West Supp.1994).
[2]  Interest immediately began accruing at the rate of $1,091.49 per day.
[3]  The Halls do not question the constitutional validity of the CSET under the Indiana Constitution in their appeal to this Court. Moreover, they presented no cogent state constitutional claim before the Tax Court.
[4]  Keith lost his $40,000 in the wake of a jeopardy assessment just as Bryant suffered seizure of assets including his home in the immediate aftermath of the jeopardy assessment issued to him. Such is characteristic of the jeopardy assessment. It constitutes a civil judgment and may lead to seizure as payment just as a conviction in criminal court may lead to fines and incarceration. It is this similarity that leads us to conclude that assessment is the point at which jeopardy attaches for Fifth Amendment purposes.
[5]  Keith's criminal conviction is not before us in this tax appeal therefore not subject to disposition here.
[6]  If we were to proceed under the alternative approach I describe in part III of my Bryant dissent, I would remand to the Tax Court for determination of when jeopardy attached, i.e., when evidence was first presented to a trier of fact in the Halls' contest of the assessment. If that occurred prior to jeopardy attaching in Keith Hall's criminal prosecution, then the result would be the same as the majority reaches here.


627 So.2d 937 (1993)
D.K.G.
v.
J.H. and T.H.
In the Matter of A.A.H., a minor.
2910623.
Court of Civil Appeals of Alabama.
June 11, 1993.
J.R. Meriwether of Agee & Meriwether, P.C., Chickasaw, for appellant.
Melvin W. Brunson, Mobile, for appellees.
Sandra Rander, Mobile, Guardian ad litem.
L. CHARLES WRIGHT, Retired Appellate Judge.
This case has previously been before this court on a procedural matter. For the resolution of that matter see D.K.G. v. J.H., 627 So.2d 935 (Ala.Civ.App.1992).
J.H. and T.H. filed a petition in the Juvenile Court of Mobile County, requesting that the court find A.A.H. to be dependent and award temporary custody to them. D.K.G. (the minor child's maternal aunt) subsequently filed a petition requesting that she be given temporary custody of the child. Following oral proceedings, the court referee found the child to be dependent and awarded temporary custody to J.H. and T.H. The court ordered home studies of the petitioners and reset the matter for further disposition. Following the final hearing, the court awarded temporary custody to J.H. and T.H. D.K.G. appeals.
The court's finding of dependency is not at issue. The sole issue on appeal is whether the court erred in awarding temporary custody to J.H. and T.H. The maternal aunt insists that the court's award was in error. She argues that the child's best interests would be served by awarding custody to her, particularly in view of the fact that she is related by blood to the child.
*938 Once a trial court has found a child to be dependent, § 12-15-71, Ala.Code 1975, authorizes the court to make a number of dispositions, including transfer to "[a] relative or other individual who, after study by the department of human resources, is found by the court to be qualified to receive and care for the child." The paramount considerations in such a situation are the welfare and best interests of the child. The relationship of a blood relative is subsidiary to such welfare. Clark v. Holland, 274 Ala. 597, 150 So.2d 702 (1963).
This court does not often reverse a trial court's custodial decision. Calabrisi v. Boone, 470 So.2d 1255 (Ala.Civ.App.1985). When a trial court is presented the evidence in a custody proceeding ore tenus, there is a presumption that the trial court's judgment is correct. We will not reverse that judgment unless an abuse of discretion is shown or unless the judgment is so unsupported by the evidence as to be plainly and palpably wrong. Calabrisi.
We have reviewed the record in its entirety and have determined a lengthy recitation of the facts to be unnecessary. In our opinion, the record shows that petitioners J.H. and T.H. are capable of providing a nurturing environment for the child. The child has been in their custody since December 1991, when the mother voluntarily relinquished custody to them. We agree that it is in the best interests of the child to remain in familiar surroundings until a final disposition of this matter is made.
The court's judgment is supported by the evidence. It is accordingly affirmed.
The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.
AFFIRMED.
All the Judges concur.


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 00-2191

GLENN SURBER,

                                                        Petitioner,

          versus

CANNELTON INDUSTRIES, INCORPORATED; DIRECTOR,
OFFICE OF WORKERS’ COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR,

                                                       Respondents.

On Petition for Review of an Order of the Benefits Review Board.
(99-1153-BLA)

Submitted:   February 28, 2001            Decided:   March 19, 2001

Before WILKINS, LUTTIG, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

S. F. Raymond Smith, RUNDLE & RUNDLE, L.C., Pineville, West Vir-
ginia, for Petitioner. Mary Rich Maloy, JACKSON & KELLY, P.L.L.C.,
Charleston, West Virginia, for Respondents.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Glen Surber seeks review of the Benefits Review Board’s deci-

sion and order affirming the administrative law judge’s denial of

black lung benefits pursuant to 30 U.S.C.A. §§ 901-945 (West 1986

& Supp. 2000).   Our review of the record discloses that the Board’s

decision is based upon substantial evidence and is without revers-

ible error.   Accordingly, we affirm on the reasoning of the Board.

See Surber v. Cannelton Industries, Inc., BRB No. 99-1153-BLA,

(B.R.B. Aug. 9, 2000).   We dispense with oral argument because the

facts and legal contentions are adequately presented in the mate-

rials before the court and argument would not aid the decisional

process.

                                                           AFFIRMED

                                  2


                                                                                Opinions of the United
2008 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

9-4-2008

USA v. Caldwell
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2401

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Recommended Citation
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http://digitalcommons.law.villanova.edu/thirdcircuit_2008/564

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                                                 NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                 __________

                     No. 07-2401
                     __________

          UNITED STATES OF AMERICA

                           v.

               EUGENE CALDWELL,

                                     Appellant
                     __________

    On Appeal from the United States District Court
        for the Western District of Pennsylvania
             (D.C. Criminal No. 06-cr-00045)
   District Judge: Honorable David Stewart Cercone

                     __________

      Submitted Under Third Circuit LAR 34.1(a)
                  on June 30, 2008

Before: RENDELL, SMITH, and FISHER, Circuit Judges.

               Filed: September 4, 2008

                     __________

             OPINION OF THE COURT
                   __________
RENDELL, Circuit Judge.

       Appellant Eugene Caldwell (“Caldwell”) appeals the sentence of 48 months’

imprisonment that was imposed by the District Court after he pled guilty to one count of

unauthorized use of access devices, in violation of 18 U.S.C. § 1029(a)(2), and one count

of aggravated identity theft, in violation of 18 U.S.C. § 1028(a)(1). For the reasons that

follow, we will affirm.

                                       Background 1

       On February 7, 2006, a grand jury in the Western District of Pennsylvania returned

a two-count indictment against Caldwell, charging him with one count of unauthorized

use of access devices and one count of aggravated identity theft, both relating to his use

of stolen credit card numbers. Caldwell pled guilty to the charges, and on April 18, 2007,

the District Court sentenced Caldwell to 48 months’ imprisonment: 24 months for

Count I and a mandatory 24 months, to be served consecutively, for Count II. A three-

year period of supervised release was imposed with a special assessment in the amount of

$200; restitution in the amount of $26,096.58 was also ordered.

       On appeal, Caldwell argues that the District Court erred (1) in calculating the

amount of loss attributable to him for the purposes of U.S.S.G. § 2B1.1(b); and (2) in

  1
   As we write for the benefit of the parties alone, who are familiar with the facts and
procedural history of this case, we confine our discussion to the legal issues presented and
include only those facts necessary to our disposition.

                                             2
imposing a procedurally and substantively unreasonable sentence. We will address each

of Caldwell’s arguments in turn.

                                         DISCUSSION

I.       Calculation of Loss

         The first issue that Caldwell raises on appeal involves the District Court’s

calculation of the amount of loss relevant to Count One under the Sentencing Guidelines.

Caldwell argues that the District Court (1) improperly considered hearsay evidence in

determining the amount of loss and (2) misapplied the preponderance of the evidence

standard, shifting the burden of proof to him to disprove the amount of loss. We review

findings of fact for clear error and questions of law de novo. United States v. Brothers,

75 F.3d 845, 848 (3d Cir. 1996).

         In this case, the District Court concluded that the amount of loss attributable to

Caldwell at Count One was between $30,000 and $70,000.2 Caldwell first argues that the

District Court’s decision to include $5,259.75 in its amount of loss calculation—which

was attributable to relevant conduct not charged in the indictment—relied on hearsay

evidence, and that, accordingly, the amount should have been left out of the total amount

     2
    The PSR recommended that the offense of conviction led to an actual and intended
loss of $32,139.08. This figure was comprised of (1) actual and intended losses relating
to conduct referenced in the indictment totaling $26,879.33, and (2) actual and intended
losses totaling $5,259.75 from two separate transactions not charged in the indictment,
but involving relevant conduct. The $32,139.08 amount of loss resulted in a six-level
increase in Caldwell’s base offense level, as it fell between $30,000 and $70,000.

                                                3
of loss, which would lower the applicable Sentencing Guidelines range from 24 to

30 months to 18 to 24 months. Specifically, Caldwell contends that the District Court

should not have considered the sworn testimony and corresponding exhibits of Postal

Inspector Staci Johnson.

       We have explicitly recognized that “[a] district court may rely on hearsay in

determining the sentence for a person sentenced under the guidelines.” United States v.

Inigo, 925 F.2d 641, 660 (3d Cir. 1991). In fact, “[t]he only constraint on evidence

introduced for sentencing purposes is that it must be reliable.” Id. In this case, the

District Court did not find Johnson’s testimony to be inherently unreliable, as she based it

on her review of various police reports, police notes, victim interviews, and a transcript of

Caldwell’s confession. After hearing Inspector Johnson’s testimony, the District Court

recognized that, although the evidence presented was circumstantial, “circumstantial

evidence certainly is to be given weight when determining whether the burden of proof

has been met.” (App. 84-85.) The District Court ultimately concluded that, based on the

evidence presented, the Government had established the loss by a preponderance of the

evidence. Upon a review of the record, we cannot say that the District Court’s finding

was clearly erroneous.

       Caldwell also challenges the District Court’s determination as to the amount of

loss by arguing that the District Court misapplied the preponderance of the evidence test

by focusing on the amount of evidence rather than the quality of evidence. Specifically,

                                              4
Caldwell contends that the District Court concluded that the Government had met its

burden “because it put on a witness and the defendant did not.” (Appellee’s Br. 25.)

      The record clearly establishes that the District Court properly applied the burden of

proof in this case. After considering Caldwell’s argument that the Government’s

evidence was “very weak,” the District Court stated:

      I think that [what] really is . . . bother[ing] the defense, and I don’t mean to
      be putting words in the defendant’s mouth, is the standard that applies here .
      . . it’s the lighter standard known to the law. It’s only a preponderance of
      the evidence. It’s not even clear and convincing, let alone reasonable
      doubt. I think the defense may be bothered by that, but nonetheless, that is
      the law. I think the government has established a preponderance of the
      evidence.

(App. 85.) We simply find no basis in the record to support Caldwell’s argument that the

burden of proof was shifted. Accordingly, we find no error.

II.   Reasonableness of Sentence

      Caldwell next argues that the District Court’s decision to sentence him to 48

months in prison (24 months for Count One and an additional 24 months for Count Two)

was procedurally and substantively unreasonable: procedurally unreasonable for

(1) “failing to recognize or respond to non-frivolous § 3553(a) arguments in favor of a

below Guidelines sentence” and (2) “according the Guidelines presumptive weight”; and

substantively unreasonable for “imposing a sentence greater than necessary to promote

the goals of § 3553(a).” (Appellant’s Br. 33.)

                                             5
       As is now well established, we review the sentence imposed by a district court for

“reasonableness.” United States v. Booker, 543 U.S. 220, 258-63 (2005). “To be

procedurally reasonable, a sentence must reflect a district court’s meaningful

consideration of the factors set forth at 18 U.S.C. § 3553(a).” United States v. Lessner,

498 F.3d 185, 203 (3d Cir. 2007). The district court “need not discuss every argument

made by a litigant if an argument is clearly without merit. Nor must a court discuss and

make findings as to each of the § 3553(a) factors if the record makes clear the court took

the factors into account in sentencing. Nor [is it] require[d for] district judges to routinely

state by rote that they have read the Booker decision or that they know the sentencing

guidelines are now advisory.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006)

(internal citations omitted). Instead, “[a] district court ‘should set forth enough to satisfy

the appellate court that he has considered the parties’ arguments and has a reasoned basis

for exercising his own legal decisionmaking authority.’” Lessner, 498 F.3d at 203

(quoting Rita v. United States, — U.S. —, 127 S.Ct. 2456, 2468 (2007)). To be

substantively reasonable, “a district court must apply the § 3553(a) factors reasonably to

the circumstances of the case.” Id. at 204. The pertinent inquiry is “whether the final

sentence, wherever it may lie within the permissible statutory range, was premised upon

appropriate and judicious consideration of the relevant factors.” United States v.

Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006). “The party challenging the sentence bears

the ultimate burden of proving its unreasonableness, and we accord great deference to a

                                               6
district court’s choice of final sentence.” Lessner, 498 F.3d at 204 (internal citation

omitted).

       Here, the District Court’s sentence was neither procedurally nor substantively

unreasonable. Before announcing Caldwell’s sentence, the District Court heard argument

from Caldwell’s counsel and heard from Caldwell himself. Addressing the defendant

directly, the District Court drew attention to his extensive criminal history, noting that

ever since the age of 15, Caldwell had been a “recidivist of theft offenses.” (App. 93.)

Recognizing its “duty to the people of the Western District of Pennsylvania” to

incarcerate those who “impose a threat to them,” the District Court imposed a sentence of

48 months. (App. 93; see also App. 94 (“At this point now it comes down to taking you

out of society for a while, just to protect the people in my opinion.”).) After announcing

Caldwell’s sentence, the District Court explicitly recognized that it took into

consideration “the statutory provisions[ and] the Sentencing Guidelines” as well as “the

position of the defendant.” 3 (App. 99.) Despite Caldwell’s arguments, the District Court

concluded that its sentence met “the important goals of sentencing, . . . includ[ing]

protecting society, as well as to deter others and hopefully to rehabilitate the defendant.”

(App. 99.)

  3
    The District Court also addressed several of Caldwell’s arguments prior to sentencing
in its April 16, 2007 Memorandum Order and Tentative Findings and Rulings. (See
App. 1-3.)

                                              7
       In light of the District Court’s reasoning as outlined above and the “great

deference” we afford to a district court’s choice of sentence, Lessner, 498 F.3d at 204, we

find no error. Accordingly, Caldwell’s sentence will be affirmed.

                                     CONCLUSION

       For the foregoing reasons, we will AFFIRM the District Court’s Judgment and

Commitment Order.

                                             8


823 F.2d 25
UNITED STATES of America, Appellee,v.Joseph COFFEY, Defendant-Appellant.
No. 1187, Docket 87-1106.
United States Court of Appeals,Second Circuit.
Argued June 16, 1987.Decided June 30, 1987.

Bruce A. Green, Asst. U.S. Atty., S.D.N.Y.  (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Steven M. Kaplan, Asst. U.S. Atty., of counsel), for appellee.
David Breitbart, New York City, for defendant-appellant.
Before OAKES, MESKILL and PRATT, Circuit Judges.
PER CURIAM:

1
Joseph Coffey appeals from a judgment of conviction entered against him in the United States District Court for the Southern District of New York following a two-week jury trial before the Hon. Leonard B. Sand, Judge, for conspiring to rob funds of federally insured banks in violation of 18 U.S.C. Sec. 371.  Coffey's sole claim on appeal is that he was denied a fair trial when the prosecutor referred to extra-record facts during his rebuttal summation.  Our careful review of the trial transcript satisfies us that the prosecutor's conceded error, promptly corrected by the trial judge, did not deprive Coffey of any substantial right.  Accordingly, we affirm.

2
In August 1986 Coffey and two others were charged in a three-count indictment for their alleged involvement in the April 29, 1985 armed robbery of $7.9 million cash of federally insured bank funds from the Wells Fargo Armored Services Company ("Wells Fargo").  In addition to the conspiracy count mentioned above, each defendant was also charged with the substantive counts of armed robbery, 18 U.S.C. Secs. 2113(d), 2, and carrying a firearm during a crime of violence, id. Sec. 924(c).  Coffey was acquitted of the substantive counts;  his co-defendants were acquitted on all counts.

3
At trial the government attempted to demonstrate through eyewitness testimony that Coffey and his co-defendants, masked and armed, accosted four guards at the Wells Fargo offices in Manhattan shortly after the main vault had been opened, subdued the guards with handcuffs, and absconded in a Wells Fargo armored car with $7.9 million in cash.  One of the guards testified that he had observed one of the robbers, a white male fitting the approximate age and physical description of Coffey, dragging his right leg as he walked.  In their haste, however, the robbers left behind the keys to the storage compartment of the armored car, which locks automatically upon closing the back doors.

4
The government's chief trial witness was an accomplice in the robbery, Jeffrey Grubczak, who agreed to testify only after he had been convicted at an earlier trial and sentenced to a 25-year prison term.  Grubczak testified that while on a break from his job during the early morning hours of April 29, 1985, Coffey, whom Grubczak had known for several years, appeared at Grubczak's lower Manhattan apartment and told Grubczak that he had something for Grubczak to open and that Grubczak should bring his lock-picking tools.  Following Coffey's instructions, Grubczak met a group of men in a nearby lot, all of whom then attempted to open the back doors of the Wells Fargo armored car.

5
Unable on their first attempt to pick the locks or force open the doors, Coffey and Grubczak walked along the perimeter of the lot to check its visibility.  During that walk Coffey explained that he had hurt his right leg jumping from a platform.  In addition, Coffey and Grubczak were observed by Alan Merritt, a truck driver waiting to make a delivery, who knew Coffey and Grubczak from working in the area and noticed that Coffey was dragging his right leg.

6
Grubczak returned to the armored car and ultimately succeeded in opening the back doors from inside after breaking a window with a sledge hammer.  The bags of money were then transferred to a van, in which everyone in the lot departed, except Coffey, who left on foot.  Later, Coffey met Grubczak at Grubczak's residence and instructed him to act normally and return to work.

7
A few days later Grubczak went to the home of one of Coffey's co-defendants and was paid $100,000 in cash.  As he was preparing to leave, Grubczak met Coffey, who was just then arriving.  Grubczak testified that he spent between $20,000 and $30,000 of the payment and hid the balance at his mother's Chicago residence.  After criminal charges were lodged against him, however, Grubczak claimed to have instructed his mother to burn the money.

8
Jay Goldberg, an attorney, testified that soon after Grubczak was arrested Coffey had appeared at Goldberg's office seeking to obtain legal counsel for Grubczak.  After meeting with Grubczak, Goldberg agreed to represent him at a fee of $75,000.  Goldberg advised Mrs. Grubczak that if she paid for the fee with cash, he would have to file a currency transaction report and the fact of the cash payment would likely be used by the government at her son's trial.  Mrs. Grubczak paid $10,000 of the fee by check.

9
Several days later, Coffey arrived at Goldberg's office with the $65,000 balance of the fee in cash.  Goldberg explained to Coffey that if subpoenaed, he would have to disclose the source of the funds.  Coffey indicated he was not concerned.  Nevertheless, Goldberg returned the cash two days later to avoid having to file a currency transaction report.

10
The portion of the prosecutor's rebuttal summation that forms the basis of this appeal concerned the source of the $65,000 in cash delivered by Coffey to Goldberg.  In his initial summation, the prosecutor recounted the eyewitness testimony that implicated Coffey in the Wells Fargo robbery and relied upon attorney Goldberg's corroborative testimony.  With regard to Coffey's solicitation of Goldberg on behalf of Grubczak, the prosecutor stated,

11
Why did Joseph Coffey do this for Grubczak, go to all this trouble for this drifter, this, as [defense counsel] told you in his opening statement, this bum, this liar, this thief, this burglar?    Why did he go to all this trouble for such a man, * * * a man he knew only as an acquaintance from the social club where Coffey used to go to drink and Grubczak used to work?

12
Why did Coffey go to this Harvard lawyer, * * * this skilled criminal defense advocate, this $75,000 lawyer?    Why?  Can there be any other reason, ask yourselves, other than that Joseph Coffey was trying to buy Grubczak's silence through the skill of an expensive attorney?

13
And we know why.  Joseph Coffey had a big interest * * * in insuring that Jeffrey Grubczak never took the witness stand and testified.

14
On his own summation, defense counsel attacked the credibility of the government witnesses and argued that the $65,000 cash payment had come not from Coffey, but from Grubczak's share of the robbery proceeds.  He urged that it was inconceivable that Grubczak's mother--a "little old lady [from] Chicago who used to steal coal in order to heat the house, * * * who couldn't scrape two quarters together, whose son was facing this time"--would burn the money, and that she must have given the money to Coffey.

15
On rebuttal, the prosecutor responded to defense counsel's argument in the following fashion:

16
[Defense counsel] said, and he invoked peals of laughter when he said, "Mr. Grubczak's mother burned the money."    And it does stretch credulity a little bit to think of a woman burning $80,000.  But what he didn't mention was that Grubczak told his mother to burn the cash, not out of the blue but when she was subpoenaed to appear before the grand jury.

17
Defense counsel immediately objected on the basis that the trial record contained no evidence of a grand jury subpoena issued to Mrs. Grubczak.  Judge Sand, in response, gave the following curative instruction:

18
It is your recollection that governs.  It is the court's recollection--which I give you only for your guidance, you are not bound by it--but that testimony was not adduced at this trial.

19
As I've indicated, however, your recollection controls.

20
Defense counsel, in the presence of the jury, then asked that the prosecutor be admonished "not to state matters not in evidence."    Judge Sand stated, "No counsel [is] permitted to state matters not in evidence."    In his charge to the jury, Judge Sand repeated his instruction that as to matters in evidence the jury's recollection controlled, and he illustrated the point by referring again to the statement about a subpoena to Grubczak's mother.

21
During a conference in the robing room following the jury charge, defense counsel made an oral application for a mistrial on the ground that rather than saying no such evidence was adduced at this trial, Judge Sand should have instructed the jury that no such evidence existed.  Judge Sand denied the application and sent the jury to deliberate.

22
Within ten minutes of retiring to deliberate, the jury sent a note indicating their desire to adjourn for the day and "begin fresh" the next day.  Judge Sand granted that request.  The next morning, before the jury recommenced their deliberations, Judge Sand conferred with all counsel and inquired whether the prosecutor was satisfied that the trial record contained no evidence of a grand jury subpoena for Mrs. Grubczak.  The prosecutor said that he was and responded to Judge Sand's invitation to set forth his basis for making the comment by explaining that

23
[i]n preparing Mr. Grubczak for testimony, this was part of the material we elicited from him.  I had intended to elicit it in the course of his testimony and I thought I had [done so].  I discovered afterward, on reviewing the record, based on the objections, that this was not in there.

24
I was mistaken.  But I believed it was part of the record.

25
Before the jury resumed its deliberations, Judge Sand gave a further instruction, stating, "That portion of the government's rebuttal argument which relates to a subpoena of Mrs. Grubczak is stricken and you are to disregard it."

26
Following the trial, Judge Sand reconsidered Coffey's application for a mistrial.  In a memorandum decision dated February 10, 1987, Judge Sand again denied the motion, finding that the government had acted in good faith and that Coffey had suffered no prejudice since the evidence as a whole amply supported the verdict and the jury twice received curative instructions.

27
We hold that the prosecutor's erroneous statement did not cause Coffey such substantial prejudice as to deprive him of a fair trial.  The three-part test for assessing prosecutorial misconduct set forth in United States v. Modica, 663 F.2d 1173 (2d Cir.1981), cert. denied, 456 U.S. 989, 102 S.Ct. 2269, 73 L.Ed.2d 1284 (1982), when applied to the facts of this case, compels us to affirm Coffey's conviction.  Initially, we look to the severity of the misconduct, considering the extent to which it was intentional.  Id. at 1181.  Here, the district court found that the prosecutor had a good faith basis to believe the evidence referred to in his rebuttal summation had already been made part of the record.  Coffey presents no argument that this factual finding was clearly erroneous.  Furthermore, the error was confined to one sentence in the rebuttal summation of a lengthy trial that was otherwise free of improper remarks.  See id.

28
Second, Judge Sand took great pains to cure the ill effects of the misconduct.  See id. at 1181-82.  Twice Judge Sand told the jury that he he could recall no evidence of a grand jury subpoena for Mrs. Grubczak.  In addition, before the jury had spent any more time deliberating than necessary to decide to adjourn for the evening, Judge Sand struck the statement from the record and instructed the jury to disregard it.  These prompt curative instructions sufficed to eliminate any unfair prejudice that might have resulted from a fact being placed unfairly before the jury.   See, e.g., United States v. Pena, 793 F.2d 486, 491 (2d Cir.1986);  United States v. Perry, 643 F.2d 38, 51 (2d Cir.), cert. denied, 454 U.S. 835, 102 S.Ct. 138, 70 L.Ed.2d 115 (1981);  see also United States v. Ebner, 782 F.2d 1120, 1126 (2d Cir.1986) (presumption that jury will follow limiting instructions) (citations omitted).

29
Finally, in light of the trial evidence, which included the testimony of two eyewitnesses, one accomplice witness, and one corroborating witness, the misstatement does not undermine our confidence in the jury verdict.   See Modica, 663 F.2d at 1181.  The acquittal of Coffey on the substantive counts and of Coffey's two co-defendants on all counts indicates only that the jury did not place controlling weight on Grubczak's testimony, and would not convict on it without corroboration.  However, Coffey alone had to contend with Goldberg's testimony.  Regardless of the source of the cash tendered to Goldberg, Coffey's effort to seek Goldberg's assistance and willingness to pay for most of Goldberg's fee may reasonably be interpreted as showing a keen personal interest in seeking to dissuade Grubczak from testifying for the government.  Indeed, as Judge Sand properly noted, "[t]here was no credible evidence which would have suggested [any alternative] motive".

30
Affirmed.


164 F.2d 404 (1947)
THEOPOLD
v.
UNITED STATES.
No. 4263.
Circuit Court of Appeals, First Circuit.
December 2, 1947.
R. Gaynor Wellings, of Boston, Mass. (Tyler & Reynolds, of Boston, Mass., on the brief), for appellant.
Newton K. Fox, Sp. Asst. to the Atty. Gen. (Theron L. Caudle, Asst. Atty. Gen., Helen R. Carloss, Robert N. Anderson and James P. Gartland, Sp. Assts. to the Atty. Gen., and William T. McCarthy, U. S. Atty., and George F. Garrity, Asst. U.S. Atty., both of Boston, Mass., on the brief), for appellee.
Before MAGRUDER, MAHONEY and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
This is an appeal from a judgment entered for the defendant in an action brought in the District Court of the United States for the District of Massachusetts to recover estate taxes, plus interest paid thereon, alleged to have been erroneously and illegally assessed against and collected from the present plaintiff's predecessor-executor. The sole question presented is whether a reservation in a certain indenture of trust executed by the plaintiff's decedent on December 29, 1915, of "the power from time to time by an instrument in writing signed by me to amend this trust instrument so that it will more clearly express my actual intentions if I shall consider such amendment advisable, as to which I shall be the sole judge," makes the corpus of the trust taxable to the decedent's estate under § 811(d) (2)[1] of the Internal Revenue Code, 26 U.S.C.A.Int.Rev.Code, § 811(d) (2).
The plaintiff-appellant contends that the decedent in the quoted reservation retained no power to alter the manner in which either the principal or the income of the trust was to be held or distributed, but instead retained only the power to clarify the meaning of the trust provisions from time to time in the future so as more clearly to express his actual intentions at the time he created the trust, and therefore that the reserved power of amendment is not in any real or substantial sense a power to amend at all, or at the most is only a power to amend in some "slight" or "trivial" way. See Porter v. Commissioner, 288 U.S. 436, 443, 53 S.Ct. 451, 77 L.Ed. 880. Hence he takes the position that the corpus of the trust is not taxable under § 811(d) (2), supra. The District Court, however, adopted the Commissioner's view. It considered the power reserved by the decedent one to modify the provisions of the trust instrument *405 from time to time in the future in any way he might see fit, even to the extent not only of substantially controlling the administration of the trust but also of radically shifting the economic benefits to flow from it, and therefore held the corpus of the trust taxable to the decedent's estate and dismissed the plaintiff's complaint.
Obviously the words of the reservation are not to be construed in vacuo  as an isolated grammatical phenomenon  but are to be read in their context and in the light of the circumstances surrounding their use. We turn, therefore, to the consideration of the trust instrument in its factual setting.
When the decedent set up the trust in December 1915 he was married and the father of three children, aged ten, eight and two, all of whom are still living. These children were the named beneficiaries of the trust. But they were not given immediate enjoyment thereof either as to income or any part of principal.[2] Instead the decedent directed his trustees to accumulate the "net income" of the property in the trust "for the benefit" of his children until they should respectively reach the age of twenty-one and then "After each of my said children shall arrive at the age of twenty-one years and thereafter during his or her natural life, to pay over to such child in quarter yearly payments one-third of the said net income of the trust properly."
Following this the trust instrument provided that the "proportion of the trust property" of any child dying under twenty-one without surviving issue should be held by the trustees and its income accumulated for the benefit of such surviving children as might then be under that age, or paid over to such of the surviving children as might then be over that age; that the share of the principal held for any child dying under twenty-one leaving surviving issue should be paid over to such issue; that if all the children should die under age and without issue the trust should terminate and the corpus revert to the decedent if living or to his devisees if not;[3] and that on the death of any child after reaching majority his proportionate part of the trust property should be paid over to his or her executor or administrator as the case might be "to be disposed of * * * in the same manner as if he or she had died possessed of the same."
Next the decedent-settlor gave his trustees, one a trust company and the other an individual, directions as to the investment and management of the corpus of the trust; provided for their compensation; inserted spendthrift provisions, and provided for successor trustees; and then in conclusion he reserved the power quoted in the first paragraph of this opinion.
The District Court read the trust instrument just summarized as clearly expressing the intentions of the decedent at the time it was drawn with respect to [69 F.Supp. 946, 950] "the manner in which he intended the beneficiaries of the trust to participate", and as fully anticipating and providing for "future eventualities normally foreseeable." Therefore, assuming that neither the decedent nor any one else would intend to reserve a power to clarify what was already abundantly clear, such a power being fruitless and unnecessary, and considering the wording of the power itself unclear, that court was of the opinion "that the language of the contested power lends itself more logically to the conclusion that the settlor reserved this power in order to retain control over the trust to meet unanticipated future contingencies or economic changes", that is to say, "to control the administration of the trust and to shift economic benefits thereunder whenever he might desire to do *406 so in the future" rather than merely to "make clarifying changes to express his original intentions, as the plaintiff contends." And it buttressed this conclusion by reference to instances of the decedent's exercise of the power prior to his death on January 1, 1942, which we shall consider hereafter.
We do not share the District Court's view of the trust indenture. On the contrary it seems to us that the language of the reserved power is clear and that the language of the earlier dispositive provisions is not.
In these latter provisions the decedent, after directing the accumulation of the net income of the trust for his three children until each should attain the age of twenty-one, and after providing for the withdrawal during minority of each child's share of accumulated net income, but no more, in so far as it might be required for a child's maintenance or education, directed the payment in quarterly installments of one-third "of the said net income of the trust" to each child upon attaining majority and "thereafter during his or her natural life." Literally read "said net income" refers to accumulated net income, that being the only income previously mentioned in the trust instrument. But so read the provision could not possibly be carried out since it would obviously be impossible upon a child's attaining majority to divide the income which had been accumulated for him so that it could be distributed to him periodically during the rest of life thereafter however long he might chance to live.
What the decedent must have intended by this provision, but certainly failed to express, was that one-third of the net income of the trust accruing after each child reached twenty-one was to be paid to such child quarterly for life. But this leaves the income accumulated by the trust during the child's minority undisposed of. It cannot be determined whether that accumulated income should be paid over in a lump sum proportionately to each child on attaining majority, which would give different amounts of accumulated income to each child and would also be somewhat at variance with the spendthrift provisions of the trust, or whether it should be added to the principal as each child came of age, or whether as each child came of age it should be added proportionately to the part of the principal held for such child, which would result in unequal fractions of principal held for the children, the oldest child having the smallest principal and the youngest child the largest. Indeed the trust instrument's lack of clarity with respect to the disposition of accumulated income must have become apparent to the decedent because the first four of his amendments referred to above dealt with this problem as will later appear.
From the foregoing we cannot say that the trust instrument is abundantly clear and hence that reservation of a power to clarify it was needless. On the contrary the instrument is so inexpertly phrased that it seems to us not at all unlikely that the decedent, even though perhaps only vaguely, realized its shortcomings of expression and in consequence wished to keep the power to settle questions of its meaning which he anticipated might arise. Certainly if he had wished to retain broad powers of amendment as to substance he could have said so very simply by merely reserving a general power to alter, amend or revoke. And there could have been no tax motive in 1915 for not retaining such a broad power of amendment. It seems to us that the decedent by resorting to the cumbersome phraseology of the reservation must have intended to convey some particular meaning, and the words he used, in their commonly accepted understanding, indicate to us that what he intended to do was to keep only a power to clarify what he had said in the trust instrument, not to change it to say something else. That is to say, we think the words "to amend this trust instrument so that it will more clearly express my actual intentions," as naturally and ordinarily used, import a power to amend the trust instrument in such a way as to make the words used therein more accurately express the intention in the decedent's mind when he drew the trust instrument, and that it would be straining language to read them as importing a power to amend by changing words so as to express a subsequent new intention. Nor do we see that the words following the above quoted clause ("if I shall consider such amendment advisable, as *407 to which I shall be the sole judge") suggest any different interpretation since they only express what the law would imply in their absence.
Therefore the reserved power as we construe it, while a power to amend in the sense of altering language so as more clearly or better to express an original intention, is not a power to amend in the sense of altering language to express a new or different intention. And so construed we consider it, if in the statutory sense a power to amend at all, to be a power to make only "slight" or "trivial" changes in the trust instrument and hence not a power within the meaning of the taxing statute as construed in Mellon v. Driscoll, 3 Cir., 117 F. 2d 477, 479; Commissioner v. Hofheimer's Estate, 2 Cir., 149 F.2d 733, 736. See Porter v. Commissioner, 288 U.S. 436, 443, 53 S.Ct. 451, 77 L.Ed. 880. Cf. Dort v. Commissioner, 63 App.D.C. 98, 69 F.2d 836, 841; Commissioner v. Chase National Bank, 2 Cir., 82 F.2d 157, 158; Chickering v. Commissioner, 1 Cir., 118 F.2d 254, 259, 139 A. L.R. 508.
Indeed the language of the reservation of power seems so clear to us as to preclude resort to extrinsic evidence in order to elucidate its meaning. But if we are in error in this and the decedent's exercise of the power he reserved may be considered in determining the question of its intended scope, our views remain unchanged.
The decedent amended his trust five times, in each instance stating as a preamble to his amendment that he was exercising the power he had reserved in the indenture. His first four amendments, as already appears, dealt with the disposition of accumulated income as each child came of age. By his first one he provided that the "proper proportionate part" of the accumulated net income "in the hands of the trustees when any child should arrive at the age of twenty-one years or shall die before reaching that age, shall then be added to and become a part of the principal held for such child, or payable to such child's issue, if any." Later on, in fact just before his oldest child became twenty-one, the decedent, apparently realizing that his first amendment resulted in giving his children unequal shares of principal, amended his trust indenture a second time, this time providing that as each child came of age accumulated net income should be added to the corpus, thereby according equal treatment to his children. By his third amendment he cancelled and revoked his second, and by his fourth amendment he cancelled and revoked his third and revived his second, his fourth amendment containing the statement that his third "was executed by me through a misunderstanding and it is my desire and I hereby direct that, in so far as legally permissible, the net income from said trust estate accruing since" the date of his third amendment "shall be accounted for as if the said Amendment * * * which is hereby cancelled, had never existed."
The result of these amendments is to make certain what was doubtful before, that is, to make certain that the three children should share equally in the accumulated net income of the trust. They do not shift economic benefits by taking what was clearly given to one child in the original trust instrument and transferring it to another. Instead they show an attempt, at first unsuccessful but eventually successful, to state explicitly that the children should have equal shares of the accumulated net income, and it seems to us that this is what the decedent must have meant from the outset since it is abundantly clear from reading the original trust instrument as a whole that he intended his children to share the economic benefits of the trust exactly equally. Thus these amendments indicate not only that the decedent realized the fact that in the original trust instrument he had not spoken clearly with respect to the disposition of accumulated income, but also that he considered that he had retained the power to amend his original trust indenture to make it more clearly express his original underlying intention to treat his children exactly alike.
The decedent's fifth amendment, which is dated after all his children had come of age, presents a somewhat different problem.
In his original trust instrument the decedent, as already indicated, provided that on the death of a child over twenty-one the trustees were to "pay over the proportionate part of the principal of the trust property as then existing, the income of which *408 had been payable to such child", to the executor or administrator of the child so dying "to be disposed of" by the child's executor or administrator "as a part of the estate of such child in the same manner as if he or she had died possessed of the same." By his fifth amendment the decedent changed this provision by giving his children a power of appointment by will with respect to their shares of the trust corpus and, in default of an exercise of that power, he directed his trustees to distribute each deceased child's share of the corpus "among the then living issue of such child" by right of representation, and in default of living issue, "to and among those persons who would be entitled to take the same as the heirs-at-law of such child of mine if he or she had deceased intestate owning the same."
We cannot say that this amendment is merely in clarification of the original indenture of trust. It definitely alters the meaning of a provision of that instrument by the addition of a power of appointment. But it does not unmistakably follow from this that the decedent originally intended to reserve the power to make such an alteration. He obviously was not highly skilled in the law of trusts or in drafting trust instruments, and he may unwittingly have exceeded the power reserved. And furthermore the change wrought by the amendment is so slight  in practical effect it is a change in form rather than a change in substance in that it changes the method by which a child may direct the devolution of his share of the trust instead of changing the persons entitled to take eventually  that the decedent may reasonably have thought that it was only a change more clearly expressing his actual original intention instead of one expressing a new and different intention. Certainly the possible inferences from this amendment that the decedent intended to reserve a power to amend substance are not so clear that they more than counter-balance all the contrary indications we have considered.
Since we construe the power not as one under which the decedent up to the time of his death could legally alter beneficial interests in the trust, either directly as in Porter v. Commissioner, 288 U.S. 436, 53 S. Ct. 451, 77 L.Ed. 880, or in practical effect as in Commissioner v. Estate of Holmes, 326 U.S. 480, 66 S.Ct. 257, 90 L.Ed. 228,
The judgment of the District Court is reversed and the case is remanded to that court for the entry of a judgment for the plaintiff.
NOTES
[1]  § 811. Gross Estate.

"The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property. * * *
"(d) Revocable transfers.
"(2) Transfers on or prior to June 22. 1936.
"To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, * * * by the decedent * * * to alter, amend, or revoke, * * *."
[2]  The decedent did, however, provide that if "at any time or times during the minority of any of my said children either I or my wife * * * in case I am not then living, or any guardian of such child in case neither I nor my said wife are then living, shall in writing so request, the trustees hereunder shall pay over to me or to her or to such guardian such sum of money as may be asked for, to be used for the maintenance or education of such child, not however, to exceed the income that may have then accumulated for such child." It does not appear that this power was ever exercised.
[3]  Considering the age of the children at the time when the trust was created in 1915 and the fact that they are all still alive, it is obvious that the possibility that the property in the trust would revert had become extinct long before the decedent's death.


187 P.3d 835 (2008)
STATE of Washington, Respondent,
v.
Kenith Earl TURNER, Appellant.
No. 59153-3-I.
Court of Appeals of Washington, Division 1.
July 21, 2008.
Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.
James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, for Respondent.

OPINION PUBLISHED IN PART
SCHINDLER, C.J.
¶ 1 Kenith Earl Turner appeals his convictions for one count of rape of a child in the first degree and two counts of child molestation in the first degree. Turner claims the failure to electronically record the custodial police interrogation violated his right to due process under article I, section 3 of the Washington Constitution. Alternatively, Turner argues that even if the Washington Constitution, article 1, section 3, does not require the police to electronically record custodial interrogations, this court should follow the example of other states and require electronic recording under its supervisory authority. In State v. Spurgeon, 63 Wash. App. 503, 820 P.2d 960 (1991), this court held that the due process clause of the Washington Constitution does not require electronic recording of police interrogations and refused to adopt a rule requiring electronic recording. Because Turner cites no new developments *836 in Washington law, a Gunwdll[1] analysis does not require a different result and Turner fails to distinguish or to persuasively argue that our decision in Spurgeon is flawed, we affirm.

FACTS
¶ 2 In 2005, Nicole West, David Barber, and their three girls, nine-year-old twins K.B. and J.B. and six-year-old A.B., lived in an apartment complex in Enumclaw. Kenith Earl Turner lived across the hall with his wife and son. Turner is in his 70's and suffers from Guillain-Barrs Syndrome. Turner's legs are partially paralyzed and his fingers are bent at a 45 degree angle. Because of chronic pain in his legs, Turner takes pain medications and uses a motorized scooter. Turner would take J.B., K.B., and A.B. for rides on his scooter and gave them cookies, sodas, and gifts.
¶ 3 In October 2005, West moved out of the family's apartment but continued to live in the same apartment complex and saw the girls every day. In early November, K.B. told her mother that Turner had inappropriately touched her. West then separately asked J.B. and A.B. if either of the girls had anything they wanted to tell her about Turner. J.B. and A.B. each told their mother that Turner had inappropriately touched them. After West told Barber about the disclosures, he contacted the police.
¶ 4 A child interview specialist with the King County Prosecuting Attorney's Office, Ashley Wilske, interviewed each of the girls separately. J.B. told Wilske that Turner touched the inside of her private part more than five times and wiggled his fingers. J.B. said that while Turner was touching her, he told her not to tell anyone. Turner then asked J.B. to "touch his," but she refused. Another time, J.B. said that Turner grabbed her hand and placed it on his penis. J.B. also said that on another occasion, Turner pulled out his penis and tried to push her head towards it, but she moved her head away. K.B. told Wilske that Turner touched the outside of her vagina two different times when she was riding on the scooter K.B. said that when Turner touched her vagina, he asked her, "[d]oes it feel good?" She also said that Turner asked her to put her hand down his pants, but she refused to do so. A.B. said Turner touched her one time under her clothes but over her underwear.
¶ 5 After Wilske's interviews with the girls, the police arrested Turner. Turner's wife explained to the police that Turner had health problems and had to take a number of medications. She told the police he had to take one of the medications within the next hour.
¶ 6 Detective Grant McCall and Lieutenant Eric Sortland advised Turner of his Miranda[2] rights at the police station. Turner waived his rights and agreed to talk to the police. At first, Turner denied inappropriately touching the girls but then he admitted touching J.B. and K.B. However, he denied touching A.B. At some point during questioning, Turner's son delivered some pain medication, which the police allowed Turner to take. Detective McCall took notes during the interrogation and then typed a written statement from the notes. Turner then reviewed the statement. When Detective McCall asked Turner if he wanted to make any changes, he indicated that he did not and signed the statement.
¶ 7 In the statement, Turner admits touching K.B. on her vagina and inserting his finger into J.B.'s vagina numerous times but denies inappropriately touching A.B. or any other girls.
Over the last four to six months I have on many occasions touched in a sexual way [J.B.] and [K.B.]. I let both girls ride with me on my red motorized scooter on many occasions.
I touched [K.B.] with my hand and fingers between 6 and 7 times on the outside of her vagina under her panties. I touched her out in the driveway of the apartment complex, at Morning Star Church and one time at the basketball court over by the tall grass. When I touched [K.B.], I knew it was wrong. I *837 told [K.B.] not to tell anyone because I knew it was wrong and illegal.
I touched [J.B.] 8 to 10 times with my finger on her vagina under her panties. My finger went inside of [J.B.'s] vagina 8 to 10 times for a couple of seconds. My finger went inside of her vagina about )4 inch. I told [J.B.] not to tell anyone because I knew it was wrong and illegal.
I put [J.B.'s] hand on my penis one time and she touched me twice on her own. She saw my penis one time and I pushed her head down one time but she never sucked my penis.
Each time I touched the girls my cart was stopped somewhere on the apartment property or at the Morning Star Church or at the basketball court.[3] [J.B.] and [K.B.] were the only two girls I touched at the apartment. I did not touch any other children or girls.
¶ 8 The State charged Turner with one count of rape in the first degree of J.B. and two counts of child molestation in the first degree of K.B. and A.B.
¶ 9 Before trial, the court held a CrR 3.5 hearing to determine the admissibility of Turner's statements to the police. Detective McCall and Lieutenant Sortland testified that Turner was given his Miranda rights and waived them. Turner testified that he had trouble hearing and was not sure that the police read him the Miranda rights. While Turner initially denied signing the Miranda waiver form, he admitted the signature on the form was his. Turner also said that he did not read the statement and he only signed the statement because he was suffering from a sinus infection, he was confused from the pain medication he took, and the police told him he could go home if he signed the statement. Turner also said that when he asked for an attorney, the police gave him a cell phone but refused to help him use the phone. Detective McCall and Lieutenant Sortland testified that they did not make any threats or promises to Turner, that Turner never requested an attorney or medical assistance, and that Turner did not appear to be impaired.
¶ 10 Turner's primary physician, Dr. John Wicker, also testified about the pain medication. Dr. Wicker testified that in September 2005, Turner was taking very low doses of the pain medication to manage his pain. Dr. Wicker also testified that "any patient that's been on narcotics for a long period of time tend to become habituated to them and small amounts do not affect them at all. And it takes quite a large amount for them to have any pain relief, let alone any sedation from that."
¶ 11 The court ruled that Turner had made a knowing, voluntary, and intelligent waiver of his Miranda rights and the two-page written statement was admissible. The court expressly rejected Turner's account of the interrogation as not credible. The court concluded that Turner did not request an attorney, that the "[o]fficers did not mistreat him in any way in order to get him to give his statement," that "[a]ny medications which the defendant may have taken the day of his statement, either prior to or while giving it, did not impact his ability to understand the contents of his statement," and that Turner "had the mental acuity to know what was going on around him and reviewed his statement before signing it."
¶ 12 The defense theory at trial was that the girls made up the allegations against Turner in order to get their parents back together and that he was not physically capable of committing the alleged acts.
¶ 13 J.B., K.B., and A.B. testified at trial and their taped interviews with Wilske were admitted into evidence and played for the jury. J.B. testified that Turner touched her private parts and moved his fingers. K.B. said that Turner touched her on top of her clothes in her genital area. A.B. testified Turner touched her over her underwear in her genital area.
¶ 14 Turner's next door neighbor, Barbara Gizas, testified that she observed Turner touching one of the twins between her legs and on her bottom. Gizas testified that she saw Turner ask one of the twins if she wanted a ride on his scooter. Turner "had his face very close to [the girl's] face, he was *838 talking very quietly. And first he had his hands around her waist . . . [a]nd then his hands went to her butt." Gizas said the little girl, who was wearing a swim suit, got on Turner's lap. Turner then placed both his hands on the inside of the girl's thighs towards her crotch before driving away. On another occasion, while walking back from the store, Gizas said that she heard rustling noises in the bushes near the church and then saw Turner with one of the twins on his lap. When Turner saw Gizas, "he threw [the scooter] in reverse and both of their heads went  whipped back and went forward.'" Gizas also said that on another occasion she saw Turner drive his scooter down the middle of the road with A.B. on his lap before taking her behind a church and into the woods. On cross examination, Gizas admitted that she and Turner did not like each other and had filed complaints against each other with the apartment manager.
¶ 15 Turner testified at trial. Turner described his medical conditions and unequivocally denied inappropriately touching K.B., J.B., or A.B. Turner said the statements he made to the police were not true. Turner explained that he was sick with a sinus infection and on pain medication, and that he signed the statement because he wanted to go home. Detective McCall and Lieutenant Sortland testified in rebuttal and disputed Turner's account of the interrogation.
¶ 16 One of the jury instructions stated that in considering Turner's statement to the police, the jury should "give such weight and credibility to any alleged out-of-court statements as you see fit, taking into consideration the surrounding circumstances." The jury convicted Turner as charged of rape of a child in the first degree of J.B., and two counts of child molestation in the first degree of K.B. and A.B.

ANALYSIS
¶ 17 Turner argues the State violated his due process rights under article 1, section 3 of the Washington Constitution by not electronically recording his interrogation. Turner contends that an electronic recording would have resolved the issues of whether he waived his Miranda rights or asserted his right to an attorney, and whether he was impaired by the medication he took. Turner acknowledges that in State v. Spurgeon, 63 Wash.App. 503, 820 P.2d 960 (1991), this court held that the due process clause of the Washington Constitution, article 1, section 3, does not require police to electronically record custodial interrogations, but he argues that due process is an evolving standard. Turner contends that the state constitution provides greater due process protection than the federal due process clause and this court should interpret the state due process clause to require electronic recording of interrogations because of the role that false confessions play in wrongful convictions.
¶ 18 The federal constitution and the state constitution both guarantee citizens due process of law. The Fifth Amendment of the U.S. Constitution provides: "No person shall be . . . deprived of life, liberty, or property, without due process of law" and the Fourteenth Amendment states: "nor shall any state deprive any person of life, liberty, or property, without due process of law. . . ." Washington Constitution art. I, § 3 states: "No person shall be deprived of life, liberty, or property without due process of law."
¶ 19 It is well-established under federal law that the United States Constitution does not require electronic recording of custodial interrogations. See United States v. Coades, 549 F.2d 1303, 1305 (9th Cir.1977) (rejecting request that the court adopt a rule requiring confessions to police be recorded because "such a rule" is a matter for consideration by Congress); United States v. Tykarsky, 446 F.3d 458, 477 (3d Cir.2006) (it is clear that "recording of interrogations . . . is not mandated by the United States Constitution"); United States v. Montgomery, 390 F.3d 1013 (7th Cir.2004), cert. denied, 544 U.S. 968, 125 S.Ct. 1750, 161 L.Ed.2d 614 (2005) (recording of police interrogations is not "constitutionally required").
¶ 20 To determine whether the state due process clause provides greater protection than the federal Constitution with respect to the electronic recording of police interrogations, Washington courts analyze the six nonexclusive factors identified in *839 State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986). The six factors are: (1) the state provision's textual language; (2) significant differences; between the federal and state texts; (3) state constitutional and common law history; (4) existing state law; (5) structural differences between the federal and state constitutions; and (6) matters of particular state interest or local concern. Gunwall, 106 Wash.2d at 61-62, 720 P.2d 808.
¶ 21 In Spurgeon, this court addressed the same question presented here  whether the state constitution's due process clause mandates electronic recording of custodial interrogations  and concluded that none of the six Gunwall factors supported interpreting the state constitution differently from the federal Constitution. Spurgeon, 63 Wash. App. at 505-06, 820 P.2d 960. The court in Spurgeon concluded the first three factors did not support an independent interpretation because the language of the state Constitution and the federal Constitution is the same, "there is no contemporary record showing a broader meaning was intended by those adopting the Washington Constitution," and no legislative history that provided a justification for interpreting the provisions differently. Spurgeon, 63 Wash.App. at 506, 820 P.2d 960. In examining the fourth factor, preexisting state law, the court noted that Washington courts had not addressed the need to record interrogations, and looked instead to the closely analogous area of exclusion of evidence to conclude that the due process clause of the state constitution did not require electronic recording of police interrogations.[4]Spurgeon, 63 Wash.App. at 507-08, 820 P.2d 960. In reviewing the fifth and sixth factors, the court also concluded that structural distinctions did not suggest a more expansive interpretation, and that the fact that criminal law enforcement is primarily a function of state rather than the federal government did not mean that the level of protection should be different. Spurgeon, 63 Wash.App. at 506-07, 820 P.2d 960.
¶ 22 Turner argues that analysis of the fourth factor, preexisting state law, and the sixth factor, matters of particular state concern, support reaching a different result.[5]
¶ 23 As to the fourth factor, the only authority Turner cites in support of his argument that the state due process clause provides greater protection than the federal due process clause is State v. Bartholomew, 101 Wash.2d 631, 683 P.2d 1079 (1984), State v. Davis, 38 Wash.App. 600, 686 P.2d 1143 (1984), and the dissenting opinion in State v. Ortiz, 119 Wash.2d 294, 831 P.2d 1060 (1992). Turner's reliance on Davis, Bartholomew, and the dissent in Ortiz is misplaced. Bartholomew and Davis do not address the question of whether the state constitution requires police to electronically record interrogations, and were decided before Gunwall. In Bartholomew, the court held due process requires that the rules of evidence must apply in a capital sentencing proceeding. Bartholomew, 101 Wash.2d at 638-639, 683 P.2d 1079.[6] In Davis the court held that, unlike the federal Constitution, our state constitution does not allow testimony about a defendant's post-arrest silence even if the defendant *840 did not receive Miranda warnings. Davis, 38 Wash.App. at 606, 686 P.2d 1143.
¶ 24 In Ortiz, the majority concluded that the defendant's state constitutional due process rights were not violated by the State's failure to preserve evidence.[7] The dissent argued that the defendant's rights were violated by destruction of the evidence and that a Gunwall analysis "supports independent interpretation of our own due process clause." Ortiz, 119 Wash.2d at 320, 831 P.2d 1060 (Johnson, J, dissenting). However, in a case decided after Ortiz, State v. Wittenbarger, 124 Wash.2d 467, 481, 880 P.2d 517 (1994), the court definitively addressed the question of whether the state due process clause provides greater protection than the federal constitution for preservation of evidence, and held that it does not.
Today, after consideration of the six factors set out in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986), we hold that the state due process clause affords the same protection regarding a criminal defendant's right to discover potentially exculpatory evidence as does its federal counterpart.
Wittenbarger, 124 Wash.2d at 474, 880 P.2d 517. Because the state due process clause does not require greater protection for the preservation of evidence, there is no basis to interpret the due process clause to impose a duty to record interrogations.
¶ 25 As to the sixth Gunwall factor, Turner cites Heinemann v. Whitman County, 105 Wash.2d 796, 718 P.2d 789 (1986), to argue that preventing police from engaging in deceptive and coercive practices is of particular concern in Washington. Turner's reliance on Heinemann is misplaced. While preventing deceptive and coercive interrogations is a purpose for requiring Miranda warnings, Heinemann does not require electronic recording of interrogations to prevent such practices. We conclude Heinemann does not support expanded due process protection.
¶ 26 In sum, Turner does not cite any authority or developments in Washington law to support reaching a different result under Gunwall.[8] Moreover, in a number of cases decided after Spurgeon, the court has repeatedly rejected the argument that the state due process clause provides greater protection than the federal due process clause. In re Pers. Restraint of Dyer, 143 Wash.2d 384, 394, 20 P.3d 907 (2001) ("Washington's due process clause does not afford a broader due process protection than the Fourteenth Amendment"); In re Pers. Restraint of Matteson, 142 Wash.2d 298, 310, 12 P.3d 585 (2000) (rejecting the claim that state due process rights are greater than federal due process rights because "there are no material differences between the state and federal due process clauses. . . .'"); State v. Manussier, 129 Wash.2d 652, 679, 921 P.2d 473 (1996) ("The Gunwall factors do not favor an independent inquiry under article I, section 3 of the state constitution").[9] Because *841 Turner cannot show that the analysis in Spurgeon is flawed, we reject Turner's argument that article I, section 3 requires electronic recording of custodial police interrogations.
¶ 27 Alternatively, Turner argues that even if there is no due process right under the Washington Constitution to require police to electronically record interrogations, this court should deviate from Spurgeon and follow the example of Wisconsin and Minnesota by exercising its supervisory authority and adopt a rule excluding evidence from interrogations that are not electronically recorded.
¶ 28 In In re Jerrell C.J., 283 Wis.2d 145, 699 N.W.2d 110 (2005), the Wisconsin court exercised is supervisory authority to adopt a rule on the admissibility of juvenile confessions, noting the special susceptibility of minors to police pressure. Jerrell, 699 N.W.2d at 117. In State v. Scales, 518 N.W.2d 587 (Minn.1994), the Minnesota court declined to reach the question of whether the state due process clause required recording police interrogations, but the court imposed a requirement to do so after years of warning law enforcement that it was necessary. Scales, 518 N.W.2d at 592.[10] Here, Turner is not a juvenile nor is this a situation where police have repeatedly ignored warnings by Washington courts.
¶ 29 Turner also argues that awareness of the role of false confessions has increased since Spurgeon was decided in 1991, and that electronic recording would deter police coercion, reduce litigation over suppression hearings, protect officers accused of improper tactics, and improve interrogation techniques. Turner cites a law review article that documents proven false confessions. Steven A. Drizin and Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L.Rev. 891, 932 (2004). Turner also cites another law review article that argues false confessions induced by standard interrogation methods are most likely to occur when the police are certain the suspect is guilty or have no other suspects. Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 Harv. C.R.C.L. L.Rev. 105 (1997).
¶ 30 While the policy arguments in the law review articles are worthy of consideration, either the legislature or the supreme court in' its rule making capacity is in a better position to resolve these policy questions.[11] We also agree with the observation in Spurgeon that:
. . . such a sweeping change in longstanding police practice should be made only after a full hearing of all the policy and financial implications and with adequate advance notice to law enforcement in the form of the adoption of a rule of evidence or a statute mandating recording.
Spurgeon, 63 Wash.App. at 508, 820 P.2d 960.
¶ 31 We hold that Spurgeon controls. The State did not violate Turner's due process rights under article I, section 3 of the Washington Constitution by failing to electronically record the custodial interrogation.
¶ 32 Because the remainder of this opinion has no precedential value, it will be filed for *842 public record in accordance with the rules governing unpublished opinions.
WE CONCUR: COX and GROSSE, JJ.
NOTES
[1]  State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986).
[2]  Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).
[3]  Exhibit 3.
[4]  In reaching the conclusion that Washington's constitution did not require recording police interrogations, the court also specifically distinguished the Alaska court's decision in Stephan v. State, 711 P.2d 1156 (Ak.1985). In Stephan the court held that Alaska's constitution required electronic recording of police interrogations. Spurgeon, 63 Wash.App. at 507-08, 820 P.2d 960. Because the Alaska constitution requires preservation of breathalyzer evidence, but Washington's constitution does not, the court concluded that Washington law "regarding preservation of breathalyzer samples, being contrary to Alaska's, is a strong indication that our constitution does not require tape recorded interrogations." Spurgeon, 63 Wash.App. at 508, 820 P.2d 960.
[5]  In relation to the third Gunwall factor Turner also cites the Journal of the Washington Constitutional Convention, 1889 at 497, (B. Rosenow, ed. 1962). But the lack of debate further supports the conclusion that the framers intended to adopt the well-known federal due process provisions. And our supreme court recently concluded that "`no legislative history has been shown which would provide a justification for interpreting the identical [due process] provisions differently.'" In re Pers. Restraint of Matteson, 142 Wash.2d 298, 310, 12 P.3d 585 (2000).
[6]  In addition, the Bartholomew court based its decision on the federal constitution, relying on the Washington constitution only as an alternative basis. Bartholomew, 101 Wash.2d at 639, 683 P.2d 1079.
[7]  Ortiz is a plurality decision. Four justices concluded that state and federal due process is coextensive. Ortiz, 119 Wash.2d at 304, 831 P.2d 1060. The fifth justice concurred in the result but decided that the issue of whether state and federal due process protections are identical need not be reached because the result was the same under either the federal or the state due process provisions. Ortiz, 119 Wash.2d at 315, 831 P.2d 1060 (Dolliver, J. concurring).
[8]  In addition, Turner does not address RCW 9.73.090(1)(b) relating to the recording of custodial interrogations, which does not require recording custodial interrogations.
[9]  Alaska remains the only state to hold that its constitution requires electronic recording of police interrogations. Every other court that has addressed the same question since Spurgeon has rejected arguments to require electronic recording of custodial interrogations on state constitutional grounds. See People v. Holt, 15 Cal.4th 619, 63 Cal.Rptr.2d 782, 937 P.2d 213, 242 (1997); People v. Casias, 59 P.3d 853, 857 (Colo. 2002); State v. James, 237 Conn. 390, 678 A.2d 1338, 1360 (1996); Coleman v. State, 189 Ga. App. 366, 375 S.E.2d 663, 664 (1988); State v. Kekona, 77 Hawai`i 403, 886 P.2d 740, 746 (1994); State v. Rhoades, 119 Idaho 594, 809 P.2d 455, 462 (1991); Gasper v. State, 833 N.E.2d 1036, 1041 (Ind.App.2005); State v. Morgan, 559 N.W.2d 603, 609 (Iowa 1997); State v. Speed, 265 Kan. 26, 961 P.2d 13, 24 (1998); Brashars v. Commonwealth, 25 S.W.3d 58, 63 (Ky.2000); State v. Thihodeaux, 750 So.2d 916, 923 (La.1999); State v. Buzzell, 617 A.2d 1016, 1018-19 (Me.1992); Baynor v. State, 355 Md. 726, 736 A.2d 325, 332 (1999); Commonwealth v. Fryar, 414 Mass. 732, 610 N.E.2d 903, 909 n. 8 (1993); People v. Fike, 228 Mich.App. 178, 577 N.W.2d 903, 906-07 (1998); Williams v. State, 522 So.2d 201, 208 (Miss. 1988); Jimenez v. State, 105 Nev. 337, 775 P.2d 694, 697 (1989); State v. Bamett, 147 N.H. 334, 789 A.2d 629, 632 (2001); State v. Cook, 179 N.J. 533, 847 A.2d 530, 545 (2004); People v. Falkenstein, 288 A.D.2d 922, 732 N.Y.S.2d 817, 818-19 (2001); State v. Thibodeaux, 341 N.C. 53, 459 S.E.2d 501, 507 (1995); State v. Goebel, 725 N.W.2d 578, 584 (N.D.2007); State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 686 (1997); Commonwealth v. Craft, 447 Pa.Super. 371, 669 A.2d 394, 397 (1995); State v. Godsey, 60 S.W.3d 759, 771 (Tenn.2001); State v. James, 858 P.2d 1012, 1018 (Utah Ct.App.1993); State v. Gorton, 149 Vt. 602, 548 A.2d 419, 422 (1988); State v. Kilmer, 190 W.Va. 617, 439 S.E.2d 881, 893 (1993).
[10]  Minnesota and Wisconsin remain the only states to exercise judicial supervisory authority to require electronic recording of custodial interrogations, although New Hampshire has judicially restricted the admissibility of recordings where the entire interrogation was not recorded. State v. Bamett, 147 N.H. 334, 789 A.2d 629, 632-33 (2001).
[11]  RCW 9.73.090 addresses electronic recording of police interrogations and prohibits recording without consent.