39 F.3d 858
UNITED STATES of America, Appellee,v.Jose Lazaro ROBAINA, Appellant.
No. 94-1725.
United States Court of Appeals,Eighth Circuit.
Submitted Aug. 9, 1994.Decided Nov. 2, 1994.Rehearing and Suggestion for Rehearing En Banc Denied Dec. 20, 1994.

Arthur Ray Martinez, argued for appellant.
Carol Ann Needles, argued for appellee.
Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.
McMILLIAN, Circuit Judge.

1
Jose Lazaro Robaina appeals a final order entered in the District Court1 for the District of Minnesota, upon a jury verdict, finding him guilty of four counts of drug trafficking in violation of 21 U.S.C. Sec. 846(a)(1) and one count of use of a firearm in relation to drug trafficking in violation of 18 U.S.C. Sec. 924(c)(1).  Robaina was sentenced to 84 months on the drug trafficking convictions and 60 months on the firearm conviction, to run consecutively.  For reversal, Robaina argues that the district court erred in (1) denying his motion to sever count two from the other counts, (2) refusing to admit the testimony of two defense witnesses, and (3) ruling that there was sufficient evidence to support the jury verdict finding him guilty of conspiracy to possess cocaine and aiding and abetting possession with intent to distribute cocaine, counts one and two respectively.  For the reasons discussed below, we affirm the judgment of the district court.

I. BACKGROUND

2
On October 17, 1992, Maria Silva, Robaina's companion, delivered two bags filled with comforters and bedding to be washed and folded at a Rochester, Minnesota, laundromat.  Shortly after the laundromat attendant began her shift at 2:00 p.m., she began washing Silva's laundry.  While loading the washer with the comforter from the second bag of laundry, the laundromat attendant dropped the bag and heard a "thunk."   Thinking there was possibly a pair of tennis shoes in the bag, she looked inside and discovered two brick-shaped objects which were later determined to be two kilograms of cocaine.  The police were summoned.  A local police officer responded to the call from the laundromat and was interviewing laundromat employees when Silva arrived.  The officer questioned Silva;  she provided her address and stated that only she and her three children lived there.

3
Later that day the Rochester police obtained search warrants for Silva's residence and the automobile she drove from the laundromat.  Robaina answered the door.  During the search of the house the police did not find any drugs or drug paraphernalia, but they did seize cash, money receipts, and Silva's purse which contained an address book, additional cash, an assortment of other papers, and a note showing various names and dollar amounts.  Among the papers was a receipt showing that Robaina had leased a second apartment in Rochester.  The police searched that apartment, pursuant to a warrant, but found nothing.  The apartment was vacant.

4
Two days later Silva contacted the Rochester police department and indicated that she and Robaina wanted to talk about the case.  A detective arranged the interview.  Robaina told the detective that he had just returned from visiting his family in Florida, a trip he made often.  He denied any knowledge about the cocaine found in the laundry bag.  The interview concluded after about an hour.  There was no evidence to suggest that the investigation of Silva and Robaina continued after this interview.  A short time later, Robaina and Silva moved from Rochester to Roseville in the St. Paul area.

5
Five months later, in March 1993, the St. Paul police received a tip from a confidential informant that Robaina and Silva were dealing large amounts of cocaine from their new residence in Roseville.  Based upon the information from the informant, the St. Paul police obtained search warrants for the Roseville residence, Robaina's automobiles and for Robaina himself.  Surveillance officers positioned outside the Roseville residence observed Robaina leaving the house in a car.  The police officers stopped him.  A uniformed officer approached Robaina's vehicle and observed him reaching toward his waist.  The police officer removed him from the car and conducted a pat down search which uncovered a loaded .38 caliber revolver, extra bullets in Robaina's pant pocket, and three one-ounce packages of cocaine in his jacket pocket.  The search of the Roseville residence uncovered 16 one-ounce packages of cocaine in a safe in the master bedroom closet, approximately $7,600 in cash in a man's leather coat in the master bedroom, a triple-beam balance scale in the hall closet, and a cellular telephone in another closet.

6
Robaina was charged in a five count indictment:  Count I--conspiracy to possess with intent to distribute two kilograms of cocaine;  Count II--aiding and abetting possession with intent to distribute two kilograms of cocaine;  Count III--possession with intent to distribute three ounces of cocaine;  Count IV--possession with intent to distribute 16 ounces of cocaine;  and Count V--use of a firearm during and in relation to a drug trafficking crime.2  The jury found Robaina guilty on all counts.  Robaina's post-verdict motion for judgment of acquittal was denied by the district court.  The district court sentenced him to a total term of imprisonment of 144 months, followed by 4 years of supervised release.  This appeal followed.

II. JOINDER OF OFFENSES AND SEVERANCE

7
Robaina first argues that the district court erred in denying his motion to sever Count II--aiding and abetting possession with intent to distribute two kilograms of cocaine discovered in the laundry (the "laundromat cocaine")--from the other counts.  He contends that the laundromat cocaine count was not related to the other counts and therefore should have been tried separately.  The government argues that its decision to join the four drug trafficking offenses was proper because all the charges were the same or similar, and that evidence of the laundromat cocaine count overlapped with the evidence of the conspiracy count and the other substantive drug offenses.  The government further argues that Robaina failed to demonstrate actual prejudice resulting from the joinder because the evidence of the laundromat cocaine count would have been admissible in a separate trial of the other drug offenses.

8
We begin by considering whether the counts were misjoined.  Misjoinder is a question of law we review de novo.  United States v. Lane, 474 U.S. 438, 449 n. 12, 106 S.Ct. 725, 732 n. 12, 88 L.Ed.2d 814 (1986);  United States v. Rimell, 21 F.3d 281, 288 (8th Cir.1994).  Joinder of offenses for trial is proper if the offenses alleged in the indictment are "of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."   Fed.R.Crim.P. 8(a).  In applying the "same or similar character" standard, we have found joinder of offenses to be proper when "the two counts refer to the same type of offenses occurring over a relatively short period of time, and the evidence as to each count overlaps."  United States v. Shearer, 606 F.2d 819, 820 (8th Cir.1979).

9
We hold Robaina's misjoinder claim is without merit.  The six-month time period between the offenses in the present case does not violate the "relatively short period of time" factor espoused in United States v. Shearer.   We have affirmed joinder of offenses in cases where the time period between offenses was even greater.  See United States v. Lindsey, 782 F.2d 116 (8th Cir.1986) (17 months);  United States v. Rodgers, 732 F.2d 625 (1984) (20 months);  United States v. Hastings, 577 F.2d 38 (8th Cir.1978) (2 years).  In addition, we note that the laundromat cocaine count and the counts charging possession with intent to distribute cocaine found on Robaina's person and in his apartment are sufficiently similar to justify joinder.  And, finally, the evidence of the laundromat cocaine count overlapped with the evidence of conspiracy.  Accordingly, we conclude that the offenses were properly joined.

10
We next address whether the district court should have severed these counts under Fed.R.Crim.P. 14 which provides relief from joinder, notwithstanding propriety under Rule 8(a), if it results in undue prejudice to the defendant.  A motion to sever is addressed to the sound discretion of the district court.  United States v. Rimell, 21 F.3d at 289, citing United States v. Mason, 982 F.2d 325, 328 (8th Cir.1993).  We hold that the district court did not abuse its discretion in denying severance.

11
In United States v. Dennis, 625 F.2d 782, 802 (8th Cir.1980) (citations omitted), we held that "[w]here evidence that a defendant had committed one crime would be probative and thus admissible at the defendant's separate trial for another crime, the defendant does not suffer any additional prejudice if the two crimes are tried together."   The fact that Robaina was associated with a prior possession of a sizeable amount of cocaine would have been probative of his intent and possession on March 3, 1993.  Moreover, the record indicates that the search warrant for Robaina's house, car and person was predicated on the police officer's knowledge that Robaina had previously been suspected of drug trafficking based upon the discovery of the laundromat cocaine.  This evidence could have been introduced in a separate trial under Fed.R.Evid. 404(b) as a prior wrong or act to prove intent, motive, knowledge or common scheme or plan.  We conclude, therefore, that the district court did not abuse its discretion in refusing to sever the laundromat cocaine count.

III. TESTIMONY OF DEFENSE WITNESSES

12
Robaina next argues that the district court improperly refused to allow testimony of proposed defense witnesses Felipe Lugo and his wife, Karen Ellingson, who were allegedly the only people who could corroborate his testimony that he did not have any intent to distribute cocaine and he only possessed the cocaine in order to help his friend, Lugo.  Exclusion of this testimony, he claims, denied him his Sixth Amendment right to compulsory process.  We disagree.

13
The Compulsory Process Clause of the Sixth Amendment guarantees a criminal defendant the right "to have compulsory process for obtaining witnesses in his favor."   U.S. Const. amend.  VI.  Under Fed.R.Evid. 401, the district court has discretion in determining the relevancy and admissibility of evidence.  E.g., United States v. Briscoe, 574 F.2d 406, 408 (8th Cir.1978) (per curiam).  To establish a violation of the Compulsory Process Clause, a criminal defendant must make a plausible showing that the district court, without justification, "excluded the testimony of a witness that would have been material and favorable to his defense."  United States v. Valenzuela-Bernal, 458 U.S. 858, 873, 102 S.Ct. 3440, 3449-50, 73 L.Ed.2d 1193 (1982) (emphasis added);  see also United States v. Peltier, 585 F.2d 314, 331-32 (8th Cir.1978).  We hold that the district court did not err in excluding this testimony because Robaina failed to establish that testimony by Lugo or Ellingson would have been material or favorable to his defense.

14
At trial, Robaina testified to the following:  He first became involved with cocaine at the behest of his friend, Lugo.  When Robaina moved to St. Paul in February 1993, Lugo solicited his assistance in solving Lugo's financial problem by selling cocaine.  Lugo asked Robaina to purchase approximately one pound of cocaine for him to sell.  After some deliberation, Robaina agreed to help Lugo "solve his problem."   Robaina "fronted" Lugo one thousand dollars and traveled to Miami to purchase 19 ounces of cocaine, which he had sent back to him in Minnesota by overnight delivery.  Robaina and Lugo purchased a triple-beam balance scale and weighed and packaged the cocaine.  Robaina then relinquished possession of the cocaine to Lugo.  Three days later Lugo asked Robaina to keep the cocaine at his house because Lugo feared that it would be stolen.  Robaina put the packages of cocaine in his safe in the bedroom.  Lugo also asked Robaina to deliver three ounces of cocaine to a customer who was waiting at Lugo's house.  Robaina refused to deliver the cocaine, but agreed to give Lugo the three ounces.  When Robaina returned from his bedroom with the three ounces, Lugo was gone.  Robaina left his house driving his car in an attempt to catch Lugo to give him the cocaine when he was stopped by the police.

15
Lugo was subpoenaed as a witness by the defense.  Prior to Robaina's testifying, Lugo appeared and was represented by counsel.  The district court asked Lugo whether he intended to invoke his Fifth Amendment right against self-incrimination.  Lugo indicated that he did.  After an off-the-record discussion between Lugo's counsel and the prosecutor, the prosecutor informed the district court that Lugo could not provide any information favorable to Robaina and whatever knowledge he did have was potentially self-incriminating and he did not want to testify.  Defense counsel then requested that either the prosecutor or the district court grant Lugo use immunity in order to compel his testimony.  The prosecutor declined to offer immunity.  The district court stated that it did not have the authority to grant immunity nor could it compel the prosecutor to grant immunity.  The district court excused Lugo from testifying.

16
The district court's refusal to allow Lugo to testify did not violate Robaina's sixth amendment right to compulsory process.  The defendant's right to compulsory process does not include the right to compel a witness to waive his or her Fifth Amendment privilege against self incrimination.  Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972).  Immunizing a witness who invokes his or her Fifth Amendment rights can functionally preserve the privilege and clear the path for compulsory testimony.  Immunity in the present case, however, was not available.  The Supreme Court has held that statutory immunization of a witness, or use immunity, can only be granted upon the request of the Attorney General.  United States v. Doe, 465 U.S. 605, 616, 104 S.Ct. 1237, 1244, 79 L.Ed.2d 552 (1984) ("We decline to extend the jurisdiction of courts to include the prospective grant of use immunity in the absence of the formal request that the statute requires.").  "Judicial" immunity3 has not been recognized in this Circuit.  See United States v. Doddington, 822 F.2d 818, 821 n. 1 (8th Cir.1987).4  Accordingly, the district court correctly stated that it had neither the authority to grant immunity itself nor could it order the government to grant Lugo immunity.

17
Karen Ellingson, Lugo's wife, was also subpoenaed as a witness for the defense.  Ellingson informed the district court that she would not answer any questions about her husband because she had not consulted with an attorney.  After hearing defense counsel's proposed line of questioning, the district court found that the questions lacked relevance and excused Ellingson from testifying.  The district court was correct in excluding Ellingson's testimony under Fed.R.Evid. 403.  Based upon the offer of proof, Ellingson's testimony was, at best, of minimal relevance.5

IV. SUFFICIENCY OF THE EVIDENCE

18
Robaina next argues that there was insufficient evidence for a reasonable jury to find beyond a reasonable doubt that he conspired or aided and abetted in the possession of the laundromat cocaine.  He argues that the laundromat cocaine was found in Silva's laundry, no drugs or paraphernalia were seized from either of the Rochester residences or the car, and he voluntarily presented himself for questioning by the police.  In short, he contends that there is no evidence to demonstrate that he had knowledge of a conspiracy and, therefore, he could not have participated in one.  The government argues that there was ample evidence in the record to support the jury verdict.

19
In reviewing a challenge for sufficiency of the evidence, we view the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences that support the jury verdict.  United States v. Erdman, 953 F.2d 387, 389 (8th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 3009, 120 L.Ed.2d 883 (1992).  "The verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable jury to conclude guilt beyond a reasonable doubt."  Id.  With regard to conspiracy convictions the evidence must demonstrate that the defendant entered into an agreement with one other person to violate the law.  United States v. Jones, 23 F.3d 1407, 1409 (8th Cir.1994) (citations omitted).  A conspiracy may be inferred from circumstantial evidence.  Id.

20
We hold the evidence was sufficient to support the jury verdict finding Robaina guilty of conspiracy and of aiding and abetting to possess the laundromat cocaine.  There was evidence that two kilograms of cocaine were found in the family laundry, and a subsequent search of Robaina's home uncovered receipts for airplane tickets for travel between Florida and Minnesota and for rental cars.  There was also evidence that, even though Robaina and Silva were unemployed, they were able to purchase various luxury items such as a $800 camcorder, several televisions, a pager, several jewelry items, additional money orders, a $400 dalmatian puppy, a stereo, and other electronic equipment.  All of this evidence represents incriminating facts which the jury could have considered in convicting Robaina of conspiracy and drug trafficking.  Other relevant evidence included a note showing various names and numbers, which the jury could have found was evidence of drug trafficking, and a receipt showing that Robaina had leased a second apartment, which could have been considered by the jury to be a "stash house" used by persons involved in drug trafficking.  Furthermore, Robaina implicated himself by testifying at trial that he had traveled to Miami to procure 19 ounces of cocaine, had arranged for delivery of the cocaine to himself in Minnesota, had assisted Lugo in weighing and packaging it, and had kept it in a safe in his home.  In addition, at the time of his arrest, Robaina was found in possession of three ounces of cocaine and a .38 caliber revolver.  A search of his Roseville residence uncovered $7,641 in cash, a cellular phone, ammunition, 16 ounces of cocaine, and a triple-beam balance scale.  After considering the evidence as a whole, we cannot say that the evidence was insufficient to support the jury verdict.

V. CONCLUSION

21
Accordingly, we affirm the judgment of the district court.

1
 The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota

2
 Silva was charged with four counts of drug trafficking in violation of 21 U.S.C. Sec. 846(a)(1).  Those charges were dismissed in exchange for Silva's plea of guilty to one count of conspiracy to defraud the United States Internal Revenue Service in violation of 18 U.S.C. Sec. 371

3
 This concept arises from case law, which holds that a court possesses an inherent power to grant a witness use immunity in order to effectuate the defendant's compulsory process right to secure essential exculpatory testimony.  See Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 976-77, 19 L.Ed.2d 1247 (1968);  Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980)

4
 In United States v. Hardrich, 707 F.2d 992, 993-94 (8th Cir.), cert. denied, 464 U.S. 991, 104 S.Ct. 481, 78 L.Ed.2d 679 (1983), the court suggested that if the district court had the power to grant a reluctant defense witness judicial immunity, it would only be appropriate where the proffered testimony was clearly exculpatory.  Applying the Hardrich rationale to the facts in the present case makes it clear that immunizing Lugo would not have been proper because he stated that he had no favorable testimony to offer on behalf of the defense

5
 Defense counsel made a proffer to the court that she needed Ellingson's testimony to:
[i]nquire as to Ms. Ellingson's employment, whether or not she's married, the name of her husband, whether or not her husband owns a Cadillac automobile, its color, license plate number, if she knows whether or not her husband was convicted of a felony in the state of Minnesota, and whether or not he is currently on probation or was on probation during 1992 or '93.


254 F.2d 464
Mile ZUTICH, Steve Savich, Joseph Janus, Jr., and Donna McCreary, Executors of the Estate of Peter Damjan Janus, Deceased, Appellants,v.Whitney GILLILLAND, Chairman of the Foreign Claims Settlement Commission and International Claims Commission, Appellee.
No. 13351.
United States Court of Appeals Sixth Circuit.
April 29, 1958.

Paul Z. Hodge, Warren, Ohio (H. I. Gardner, Warren, Ohio, on the brief), for appellant.
William J. O'Neill, U. S. Atty., Cleveland, Ohio (Sumner Canary and Russell E. Ake, Cleveland, Ohio, on the brief), for appellee.
Before SIMONS, Chief Judge, and MARTIN and STEWART, Circuit Judges.
PER CURIAM.

1
Peter Janus filed a claim with the Foreign Claims Settlement Commission for loss occasioned when his property in Yugoslavia was confiscated, damaged, or destroyed by the Government of Yugoslavia or its partisans in 1945. The claim was initially denied upon the ground that Janus was not a national of the United States between September 1, 1939, and July 19, 1948, and that his claim was therefore not governed by the Yugoslav Claims Agreement of 1948 and not within the jurisdiction of the Commission. After a hearing and oral argument this decision was made final by the Commission. Thereafter Janus brought an action in the Federal District Court attacking the Commission's decision and asking for a judgment declaring that he was a national of the United States during the period in question. The action was dismissed upon the ground that the court was without jurisdiction, and this appeal followed.

2
The statute which created the Foreign Claims Settlement Commission and conferred the right to make claims against the Yugoslav Claims Fund provided that the Commission's decisions should have complete finality. The statute provides: "The action of the Commission in allowing or denying any claim under this subchapter shall be final and conclusive on all questions of law and fact and not subject to review by the Secretary of State or any other official, department, agency, or establishment of the United States, or by any court by mandamus or otherwise." 22 U.S.C.A. § 1623 (h).

3
In our opinion the district court was correct in concluding that this unambiguous statutory language left it without jurisdiction to review the Commission's decision. As has been pointed out by the Court of Appeals for the District of Columbia, this is not an area where Constitutional limitations would prevent Congress from foreclosing judicial review. De Vegvar v. Gillilland, 1955, 97 U.S. App.D.C. 126, 228 F.2d 640, certiorari denied 1956, 350 U.S. 994, 76 S.Ct. 543, 100 L.Ed. 859.

4
The appellant relies upon a provision of the Immigration and Nationality Act of 1952 conferring jurisdiction upon the district courts of declaratory judgment actions brought by any person within the United States who "claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States." 8 U.S.C.A. § 1503 (a). In our opinion, however, the action of Congress in explicitly denying judicial review in this specific situation must supersede the general provision of the Immigration and Nationality Act of 1952.

5
The order of the district court is affirmed.


664 F.2d 161
UNITED STATES of America, Plaintiff-Appellant,v.Phillip E. GALLOWAY, Defendant-Appellee.
No. 81-1693.
United States Court of Appeals,Seventh Circuit.
Argued Sept. 16, 1981.Decided Nov. 17, 1981.

John A. Franke, U. S. Atty., Madison, Wis., for plaintiff-appellant.
William J. Vaxley, Charles A. Dauphin, Birmingham, Ala., for defendant-appellee.
Before SWYGERT, Senior Circuit Judge, and SPRECHER and CUDAHY, Circuit Judges.
SPRECHER, Circuit Judge.

1
This case involves the application of the federal mail fraud statute, 18 U.S.C. § 1341 (1980), to a scheme to defraud automobile purchasers by "rolling back" automobile odometers.  Following a jury verdict of guilty, the trial court directed a verdict for the defendant.  Because we find that the jury properly could have found that this scheme falls within the strictures of the federal statute, we reverse the trial court's ruling.

2
* Defendant Galloway is an Alabama wholesaler of used automobiles.  On February 11, 1981, an indictment was returned alleging that Galloway had engaged in a scheme to defraud Wisconsin automobile purchasers by altering the odometer readings on used cars and then selling those automobiles to retailers.  This indictment relied on the third prohibited act of the mail fraud statute, which makes it a crime to "knowingly (cause matter) to be delivered by mail (in furtherance of a fraudulent scheme),"1 and alleged six specific mailings.

3
The evidence at trial established odometer rollbacks on thirteen automobiles purchased by Wisconsin residents from retail dealers.  All these automobiles had been sold to retail dealers by Galloway, primarily through the Greater Chicago Auto Auction, although a few had been sold directly to a dealer whom Galloway had come to know personally.  The Wisconsin dealers would ship or drive the automobiles to Wisconsin, where they were eventually sold to retail customers.  In order to finalize this purchase, the Wisconsin dealer would apply for title on behalf of the retail purchaser by mailing the required documents to the State Department of Transportation.  These title applications constituted the requisite mailings which supported the mail fraud indictment.

4
The trial court found that the jury had sufficient evidence to find that Galloway had formulated and carried out a scheme to defraud.  The evidence showed that the scheme resulted in the automobile dealer, and ultimately the retail customer, paying a higher price for these automobiles than their actual market value.

5
The trial court also found that the jury had sufficient evidence from which it could find that Galloway "caused" the mailing of title applications by Wisconsin dealers, in that he "could reasonably have foreseen that the mails would be used in the course of transferring physical possession and title of the cars to retail customers."  United States v. Galloway, No. 80-CR-55, slip op. at 3 (W.D.Wis. March 31, 1981).

6
The court ruled, however, that the jury did not have sufficient evidence from which to find that the use of the mails was "for the purpose of executing" Galloway's scheme to defraud.  Id.  The court found that the mailings alleged did nothing to further Galloway's scheme of obtaining more money for the cars, since the transfer of title accomplished by the mailings would have occurred at whatever price the automobiles were sold.  Galloway's scheme, the court found, "was complete for his purposes when the retail customer agreed to the selling price and took physical possession of the car."  Id. at 4.  The mailings, therefore, occurred "chronologically after the scheme had reached fruition; ... (and) did nothing to affect the price paid for the car or to conceal the alteration of the odometer."  Id. at 8.  Thus, the court directed a verdict for Galloway following the jury's guilty verdict.

II

7
* The starting point for analysis of a conviction under the mail fraud statute is determining the scope of the alleged scheme.  The district court accepted the government's contention that Galloway's scheme was an attempt to defraud Wisconsin retail purchasers, who based their decision to purchase the automobiles upon the altered odometers.  The evidence at trial indicated that the higher wholesale cost of automobiles resulting from the odometer tampering was reflected in higher prices at the retail level.  Thus, the victim of this fraud was the retail customer.  Furthermore, retail purchasers were "crucial to defendant's ability to continue the scheme."  Id. at 6.  While Galloway on appeal contends that this is an overly broad reading of the scope of the scheme, we find that the jury had sufficient evidence from which it could conclude, as the court below noted, "that the defendant's scheme was not complete until the cars had been resold to retail customers in Wisconsin."  Id.

8
Having determined the scope of the scheme, we turn to an examination of the applicability of the mail fraud statute to the scheme.2  This examination demonstrates that the mailing of title documents satisfies the requirements of the statute.

9
While the statute requires that the mailing occur "for the purpose of executing the scheme" to defraud, Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 362, 98 L.Ed. 435 (1954), the courts have given a broad interpretation to this phrase, and have held that mailings "in furtherance" of the scheme meet the statute's jurisdictional requirement.  United States v. Keane, 522 F.2d 534, 544 (7th Cir. 1975), cert. denied, 424 U.S. 976, 96 S.Ct. 1481, 47 L.Ed.2d 746 (1976).  Thus, in Ohrynowicz v. United States, 542 F.2d 715 (7th Cir.), cert. denied, 429 U.S. 1027, 97 S.Ct. 650, 50 L.Ed.2d 630 (1976), this court applied the mail fraud statute to a "check-kiting" scheme in which the defendant utilized the temporary, non-personalized checks provided by banks upon opening a new account to defraud several banks.  The mailing upon which the mail fraud conviction rested, however, was the mailing to the defendant of personalized checks ordered when the accounts were opened, but never used by the defendant.

10
The court found that the mailings were "for the purpose of executing" the scheme to defraud.  It noted that while the personalized checks were never used, the ordering of such checks "was a normal part" of opening an account, thus "leading to the conclusion that the order was in furtherance of the fraudulent scheme."  Id. at 718.  Ohrynowicz has been interpreted to hold that where a mailing was a "normal concomitant of a transaction that was essential to the fraudulent scheme, (the mailing) was made for the purpose of executing that scheme."  United States v. Clark, 649 F.2d 534 at 542 (7th Cir. 1981); United States v. Lea, 618 F.2d 426, 430 (7th Cir.), cert. denied, 449 U.S. 823, 101 S.Ct. 82, 66 L.Ed.2d 25 (1980).

11
The application of the court's holding in Ohrynowicz to the facts in the instant case clearly demonstrates that the requirements of the mail fraud statute are satisfied.  Here the final step in the scheme, as found by the district court, was the retail sale of automobiles.  This essential transaction was not complete until the title documents were mailed to the responsible state agency, which then transferred title from the dealer to the retail purchaser.  These mailings were thus more than "normal concomitants" of an essential transaction, they were an integral part of that transaction.  They were essential to executing the scheme to defraud.3  See also United States v. Kent, 608 F.2d 542, 546 (5th Cir. 1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2153, 64 L.Ed.2d 788 (1980) ("The requisite statutory purpose exists if the alleged scheme's completion could be found to have been dependent in some way upon information and documents passed through the mails").

12
The application of the mail fraud statute to a similar fact situation was upheld by the Fifth Circuit in United States v. Shryock, 537 F.2d 207 (5th Cir.), cert. denied, 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1976).  There, the court upheld a mail fraud conviction stemming from a scheme to alter odometer readings on used automobiles and resell the autos to retail purchasers.  At the time of the sale the dealer would hand-deliver title applications and mileage certificates to a local division of the State Motor Vehicle Department, which then mailed these documents to its office in the state capital.  Noting that "(t)he transfer of title is a necessary step in the sales transaction which was not actually completed until the title papers passed," the court found these intra-governmental mailings to have been in furtherance of a scheme to defraud.  Id. at 209.  While the documents in Shryock included an indication of the odometer reading, this alone did not further the defendant's scheme, and indeed may have endangered the scheme.  See United States v. Maze, 414 U.S. 395, 403, 94 S.Ct. 645, 650, 38 L.Ed.2d 603 (1974) (no mail fraud statute liability where mailings increased the probability that the fraudulent scheme would be detected).  Nor does the fact that Shryock involved the direct sale of automobiles to retail purchasers distinguish it from this case.  Both schemes had as their ultimate objective a sale to a retail customer.  The interposition of a wholesale buyer in this case does not change the role that transfer of title plays in completing the scheme.  Thus, Shryock stands for the proposition that where a sale to a retail customer is the final object of a scheme to defraud, mailings of title documents necessary to complete the sale are made "for the purpose of executing" the scheme.4

B

13
Our analysis to this point has not dealt with the continuing nature of Galloway's scheme.  An examination of this aspect of the scheme provides further support for the conclusion that Galloway's conduct is properly punishable under the mail fraud statute.

14
Although the district court did not discuss it, a major emphasis of the government, in both the indictment and at trial, was the ongoing character of Galloway's scheme.  Thus, for example, evidence was introduced of odometer rollbacks on automobiles that were not subjects of the indictment, in order to demonstrate that Galloway's scheme extended beyond individual sales.  Furthermore, the amount of profit realized by Galloway on each individual sale could well have caused the jury to conclude that Galloway's scheme was of the ongoing nature alleged in the indictment.

15
The ongoing nature of the scheme, therefore, required a continuing access to retail dealers, principally through the Greater Chicago Auto Auction.  This access, in turn, depended upon the retailers' experiences in profitably selling automobiles obtained from Galloway.  In order to sell his cars at the auction, it was necessary for Galloway to provide the dealer-purchasers, through the auction, with the necessary title documents.  In order for the dealer-purchasers to then sell these cars, it was necessary for them to transfer title by mailing these title documents to the appropriate state agency.  Only the experience of successful title transfer, therefore, would induce the dealer to return to the auction and purchase other automobiles from Galloway.  Any failure in the title application process would have endangered Galloway's scheme by discouraging the retail dealer from making further purchases of his automobiles.  Furthermore, the evidence at trial suggested that those attending the auction frequently knew and spoke with each other.  From this, the jury could conclude that the effect of a failure in the title application process would be to discourage purchases among a host of dealers.5

16
Thus, the title application procedure, from Galloway's provision of the title documents to their mailing to the state agency,6 was an essential step in Galloway's scheme.  The success of this step ensured his continued ability to reap the profits of his odometer tampering.

C

17
Galloway argues that the Supreme Court's decision in United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), precludes his liability under the mail fraud statute.  The facts in the two cases, however, are readily distinguishable.  In Maze the defendant had been convicted on four counts of mail fraud arising from his theft and use of a "Bank Americard" credit card.  The alleged violation of the mail fraud statute stemmed from the fact that, in using the card, the defendant "knew that each merchant would cause the sales slips of the purchases to be delivered by mail to the Louisville bank which would in turn mail them to (the cardholder) for payment."  Id. at 397, 94 S.Ct. at 647.  The Court found that these facts failed to demonstrate a violation of the mail fraud statute.

18
The Court emphasized that the statute, although it has been read broadly, nevertheless requires that the requisite mailings be " 'for the purpose of executing the scheme.' " Id. at 400, 94 S.Ct. at 648, quoting Kann v. United States, 323 U.S. 88, 94, 65 S.Ct. 148, 151, 89 L.Ed. 88 (1944).  In Maze, however, the mailings were "directed to the end of adjusting accounts" between the various victims of Maze's scheme.  414 U.S. at 402, 94 S.Ct. at 649.  The Court noted that "there is no indication that the success of this scheme depended in any way on which of his victims ultimately bore the loss."  Id.  Indeed, the Court emphasized, these mailings endangered Maze's scheme, by furthering the likelihood of detection.  Id. at 403, 94 S.Ct. at 650.  Given this fact, the mailings could not fairly be said to have been in furtherance of the scheme.

19
Here, on the other hand, the evidence demonstrated that these mailings were necessary to complete the retail sale which was the final object of the scheme, as well as to ensure the ongoing success of the scheme.  While it is true, as the trial court noted, that failure to pass title would not necessarily have resulted in discovery of the scheme, it would have endangered its continued success.  Certainly the mailings were not counterproductive to the scheme, as were the mailings in Maze.7  In this case, therefore, the mailings may fairly be said to have been for the purpose of executing the scheme to defraud.

III

20
We conclude that Galloway's scheme to defraud falls within the prohibitions of 18 U.S.C. § 1341 (1980).  Therefore, the district court's judgment of March 31, 1981, is Reversed, and the cause is Remanded with directions that the district court reinstate the jury verdict of March 13, 1981.

CUDAHY, Circuit Judge, concurring:

21
With the mail fraud statute we are writing on anything but a clean slate.  Although the present case takes us to what (for now) may be the outer limits, our result, as Judge Sprecher has ably demonstrated, does no real violence to the precedents.  I am sensitive to Judge Swygert's keenly articulated concern that the connection between Galloway and the mailings is quite attenuated.  In my view, however, the link is not so tenuous as to avoid the judicially hypertrophied reach of this far-ranging statute.

22
SWYGERT, Senior Circuit Judge, dissenting.

23
I respectfully dissent because I do not believe that the mailings in this case furthered, in any way, the scheme to defraud.  In reaching the opposite conclusion, the majority has completely misinterpreted Ohrynowicz v. United States, 542 F.2d 715 (7th Cir.), cert. denied, 429 U.S. 1027, 97 S.Ct. 650, 50 L.Ed.2d 630 (1976), and has failed to distinguish United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), on anything but a superficial basis.

24
The majority has interpreted Ohrynowicz to hold that where a mailing is a "normal concomitant of a transaction that was essential to the fraudulent scheme, (the mailing) was made for the purpose of executing that scheme."  Maj. op. at 163.  Ohrynowicz does not stand for the proposition that every mailing which is a normal concomitant of an essential transaction provides the requisite jurisdictional basis for a mail fraud conviction.  Any other interpretation is inconsistent with Maze v. United States, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974).  In Maze, the defendant stole a credit card and used it to charge food and lodging at several motels.  The invoices mailed from the motels to the bank which issued the credit card were certainly a normal concomitant of the credit card transaction, yet the Supreme Court affirmed the acquittal of the defendants on the mail fraud charge because these mailings did not further the scheme.  Thus determining that a mailing is a normal concomitant of an essential transaction is only the beginning of the inquiry.  I agree that the mailings in this appeal are a normal concomitant of the retail sale of the car.  Nevertheless, they did not further the scheme.  They did not affect the price paid for the car, conceal the alteration of the odometer, cause any benefits to flow to Galloway, or cause any further harm to the retail purchasers of the car.

25
In Ohrynowicz and United States v. Clark (also cited by the majority), this court found the mailings to be "normal concomitants," but was also careful to point out how the mailings furthered the scheme.  In the instant case, the majority has concluded that the mailings were "more than normal concomitants" without establishing the factual basis for its conclusion.1  According to the majority, the retail sale was an essential transaction, the transfer of title was necessary to complete the retail sale and the mailing was a means of executing the transfer to title.  It must be remembered that Galloway had nothing to do with the cars after he delivered them to the Auction.  Thus, these mailings were only a convenient means of effecting a transaction to which Galloway was not a party.2  The connection between Galloway and the mailings is too attenuated to fall within the ambit of the mail fraud statute.3  A review of Maze and other cases supports this conclusion.

26
The majority has narrowed the holding in Maze to one sentence: there is no mail fraud liability where the mailings increased the probability that the fraudulent scheme would be detected.  Maze does not stand for this proposition.  Maze said that the mailings involved did not further a scheme to defraud in a specific fact situation.  The fact that the mailings increased the likelihood of detection was only evidence that they did not further the scheme; it was not the crux of the holding.  Any other conclusion ignores the fact that many mailings may both further the scheme and increase the likelihood of detection.4  Given this, it must be determined whether the facts in Maze are analogous to the facts in this appeal.  I believe that they are.  In both cases, the transactions from which the mailings arose were essential to the completion of the scheme.  In both cases, the mailings were a normal concomitant of the essential transaction.  In Maze, the mailings were directed to the end of adjusting accounts among the victims of the defendant's scheme.  In this appeal, the mailings were used to bring about the transfer of title between the victims of Galloway's scheme.  In Maze, the scheme did not depend on who bore the loss; here, the success of the scheme did not depend on how the transfer of title was completed.  In Maze, whomever ended up with the invoice bore the loss.  In this case, whomever ends up with title bears the loss.  I fail to see any valid distinction between the facts in this case and in Maze.  Despite all these similarities, the majority focuses on the one difference between the two cases and dismisses Maze as precedent.  As pointed out above, this solitary distinction was not essential to the holding in Maze.

27
Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), is also analogous.  In Kann, corporate officers and directors were accused of diverting profits from their own corporation to a dummy corporation.  As part of the scheme, the defendants obtained checks payable to them which were cashed or deposited at a bank and then mailed for collection to the drawee bank.  The Supreme Court held that the fraud was completed at the point at which defendant cashed the checks:

28
The scheme in each case had reached fruition.  The persons intended to receive the money had received it irrevocably.  It was immaterial to them, or to any consummation of the scheme, how the bank which paid or credited the check would collect from the drawee bank.  It cannot be said that the mailings in question were for the purpose of executing the scheme, as the statute requires.  323 U.S., at 94, 65 S.Ct. at 151.

29
As in Kann, Galloway had irrevocably received the money from the fraud.  It was immaterial to him how the title to the car was transferred from the dealer to the consumer.

30
I also find the Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960), line of cases helpful in determining whether the mailings in this case are sufficiently related to the fraudulent scheme.  (Although the majority touches on Parr, it has ignored Parr's progeny, United States v. Tarnopol, 561 F.2d 466 (3d Cir. 1977).)  In Parr, the Supreme Court held that intrinsically innocent routine mailings required by law did not further a scheme even when they occurred during the course of the scheme.  In United States v. Tarnopol, 561 F.2d 466 (3d Cir. 1977), the Third Circuit reasoning from Parr decided that there is no

31
valid distinction to be drawn between those routine mailings which are required by law and those routine mailings, themselves intrinsically innocent, which are regularly employed to carry out a necessary or convenient procedure of a legitimate business enterprise.  In either case the mailings themselves are not sufficiently closely related to the fraudulent scheme to support a mail fraud prosecution.

32
561 F.2d at 472.  The mailings in this appeal fall within the parameters of this reasoning.  The transfer of the automobile titles through the post office was a routine mailing performed by Wisconsin dealers as a service to their customers.  The dealers are legitimate business enterprises and the mailings were intrinsically innocent and used to carry out a convenient procedure of the dealership.5

33
The majority has also advanced the argument that the mailings in issue furthered the scheme because successful title transfer helped ensure Galloway's good will among Wisconsin dealers thus facilitating his ability to sell more cars at the Chicago Auction.  The mailings, however, did no more to ensure Galloway's access to the Chicago Auction than the mailings in Kann, supra, did to ensure the defendants' access to bank services or the mailings in Maze, supra, did to further the defendant's access to the motel market.6

34
At this point I find it necessary to distinguish United States v. Shryock, 537 F.2d 207 (5th Cir.), cert. denied, 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1976).  Shryock also involved a scheme to roll back odometers but in that case, the roll back and the mailings were caused by a retail dealer.  The mailings contained a falsified statement of the odometer reading.  The Shryock mailings thus furthered the scheme by helping to cover up the true odometer reading.  In the instant case, the mailings did not contain an odometer reading and they involved a transaction to which Galloway was not a party.  In applying Shryock, the majority has failed to recognize that where a defendant is not involved in a transaction, a mailing which results from that transaction is more remote from the defendant than if he was involved in the transaction.

35
In conclusion, I believe the mailings were not "sufficiently closely related to respondent's scheme to bring his conduct within the statute."  United States v. Maze, supra, 414 U.S. at 399, 94 S.Ct. at 648.  The mailings did not conceal the fraud, produce profit for Galloway or contribute to the consumer's harm.  The mailings resulted from a transaction to which Galloway was not a party and they were routine business mailings the purposes of which were immaterial to Galloway.

36
For the above reasons, I respectfully dissent.

1
 18 U.S.C. § 1341 (1980) states:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.

2
 In defining the scope of the scheme in this manner, we do not imply that it was not of a continuing nature.  As our discussion in Part II-B infra notes, defining the scheme here as ongoing provides further support for application of the mail fraud statute in this case

3
 The court below distinguished Ohrynowicz, as well as other Seventh Circuit cases applying the mail fraud statute, on the grounds that there the mailings occurred chronologically after the "fruition" of the scheme to defraud.  Here, however, the scheme was not in fact completed until a retail sale was made, and the mailings were necessary to complete the sale.  The fact that Galloway received his money before these mailings does not change our conclusion, for "a fraudulent scheme may depend on a mailing even after the defrauders have received the sought-after money or documents."  United States v. Kent, 608 F.2d 542, 546 (5th Cir. 1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2153, 64 L.Ed.2d 788 (1980)

4
 Shryock also demonstrates the fallacy in Galloway's argument that the mailings in this case were "routine business mailings," and therefore exempt from mail fraud strictures under Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960), and related cases.  The mailings in Shryock were legally required, yet the court found the mail fraud statute to be applicable nevertheless.  The mailings in Parr were totally unrelated to, and indeed predated, the scheme.  Here, however, as in Shryock, the mailings were inexorably tied to an essential step in the scheme.  See United States v. Feinberg, 535 F.2d 1004, 1009 (7th Cir.), cert. denied, 429 U.S. 929, 97 S.Ct. 337, 50 L.Ed.2d 300 (1976)

5
 While the sale of automobiles occurred through the auction, there was, as the court below noted, substantial evidence from which the jury could conclude that problems in the title application process of Galloway's cars could be traced to him

6
 As the district court noted, the evidence supported the finding that Galloway caused the mailings at issue, in the sense that he could reasonably have foreseen their occurrence.  This, of course, is the only causation required by the mail fraud statute.  Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-63, 98 L.Ed. 435 (1954)

7
 Galloway admits this fact by emphasizing that nowhere on the title document is an odometer reading required.  Such a requirement, of course, might have made detection of the scheme more likely

1
 The majority claims that the mailings were an "integral part" of an essential transaction.  Given that the retail sale was an essential transaction, it does not follow that the mailing was an integral part of that transaction.  The transfer of title may be an integral part of a retail transaction but this occurs at the Department of Motor Vehicles.  The mailing was just a convenient procedure for moving the documents from the dealer to the Department of Motor Vehicles.  The mailing itself did not produce the transfer of title.  It was simply a normal concomitant of the retail sale

2
 Where the mailings in a mail fraud scheme arise from a transaction in which the party perpetrating the fraud does not participate, I believe that the courts should be very careful to clearly establish the connection between the mailing and the defendant.  See United States v. Lea, 618 F.2d 426, 432 (7th Cir. 1980) (Cudahy, J., dissenting )

3
 If the cars had been sold from one dealer to another before being sold to a retail customer, the mailing would have been even further removed from Galloway, as the Department of Motor Vehicles does not register transfers of title between dealers.  I do not believe that the majority would have any trouble concluding that the mailing in this hypothetical case would be too attenuated to provide the basis for a mail fraud conviction.  Unless the majority is prepared to agree that both fact situations (the hypothetical and the instant case) fall within the reach of the statute, we have a situation where the defendant's involvement is identical in both cases and yet one is mail fraud, the other is not
This hypothetical is by no means improbable.  In fact, of the thirteen cars with rolled-back odometers, one was sold at the Chicago Auction to a dealer who subsequently sold it to a third dealer.  Galloway was not convicted for mail fraud with respect to this automobile.  (Only six of the thirteen transactions were included in the indictment.)
Also, if the dealers had sold the cars to out of state consumers, no mailing would have occurred.  Where a mail fraud conviction hangs so precariously on the actions of a nondefendant, I believe the courts should view this as evidence of the attenuation between the mailing and the defendant.

4
 This is exactly what happened in Ohrynowicz.  542 F.2d at 718.  The mailings increased the likelihood of detection but also helped to temporarily conceal the illegal nature of the scheme.  The court concluded that these mailings furthered the scheme, after a discussion of Maze.  Thus a finding that a mailing increases the possibility of detection is only a factor to be weighed with all the other facts; it is not determinative of whether Maze applies in a given case

5
 The majority has dismissed the routine business mailing argument claiming that the mailings in United States v. Shryock, 537 F.2d 207 (5th Cir.), cert. denied, 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1976), were necessitated by law but were still within the purview of the mail fraud statute.  This is patently wrong.  The mailings in Shryock were not necessitated by law; the law only required that a form containing an odometer statement accompany the application for transfer of title.  The law did not specify how the form was to be delivered.  The correct case for determining the legal impact of a mailing of this type is United States v. Tarnopol, 561 F.2d 466 (3d Cir. 1977)

6
 The contention that title transfer is necessary to ensure Galloway's access to the Chicago Auction ignores the realities of this market, and Galloway's interaction in it.  There are 4,800 dealer-buyers registered at the Auction and during the eighteen months pertinent to the indictment, Galloway sold 756 cars at the Auction.  If title were to fail on one of Galloway's cars, it is unreasonable to conclude that 4,800 dealer-buyers would blacklist all his cars.  The majority's conclusion that Galloway relied on Wisconsin dealers to return to the Auction to purchase more of his cars is refuted by these facts.  Galloway did not know who would buy his cars.  How could he rely on them to return to the Auction?  Further, the evidence also is clear that Galloway sold used cars at other auctions throughout the United States


711 F.2d 1064
Oberoiv.I. N. S.
82-7336, 82-7375
UNITED STATES COURT OF APPEALS Ninth Circuit
6/20/83

1
B.I.A.

PETITIONS FOR REVIEW DENIED


    In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                        No. 15-1120V
                                     Filed: April 18, 2017
                                      Not for Publication

*************************************
RACHAL LAPRAIRIE,                           *
                                            *
              Petitioner,                   *
                                                           Damages decision based on
                                            *
                                                           stipulation; Guillain-Barré
 v.                                         *
                                                           Syndrome (“GBS”); influenza
                                            *
                                                           (“flu”) vaccine; tetanus-acellular
SECRETARY OF HEALTH                         *
                                                           pertussis (“Tdap”) vaccine
AND HUMAN SERVICES,                         *
                                            *
              Respondent.                   *
                                            *
*************************************
Craig S. Watson, Baton Rouge, LA, for petitioner.
Linda S. Renzi, Washington, DC, for respondent.

MILLMAN, Special Master

                              DECISION AWARDING DAMAGES 1

        On April 18, 2017, the parties filed the attached stipulation in which they agreed to settle
this case and described the settlement terms. Petitioner alleges he suffered Guillain-Barré
Syndrome (“GBS”) as a result of his October 8, 2013 receipt of the influenza (“flu”) and tetanus-
acellular pertussis (“Tdap”) vaccines. Respondent denies that either the flu or Tdap vaccine
caused petitioner’s GBS or any other injury. Nonetheless, the parties agreed to resolve this
matter informally.

1
  Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document=s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
        The undersigned finds the terms of the stipulation to be reasonable. The court adopts the
parties’ stipulation, attached, and awards compensation in the amount and on the terms set forth
in the stipulation. Pursuant to the stipulation, the court awards a lump sum of $195,000.00,
representing reimbursement for all damages that would be available under 42 U.S.C. § 300aa-
15(a) (2012). The award shall be in the form of a check payable to petitioner in the amount of
$195,000.00.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith. 2

IT IS SO ORDERED.

Dated: April 18, 2017                                                      s/ Laura D. Millman
                                                                              Laura D. Millman
                                                                               Special Master

2
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
                                                    2


194 U.S. 486 (1904)
BINNS
v.
UNITED STATES.
Nos. 196, 266.
Supreme Court of United States.
Submitted April 6, 1904.
Decided May 31, 1904.
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF ALASKA.
*488 Mr. J.C. Campbell and Mr. W.H. Melson for plaintiff in error.
Mr. Assistant Attorney General Purdy for the United States.
*490 MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
The contention of plaintiff in error is that the license tax is an excise, that it is laid and collected "to pay the debts and provide for the common defense and general welfare of the United States," because by section 463 it is provided that "all moneys received for licenses . . . under this act shall . . . be covered into the Treasury of the United States," that it is imposed only in Alaska, and is not "uniform throughout the United States."
It is unnecessary to consider the decisions in the Insular cases, for, as said by Mr. Justice White in his concurring opinion in Downes v. Bidwell, 182 U.S. 244, 335: "Without referring in detail to the acquisition from Russia of Alaska, it suffices to say that that treaty also contained provisions for incorporation and was acted upon;" and by Mr. Justice Gray, in his concurring opinion (p. 345): "The cases now before the court do not touch the authority of the United States over the Territories, in the strict and technical sense, being those which lie within the United States, as bounded by the Atlantic and Pacific Oceans, the Dominion of Canada and the Republic of Mexico, and the Territories of Alaska and Hawaii; but they relate to territory, in the broader sense, acquired by the United States by war with a foreign State."
It had been theretofore held by this court in Steamer Coquitlam v. United States, 163 U.S. 346, 352, that "Alaska is *491 one of the Territories of the United States. It was so designated in that order (the order assigning the Territory to the Ninth Judicial Circuit) and has always been so regarded. And the court established by the act of 1884 is the court of last resort within the limits of that Territory." Nor can it be doubted that it is an organized Territory, for the act of May 17, 1884, 23 Stat. 24, entitled "An act providing a civil government for Alaska," provided: "That the territory ceded to the United States by Russia by the treaty of March thirtieth, eighteen hundred and sixty-seven, and known as Alaska, shall constitute a civil and judicial district, the government of which shall be organized and administered as hereinafter provided." See also 31 Stat. 321, sec. 1.
We shall assume that the purpose of the license fees required by section 460 is the collection of revenue, and that the license fees are excises within the constitutional sense of the terms. Nevertheless we are of opinion that they are to be regarded as local taxes imposed for the purpose of raising funds to support the administration of local government in Alaska.
It must be remembered that Congress, in the government of the Territories as well as of the District of Columbia, has plenary power, save as controlled by the provisions of the Constitution, that the form of government it shall establish is not prescribed, and may not necessarily be the same in all the Territories. We are accustomed to that generally adopted for the Territories, of a quasi state government, with executive, legislative and judicial officers, and a legislature endowed with the power of local taxation and local expenditures, but Congress is not limited to this form. In the District of Columbia it has adopted a different mode of government, and in Alaska still another. It may legislate directly in respect to the local affairs of a Territory or transfer the power of such legislation to a legislature elected by the citizens of the Territory. It has provided in the District of Columbia for a board of three commissioners, who are the controlling officers of the District. It may entrust to them a large volume of legislative *492 power, or it may by direct legislation create the whole body of statutory law applicable thereto. For Alaska, Congress has established a government of a different form. It has provided no legislative body but only executive and judicial officers. It has enacted a penal and civil code. Having created no legislative body and provided for no local legislation in respect to the matter of revenue, it has established a revenue system of its own, applicable alone to that Territory. Instead of raising revenue by direct taxation upon property, it has, as it may rightfully do, provided for that revenue by means of license taxes.
In reference to the power of Congress reference may be had to Gibbons v. District of Columbia, 116 U.S. 404, in which it was held that "it is within the constitutional power of Congress, acting as the local legislature of the District of Columbia, to tax different classes of property within the District at different rates;" and further, after referring to the case of Loughborough v. Blake, 5 Wheat. 317, it was said (pp. 407, 408):
"The power of Congress, legislating as a local legislature for the District, to levy taxes for district purposes only, in like manner as the legislature of a State may tax the people of a State for state purposes, was expressly admitted, and has never since been doubted. 5 Wheat. 318; Welch v. Cook, 97 U.S. 541; Mattingly v. District of Columbia, 97 U.S. 687. In the exercise of this power Congress, like any state legislature unrestricted by constitutional provisions, may at its discretion wholly exempt certain classes of property from taxation, or may tax them at a lower rate than other property."
In view of this decision it would not be open to doubt that, if the act had provided for a local treasurer to whom these local taxes should be paid and directed that the proceeds be used solely in payment of the necessary expenses of the government of Alaska, its constitutionality would be clear, but the contention is that the statute requires that the proceeds of these licenses shall be paid into the Treasury of the United States, from which, of course, they can only be taken under *493 an act of Congress making specific appropriation. In fact, all the expenses of the Territory are, in pursuance of statute, paid directly out of the United States Treasury. Act of June 6, 1900, Title I, sections 2 and 10, 31 Stat. 322, 325; Act of March 3, 1901, 31 Stat. 960, 987; April 28, 1902, 32 Stat. 120, 147, and February 25, 1903, 32 Stat. 854, 882. True, there are some special provisions for revenues and their application. Thus, the fees for issuing certificates of admission to the bar and for commissions to notaries public are to be retained by the secretary of the district and "kept in a fund to be known as the District Historical Library Fund" and designed for "establishing and maintaining the district historical library and museum," act of June 6, 1900, Title I, sec. 32, 31 Stat. 333, and municipal corporations are authorized to impose certain taxes for local purposes. Title III, sec. 201, 31 Stat. 521. By section 203, fifty per cent of all the license moneys collected within the limits of such corporations are to be paid to their treasurers to be used for school purposes. By subsequent legislation, 31 Stat. 1438, it is provided that if the amount thus paid is not all required for school purposes the District Court may authorize the expenditure of the surplus for any municipal purpose. And by the same statute it is also provided that fifty per cent of all license moneys collected outside municipal corporations and covered into the Treasury of the United States shall be set aside to be expended for school purposes outside the municipalities. By still later legislation, (although that was enacted after the commencement of this prosecution, 32 Stat. 946,) the entire proceeds of license taxes within the limits of municipal corporations are to be paid to the treasurer of the corporation, for school and municipal purposes.
But outside of these special matters there are no provisions for collecting revenue within the Territory for the expenses of the territorial government other than these license taxes and charges of a similar nature. According to the information furnished by the officers of the Treasury Department, *494 as shown in the brief of counsel for the Government, all the revenues of every kind and nature which can be considered as coming from Alaska are not equal to the cost and expense of administering its territorial government. How far we are at liberty to rely upon this information, which was not presented upon the trial of this case, or how far we can take judicial notice of the facts as shown by the records of the Treasury Department, need not be determined, for if an excess of revenue above the cost and expense of administering the territorial government must be shown to establish the unconstitutionality of the license taxes the fact should have been shown by the plaintiff in error. The presumptions are that the act imposing those taxes is constitutional, and anything essential to establish its invalidity which does not appear of record or from matters of which we can take judicial notice must be shown by the party asserting the unconstitutionality.
The question may then be stated in this form: Congress has undoubtedly the power by direct legislation to impose these license taxes upon the residents of Alaska, providing that when collected they are paid to a treasurer of the Territory and disbursed by him solely for the needs of the Territory. Does the fact that they are ordered to be paid into the Treasury of the United States and not specifically appropriated to the expenses of the Territory, when the sum total of these and all other revenues from the Territory does not equal the cost and expense of maintaining its government, make them unconstitutional? In other words, if, under any circumstances, Congress has the power to levy and collect these taxes for the expenses of the territorial government, is it essential to their validity that the proceeds therefrom be kept constantly separate from all other moneys and specifically and solely appropriated to the interests of the Territory? We do not think that the constitutional power of Congress in this respect depends entirely on the mode of its exercise. If it satisfactorily appears that the purpose of these license taxes is to raise revenue for use in Alaska, and that the total revenues *495 derived from Alaska are inadequate to the expenses of the Territory, so that Congress has to draw upon the general funds of the Nation, the taxes must be held valid. That the purpose of these taxes was to raise revenue in Alaska for Alaska is obvious. They were authorized in statutes dealing solely with Alaska. There is no provision for a direct property tax to be collected in Alaska for the general expenses of the Territory. The entire moneys collected from these license taxes and otherwise from Alaska are inadequate for the expenses of that Territory. So far as we may properly refer to the proceedings in Congress, they affirm that these license taxes are charges upon the citizens of Alaska for the support of its government. While it is generally true that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body, United States v. Freight Association, 166 U.S. 290, 318, yet it is also true that we have examined the reports of the committees of either body with a view of determining the scope of statutes passed on the strength of such reports. Holy Trinity Church v. United States, 143 U.S. 457, 464. When sections 461 and 462 were under consideration in the Senate the chairman of the Committee on Territories, in response to inquiries from Senators, made these replies:
"The Committee on Territories have thoroughly investigated the condition of affairs in Alaska and have prepared certain licenses which in their judgment will create a revenue sufficient to defray all the expenses of the government of the Territory of Alaska. . . . They are licenses peculiar to the condition of affairs in the Territory of Alaska on certain lines of goods, articles of commerce, etc., which, in the judgment of the committee, should bear a license, inasmuch as there is no taxation whatever in Alaska. Not one dollar of taxes is raised on any kind of property there. It is therefore necessary to raise revenue of some kind, and in the judgment of the Committee on Territories, after consultation with prominent citizens of the Territory of Alaska, including the governor *496 and several other officers, this code or list of licenses was prepared by the committee. It was prepared largely upon their suggestions and upon the information of the committee derived from conversing with them." Vol. 32, Congressional Record, Part III, page 2235.
While, of course, it would have simplified the matter and removed all doubt if the statute had provided that those taxes be paid directly to some local treasurer and by him disbursed in payment of territorial expenses, yet it seems to us it would be sacrificing substance to form to hold that the method pursued, when the intent of Congress is obvious, is sufficient to invalidate the taxes.
In order to avoid any misapprehension we may add that this opinion must not be extended to any case, if one should arise, in which it is apparent that Congress is, by some special system of license taxes, seeking to obtain from a Territory of the United States revenue for the benefit of the nation as distinguished from that necessary for the support of the territorial government.
We see no error in the record, and the judgment is
Affirmed.
MR. JUSTICE HARLAN took no part in the decision of this case.


757 F.Supp. 659 (1990)
CENTURY STEEL ERECTORS, INC., Plaintiff,
v.
The AETNA CASUALTY & SURETY COMPANY, Defendant Third-Party Plaintiff,
v.
MAHONING VALLEY RIGGERS & ERECTORS, INC., Third-Party Defendant Fourth-Party Plaintiff,
v.
Tony FILIPPI and Steel Detailing Services, Inc., Fourth-Party Defendants.
Civ. A. No. 89-1027.
United States District Court, W.D. Pennsylvania.
November 29, 1990.
Anthony Cillo and Richard R. Nelson, II, Pittsburgh, Pa., for plaintiffs.
Edward L. Russakoff, Bernard D. Marcus, Pittsburgh, Pa., and Thomas E. Schubert, Warren, Ohio, for defendants.

*660 MEMORANDUM OPINION
LEE, District Judge.
On July 27, 1990, Fourth-Party Defendants, Tony Filippi (Filippi) and Steel Detailing Services, Inc. (SDS) filed a motion to sever Mahoning Valley Riggers & Erectors, Inc.'s (Mahoning) claim against them and to stay the action, contending that the dispute between the parties is subject to arbitration before the American Arbitration Association.
Mahoning, as subcontractor on the construction of the Common Facilities Building of the University of PittsburghGreensburg Campus, hired and agreed to pay plaintiff, Century Steel Erectors, Inc. (Century) for the erection of the structural steel on the project. Century alleges that it finished the work and additional work as required, but had not been paid in full.
After Mahoning was joined in the action as a Third-Party Defendant, Mahoning filed a Fourth-Party Complaint alleging that Filippi and SDS were responsible for $22,661.67 in backcharges claimed by Century, as a result of Filippi and SDS rendering negligent steel detailing services.
Filippi and SDS have denied liability and assert that the American Arbitration Association has exclusive jurisdiction over Mahoning's claim against them.
The Federal Arbitration Act (Act), 9 U.S.C. § 1 et seq., represents a strong federal policy in favor of arbitration. The Supreme Court recognized and reaffirmed that policy in Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987):
The Arbitration Act thus establishes a "federal policy favoring arbitration," Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983), requiring that we "rigorously enforce agreements to arbitrate." Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 1243, 84 L.Ed.2d 158 (1985).
On a motion to stay a proceeding in favor of arbitration, the first task of the court is to determine whether the parties actually agreed to arbitrate the dispute. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985); Brown v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 664 F.Supp. 969, 971 (E.D.Pa. 1987). This analysis is required because "arbitration is a matter of contract, and a party cannot be forced to arbitrate something which he did not agree to." Hussey Metal Division v. Lectromelt Furnace Division, 471 F.2d 556, 557 (3d Cir.1972).
Therefore, before Mahoning can be ordered to arbitrate and be deprived of its day in court, there should be an express, unequivocal agreement to that effect.[1] Filippi and SDS contend that during negotiations with Mahoning, they submitted to Mahoning a copy of the National Institute of Steel Detailing policy (Policy) with regard to "Backcharging." Such Policy contains a written arbitration provision which states:
Any dispute between the independent detailing firm and its customers with regard to the justification or amount of backcharges shall be resolved by arbitration before the American Arbitration Association according to its rules then obtaining.[2]
The affidavit of Tony Filippi, President of SDS, maintains that a copy of such Policy was provided to T.J. Rhattigan (Rhattigan), authorized representative of Mahoning, and that prior to entering into the agreement Filippi indicated to Rhattigan that the Policy would be part of the agreement.
The original proposal from SDS for work performed did not reference in any way, nor did it incorporate, the arbitration of backcharges as contained in the National Institute of Steel Detailing policy. The affidavit submitted by T.J. Rhattigan, who was the operations manager of Mahoning, denies that he was ever given a copy of the *661 Policy regarding the arbitration of backcharges.
Rhattigan further denies that Filippi indicated any intention that the Policy would be a part of the agreement. Following SDS's proposal, Mahoning issued a purchase order to SDS which contained all the terms and conditions of the agreement. The purchase order makes no reference to the arbitration of backcharges nor the incorporation of the National Institute of Steel Detailing policy.
The Federal Arbitration Act provides that a court shall direct the parties to proceed to arbitration "upon being satisfied that the making of the agreement for arbitration ... is not in issue." 9 U.S.C. § 4; Par-Knit Mills v. Stockbridge Fabrics, 636 F.2d 51 (3d Cir.1980). If there is doubt as to whether an express, unequivocal agreement to arbitrate exists, the matter, upon a proper and timely demand, should be submitted to a jury. Only when there is no genuine issue of fact concerning the formation of the agreement should the court decide as a matter of law that the parties did or did not enter into such an agreement. Par-Knit Mills v. Stockbridge Fabrics, 636 F.2d at 54.
When considering a motion to compel arbitration which is opposed on the ground that no agreement to arbitrate had been made between the parties, the district court should give to the opposing party the benefit of all reasonable doubts and inferences that may arise. Id.
The absence of an express indication by Mahoning that it had agreed to arbitrate matters regarding backcharges prohibits this court from compelling arbitration. The motion of Filippi and SDS to sever and to stay the claim pending arbitration shall be denied.
NOTES
[1]  The Arbitration Act, 9 U.S.C. § 2, requires that an agreement to arbitrate be in writing if it is to be enforceable.
[2]  See Exhibit "A" of Answer and Counterclaim of Fourth-Party Defendant.