390 F.3d 1129
Nune MAMOUZIAN, Petitioner,v.John ASHCROFT, Attorney General, Respondent.
No. 03-71469.
United States Court of Appeals, Ninth Circuit.
Submitted September 2, 2004.*
Filed December 9, 2004.

COPYRIGHT MATERIAL OMITTED Asbet A. Issakhanian, Glendale, CA, for the petitioner.
Peter D. Keisler, Terri J. Scadron, and Leslie McKay, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Aub-fhg-lsz.
Before REINHARDT, WARDLAW, and PAEZ, Circuit Judges.
REINHARDT, Circuit Judge.

1
Nune Mamouzian, a native and citizen of Armenia, petitions for review of a decision of the Board of Immigration Appeals ("BIA"). The BIA affirmed without opinion the Immigration Judge's ("IJ") denial of her applications for political asylum, withholding of deportation, and protection under the Convention Against Torture ("CAT"). We have jurisdiction over her petition for review pursuant to 8 U.S.C. § 1252. We conclude that the IJ erred in determining that Mamouzian has not established a well-founded fear of future persecution on account of political opinion. Therefore, we grant Mamouzian's petition for review and remand.

I.

2
Mamouzian testified to the following at her asylum hearing before the IJ: She worked as an electrical engineer for a state-owned factory from 1989 through the fall of 1995. In September of 1995, the director of the factory, a member of the ruling "HeHeShe" party,1 asked Mamouzian to help sell the factory's machinery to governments in Iran, Libya, and North Korea. After assisting in a couple of transactions over the course of three months, she told the factory director that she opposed the dismantling of the factory despite the profits such sales would bring to the government because she "did not want the factory to ... stay jobless." The director became very angry with her and called the police. After arresting Mamouzian, the police hit and kicked her until she lost consciousness. She was detained for one week and released only after her family paid a fine. After the arrest, Mamouzian was fired from the factory and was subsequently unable to find another job.

3
Approximately one year later, Mamouzian participated in a massive anti-government rally, demanding the resignation of the ruling HeHeShe party officials. She and other demonstrators who were holding banners in the front row of the crowd were attacked and arrested by the police. At the police station, Mamouzian explained why she opposed the HeHeShe party, at which point the officers beat her for about twenty minutes. The next day, she was taken to court, where she testified regarding her opposition to the HeHeShe party's policies, including the policy of dismantling and selling off government factories, and her disgust with political corruption. According to Mamouzian, the judge became so upset by her testimony that he accused her of being "an anti-government person" and forbade her to leave the country for two years. Again, the authorities released her only after her family paid a fine.

4
After Mamouzian's court appearance, government personnel began to follow her and, on several occasions, threatened her life. On June 5, 1997, two government officials searched Mamouzian's home and found articles that she had authored criticizing the ruling party and protesting government corruption. Then, "[t]hey started slapping me on my face and kicked me. I fell down and they said `we catch you with something similar again, we will jail you.'" Fearing for her safety, Mamouzian fled Armenia for Moscow. In Moscow, she worked with a smuggler (whom she referred to as a "mediator"), to get a visa to Mexico; from Mexico she entered the United States.

5
In an oral decision issued in September 1999, an IJ denied Mamouzian's applications for asylum, withholding of deportation, and protection under CAT. He concluded that Mamouzian's experiences did not rise to the level of persecution and were not on account of her political opinion. According to the IJ, opposition to "corruption is not a ground[ ] for a grant of asylum in the United States." Furthermore, the IJ concluded that Mamouzian's ability to leave the country using her own passport undermined her claim that she had a well-founded fear of persecution by Armenian authorities, and he found that her fear was not objectively reasonable in light of the conditions in Armenia. Finally, he concluded that she would not be eligible for asylum as a matter of discretion, even if she were statutorily eligible, because she had used fraudulent documents to enter the United States and had failed to seek asylum in Russia or Mexico. In addition, the IJ denied Mamouzian's CAT claim, asserting that she indicated "nothing more than a gentle description of an alleged beating and mistreatment."

6
On March 17, 2003, one member of the Board affirmed the decision of the IJ without opinion. This petition for review followed.

II.

7
Where, as here, the BIA affirms the IJ's decision without opinion, we review the IJ's decision. Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). We must uphold the decision if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (citation omitted). We reverse if a reasonable factfinder would be compelled to conclude that the requisite persecution or fear has been shown. Id. at 483-84, 112 S.Ct. 812; Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998).

8
To establish eligibility for asylum, Mamouzian must prove that she is unable or unwilling to return to her home country because of a well-founded fear of future persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion...." 8 U.S.C. § 1101(a)(42)(A); see INS v. Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). "A well-founded fear of future persecution may be established by proving either past persecution or `good reason' to fear `future persecution.'" Navas v. INS, 217 F.3d 646, 654 (9th Cir.2000) (citation omitted).

9
According to the IJ, the physical abuse Mamouzian suffered was too "gentle" to rise to the level of persecution. The government on appeal similarly argues that the "physical abuse" was "mild." Yet Mamouzian testified that she was beaten by government officials on three occasions, on two of which she was also kicked. One of the beatings and kickings caused her to lose consciousness for some period. She further testified that she was jailed twice in retaliation for her political expression, and that her life was threatened by government authorities on other occasions as well. Because the IJ made no express adverse credibility determination, we accept this testimony as true. See Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000).2

10
We have consistently found persecution where, as here, the petitioner was physically harmed. Duarte de Guinac v. INS, 179 F.3d 1156, 1161 (9th Cir.1999). Where such harm was inflicted on more than one occasion over a period of years, and where the physical abuse was combined with other incidents, such as detention and threats, "the harm is severe enough that no reasonable fact-finder could conclude that it did not rise to the level of persecution...." Chand v. INS, 222 F.3d 1066, 1074 (9th Cir.2000); see also Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.1998) (cumulative effect of several instances of violence and harassment compel finding of past persecution).3 Indeed, we have held that death threats alone can compel a finding of past persecution, especially when those threats occur in conjunction with detention, attacks, or even close confrontations. See, e.g., Ruano v. Ashcroft, 301 F.3d 1155, 1159-60 (9th Cir.2002); Salazar-Paucar v. INS, 281 F.3d 1069, 1074-75 (9th Cir.2002); Reyes-Guerrero v. INS, 192 F.3d 1241, 1245-46 (9th Cir.1999); Leiva-Montalvo v. INS, 173 F.3d 749, 751 (9th Cir.1999). Thus, there is no doubt that Mamouzian has made a sufficient showing of persecution. We hold that any reasonable fact-finder would be compelled to conclude that the repeated beatings, arrests, and threats suffered by Mamouzian constitute persecution within the meaning of the asylum statute; the IJ erred in dismissing her experiences as "gentle" beatings.

11
The IJ also erred in concluding that the persecution was not on account of political opinion. The second and third attacks were unquestionably in retaliation for Mamouzian's political expression: She was arrested and beaten for participating in an anti-government rally, and was threatened and beaten as a result of articles she wrote in which she voiced opposition to corruption in the ruling party. In addition, the first attack, which occurred after Mamouzian voiced her opposition to the sale of state-owned factory equipment, was also at least in part "on account of" political opinion. Mamouzian expressed opposition to the economic policies of the ruling HeHeShe party as implemented in the state-run factory. The consequence was her arrest, beating, and detention. That Mamouzian's supervisor might also have been motivated by personal dislike, as the government contends, does not undermine Mamouzian's claim of persecution. An applicant need only produce evidence from which it is reasonable to believe that the harm was motivated, at least in part, by an actual or implied protected ground. Borja v. INS, 175 F.3d 732, 736 (9th Cir.1999) (en banc); see also Agbuya v. INS, 241 F.3d 1224, 1228 (9th Cir.2001).

12
The IJ's conclusion that persecution resulting from opposition to government corruption cannot form the basis for an asylum claim is without support. Indeed, we have repeatedly held that retaliation against an individual who opposes government corruption can constitute persecution on account of political opinion. See Hasan v. Ashcroft, 380 F.3d 1114, 1120-21 (9th Cir.2004); Njuguna v. Ashcroft, 374 F.3d 765, 770-71 (9th Cir.2004); Grava v. INS, 205 F.3d 1177, 1181 (9th Cir.2000). The "salient question" is whether the petitioner's opposition to corruption was "directed toward a governing institution, or only against individuals whose corruption was aberrational." Grava, 205 F.3d at 1181. "When the alleged corruption is inextricably intertwined with governmental operation," opposition to "such an abuse of public trust is necessarily political." Id. In this case, Mamouzian's acts of protest were directed toward the policies and practices of the governing party, and not against "aberrational" corrupt practices of a single individual. Thus, the IJ's conclusion that Mamouzian's persecution was not on account of political opinion is clearly at odds with the record and with circuit law.

13
In sum, Mamouzian has demonstrated that her experiences rose to the level of persecution, that the persecution was on account of political opinion, and that it was perpetrated by government officials. Accordingly, the record compels a conclusion that she suffered past persecution. See Chand, 222 F.3d at 1073.

III.

14
Once a petitioner demonstrates past persecution, she is entitled to a presumption of a well-founded fear of future persecution. See Korablina v. INS, 158 F.3d 1038, 1043 (9th Cir.1998). The government must then rebut that presumption by demonstrating by a preponderance of the evidence that country conditions have changed or that relocation is possible, so that the petitioner no longer has a well-founded fear that she would be persecuted if she were to return. See 8 C.F.R. § 208.13(b)(1). Here, the IJ did not apply the presumption and therefore did not consider whether the government met its rebuttal burden. In such cases, we sometimes remand for the agency to resolve the question of changed conditions in the first instance. See INS v. Ventura, 537 U.S. 12, 14, 17-18, 123 S.Ct. 353, 154 L.Ed.2d 272(2002) (per curiam); Lopez v. Ashcroft, 366 F.3d 799, 806-07 (9th Cir.2004). Under some circumstances, however, such as where the government has made no arguments before the IJ or the BIA concerning changed conditions, we do not remand. See Baballah v. Ashcroft, 367 F.3d 1067, 1078 n. 11 (9th Cir.2004); Ndom v. Ashcroft, 384 F.3d 743, 756 (9th Cir.2004). Here, we need not decide whether remand for an analysis of changed conditions would be necessary because we conclude that Mamouzian has demonstrated a well-founded fear of future persecution independent of any finding of past persecution and independent of the consequent presumption that such fear exists.

15
After deciding that Mamouzian had not demonstrated past persecution, the IJ went on to consider whether, even so, she had an objectively well-founded fear of future persecution. He concluded that she had not met her burden in that regard. Because the agency made a full and reasoned determination on the question of well-founded fear, we do not remand for further consideration. Instead, we review the decision to determine whether it was supported by substantial evidence. See Khup v. Ashcroft, 376 F.3d 898, 904 (9th Cir.2004) (declining to remand for an analysis of changed country conditions because applicant established a well-founded fear without the benefit of the presumption).

16
In order to qualify for asylum on the basis of a fear of future persecution, Mamouzian's fear "must be both subjectively [genuine] and objectively reasonable." Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003) (alteration in original) (internal citations and quotation marks omitted). "The reasonableness of the fear must be determined in the political, social and cultural milieu of the place where the petitioner lived[,] and even a ten percent chance of persecution may establish a well-founded fear." Khup, 376 F.3d at 904 (alteration in original) (internal citations and quotation marks omitted); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001).

17
The government argues that Mamouzian has waived her opportunity to challenge the IJ's decision regarding her fear of future persecution by failing to properly brief the issue. Mamouzian's brief may not be perfectly written, but it is not difficult to discern the point she is trying to make. The brief discusses the grounds upon which a grant of asylum can be made, explains that the basis for Mamouzian's fear is her political opinion, and argues that she "is more than likely to suffer future persecution should [she] return to Armenia." We will not ignore the ultimate objective of Mamouzian's appeal — to demonstrate that she has a well-founded fear of future persecution — by parsing her brief's language in a hyper technical manner. Just as deportation statutes must be construed in favor of the alien because deportation is a "harsh measure ... all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country," Cardoza-Fonseca, 480 U.S. at 449, 107 S.Ct. 1207; see also INS v. St. Cyr, 533 U.S. 289, 320, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Kwai Fun Wong v. United States, 373 F.3d 952, 962 (9th Cir.2004), the briefs of aliens seeking refugee status must be reviewed with lenity and any ambiguities must be resolved in their favor. See Ndom, 384 F.3d at 750-51 (construing an "inartful" brief in petitioner's favor). Thus, Mamouzian's brief is sufficient to raise a claim of a well-founded fear of future persecution.4

18
We also reject the government's alternative argument, that Mamouzian's fear of political persecution is neither subjectively genuine nor objectively reasonable. In general, an alien satisfies the subjective component of the well-founded fear test by testifying credibly about his fear of future persecution. See Korablina, 158 F.3d at 1044. The government contends that this case is different, because while Mamouzian testified that she fears punishment on account of violating the court order that prohibited her from leaving the country, she does not genuinely fear persecution on account of political opinion. In light of the circumstances surrounding the imposition of the court order, this argument makes little sense. Mamouzian was arrested, brought to court, and prohibited from leaving the country because she engaged in anti-government political expression. Any punishment that occurs as a result of the court proceedings and order necessarily constitutes punishment on account of political opinion.5

19
The record also compels the conclusion that Mamouzian's fear of future persecution is objectively reasonable. Government authorities threatened that she would be jailed, and even possibly killed, if she continued to speak out against corruption in the ruling party. Specific threats can give rise to a well-founded fear of future persecution, even when a petitioner has not suffered past persecution. See, e.g., Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000); Mgoian v. INS, 184 F.3d 1029 (9th Cir.1999) (holding that an Armenian woman who was threatened and harassed, but never physically harmed, had a well founded fear of future persecution). Mamouzian had already endured arrests, beatings, and detention on account of her political expression. In light of these experiences, a reasonable fact-finder would be compelled to conclude that her fear of future persecution was objectively reasonable.6 Contrary to the IJ's assertion, Mamouzian's successful evasion of government authorities and flight from Armenia does not make her fear any less objectively reasonable. A petitioner's ability to escape her persecutors does not undermine her claim of a well-founded fear of future persecution, even when she succeeds in obtaining government documents that permit her to depart. See Khup, 376 F.3d at 905 (rejecting argument that petitioner's ability to procure a passport belied his claim of persecution because "there [wa]s no evidence in the record on which to conclude that the ability to renew a passport signifies that a person does not have a genuine fear of future persecution"); Hoxha, 319 F.3d at 1184 ("[T]he fact that Hoxha received a passport does not alter our conclusion that Hoxha has presented evidence that compels a finding that he entertains a well-founded fear of persecution.").

20
Notwithstanding Mamouzian's testimony, the IJ rejected her claim of a well-founded fear on the grounds that freedom of assembly and political opinion are formally guaranteed by the Armenian constitution, that "political intimidation has remained, for the most part, episodic, rather than systemic," and that "[t]here were no reports of political killings" or "politically motivated disappearances." In so doing, the IJ impermissibly "extrapolat[ed] specific findings regarding an applicant from general information about country conditions reflected in State Department reports," Hoque v. Ashcroft, 367 F.3d 1190, 1197-98 (9th Cir.2004), while simultaneously mischaracterizing the conclusions of the reports. Contrary to the IJ's assertions, the country reports in the record actually bolster Mamouzian's testimony by depicting a country rife with political corruption and police abuse. According to the reports, there have been widespread irregularities in elections, making peaceful political change difficult. See U.S. Dept. of State, Armenia Country Report on Human Rights Practices for 1996 at 1; U.S. Dept. of State, Armenia Country Report on Human Rights Practices for 1998 at 2. Arbitrary arrests and detentions without warrants are common and "[m]embers of the security forces routinely beat detainees during arrest and interrogation." 1998 Country Report at 2. The judicial system is not independent and prison conditions are poor. Id. at 4. In short, the evidence of country conditions contained in the record demonstrates that the beatings, detention, and threats Mamouzian experienced are not atypical or unusual in Armenia. Consequently, the record compels the conclusion that her fear of future persecution is objectively reasonable.

IV.

21
Because Mamouzian is statutorily eligible for asylum, the Attorney General must determine whether she is entitled to asylum as a matter of discretion. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004). It is not clear from the IJ's decision whether he has already made a negative discretionary determination, or whether he simply noted that if Mamouzian had been statutorily eligible, her failure to apply for asylum in Russia and her unlawful entrance into the United States might have resulted in a negative ruling. Because the government asserts that the IJ did make such a determination, we will discuss that part of his decision briefly.

22
Assuming the ruling included a discretionary determination, that part of the IJ's decision must also be reversed. First, the IJ abused his discretion in failing to balance all of the factors in favor of a discretionary grant against the factors that he identified as negative. See id. at 1139, 1140 & n. 6 (explaining that discretionary denials must show that the agency considered and weighed positive factors as well as negative factors). Instead, the IJ based his discretionary decision on his erroneous rejection of Mamouzian's underlying persecution claim. That is, his faulty determination that Mamouzian was not eligible for asylum impermissibly colored his discussion of whether or not she was entitled to asylum. As a result, he failed to acknowledge and consider the past harm and future danger that qualified Mamouzian for refugee status.

23
Second, in determining that Mamouzian's stay in Russia should weigh against her for the purposes of his discretionary determination, the IJ relied on Matter of Pula, 19 I & N Dec. 467 (BIA 1987), a case that had already been superceded in relevant part by a new regulation. See Andriasian v. INS, 180 F.3d 1033, 1043-44 (9th Cir.1999). Stays in third countries are now governed by 8 C.F.R. § 208.15, which specifies how and when an opportunity to reside in a third country justifies a denial of asylum.7 Indeed, the government implicitly concedes that because of the reliance on Matter of Pula, the IJ's discretionary determination cannot stand.

24
Finally, the way in which Mamouzian entered this country is worth little if any weight in the balancing of positive and negative factors. We have recognized that, in order to secure entry to the United States and to escape their persecutors, genuine refugees may lie to immigration officials and use false documentation. See Akinmade v. INS, 196 F.3d 951, 955 (9th Cir.1999). When a petitioner who fears deportation to his country of origin uses false documentation or makes false statements in order to gain entry to a safe haven, that deception "does not detract from but supports his claim of fear of persecution." Id. (quoting Turcios v. INS, 821 F.2d 1396, 1400-01 (9th Cir.1987)). Accordingly, it would be anomalous for an asylum seeker's means of entry to render her ineligible for a favorable exercise of discretion.

25
We remand so that the Attorney General may consider whether to exercise his discretion in light of our holding that Mamouzian suffered past persecution on account of political opinion and that she has a well-founded fear of future persecution.

V.

26
While asylum is discretionary, a petitioner is entitled to withholding of removal "if the evidence demonstrates a clear probability that the applicant would be persecuted were he to be deported to his home country." Gui v. INS, 280 F.3d 1217, 1230 (9th Cir.2002) (internal quotation marks and citation omitted). If a petitioner meets this high standard, the Attorney General must grant withholding under 8 U.S.C. § 1231(b)(3). Although Mamouzian has demonstrated that she has a reasonable fear of future persecution, we cannot conclude that the record compels a finding that it is more likely than not that Mamouzian will be persecuted upon return.

27
Likewise, the record does not compel the conclusion that it is more likely than not that Mamouzian will be tortured upon return to Armenia. Therefore, we affirm the IJ's denial of her petition for protection under CAT. See 8 C.F.R. § 208.16(c) (2002).

VI.

28
For the foregoing reasons, we grant the petition for review and find Mamouzian statutorily eligible for asylum. We remand solely for an exercise of statutory discretion. However, we affirm the IJ's decision that Mamouzian does not meet the criteria for withholding of removal and protection under CAT and deny the petition as to those forms of relief.

29
GRANTED in part; REMANDED in part; DENIED in part.

Notes:

*
 This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2)

1
 While the transcript refers to the ruling party as "Herhersher," Mamouzian's asylum application and the State Department Reports refer to it as "HeHeShe" or the Armenian National Movement ("ANM"). We will use "HeHeShe."

2
 On appeal, the government does not assert that the IJ made any adverse credibility determination, nor does it contend that Mamouzian's testimony should be discredited. We take the government's case as it is presented to us
In any event, even if the IJ's adverse comments were treated as an adverse credibility determination, such determination would not be supported by substantial evidence and therefore would require reversal. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). The IJ provided no "legitimate articulable basis to question the petitioner's credibility," nor did he offer a "specific, cogent reason" for his disbelief, as required by our precedent. See Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000) (internal citations and quotation marks omitted). Instead, his comments were based on "impermissible speculation and conjecture" about what "[government] authorities would or would not do under certain circumstances." Ge v. Ashcroft, 367 F.3d 1121, 1124-25 (9th Cir.2004); see also Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000).

3
 The government points toPrasad v. INS, 47 F.3d 336, 339 (9th Cir.1995), for the proposition that beatings on account of political activity do not rise to the level of past persecution. However, as we pointed out in Chand,"the beating at issue [in Prasad] was a single, non-serious incident," that occurred in the immediate aftermath of a coup, and "no one in Fiji had any `continuing interest' in persecuting Prasad beyond that one event." Chand, 222 F.3d at 1075. Here, Mamouzian was not only detained twice, and beaten on three occasions, but the government continued to engage in surveillance and threats even after her release from her second detention.

4
 Even if Mamouzian had not sufficiently raised the claim of future persecution, we retain discretion to decide the merits of her claim "`because the government briefed it, and thus suffers no prejudice from [the petitioner's] failure to properly raise the issue.'"Ndom, 384 F.3d at 751 (quoting Singh v. Ashcroft, 361 F.3d 1152, 1157 n. 3 (9th Cir.2004)). Furthermore, we may review an issue not presented in an opening brief if a failure to do so would result in a manifest injustice. Koerner v. Grigas, 328 F.3d 1039, 1048-49 (9th Cir.2003).

5
 Furthermore, we have held that an alien qualifies for asylum if she can demonstrate that she would be subject to severe penalties for her illegal departure or unauthorized stay abroad and that she left or has remained abroad on account of race, religion, nationality, membership in a social group, or political opinionRodriguez-Roman v. INS, 98 F.3d 416, 429 (9th Cir.1996).

6
 Were Mamouzian to refrain from political protest in the future, she very well might be able to escape future persecution. However, just as we do not require a petitioner to convert to a government-supported religion in order to avoid persecution, we do not require renunciation of anti-government political beliefs

7
 Mamouzian testified that she stayed in Russia only long enough to arrange travel to the United States and that she was unable to obtain legal status in Russia. She pointed to documentary evidence indicating that popular opposition to the resettlement of Armenians was widespread, resulting in harassment, discrimination, and violence against Armenian refugees. Thus, Mamouzian was not "firmly resettled" in Russia within the meaning of 8 C.F.R. § 208.15, and she remains eligible for asylum in the United States. The government does not contend otherwise


Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
                                                                     Sep 19 2013, 5:41 am
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

ELLEN F. HURLEY                                  GREGORY F. ZOELLER
Marion County Public Defender                    Attorney General of Indiana

                                                 CYNTHIA L. PLOUGHE
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana

                               IN THE
                     COURT OF APPEALS OF INDIANA

GREGORY ALLEN,                                   )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )    No. 49A02-1303-CR-221
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )

                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Steven Eichholtz, Judge
                            Cause No. 49G20-1202-FA-11548

                                     September 19, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                         Case Summary

          Gregory Allen appeals his sentence for Class A felony dealing in cocaine. We

affirm.

                                               Issue

          Allen raises one issue, which we restate as whether his sentence is inappropriate in

light of the nature of the offense and the character of the offender.

                                              Facts

          On February 20, 2012, Allen sold cocaine to a confidential informant. On the

same day, a detective conducted a traffic stop of a vehicle in which Allen was a

passenger. Allen had 135.98 grams of cocaine in his jacket pocket. The State charged

Allen with two counts of Class A felony dealing in cocaine and one count of Class C

felony possession of cocaine. Allen pled guilty to one count of Class A felony dealing in

cocaine. At the sentencing hearing, the trial court found Allen’s criminal history to be an

aggravating factor and found no mitigating factors. The trial court sentenced Allen to

thirty-five years in the Department of Correction. Allen now appeals.

                                             Analysis

          Allen argues that his thirty-five-year sentence is inappropriate in light of the nature

of the offense and the character of the offender. He requests that we revise his sentence

to the advisory sentence of thirty years with a portion of the sentence suspended to

probation.      Indiana Appellate Rule 7(B) provides that we may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, we find that

the sentence is inappropriate in light of the nature of the offense and the character of the

                                                 2
offender.     When considering whether a sentence is inappropriate, we need not be

“extremely” deferential to a trial court’s sentencing decision. Rutherford v. State, 866

N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must give due consideration to that

decision. Id. We also understand and recognize the unique perspective a trial court

brings to its sentencing decisions. Id. Under this rule, the burden is on the defendant to

persuade the appellate court that his or her sentence is inappropriate. Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006).

         The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. When reviewing the

appropriateness of a sentence under Rule 7(B), we may consider all aspects of the penal

consequences imposed by the trial court in sentencing the defendant, including whether a

portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind.

2010).

         The nature of the offense is that, only two weeks after he was released on parole

for a conspiracy to commit dealing in cocaine conviction, Allen sold cocaine to a

confidential informant. When he was stopped by police in a traffic stop, Allen had

135.98 grams of cocaine in his jacket pocket. We note that the offense of Class A felony

dealing in cocaine requires the possession of only “three (3) grams or more,” and Allen

                                              3
had significantly more cocaine than three grams. Ind. Code § 35-48-4-1(b)(1). Allen

argues that he pled guilty, but he did not do so until shortly before the trial and the

evidence against him was overwhelming.

       As for Allen’s character, he has a significant criminal record, and the trial court

appropriately described him as a “career criminal.” Tr. p. 45. As a juvenile, Allen was

adjudicated delinquent for committing acts that would be auto theft, burglary, and

conversion if committed by an adult. As an adult, Allen has felony convictions for Class

B felony robbery, three convictions for Class D felony possession of cocaine, Class D

felony resisting law enforcement, and Class A felony conspiracy to commit dealing in

cocaine. Allen also has multiple misdemeanor convictions, was found to be an habitual

substance offender, violated his probation twice, and violated his parole with the instant

offense. Allen is also $66,000 behind on child support payments for his four children.

       We cannot agree with Allen’s argument that his sentence should be reduced

because his offense was between two willing participants, involved a confidential

informant, and did not involve weapons or violence. Given Allen’s substantial criminal

history, the large amount of cocaine that he had in his possession, and his recent parole,

we cannot say that the thirty-five-year sentence is inappropriate in light of the nature of

the offense and the character of the offender.

                                        Conclusion

       Allen’s sentence is not inappropriate in light of the nature of the offense and the

character of the offender. We affirm.

                                             4
      Affirmed.

CRONE, J., and PYLE, J., concur.

                                   5


                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                            No. 09-4764

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RUBEN RUIZ-CHAVEZ,

                Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.      Richard L.
Voorhees, District Judge. (5:08-cr-00027-5)

Submitted:   February 10, 2011            Decided:   March 1, 2011

Before AGEE, DAVIS, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Peter C. Anderson, ANDERSON TERPENING, PLLC, Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Ruben Ruiz-Chavez pleaded guilty, pursuant to a plea

agreement, to one count of conspiracy to possess with intent to

distribute five kilograms or more of cocaine, in violation of 21

U.S.C. §§ 841(b)(1)(A), 846 (2006).               Ruiz-Chavez was sentenced

to   120   months’    imprisonment.          Ruiz-Chavez’s   counsel   filed   a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating his opinion that there are no meritorious issues for

appeal but raising the issue of whether the district court erred

in finding that Ruiz-Chavez did not meet the requirements for

the safety valve reduction.              Ruiz-Chavez was notified of his

right to file a pro se supplemental brief, but has not filed a

brief.     The Government has declined to file a responsive brief.

We affirm.

            A      district    court’s       determination    of   whether     a

defendant has satisfied the safety valve criteria is a question

of fact reviewed for clear error.              United States v. Wilson, 114

F.3d 429, 432 (4th Cir. 1997).                This deferential standard of

review permits reversal only if this court is “‘left with the

definite     and     firm     conviction      that   a   mistake    has   been

committed.’”       United States v. Stevenson, 396 F.3d 538, 542 (4th

Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573

(1985)).

                                         2
            To    qualify        for   the       safety    valve       provision,     the

defendant must establish the existence of five prerequisites.

18 U.S.C. § 3553(f) (2006); USSG § 5C1.2.                       The burden is on the

defendant to prove that all five safety valve requirements have

been met.       United States v. Beltran-Ortiz, 91 F.3d 665, 669 (4th

Cir. 1996).       Our review of the record leads us to conclude that

the district court’s finding that Ruiz-Chavez did not qualify

for the safety valve provision because he was not truthful in

his statement to the Government is not clearly erroneous.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     This court requires that counsel inform Ruiz-Chavez, in

writing,    of    the    right    to   petition      the    Supreme     Court    of   the

United States for further review.                  If Ruiz-Chavez requests that

a petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this court for

leave to withdraw from representation.                      Counsel’s motion must

state that a copy thereof was served on Ruiz-Chavez.

            We dispense with oral argument because the facts and

legal    contentions      are    adequately        presented      in    the    materials

before    the    court    and    argument        would    not    aid   the    decisional

process.

                                                                                AFFIRMED

                                             3


751 F.2d 386
Radford (Jerry D.)v.Jago (Arnold R.), Brown (William J.)
NO. 84-3174
United States Court of Appeals,Sixth Circuit.
NOV 19, 1984
Appeal From:  S.D.Ohio

1
AFFIRMED.


270 N.J. Super. 225 (1994)
636 A.2d 1083
IN THE MATTER OF THE ADOPTION OF A CHILD BY T.W.C. AND P.C.
Superior Court of New Jersey, Appellate Division.
Submitted November 17, 1993.
Decided February 8, 1994.
*227 Before Judges GAULKIN, R.S. COHEN and WALLACE.
MacFall, Riedel & Miskowski, attorneys for appellants T.W.C. and P.C. (James W. Miskowski, on the brief).
*228 Courter, Kobert, Laufer, Purcell & Cohen, attorneys for respondent N.C. (Jane Ellen Doran, on the brief).
The opinion of the court was delivered by GAULKIN, P.J.A.D.
This case presents questions of jurisdiction and choice of law in an interstate private-placement adoption. N.C. (the mother), a New York resident, privately placed her newborn son for adoption by New Jersey residents T.W.C. and P.C. (the Coes, a fictional name). The Coes commenced an adoption proceeding in New Jersey, but the mother gave notice that she revoked her consent to the adoption. The Family Part judge determined that New Jersey had jurisdiction and that New Jersey law applied. The result was that the adoption was denied and the child was returned to the mother. The Coes appeal. We affirm.

I
The mother had been seriously injured in an automobile accident at age 16. When she became pregnant some seven years later, she believed that her disabilities made her unable to parent a child. She sought out a California adoption counsellor who provided profiles of prospective adoptive families, including the Coes. Arrangements for the private placement were made; the mother was represented by New York counsel paid by the Coes.
The child was born July 14, 1992 in a Connecticut hospital. The mother and child left the hospital on July 16 and went with the Coes directly to a restaurant in New York State. The Coes there took custody of the child after the mother executed and acknowledged a document consenting to the anticipated adoption, stating that the identity of the natural father was unknown and reciting that the mother was represented by the named New York attorney. Those matters appeared at the end of a printed form, captioned in the Superior Court of New Jersey but purportedly authorized by a New York statute, Domestic Relations Law § 115-b. The document provided:

*229 This consent may be revoked within 45 days of the execution of this document. If the consent is not revoked within said 45 days, no proceeding may be maintained by the parent(s) for the return of the custody of the child.
The revocation must be in writing and received by the court where the adoption proceeding is to be commenced within 45 days of the execution of the consent. The name and address of the court in which the adoption proceeding has been or is to be commenced is
SUPERIOR COURT OF THE STATE OF NEW JERSEY, COUNTY OF MORRIS, CHANCERY DIVISION, FAMILY PART, ADMINISTRATION & RECORDS BUILDING, MORRISTOWN, NEW JERSEY XXXXX-XXXX
If the adoptive parents contest the revocation, timely notice of revocation will not necessarily result in the return of the child to the parent(s), and the rights of the parent(s) to the custody of the child will not be superior to those of the adoptive parents. A hearing before a judge will be required to determine: (1) whether the notice of revocation was timely and properly given; and, if such notice was timely and properly given and the adoptive parents have contested the revocation, (2) whether the best interests of the child will be served: (A) by returning custody of the child to the parent(s); or (B) by continuing the adoption proceedings commenced by the adoptive parents; or (C) by disposition other than adoption by the adoptive parents; or (D) by placement of the child with an authorized agency. If any such determination is made, the court will make such disposition of the custody of the child as will best serve the interests of the child.
On August 17, 1992, the Coes filed their adoption complaint in the Superior Court of New Jersey, Chancery Division  Family Part, which entered an order fixing a preliminary hearing for October 30 (later adjourned to November 20) and directing notice to be given to the mother. See N.J.S.A. 9:3-48; R. 5:10-4. By letter dated October 1, 32 days after expiration of the 45-day revocation period stated in the consent document, the mother notified the court that she revoked her consent. The Coes responded with a motion to enforce the consent "in accordance with and as required by New York law, and terminating the parental rights of said mother"; alternatively, they requested a hearing "to determine whether the best interests of the child ... will be served by returning custody ... to the birth mother, or by his adoption."
At the same time, the Coes brought an action in New York to terminate the mother's parental rights and to consummate the adoption and also moved in the New Jersey action to dismiss their complaint in favor of the New York proceedings. The mother *230 then filed an answer to the New Jersey adoption complaint, which included demands for a declaration that New Jersey had jurisdiction over the adoption, for a declaration that New Jersey law governed and for an order enjoining the Coes from proceeding in New York.
Following argument on those applications and cross-applications, the Family Part judge entered an order (1) holding that New Jersey had jurisdiction, (2) declaring that "the decisional and statutory law of ... New Jersey shall control disposition of [the lawsuit]," (3) enjoining the Coes from proceeding further in the New York action, (4) denying the Coes' motion to dismiss their complaint, (5) appointing Dr. David M. Brodzinsky, a clinical psychologist, to report "relative to the [mother's] ability to parent the minor child" and (6) scheduling a plenary hearing on all "issues raised." At the conclusion of the plenary hearing, conducted over four days in March 1993, the judge found no adequate basis under New Jersey law to terminate the mother's parental rights. She accordingly entered final judgment dismissing the Coes' complaint with prejudice and returning the child to the mother's custody. The trial court, this court and the Supreme Court all denied the Coes' applications for stay pending appeal.

II
In approaching the jurisdictional questions, we start with the proposition, accepted by the parties, that the New Jersey Adoption Act, N.J.S.A. 9:3-37 to -56, grants our courts subject-matter jurisdiction of adoptions by New Jersey residents, whether the children are received from within or without New Jersey. See N.J.S.A. 9:3-47, -48; In re Adoption by D.F.H., 230 N.J. Super. 445, 553 A.2d 866 (App.Div. 1989). But an interstate placement requires consideration also of the Interstate Compact on Placement of Children (ICPC), N.J.S.A. 9:23-5 to -17, the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52, and the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C.A. § 1738A.
*231 The ICPC is designed to promote the proper placement of children and to provide "[a]ppropriate jurisdictional arrangements for the care of children." N.J.S.A. 9:23-5 (ICPC, art. I). New Jersey and New York are both signatories to the compact. N.Y.Soc.Serv.Law § 374-a (McKinney 1992). An interstate placement is unlawful if it is effected in violation of the ICPC's terms. N.J.S.A. 9:23-5 (ICPC, art. IV). The record here indicates, and the parties do not question, that the New York placement of the child for removal to New Jersey was in full compliance with the compact, on notice to and with the approval of the New York compact administrator. Id. (ICPC, art. III). The ICPC thus presented no obstacle to the Family Part's exercise of jurisdiction under the New Jersey Adoption Act; indeed, N.J.S.A. 9:23-17 specifically directs that the court "shall follow the procedures and implement the requirements as are otherwise contained in law" in its administration of placements subject to the compact.
The UCCJA and the PKPA, however, do impose strictures on the court's exercise of jurisdiction here. The UCCJA, which has also been enacted in New York, see N.Y.Dom.Rel.Law §§ 75-a to 75-z (McKinney 1988), fixes standards and procedures for determining "when a state should exercise original jurisdiction in a custody proceeding, that is, when no state is in the midst of custody proceedings or has made a custody award after such proceedings." Neger v. Neger, 93 N.J. 15, 25, 459 A.2d 628 (1983). The UCCJA term "custody proceeding" has been held "to include a dispute between a natural parent and adoptive parents." E.E.B. v. D.A., 89 N.J. 595, 607, 446 A.2d 871 (1982). Although E.E.B. involved habeas corpus proceedings, its rationale warrants application of the UCCJA in adoption proceedings as well. See, e.g., State ex rel. Torres v. Mason, 315 Or. 386, 848 P.2d 592 (1993); Bernadette W. Hartfield, The Uniform Child Custody Jurisdiction Act and the Problem of Jurisdiction in Interstate Adoption: An Easy Fix.?, 43 Okla.L.Rev. 621 (1990). E.E.B. also implicitly holds, as other courts have held, that the PKPA applies to adoption proceedings. E.E.B., supra, 89 N.J. at 611-12, 446 A.2d 871; Adoption of Zachariah K., 6 Cal. App.4th 1025, 1033, 8 *232 Cal. Rptr.2d 423, 428 (1992); In re B.B.R., 566 A.2d 1032, 1038 (D.C.App. 1989); Rogers v. Platt, 641 F. Supp. 381 (D.D.C. 1986), rev'd on other grounds, 814 F.2d 683 (D.C. Cir.1987); Hartfield, supra, 43 Okla.L.Rev. at 15-16.
As expressed by Justice Schreiber in Neger, the UCCJA requirements are designed to assure that "the litigation invoking original jurisdiction should ordinarily commence in the state with which the child and his family have the closest connection and where significant evidence concerning the welfare of the child is more readily available." Neger, supra, 93 N.J. at 28, 459 A.2d 628. The UCCJA thus grants the Superior Court jurisdiction to make a child custody determination by initial or modification decree if:
(1) This State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
(2) It is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships....
[N.J.S.A. 2A:34-31.]
Those UCCJA jurisdictional provisions are closely similar to, but not precisely the same as, those of the PKPA, which was enacted in 1980 "to establish national standards under which [State] courts ... will determine their jurisdiction to decide [child custody] disputes and the effect to be given by each such jurisdiction to such decisions by the courts of other such jurisdictions." 28 U.S.C.A. § 1738A, Historical and Statutory Notes. The PKPA requires that full faith and credit be given to a child custody determination made consistently with the provisions stated in that statute. 28 U.S.C.A. § 1738A(a). Insofar as here relevant, the statute declares that a child custody determination is consistent with the provisions of the PKPA only if
(1) such court has jurisdiction under the law of such State; and

*233 (2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B)(i) it appears that no other State would have jurisdiction under subparagraph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child's present or future care, protection, training, and personal relationships.
[28 U.S.C.A. § 1738A(c).]
Thus, while the UCCJA permits jurisdiction to be exercised by the "home state" or a state having a "significant connection" with the child or one of the contestants, N.J.S.A. 2A:34-31, the PKPA allows "significant connection" jurisdiction only if no state qualifies as the home state. 28 U.S.C.A. § 1738A(c)(2)(B); E.E.B., supra, 89 N.J. at 649, 446 A.2d 871; see generally Anne B. Goldstein, The Tragedy of the Interstate Child: A Critical Reexamination of the Uniform Child Custody Jurisdiction Act and the Parental Kidnapping Prevention Act, 25 U.C.Davis L.Rev. 845 (1992). The jurisdictional requirements of the PKPA, of course, preempt those of the UCCJA if the acts are in conflict. See, e.g., Shute v. Shute, 158 Vt. 242, 607 A.2d 890 (1992); Enslein v. Enslein, 112 A.D.2d 973, 492 N.Y.S.2d 785 (1985).
The question, then, is whether the Family Part's exercise of jurisdiction here was consistent with the UCCJA and the PKPA. We find that the court did indeed have jurisdiction, but not for the reasons found by the trial judge.
The judge found that New Jersey was the child's "home state" as that term is defined in both the UCCJA and the PKPA:
(4) "home State" means the State in which, immediately preceding the time involved, the child lived with his parents, a parent or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period.
[28 U.S.C.A. § 1738A(b)(4).]
*234 See also N.J.S.A. 2A:34-30e (stating the same definition with minor differences in form).
Under that definition, New Jersey cannot be regarded as the child's "home state." The child had not lived in New Jersey "for at least six consecutive months" at the commencement of the proceeding. Nor had the child lived in New Jersey "from birth," for he was born in Connecticut to a New York mother and did not come to New Jersey until he was two days old. The mother's confinement in the Connecticut hospital might be regarded as the child's "temporary absence" from New York, but only upon his removal from New York two days after birth could the child be regarded as living in New Jersey.
Those courts that have applied the PKPA and the UCCJA in similar settings have reached like conclusions. In Adoption of Zachariah K., 6 Cal. App.4th 1025, 8 Cal. Rptr.2d 423 (1992), the mother gave birth to the child in California and immediately placed him with an Oregon couple, who shortly filed for adoption in Oregon. In finding that California did not have jurisdiction to entertain the mother's later action to revoke her consent, the California Court of Appeals held:
[The child] was brought to Oregon shortly after his birth. Since he neither lived with his parents in California for six months immediately preceding the time involved, nor lived with appellants in Oregon from birth, he has no "home state."
[Id. 6 Cal. App.4th at 1036, 8 Cal. Rptr.2d at 430.]
Similarly, in In re B.B.R., 566 A.2d 1032 (D.C.App. 1989), the child had been born in California but resided since he was two days old in the District of Columbia. In holding that the District did not have jurisdiction to grant an adoption, the Court of Appeals found that
[t]he child did not "live from birth" in the District. He lived in the District only from two days after birth. Hence, the District of Columbia cannot be seen as the "home State."
[Id. at 1038.]
*235 Responding to the adoptive parents' contention that the District of Columbia was "functionally" the child's "home state," the court added:
The purpose of the [PKPA], however, is to establish clear guidelines for determination of jurisdiction and it is not illogical to think that the drafters had in mind only a situation where the child was born and continued to live in the state of birth up until the relevant events occurred.
[Ibid. n. 16.]
See also Martinez v. Reed, 623 F. Supp. 1050 (E.D.La. 1985) (holding that Alabama "could not be classified as the home state" of a two-month old child born in Louisiana and immediately placed in the custody of an Alabama couple for adoption).
That reading of the statute leads to the conclusion that the child here had no "home state" at the time of the filing of the complaint. That is not troublesome. See Zachariah K., supra, 6 Cal. App.4th at 1036, 8 Cal. Rptr.2d at 430 (child who "neither lived with his parents in California for six months immediately preceding the time involved, nor lived with appellants in Oregon from birth ... has no `home state'"). The PKPA specifically contemplates that possibility, providing "significant connection" jurisdiction where "no other State would have jurisdiction" as a "home state." 28 U.S.C.A. § 1738A(c)(2)(B)(i); see Neger, supra, 93 N.J. at 36, 459 A.2d 628 ("significant-connection" jurisdiction is available "[i]f no state qualifies as the home state").
Notwithstanding the trial judge's mistaken view that New Jersey was the child's "home state," we are satisfied that the Family Part had "significant connection" jurisdiction under the PKPA, 28 U.S.C.A. § 1738A(c)(2)(B), and the UCCJA, N.J.S.A. 2A:34-31a(2). The child was placed in the custody of New Jersey residents in anticipation that he would be adopted and reside in New Jersey. The child lived in New Jersey at all times from two days of age. The placement in New Jersey was consented to by the mother and reviewed and approved by the New York ICPC administrator. The mother and the Coes agreed that the adoption action would proceed in the New Jersey court. No objection to the New Jersey venue was raised by the mother, the only New *236 York party to the action. At the time the complaint was filed, the child's present and future "care, protection, training and personal relationships" were thus all New Jersey-connected and the evidence bearing on those matters was available in New Jersey; the conclusion is inescapable that, since the child had no "home state," the New Jersey court was authorized to assume original jurisdiction of the adoption proceeding. 28 U.S.C.A. § 1738A(c)(2)(B); N.J.S.A. 2A:34-31a(2); see Zachariah K., 6 Cal. App.4th at 1036, 8 Cal. Rptr.2d at 430.
We recognize that New York might also be regarded as having sufficient connection with the mother and the child to support its own original jurisdiction. See, e.g., B.B.R., supra, 566 A.2d at 1038-39; In re Adoption of C.L.W., 467 So.2d 1106, 1110 (Fla.App. 1985). But neither the UCCJA nor the PKPA requires that one state's "substantial contacts" be weighed against another state's "substantial contacts" in order to entrust a single state with jurisdiction. See B.B.R., supra, 566 A.2d at 1039 n. 23. More than one state may have connections sufficient to support original jurisdiction; the PKPA specifically contemplates that possibility, prohibiting a state from exercising jurisdiction where another state "is exercising jurisdiction consistently with the provisions [of the PKPA]." 28 U.S.C.A. § 1738A(g).
Although the New Jersey court thus was authorized both by the UCCJA and the PKPA to exercise original jurisdiction, it had discretion to decline jurisdiction if it found another state to be a more appropriate forum. N.J.S.A. 2A:34-31a(4), -35; 28 U.S.C.A. § 1738A(c)(2)(D); see E.E.B., supra, 89 N.J. at 610-12, 446 A.2d 871. The Coes' motion to dismiss the New Jersey complaint after they had filed their New York complaint was essentially a request for such relief. The denial of that application cannot be regarded as an abuse of discretion. There was no certainty that the New York court would find sufficient contacts to support New York jurisdiction. New Jersey, on the other hand, had a substantial interest in the adoption and ample justification to take and retain jurisdiction. New Jersey's interest would not *237 have evaporated if New York had assumed jurisdiction, for the many and significant New Jersey connections would have endured even if New York handled the litigation. The New York court was not shown to have been in any better position to address and resolve the issues. The only apparent reason for deferring to New York would have been to provide a forum which might apply a different body of substantive law in resolving the issues. The Family Part was not required to participate in that kind of forum-shopping.

III
The choice-of-law issue arises from the consent to adoption executed by the mother. New York law provides that an extra-judicial consent to a private-placement adoption "shall become irrevocable forty-five days after the execution of the consent unless written notice of revocation is received by the court ... within said forty-five days." N.Y.Dom.Rel.Law, § 115-b(3)(a) (McKinney 1988). Further, even if notice of revocation is received within that time, the court may grant the adoption if it finds that "the best interests of the child will be served." Id. § 115-b(6)(d)(iii); see also id. § 115-b(3)(b).
New Jersey law is significantly different. Under our law, parents who have privately placed a child for adoption "shall have the right to object to the adoption," N.J.S.A. 9:3-46a, "unless and until there is a judicial determination that they have forsaken their parental obligations." In re Adoption of a Child of Indian Heritage, 111 N.J. 155, 183, 543 A.2d 925 (1988) (citing Sees v. Baber, 74 N.J. 201, 210, 377 A.2d 628 (1977)). If objection is made "by personal appearance or by letter," no adoption shall be ordered "unless the court finds that such parent has substantially failed to perform the regular and expected parental functions of care and support of the child, which shall include maintenance of an emotional relationship with the child." N.J.S.A. 9:3-46a; see also A.L. v. P.A., 213 N.J. Super. 391, 396-97, 517 A.2d 494 (App.Div. 1986). In a New Jersey private placement, then, "neither *238 consent nor voluntary surrender is singled out as a statutory factor in terminating parental rights," Sees v. Baber, 74 N.J. 201, 213, 377 A.2d 628 (1977), and termination requires a showing "that parental obligations had been forsaken." In re Baby M., 109 N.J. 396, 428, 537 A.2d 1227 (1988).[1]
The Family Part correctly held that New Jersey law was to be applied. The Restatement (Second) of Conflicts of Law, § 289 (1971) states the sound and generally applied rule: "A court applies its own local law in determining whether to grant an adoption." See Huynh Thi Anh v. Levi, 586 F.2d 625, 630 (6th Cir.1978); Adoption of C.L.W., supra, 467 So.2d at 1111; In re Female Infant F., 191 A.D.2d 437, 437, 594 N.Y.S.2d 303, 304 (1993); K.N. v. Cades, 288 Pa.Super. 555, 562, 432 A.2d 1010, 1014 (1981); In re Adoption of M.M., 652 P.2d 974, 980 (Wyo. 1982). That rule properly recognizes the dominant interest of the forum state in fixing the prospective adoptive child's status and relationships. As already discussed, a state can only assert original adoption jurisdiction if it has a significant relationship with the child; indeed, the UCCJA and PKPA are designed to assure that original jurisdiction is in the state where "the child and his family have the closest connection." Neger, 93 N.J. at 28, 459 A.2d 628. The very same considerations that permit the exercise of jurisdiction support the use of the law of the forum. If a state properly exercises jurisdiction over the adoption, it should not ordinarily be expected or required to apply the law of a foreign jurisdiction in deciding the issues.
*239 Circumstances might permit or compel a state exercising adoption jurisdiction to defer to the substantial and dominant interest of a foreign state and to apply the law of that state in deciding some or all of the issues. See, e.g., In re Pima County Juvenile Action, 118 Ariz. 437, 577 P.2d 723 (Ariz. Ct. App. 1977) (Arkansas law applied in pre-PKPA Arizona adoption proceeding, where private placement of child occurred in Arkansas under a consent that did not authorize removing the child from Arkansas, but child was removed to Arizona in apparent forum-shopping effort to overcome the mother's revocation of consent). No such circumstances are shown here.
At the filing of the adoption complaint, the child resided in New Jersey, as did the Coes. The consent executed by the mother and accepted by the Coes contemplated that the adoption would be presented to and decided by a New Jersey court. In keeping with that understanding, the Coes filed their petition in New Jersey. Those factors justify both New Jersey's assertion of jurisdiction and the application of New Jersey law. See Adoption of M.M., supra, 652 P.2d 974 (Wyoming law applied in Wyoming adoption proceeding brought by Wyoming residents following private placement in New York by New York mother); K.N. v. Cades, supra, 288 Pa.Super. 555, 432 A.2d 1010 (Pennsylvania law applied to determine validity of revocation of consent in Pennsylvania adoption proceeding brought by Connecticut residents following private placement in Pennsylvania by Pennsylvania mother). Although New York can be said to have an interest arising from the mother's residence there, see Adoption of M.M., supra, 652 P.2d at 980, that interest, which the mother herself did not urge, was not of such weight as to either require or justify application of New York law. See generally Restatement (Second) of Conflicts of Laws, § 6(2) (1971).
Nor is there merit in the Coes' contention that, because the adoption consent was executed in New York, New York law should in any event determine the validity of its time limit on revocation. New Jersey conflicts principles do not require that we apply the *240 law of the place of contracting. Rather, New Jersey employs "a more flexible approach which focuses upon the state which has the most meaningful connections with the transaction and the parties." Bell v. Merchants & Businessmen's Mut. Ins. Co., 241 N.J. Super. 557, 561-62, 575 A.2d 878 (App.Div.), certif. denied, 122 N.J. 395, 585 A.2d 395 (1990) (citation omitted). Under that test, the New Jersey connections we have described fully justify application of New Jersey law. Indeed, application of New York law to determine the efficacy of the consent would be inconsistent with and subversive of the core policy that local law should be applied in determining whether to grant an adoption.
We also reject the Coes' contention that New York law should be applied because the consent represented the parties' agreement that New York law would determine their rights. We do not so read the document. The consent cites and tracks the New York statute, but it also specifies that the adoption will proceed in New Jersey and says nothing at all about the law to be applied in that litigation.
In light of our holding that New Jersey law was correctly found to apply, we need not determine whether a New Jersey court could properly refuse, on public policy grounds, to give effect to otherwise applicable New York adoption law. See generally Colonial Penn Ins. Co. v. Gibson, 230 N.J. Super. 55, 552 A.2d 644 (App.Div. 1989) (providing that a court may reject conventional choice-of-law rules and apply New Jersey law if presented with "dominant and significant" public policy considerations).

IV
The remaining issues require only brief comment. We find that the record amply supports the Family Part judge's determination that the mother had not forsaken her parental obligations and that under New Jersey law, the mother's parental rights could not be terminated and a "best interest" hearing was not required. Although appointment of a guardian ad litem for the child would have been appropriate, the absence of that appointment did not *241 taint the proceedings or the judgment. And the Coes' assertions that the trial judge "prejudged the case" and "demonstrated a bias and prejudice" are thoroughly unsupported and unjustified.
The judgment is accordingly affirmed.
NOTES
[1]  Zack v. Fiebert, 235 N.J. Super. 424, 563 A.2d 58 (App.Div. 1989), held that, in a custody dispute between a natural parent and a third party, the "best interests" of the child rather than the parent's "unfitness" is the appropriate test if the third party "is able to show that he or she stands in the shoes of a parent to the child and thus in parity with the natural parent." Id. at 432, 563 A.2d 58. We need not determine whether that holding is applicable in adoption proceedings; in light of our adoption statutes and precedents, the Coes' short-lived status as prospective adoptive parents cannot be regarded as putting them in parity with the mother.


866 F.2d 1092
UNITED STATES of America, Plaintiff-Appellee,v.Bruce SMITH, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Roberta BLAIR, Defendant-Appellant.
Nos. 87-3020, 87-3025.
United States Court of Appeals,Ninth Circuit.
Submitted Nov. 2, 1987.*Submission Vacated Dec. 1, 1987.Resubmitted Jan. 23, 1989.Decided Jan. 23, 1989.

Michael G. Karnavas, Federal Public Defender, Anchorage, Alaska and William L. Choquette, Anchorage, Alaska, for defendants-appellants.
Mark R. Davis, Chief Asst. U.S. Atty., Anchorage, Alaska, for plaintiff-appellee.
Appeal from the United States District Court for the District of Alaska.
Before NELSON,** NORRIS and HALL, Circuit Judges.
CYNTHIA HOLCOMB HALL, Circuit Judge:

1
Appellants Bruce Smith and Roberta Blair had an unpatented mining claim consisting of approximately twenty acres, located on lands open for mining in the 6,000,000 acre Chugach National Forest.  It is possible to drive a two wheel drive vehicle to within a short walking distance of the claim.  The appellants obtained the claim in the winter of 1983-84 and recorded it on May 22, 1984.  On several occasions in May and June of 1984, personnel from the United States Forest Service visited the claim, observed the activities conducted there by the appellants, and had several discussions with the appellants and their colleagues.  In the opinion of the Forest Service personnel, the appellants were using sound mining and environmental practices in working their claim.

2
The Forest Service personnel also believed, however, that the appellants' activities were significant enough to require the appellants to file a Plan of Operations with the Forest Service pursuant to 36 C.F.R. Sec. 228.4 (1984) (unless otherwise noted, all citations in this opinion refer to the 1984 version of the Code of Federal Regulations).  On several occasions the Forest Service personnel apprised the appellants of the Forest Service Plan of Operations filing requirement.  On or about June 22, 1984, the District Ranger showed the appellants a letter of noncompliance addressed to Blair and Elizabeth Smith (who is not a party to this appeal).  The appellants never filed a Plan of Operations.

3
On July 13, 1984, the government filed an information charging the appellants with residing and working on the claim "without having sought, filed for or having obtained a permit (Plan of Operations) from the United Forest Service."    The appellants do not dispute that they had resided and conducted certain mining-related activities on the claim without filing a Plan of Operations.  After a bench trial before a magistrate, judgments of conviction were entered against the appellants.  Smith received a sentence of ten days' imprisonment, and Blair received a sentence of three days' imprisonment and a $250 fine.

4
The appellants appealed their convictions to the district court, which affirmed by order dated March 9, 1987.  The appellants now seek reversal of the district court order, asserting a number of grounds.  We have jurisdiction pursuant to 28 U.S.C. Secs. 1291 & 1631, and we reverse.

5
* Appellants argue that the Paperwork Reduction Act of 1980 ("PRA") prohibits their prosecutions because the Plan of Operations filing requirement lacks a current control number, and appear to raise an issue of first impression in this circuit.  The PRA was enacted "to reduce and minimize the burden Government paperwork imposes on the public."    S.Rep. No. 930, 96th Cong., 2d Sess. 2 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 6241, 6242.  The PRA requires all agencies to submit all "information collection requests" to the Director (the "Director") of the Office of Management and Budget ("OMB") for review and approval.  See 44 U.S.C. Sec. 3507.  If the Director approves the information collection request he must ensure that it contains a control number.  See 44 U.S.C. Sec. 3504.  An agency "shall not conduct or sponsor the collection of information unless" the information collection request has been submitted to and approved by the Director, see 44 U.S.C. Sec. 3507(a), and "shall not engage in a collection of information without obtaining from the Director a control number to be displayed upon the information collection request," see 44 U.S.C. Sec. 3507(f).  "Information collection requests which do not display a current control number or, if not, indicate why not are to be considered 'bootleg' requests and [under PRA section 3512] may be ignored by the public."    S.Rep. No. 96-930 at 52, reprinted in 1980 U.S.Code Cong. & Admin.News 6292;  see 44 U.S.C. Sec. 3512 (penalties may not be imposed for noncompliance with information collection requests that do not display a current control number).

6
* The magistrate rejected appellants' PRA defense, holding that because the defendants "did not rely upon the Paperwork Reduction Act" in refusing to submit a Plan of Operations, they "should not be permitted to rely upon that defense."    The district court "concur[red] in and adopt[ed] by reference the Magistrate's disposition of this issue."    The magistrate cited no authority for this proposition, and the government does not argue that appellants' ignorance of the PRA frees the government from its requirements.  We reverse the magistrate on this ground;  just as ignorance of the law is not an excuse for violating it, knowledge and reliance is not a prerequisite for asserting an affirmative defense to a criminal prosecution.  See, e.g., 1 C. Torcia, Wharton's Criminal Law Sec. 77 (14th ed. 1978);  1 W. LaFave & A. Scott, Substantive Criminal Law Sec. 5.1(d) (1986).

B

7
The district court also held, and the government argues, that the appellants "have not preserved this issue for appeal," citing Federal Rule of Criminal Procedure 12(b), (f).  Rule 12(b) provides that "defenses, objections, and requests" based on "defects in the institution of the prosecution" or on "defects in the indictment or information" may be raised only by motion before trial.  Fed.R.Crim.P. 12(b)(1), (2).1   Rule 12(f) then provides that a party's failure to raise such defenses, objections, or requests by the motion date "shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver."    Fed.R.Crim.P. 12(f).

8
Appellants' PRA contention is waived if subject to Rule 12(f).  The magistrate had set November 5, 1984 as the motion date.  Appellants first raised the PRA issue on January 28, 1986.  Rule 12(f) does not, however, apply to appellants' PRA defense.  The defenses for which pretrial assertion is mandatory relate to procedural defects in obtaining the charge and to defects in the information that go to matters of form rather than substance that usually are apparent on the face of the pleading.  In contrast, the PRA bar of prosecution is in the nature of an affirmative defense, see Navel Orange Admin. Comm. v. Exeter Orange Co., 722 F.2d 449, 453-54 (9th Cir.1983), that "is capable of determination without the trial of the general issue," Fed.R.Crim.P. 12(b).  As such, it is a defense that "may be raised before trial by motion" but is not waived pursuant to Rule 12(f) if not brought before trial.2

9
In reaching this conclusion, we first note that Rule 12 creates three categories of defenses, objections, and requests that "may" be raised before trial:  (1) the failure of the indictment or information to show subject matter jurisdiction or to state an offense ("jurisdictional defenses");  (2) the five matters enumerated in Rule 12(b) ("mandatory pretrial matters"), including defenses "based on defects in the institution of the prosecution" and defenses "based on defects in the indictment or information";  and (3) all other matters that are "capable of determination without the trial of the general issue" ("permissive pretrial matters").

10
Rule 12(b)(2) specifically provides that the jurisdictional defenses "shall be noticed by the court at any time during the pendency of the proceedings."    These are the most durable defenses, and may be raised for the first time on appeal.  Rule 12(f) provides that matters "which must be made prior to trial" are waived if not raised prior to the motion date.  The matters that "must be made prior to trial" under Rule 12(f) are the mandatory pretrial matters described in the five paragraphs of Rule 12(b).  Finally, Rule 12 says nothing about the time for asserting permissive pretrial matters, which are "capable of determination without the trial of the general issue."    These matters are subject to the general rule that points not raised at trial are waived (with certain exceptions).3   See, e.g., United States v. Brimberry, 744 F.2d 580, 586-87 (7th Cir.1984) (immunity, a matter that "may" be raised before trial, is properly raised by motion;  time for making motion is unclear, but court adopts commentators' view that these defenses may be raised at trial);  see also Davis v. United States, 411 U.S. 233, 239-42, 93 S.Ct. 1577, 1581-83, 36 L.Ed.2d 216 (1973) (Rule 12 does not apply to bar defenses initially raised in habeas proceeding but not enumerated by Rule 12(b)) (discussing Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) (defense based on fourth amendment exclusionary rule;  applying older version of Rule 12 not requiring pretrial motion with respect to suppression of evidence)).

11
The appellants raised the PRA defense after the motion date but no later than at trial.  Jurisdictional defenses and permissive pretrial matters are timely if asserted at or before trial.  Therefore, appellants' PRA defense was waived pursuant to Rule 12(f) only if it is a mandatory pretrial matter described by Rule 12(b)(1) or (2).4

12
The cases provide little guidance in formulating a general definition of Rule 12(b)(1) "defects in the institution of the prosecution" or of Rule 12(b)(2) "defects in the indictment or information."5   We observe, however, that courts have addressed under Rule 12(b)(2) such defenses as misnomer, duplicity or multiplicity, misjoinder, indefiniteness, partial insufficiency, surplusage, and other defects in the indictment or information that go to matters of form rather than substance.  These cases have established criteria for evaluating challenged indictments:

13
These criteria are, first, whether the indictment "contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet,' " and, secondly, " 'in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' "

14
Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-47, 8 L.Ed.2d 240 (1962) (citations omitted), quoted in United States v. Pheaster, 544 F.2d 353, 360 (9th Cir.1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977).  These criteria indicate that indictments must provide the defendant with notice of the charge and of possible double jeopardy defenses.  Other than the jurisdictional defenses, Rule 12(b)(2) encompasses technical defects in the indictment or information.  Accordingly, Rule 12(b)(2) does not require pretrial assertion of affirmative defenses such as the PRA, and the government does not seriously argue to the contrary.

15
The government's principal argument is that the PRA defense amounts to a Rule 12(b)(1) assertion of "defects in the institution of the prosecution."    This category includes such defenses as prosecutorial misconduct, improper grand jury procedures, and noncompliance with the Federal Rules of Criminal Procedure.  Some cases have said, not very helpfully, that a defense raises a Rule 12(b)(1) matter when it "brings into question the institution of the prosecution."    United States v. Jarrett, 705 F.2d 198, 205 (7th Cir.1983), cert. denied, 465 U.S. 1004, 104 S.Ct. 995, 79 L.Ed.2d 228 (1984), quoted in United States v. Dion, 762 F.2d 674, 680 (8th Cir.1985), rev'd in part, 476 U.S. 734, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986).  As these cases indicate, Rule 12(b)(1) motions are designed principally as vehicles to challenge the decision to prosecute and prosecutorial irregularity in obtaining the indictment.

16
The word "institution" is the key to a proper understanding of Rule 12(b)(1).  Any legal matter that prevents the prosecution from securing a conviction could be construed as a "defect" in the prosecution.  "Institution" is the key word that prevents Rule 12(b)(1) from having an unlimited reach.  The focus on the "institution" of the prosecution limits the Rule to cover the prosecutorial decision to commence the prosecution and the procedures followed in doing so.

17
The purposes undergirding Rule 12 waiver also lend support to this understanding of Rule 12(b)(1).  One of those purposes, conservation of judicial resources by facilitating the disposition of cases without trial, see, e.g., United States v. Griffin, 765 F.2d 677, 681 (7th Cir.1985), United States v. Jones, 542 F.2d 661, 664-65 (6th Cir.1976), is served by many procedural rules.

18
The Supreme Court has, however, identified a purpose more specific to Rule 12 waiver:

19
The waiver provisions of Rule 12(b)(2) are operative only with respect to claims of defects in the institution of criminal proceedings.  If its time limits are followed, inquiry into an alleged defect may be concluded and, if necessary, cured before the court, the witnesses, and the parties have gone to the burden and expense of a trial.  If defendants were allowed to flout its time limitations, on the other hand, there would be little incentive to comply with its terms when a successful attack might simply result in a new indictment prior to trial.  Strong tactical considerations would militate in favor of delaying the raising of the claim in hopes of acquittal, with the thought that if those hopes did not materialize, the claim could be used to upset an otherwise valid conviction at a time when reprosecution might well be difficult.

20
Davis, 411 U.S. at 241, 93 S.Ct. at 1582, quoted in Francis v. Henderson, 425 U.S. 536, 540, 96 S.Ct. 1708, 1710, 48 L.Ed.2d 149 (1976).  Along these lines, one commentator has analyzed the Rule 12(b)(1), (2) defenses, reasoning that:

21
[they] are understood to include defenses concerning selection and composition of the grand jury, the procedures of the grand jury, jurisdiction over the person of the defendant, selection of the petty jury, and the form of the indictment or information including claims that the charging paper is duplicitous or multiplicitous.... *  It is also important to observe that the [ ] rule 12(b) defenses [enumerated in clauses (1)-(5) ] are all "curable" within the meaning of Blackledge [v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) ]:  if raised and corrected before trial, each would leave the way open to the state to obtain a valid conviction at trial.

22
Westen, Away From Waiver:  A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure, 75 Mich.L.Rev. 1214, 1241 (1977) (footnotes omitted) (emphasis in original).

23
In other words, Rule 12(b)(1) defenses generally involve defects in the procedures leading up to the indictment, because this type of defect can be cured by the prosecutor prior to trial.  "Rule 12 [merely] makes explicit the application of the 'harmless error' rule to indictments by providing that objections to technical defects in the institution of a prosecution, including those in the indictment, are waived unless raised, by a motion to dismiss before trial."    Note, Indictment Sufficiency, 70 Colum.L.Rev. 876, 883 (1970);  cf. 1 C. Wright, Federal Practice and Procedure Sec. 193 (2d ed. 1982) (venue is not jurisdictional and is waived if not raised before trial, but only if impropriety of venue is apparent on the face of the indictment).

24
Unlike defenses based on procedural or formal defects, affirmative defenses, such as appellants' PRA defense, may not be cured by prosecutorial action.  They continue to operate as defenses regardless of the regularity of the prosecutor's conduct or of the indictment.  Thus, the Advisory Committee Notes provide that "the defendant at his option may raise by motion before trial" "such matters as former jeopardy, former conviction, former acquittal, statute of limitations, [and] immunity."    See note 3 supra (emphasis supplied).  These matters are in the nature of affirmative defenses, as is appellants' PRA defense.  We see no reason to distinguish the PRA defense, and conclude that the PRA defense is a permissive pretrial matter that the defendant may, but need not, raise by motion before trial.  See United States v. Hahn, 381 F.Supp. 1311, 1313 (E.D.Mich.1974).  It follows that appellants did not waive the defense by failing to assert it prior to the motion date but before the conclusion of their trial.

C

25
The Alaska Placer Mining Application form, which the Forest Service would have accepted as appellants' Plan of Operations, amounts to an information collection request that does not bear a current control number and therefore does not satisfy the PRA.  Nevertheless, appellants were prosecuted for a failure to file a Plan of Operations pursuant to a Forest Service regulation, not a failure to file the Placer Mining Application.  Accordingly, we first consider whether the Forest Service regulation requiring appellants to file the Plan of Operations is itself an information collection request within the meaning of the PRA.  If our answer to that inquiry is affirmative, we will then consider whether the PRA prohibits the judgments of conviction entered against the appellants.

26
The PRA includes within the definition of "information collection request" a "reporting ... requirement, collection of information requirement, or other similar method calling for the collection of information," see 44 U.S.C. Sec. 3502(11).  The PRA further defines "[c]ollection of information" as:

27
the obtaining or soliciting of facts or opinions by an agency through the use of written report forms, application forms, schedules, questionnaires, reporting or recordkeeping requirements, or other similar methods calling for ...

28
answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons....

29
44 U.S.C. Sec. 3502(4).  This definition encompasses agency regulations that require disclosure of information to the government and that call for the disclosure or reporting of information through answers to standardized (identical) questions.  The relevant Forest Service Regulations meet this description and are therefore information collection requests within the meaning of the PRA.

30
The Plan of Operations filing requirement is an information collection request that lacks a current control number.  Consequently, PRA section 3512 by its terms prohibits the imposition of "any penalty" against the appellants, including criminal convictions, for their failure to comply with the Plan of Operations filing requirement.6   The statute explicitly and unambiguously provides that all information collection requests must display a current control number, or penalties for noncompliance may not be imposed.7   44 U.S.C. Sec. 3512.

31
PRA section 3512 applies to the Plan of Operations filing requirement.  Neither the Alaska Placer Mining Application nor the regulations contained 36 C.F.R. part 228 display a current control number.  Consequently, the PRA prohibits the imposition of "any penalty" on the appellants for failing to file a Plan of Operations, including the appellants' convictions for failing to file under part 228.  The information also charged appellants with failing to file a Plan of Operations "as required by ... 36 C.F.R. Sec. 261.10(b), (c)."    These charges also allege a failure to file a Plan of Operations pursuant to regulations that do not bear a current control number and are also prohibited by the PRA.8

II

32
Because our decision relies solely on the PRA ground, we need not reach any of the appellants' other arguments.

33
REVERSED.

*
 The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a)

**
 Dorothy W. Nelson, United States Circuit Judge, U.S. Court of Appeals for the Ninth Circuit, was drawn to replace Judge Anderson, who was on the original panel but died before this opinion was filed

1
 Criminal Rule 12(b) provides in pertinent part:
Pretrial Motions.  Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.  Motions may be written or oral at the discretion of the judge.  The following must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prosecution;  or
(2) Defenses and objections based on defects in the indictment or information (other than that it fails to show jurisdiction in the court or to charge an offense which objections shall be noticed by the court at any time during the pendency of the proceedings)....
Fed.R.Crim.P. 12(b)(1), (2).

2
 Navel Orange, cited by the magistrate in support of his reliance proposition, is not to the contrary.  In Navel Orange we rejected a PRA defense on two grounds.  First, we stated that a defendant could not raise affirmative defenses on appeal that have not been "finally determined" at the trial level (there, an administrative proceeding).  722 F.2d at 453-54.    Second, we noted that the government sought relief only for periods during which it was in compliance with the PRA.  Id. at 454.    Neither of those rationales is pertinent in this case.  Appellants raised the PRA issue no later than trial, and the government does not contend that the Forest Service is in compliance with the PRA with respect to the regulations at issue

3
 We also note that the Advisory Committee Notes on Rule 12(b)(1), (2) indicate that certain matters that "may" be raised by motion prior to trial need not be raised at that time.  The Notes provide:
These two paragraphs classify into two groups all objections and defenses to be interposed by motion prescribed by Rule 12(a).  In one group are defenses and objections which must be raised by motion, failure to do so constituting a waiver.  In the other group are defenses and objections which at the defendant's option may be raised by motion, failure to do so, however, not constituting a waiver.  (Cf. Rule 12 of Federal Rules of Civil Procedure.)
In the first of these groups are included all defenses and objections that are based on defects in the institution of the prosecution or in the indictment and information, other than lack of jurisdiction or failure to charge an offense.  All such defenses and objections must be included in a single motion.  (Cf. Rule 12(g) of Federal Rules of Civil Procedure.)    Among the defenses and objections in this group are the following:  Illegal selection or organization of the grand jury, disqualification of individual grand jurors, presence of unauthorized persons in the grand jury room, other irregularities in grand jury proceedings, defects in indictment or information other than lack of jurisdiction or failure to state an offense, etc.  The provision that these defenses and objections are waived if not raised by motion substantially continues existing law, as they are waived at present unless raised before trial by plea in abatement, demurrer, motion to quash, etc.
In the other group of objections and defenses, which the defendant at his option may raise by motion before trial, are included all defenses and objections which are capable of determination without trial of the general issue.  They include such matters as former jeopardy, former conviction, former acquittal, statute of limitations, immunity, lack of jurisdiction, failure of indictment or information to state an offense, etc.  Such matters have been heretofore raised by demurrers, special pleas in bar and motions to quash.

4
 The matters enumerated in Rule 12(b)(3)-(5) are not relevant to this appeal.  They define as mandatory pretrial matters motions to suppress evidence, Rule 16 discovery requests, and Rule 14 requests for severance of charges or defendants

5
 Courts have neglected to provide general definitions for these terms for a variety of reasons.  First, Rule 12 motions often arise in contexts that do not require close analysis of whether the matter raised falls within the rule.  For example, courts cite Rule 12 in habeas corpus cases to support the conclusion that defenses presented for the first time on collateral attack are waived.  Second, Rule 12 motions usually involve one of a relatively small group of recurring defenses, such as personal jurisdiction, with which courts are familiar.  Third, in much of the litigation over defenses "capable of determination without the trial of the general issue," the government is opposing an indisputably timely motion on the ground that the asserted defense raises questions of fact that can only be determined at trial.  Most defenses, such as self-defense, insanity, and entrapment, require factual determinations that the jury should make, rendering pretrial disposition inappropriate.  See, e.g., United States v. Snyder, 428 F.2d 520, 521 (9th Cir.)  ("A motion to dismiss is not the proper way to raise a [factual] defense."), cert. denied, 400 U.S. 903, 91 S.Ct. 139, 27 L.Ed.2d 139 (1970).  In these cases, the question is not whether the defense must be raised prior to trial, but whether it may be raised prior to trial

6
 PRA section 3512 provides in full:
Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to maintain or provide information to any agency if the information collection request involved was made after December 31, 1981, and does not display a current control number assigned by the Director, or fails to state that such request is not subject to this chapter.
44 U.S.C. Sec. 3512.

7
 OMB has promulgated regulations relating to the PRA.  See generally 5 C.F.R. part 1320.  These regulations may to some extent be inconsistent with 44 U.S.C. Sec. 3512.  See 5 C.F.R. Sec. 1320.5.  No party has referred to the OMB regulations at any point in the proceedings.  Accordingly, we find that the parties have waived any and all arguments based on the regulations for purposes of these prosecutions

8
 Such cases as United States v. Particle Data, Inc., 634 F.Supp. 272 (N.D.Ill.1986), Snyder v. IRS, 596 F.Supp. 240 (N.D.Ind.1984), and Cameron v. IRS, 593 F.Supp. 1540 (N.D.Ind.1984), aff'd 773 F.2d 126 (7th Cir.1985) (resting on the district court opinion), are inapposite.  They rejected PRA defenses based on the lack of a current control number on certain IRS forms.  The decisions in these cases were based on conclusory reasoning or provisions of the PRA not raised here.  Whatever the merits of those cases, they are not relevant to our examination of the Forest Service regulations at issue here