787 F.2d 431
UNITED STATES of America, Appellee,v.Kenneth A. MANNING, Appellant.
No. 85-5281.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 18, 1986.Decided March 28, 1986.

Rick Johnson, Gregory, S.D., for appellant.
David L. Zuercher, Asst. U.S. Atty., Pierre, S.D., for appellee.
Before ROSS, Circuit Judge, BRIGHT, Senior Circuit Judge, and ARNOLD, Circuit Judge.
ARNOLD, Circuit Judge.

1
Kenneth Manning appeals from his conviction on two counts of taking or attempting to take migratory game birds by the aid of baiting in violation of the Migratory Bird Treaty Act, 16 U.S.C. Sec. 703, and 50 C.F.R. Sec. 20.21(i).  For reversal, Manning argues that (1) the evidence was insufficient to establish his guilt beyond a reasonable doubt;  (2) the government should be estopped to prosecute him for an activity which a government agent said was legal;  (3) he was entrapped;  and (4) the baiting regulation is unconstitutionally vague.  After reviewing the record, we affirm the judgment of the District Court.1

I.

2
In the fall of 1984, Kenneth Manning was in charge of the "Dean Hansen Goose Club," a commercial goose-hunting operation located on Dean Hansen's ranch near Pierre, South Dakota.  The facilities of the Club include a number of pits or slit trenches dug into a bluff to provide cover to goose hunters, who pay a fee to hunt at the Club.  This case centers on a field on Hansen's property located approximately three hundred to five hundred yards from the bluff pits used by the hunters.

3
On November 8, 1984, Agent John Cooper of the United States Fish and Wildlife Service walked the entire area of the field in question.  He found no scattered ear or shell corn on the ground and nothing to indicate any game violations.  Cooper was patrolling the area again on November 10, 1984, at about 5:00 p.m., when he noticed Canadian Geese landing in and around the field, and heard shooting which seemed to be coming from the area of the bluff pits.  Several minutes later, he stopped a red van which contained Manning, nine hunters, and thirteen dead Canadian Geese.  Cooper testified that Manning later told him the geese had been shot from the bluff pits.  At trial, Manning denied that he had placed hunters in the bluff pits or that he told Cooper he had done so.

4
After Cooper talked briefly with the hunters in the van, he and Manning went on a tour of the field.  During the tour, Cooper observed large numbers of geese feeding heavily in certain parts of the field.  He also saw shell corn and ear corn scattered on the ground at irregular intervals.  Because it was growing dark, Cooper told Manning he would return the following day.  Cooper indicated that he believed the field had been baited with corn to attract geese.  Manning denied that the field had been baited, insisting that the scattered corn was normal agricultural waste resulting from combining in the fields.

5
Cooper returned to the field on the morning of November 11 to conduct a more thorough inspection.  He found shell corn and ear corn distributed along vehicle tracks in the field.  Cooper maintained that none of the scattered corn had been in the field at the time of his November 8 inspection.2   Manning appeared while Cooper was photographing the field, and Cooper asked him to explain the presence of the scattered corn.  According to Cooper, Manning replied, " 'Well, that's just easy feed, Cooper.  You know as well as I do these geese have got to have something to see.' "    Cooper then asked if Manning was saying that he had put the corn there, to which Manning allegedly responded, " 'Well, I don't know who did it, but whoever did didn't do a very good job, did he? ... I guess you guys know in order to find the corn, all you got to do is follow the geese and it appears[.]' "  Cooper then cited Manning for violating 50 C.F.R. Sec. 20.21(i), the regulation prohibiting the taking of migratory game birds by the aid of baiting.

6
On November 14, 1984, Manning asked Cooper to inspect the field again.  As the two men walked through the field, Cooper noticed that the corn was gone and the geese were no longer present.  In fact, Cooper saw very few geese in the field until December 6, 1984, when he observed approximately 1,200 to 2,000 geese near the center of the field.  Cooper returned to the area on December 7, and saw 15,000 to 20,000 geese feeding heavily in the field.  When he walked through the field, he saw corn scattered on the ground in much the same manner as it had been on November 11.  On the morning of December 8, Cooper returned to the field again, and watched as Manning took twenty-four hunters to the bluff pits.  Cooper observed the flight pattern of geese coming onto the field and saw the hunters shoot from the pits, bringing down three Canadian Geese.  He located Manning and told him he believed the field had again been baited.  Cooper then went back to the field to take photographs and collect samples of the scattered grain.  Manning admitted that corn had been scattered in the field, but explained that it had been placed there to feed livestock which had been moved into the field in late November.  Cooper gave Manning a second citation for violating the baiting regulation on December 8, 1984.

7
Manning was subsequently charged in a two-count information with taking or attempting to take Canadian Geese by the aid of baiting.3   Following a bench trial in February 1985, the District Court entered a verdict of guilty on both counts.  This appeal followed.

II.

8
Section 703 of Title 16 makes it unlawful for any person "at any time by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, ... any migratory bird[.]"  However, the statute allows the Secretary of the Interior to prescribe exceptions to this general prohibition, and the Secretary has promulgated regulations which permit the taking of migratory birds in limited and specific circumstances.  The regulation at issue here, 50 C.F.R. Sec. 20.21, provides in pertinent part:

9
Migratory birds on which open seasons are prescribed in this part may be taken by any method except those prohibited in this section.  No person shall take migratory game birds:

10
* * *

11
* * *

12
(i) By the aid of baiting, or on or over any baited area.  As used in this paragraph, "baiting" shall mean the placing, exposing, depositing, distributing, or scattering of shelled, shucked, or unshucked corn, wheat or other grain, salt, or other feed so as to constitute for such birds a lure, attraction or enticement to, on, or over any areas where hunters are attempting to take them;  and "baited area" means any area where shelled, shucked, or unshucked corn, wheat or other grain, salt, or other feed whatsoever capable of luring, attracting, or enticing such birds is directly or indirectly placed, exposed, deposited, distributed, or scattered;  and such area shall remain a baited area for 10 days following complete removal of all such corn, wheat or other grain, salt, or other feed.  However, nothing in this paragraph shall prohibit:

13
(1) The taking of all migratory game birds, including waterfowl, on or over standing crops, flooded standing crops (including aquatics), flooded harvested croplands, grain crops properly shocked on the field where grown, or grains found scattered solely as the result of normal agricultural planting or harvesting;  and(2) The taking of all migratory game birds, except waterfowl, on or over any lands where shelled, shucked, or unshucked corn, wheat or other grain, salt, or other feed has been distributed or scattered as the result of bona fide agricultural operations or procedures, or as a result of manipulation of a crop or other feed on the land where grown for wildlife management purposes[.]

14
In order to convict Manning for violating this regulation, the government had to prove beyond a reasonable doubt (1) that the field in question was baited;  and (2) that Manning aided, abetted, coerced, or induced another to take a Canada Goose by the aid of baiting or on or over a baited area.

A.

15
Manning first argues that the evidence was insufficient to establish his guilt beyond a reasonable doubt.  Specifically, he challenges the evidence supporting his conviction on Count I, the charge based on his November 10, 1984, activities.

16
When reviewing challenges to the sufficiency of the evidence, this Court must view the evidence in the light most favorable to the government, giving the government the benefit of all reasonable inferences which may be drawn from the evidence.  The District Court found the evidence of Manning's guilt on Count I to be "almost overwhelming," emphasizing, among other things, Cooper's discovery on November 10 of scattered corn in a field under Manning's control4 after finding no corn in the same field two days earlier, and Manning's statement to Cooper that the hunters had been shooting geese from the bluff pits.  In addition, the trial court found Manning's November 11 statement that the scattered corn was "easy feed" and that "geese have got to have something to see," to be an admission that the corn on the ground was bait placed there to bring geese within the range of the hunters.

17
In support of his argument that the evidence was insufficient to sustain his conviction, Manning points out that Cooper never actually saw hunters shoot from the bluff pits on November 10, nor did the government produce any witnesses who claimed to have been hunting in the bluff area on that date.  In contrast, two defense witnesses testified that they were hunting at the Club on November 10, and that the hunters were all placed on a "bottom field" far from the baited area.  In addition, Manning himself denied putting any hunters in the bluff pits that day, or telling Cooper that he had done so.

18
The District Court acknowledged that conflicting evidence had been presented, but found Cooper's version of events credible and rejected the contrary accounts.  Such credibility determinations by the trial court are entitled to special deference.    Anderson v. City of Bessemer City, --- U.S. ----, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985).  Certainly the trial court's findings are "plausible in light of the record viewed in its entirety," and they should therefore not be rejected as clearly erroneous.  Id.  Viewed in the light most favorable to the government, the evidence was sufficient to support a verdict that Manning was guilty of aiding and abetting hunters in taking migratory birds over a baited area on November 10, 1984.5B.

19
Manning next argues that the government should be estopped to prosecute him for the December 8, 1984, violation of the baiting regulation.  He points out that Cooper held a public meeting in October 1984, at which he stated that goose hunting was permitted over land where there was a bona fide livestock feeding operation.6   Manning maintains that the corn Cooper found scattered on the ground in December 1984 was placed there not as bait, but as feed for livestock which had been moved into the field.  He contends that the government is therefore prosecuting him for an activity which a government agent said was legal.

20
As the District Court noted, Manning's actions did not fall within either of the exceptions to the baiting regulation.  Section 20.21(i)(2) allows the taking of migratory game birds over land where corn has been "scattered as a result of bona fide agricultural operations or procedures."    However, subsection (2), by its own terms, excludes waterfowl from the scope of the exception, and Canadian Geese are waterfowl as that term is used in the baiting regulation.  Section 20.21(i)(1) allows the taking of waterfowl over land where grain is scattered "solely as the result of normal agricultural planting or harvesting" (emphasis added).  However, in light of Manning's assertion that the corn was scattered in the field in order to feed livestock and not as the result of planting or harvesting, this exception is also inapplicable.

21
Manning argues that he acted in reliance on Cooper's October statements, whether those statements were accurate or not.  But even if Manning's actions were based on inaccurate information provided by Cooper, the government is not estopped to enforce the regulation in this instance.  To begin with, both the Supreme Court and this Court have left open the question of whether the doctrine of equitable estoppel can be applied against the federal government.    See, e.g., Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 60-61, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984);  I.N.S. v. Miranda, 459 U.S. 14, 19, 103 S.Ct. 281, 283-84, 74 L.Ed.2d 12 (1982) (per curiam);  McDermott v. United States, 760 F.2d 879, 882 (8th Cir.1985).  It is well-established, however, that the government is not subject to estoppel on the same terms as other litigants.    Heckler, 104 S.Ct. at 2224;  I.N.S. v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 21, 38 L.Ed.2d 7 (1973) (per curiam).  The Supreme Court has indicated that even if equitable estoppel is applicable against the government, a showing of "affirmative misconduct" is necessary.    I.N.S. v. Miranda, 459 U.S. at 17, 103 S.Ct. at 282;  I.N.S. v. Hibi, 414 U.S. at 8, 94 S.Ct. at 21.    See also McDermott, 760 F.2d at 882;  Free Enterprise Canoe Renters Association v. Watt, 711 F.2d 852, 857 (8th Cir.1983) (in the absence of affirmative misconduct, the government may not normally be estopped by misrepresentations or misinformation given by its agents).

22
In the present case, the District Court found that Manning had failed even to demonstrate that the traditional elements of an estoppel were present.7   And, indeed, it is questionable whether Manning acted in reasonable reliance on Cooper's statements, since Manning admitted that Cooper made it clear at the October meeting that scattering corn on the ground is considered baiting.  But even assuming that the traditional elements of an estoppel were present, Cooper's statements, while arguably misleading or inaccurate, did not rise to the level of "affirmative misconduct."    Cf. Heckler, 104 S.Ct. at 2226 (erroneous advice from a fiscal intermediary is insufficient to raise an estoppel);  Schweiker v. Hansen, 450 U.S. 785, 789-90, 101 S.Ct. 1468, 1471-72, 67 L.Ed.2d 685 (1981) (per curiam) (possibly erroneous replies to oral inquiries did not amount to "affirmative misconduct").  Therefore, the District Court properly rejected this claim.  A different question would be presented if Cooper had deliberately misled Manning.

C.

23
Manning further contends that his conviction on Count II should be set aside because Cooper's actions with respect to the December 8, 1984, violation constituted entrapment as a matter of law.  Manning's argument is that, after telling him in October that bona fide livestock feeding operations were exempt from the baiting regulation, Cooper decided in December that corn scattered in Hansen's field as feed constituted baiting.  Cooper then "lay in wait" on December 8, allowing a number of Canadian Geese to be killed or wounded before citing Manning.

24
The entrapment defense is based on the assumption that Congress did not intend to punish an individual who has committed all the elements of an offense as the result of inducement or instigation by government agents.    United States v. Lard, 734 F.2d 1290, 1292 (8th Cir.1984).  The key question is "whether the government agent caused or induced the defendant to commit a crime he was not otherwise predisposed--i.e., willing and ready--to commit whenever a propitious opportunity arose."    Id. at 1293 (citations omitted).  Here, it cannot be said that Cooper engaged in the kind of conduct which would persuade an otherwise innocent person to commit a criminal offense.  Not only did Manning admit that Cooper told him in October that scattering corn on the ground constituted baiting, but Manning's own statements and actions in November 1984 indicated a clear predisposition to violate the baiting regulation.  Manning's entrapment argument is without merit.

D.

25
Finally, Manning contends that the baiting regulation is unconstitutionally vague both on its face and as applied to him.  Similar challenges to the constitutionality of the regulation have been raised in other cases and have been uniformly rejected.    See e.g., United States v. Brandt, 717 F.2d 955, 957-58 (6th Cir.1983);  United States v. Delahoussaye, 573 F.2d 910, 912 (5th Cir.1978);  United States v. Jarman, 491 F.2d 764, 766 (4th Cir.1974).

26
Manning's attack in the present case seems to be directed primarily at the term "baited area" and, more specifically, at Cooper's application of the so-called "zone of influence" rule to determine that Manning permitted hunting within the scope of a baited area on December 8, 1984.  The zone-of-influence rule is apparently not a formal, published rule, but a means of ascertaining or describing in practice the extent of a baited area in a given case.  Cooper testified that he learned about the rule during a training course, and that it required him to make judgment calls about the scope of a baited area based on common sense and his observation of such factors as the flight patterns of birds.  Manning complains that the rule is so vague and uncertain that it permits arbitrary enforcement of the baiting regulation.  Manning further contends that the bluff pits where he placed the hunters on December 8 were too far from the corn Cooper found scattered in the field to support a finding that geese shot from the pits were influenced by the bait.

27
The term "baited area" plainly means that area within which and over which scattered bait exercises an attraction.    Delahoussaye, 573 F.2d at 912.  The extent of that area "is defined only by the capacity of bait placed anywhere within it to act as an effective lure[.] ... Congress must have intended for the violation to turn on the factual determination that birds are being lured to a hunter's shooting location, no matter how far the bait is from that location[.]"  United States v. Chandler, 753 F.2d 360, 363 (4th Cir.1985).  The extent of such an area is thus not subject to exact definition, and will vary depending on such factors as wind and terrain.  There may, therefore, be "dubious zones at the area's edges[.]"  Delahoussaye, 573 F.2d at 912.  However, the fact "[t]hat there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense."    United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1947).  Here the term "baited area" is as exact as the subject matter permits.  See id. at 7-8, 67 S.Ct. at 1542.    See also Yandell v. United States, 550 F.Supp. 572, 576 (N.D.Miss.1982), aff'd, 712 F.2d 218 (5th Cir.1983).  The regulation is not impermissibly vague.

28
Nor does it appear that Agent Cooper applied the regulation in an impermissibly arbitrary manner.  Cooper determined that the geese were taken within the zone of influence of the bait based on his firsthand observations and his eleven years of experience as a Special Agent for the Fish and Wildlife Service.  Cooper testified that he saw few geese in the field when no corn was there, whereas thousands of geese came into the field when the scattered corn was present.  He observed the flight pattern of the geese on December 8, watched them come into the area of the field containing scattered corn, and saw hunters shoot them from the bluff pits.  The evidence thus supports the conclusion that the corn acted as an effective lure for the geese, and that the geese were taken within the "zone of influence" of the bait.  Therefore, Manning's challenge to the constitutionality of the regulation as applied is also without merit.

III.

29
The District Court committed no error in determining that Manning violated the baiting regulation in both November and December of 1984.  While there is no scienter requirement to mitigate the indefiniteness of the term "baited area" or the "zone of influence" concept, we agree with the Fourth Circuit that it would defeat the purpose of the statute to establish any arbitrary spatial limitation, see Chandler, 753 F.2d at 363.  Accordingly, the judgment of the District Court is affirmed.

1
 The Hon. Donald J. Porter, Chief Judge, United States District Court for the District of South Dakota

2
 All combining in the field was apparently completed before November 8.  There is no indication that any additional combining was done between November 8 and November 10

3
 Manning was not carrying a gun on either of the dates in question, and the government's case against him was based on a theory of aiding and abetting.  See 18 U.S.C. Sec. 2

4
 It is undisputed that Manning directed, participated in, or knew about all agricultural work on the land.  In any event, it is not necessary to prove that a defendant violated the Migratory Bird Treaty Act with specific intent or guilty knowledge.    See Rogers v. United States, 367 F.2d 998, 1001 (8th Cir.1966), cert. denied, 386 U.S. 943, 87 S.Ct. 976, 17 L.Ed.2d 874 (1967).  Defendants may be held liable for violating the baiting regulation even without knowing that bait was in the field.    See, e.g., United States v. Chandler, 753 F.2d 360, 363 (4th Cir.1985);  United States v. Catlett, 747 F.2d 1102, 1104 (6th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985).    But see United States v. Delahoussaye, 573 F.2d 910, 912 (5th Cir.1978)

5
 It is not clear whether Manning is also challenging the sufficiency of the evidence as to Count II.  In any event, ample evidence supports his conviction on this count as well

6
 The parties apparently agree that the gist of Cooper's statement at the meeting was that "feeding livestock in standing corn was not a violation of the baiting regulation, but feeding livestock in an area where there is a commercial goose hunting operation could be a violation, depending on whether or not it was a bona fide feeding operation or whether the grain was actually being just put out there with the excuse of livestock being in the area."

7
 The District Court found that Manning had not changed his position for the worse in reliance on Cooper's statements, since both goose hunting and cattle feeding had been conducted on Hansen's property in previous years, and did not commence solely because of what Cooper said.  Nor did the District Court find it reasonable for Manning to rely on Cooper's October statements in allowing corn to be scattered in the field in December, after having been cited for scattering corn in a similar manner in November


497 F.2d 924
Model Cities Policy Board of Ann Arborv.Lynn
73-1985
UNITED STATES COURT OF APPEALS Sixth Circuit
5/14/74

1
E.D.Mich.

AFFIRMED


451 F.2d 169
UNITED STATES of America, Appellee,v.Robert Gean SMITH, Appellant.
No. 71-1195.
United States Court of Appeals,Eighth Circuit.
Dec. 1, 1971.

Terrance A. Hopkins, Des Moines, Iowa, for appellant.
Allen L. Donielson, U. S. Atty., Claude H. Freeman, Asst. U. S. Atty., Des Moines, Iowa, for appellee.
Before JOHNSEN, Senior Circuit Judge, and GIBSON and LAY, Circuit Judges.
PER CURIAM.

1
The appeal is from a conviction under 18 U.S.C. Sec. 922(g) for the transporting by a prior felon of a .32 caliber revolver from Minneapolis, Minnesota, to Des Moines, Iowa.  The only substantial question involved is the denial of appellant's motion to suppress the loaded revolver, a holster, and a box of .32 caliber bullets as having been obtained by illegal search and seizure.  We affirm.

2
Appellant was stopped, while driving his car on the streets of Des Moines, Iowa, at about 3:00 a. m., and placed under arrest by an Iowa State Patrolman on a larceny offense which had occurred in another county.  He was frisked and the further precaution taken of looking for a weapon under the front seat and in the glove compartment of the car.  No search was made of the back seat of the car where some luggage was located.  A Des Moines towing service was called and the car taken to the latter's storage garage in impoundment.  The Sheriff of the county where the larceny had occurred picked up the appellant the next day at the Des Moines City Jail and transported him to Eldora, the county seat.

3
Bail in the amount of $1,000 was fixed for appellant on the larceny charge, which he was not able to provide.  While he thus was kept under confinement in the County Jail at Eldora, he told the Sheriff that he would like to have his car brought from Des Moines to Eldora, because he had a check for some $1,200 in his luggage which he desired to use to try to arrange bail.  He asked the Sheriff if he would not pick up the car in Des Moines and drive it to Eldora.  Together with his attorney, appellant signed an authorization for the Sheriff to be given possession of the car and to drive it to Eldora.

4
A Deputy Sheriff went to Des Moines, picked up the car and drove it to Eldora, in accordance with appellant's authorization and request to do so.  Some beer cans and some paper food sacks or takeout bags were lying on the floor board of the front seat on the right-hand side.  They had been there at the time of appellant's arrest and were observed by the State Patrolman, but were not touched by him.  The Deputy Sheriff, however, as driver of the car, moved the sacks and beer cans around on the floor and then saw a gun holster.  He left the holster lying on the floor board, but reported its presence to the Sheriff and the presence also of a shotgun shell on the front seat.  The shotgun shell, too, had been seen by the Patrolman at the time of appellant's arrest, but he apparently regarded it as not involving any safety threat in relation to the arrest and as further not having any significance in relation to the larceny offense.

5
The Sheriff had meanwhile had a check made on appellant and learned that he was a prior felon.  He accordingly went out to the car after his Deputy's report, looked through the window and saw the holster and the shotgun shell.  He decided to have a warrant issued in order to make a search of the car on the possible firearms offense and executed an information therefor, stating that "I have been advised through normal police channel that Robert Gean Smith is a convicted felon, and I did observe, without searching, a small holster on the floor board of the above-described vehicle, leading me to believe that Robert Gean Smith is in possession of firearms in violation of the Federal 'Gun Control Act of 1968"'.  A warrant was issued by a Police Judge authorizing a search to be made of appellant's car for "guns and firearms".  Search of one of the luggage bags on the back seat of the car revealed the gun and the box of bullets which, together with the seized holster, were made the object of the motion to suppress.

6
No attack has been made on the validity of the warrant or the search and seizure conducted under it, except in respect to the legality of the Deputy Sheriff's touching and moving the paper sacks, in such lead and relationship as had been involved therein to the issuance of the warrant.  Without anything more, however, such a touching or moving of some loose paper sacks and beer cans of apparent debris, lying on the front floor board of a car, by one to whom the owner has given authority as an invitee to operate the vehicle cannot, in our opinion, be held to represent an invasion by the driver of any protected privacy of the owner.  The owner could hardly reasonably expect that such an accumulation, on its character and in its position, would normally be regarded as involving some aspect of possible personal privacy and thus not properly subject to being at all touched, pushed or moved by an invitee driver.

7
The Deputy Sheriff here had the status of an invitee driver.  He was not driving the car in official obligation, but only for the personal purpose of and as a personal favor to appellant.  We are not able to see how in this situation a constitutionally protected privacy would any more exist as to the exposure which resulted than there would be as to one which might occur from a picking up in a home or a hotel room of a newspaper or a magazine from a table or dresser by an invitee guest therein, whether officer or civilian.  The privacy and security protected by the Constitution must be of a character and involving conditions which are reasonably entitled and intended to provide a right of reliance.  Cf. Hoffa v. United States, 385 U.S. 293, 301-302, 87 S.Ct. 408, 413, 17 L.Ed.2d 374.

8
We find no merit in the contentions that appellant had not been given sufficient Miranda warning by the state officers or that he was without effective and adequate representation by his privately employed counsel at the trial.  We take occasion to add that counsel appointed for appellant on the appeal has given him most full and able representation.

9
Affirmed.


145 F.3d 1340
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Louis SCHNEIDER, Plaintiff-Appellant,v.COUNTY OF SAN DIEGO, et al., Defendant-Appellee.
No. 95-56553.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 5, 1997.April 24, 1998.

Appeal from the United States District Court for the Southern District of California.
Before: BROWNING and KLEINFELD, Circuit Judges, and MERHIGE,** Senior District Judge.
MEMORANDUM*
HUFF, J., Presiding.

1
Louis Schneider appeals the denial of his motion for judgment as a matter of law on his claim that the County of San Diego and its agent, Gregory Reynolds, dba Reybro, Inc., violated his federal due process rights when they destroyed vehicles towed from his land as part of a nuisance abatement action.  We consider the motion for judgment as a matter of law de novo and remand with instructions to grant the motion and determine damages.  See Omega Environmental, Inc. v. Gilbarco, Inc., 127 F.3d 1157, 1161 (9th Cir.1997).

2
We decline to address the defendants' contention that the jury verdict established Schneider did not own the vehicles.  The defendants did not ask the jury to make a separate factual determination on this issue (See McCord v. Maguire, 873 F.2d 1271, 1274 (9th Cir.1989), as amended, 885 F.2d 650, 650 (9th Cir.1989)), and the defendants themselves conceded and offered evidence at trial that Schneider possessed and was the legal owner of at least some of the vehicles.

A. DUE PROCESS CLAIM

3
We held in the prior appeal that the County was required, consistent with the findings of the County Abatement Board Hearing Officer, to proceed on the theory that Schneider's vehicles constituted a nuisance only because they were parked in violation of County zoning ordinances, that the nuisance was abated as soon as the vehicles were towed from Schneider's property, and that the Notice and Order to Abate did not provide Schneider with constitutionally adequate notice that his vehicles would be destroyed.  See Schneider v. County of San Diego, 28 F.3d 89, 93 (9th Cir.1994).  On remand, neither the County nor Reybro presented any evidence that Schneider received post-hearing notice that his vehicles would be destroyed.  Schneider was therefore entitled to judgment as a matter of law on his procedural due process claim.

4
Courts may reconsider issues decided by a prior panel only if: (1) the first decision was clearly erroneous, (2) there has been an intervening change in the law, or (3) the evidence on remand was substantially different.  See Milgard Tempering, Inc. v.. Selas Corp. of America, 902 F.2d 703, 715 (9th Cir.1990).  Construed liberally, the defendants' arguments challenge the prior panel's decision as clearly erroneous.  Under this standard, reversal is required only if we have "a definite and firm conviction that a mistake has been committed."  Concrete Pipe  &  Prod. v. Construction Laborers Pension Trust, 508 U.S. 602, 623, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993).

5
The prior panel's holding was entirely consistent with Ninth Circuit precedent requiring notice reasonably calculated to apprise the interested party of the issues and afford that party a reasonable opportunity to make an appearance.  See Schneider, 28 F.3d at 92 (citing Mullane v. Central Hanover Bank  &  Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) and Harris v. County of Riverside, 904 F.2d 497, 503 (9th Cir.1990)).

6
We reject the County's argument that the district court erred in concluding that the hearing officer affirmed the Notice and Order to Abate only insofar as it found Schneider was in violation of Sections 1006 and 6799 of the San Diego County Code.  The hearing officer twice referred to these provisions specifically, and effectively narrowed the County's nuisance finding to them.

7
We also reject the County's argument that our prior opinion acknowledged that the County's Notice and Order to Abate provided Schneider with adequate notice that his vehicles would be dismantled and then effectively held that this "sufficient notice retroactively disappeared" after the hearing officer issued his order.  We find no such acknowledgment and no such holding in our prior opinion.

8
We reject the claim that the prior panel did not properly consider the notice provided and procedures available to Schneider as a result of the Abandoned Vehicle Registered Owner Notifications sent by the County.  The Abandoned Vehicle Notifications were sent before the administrative hearing and thus do not undermine the panel's holding that after the hearing, the County and Reybro were required to proceed on the theory that the vehicles were a nuisance only because they were parked in violation of County ordinances.  See Schneider, 28 F.3d at 93.  Furthermore, according to a County employee's testimony at trial, the Registered Owner Notifications were merely "courtesy letters" sent in conjunction with the Notice and Order to Abate and did not invoke a new procedure separate from that initiated by the Notice and Order to Abate.

B. TAKINGS CLAIM

9
We conclude that Schneider's vehicles were taken in violation of the Constitution because the County has not adequately alleged or shown that his vehicles were destroyed to serve a legitimate public purpose.  See Armendariz v. Penman, 75 F.3d 1311, 1320-21 (9th Cir.1996) (en banc) (property may not be taken without a justifying public purpose, even if compensation is paid).

10
As noted above, the prior panel held that "following the hearing officer's order the County was obligated to proceed on the theory that Schneider's vehicles were nuisances only because they were parked in violation of county zoning ordinances," and that the nuisance was completely abated when the defendants removed the vehicles.  Schneider, 28 F.3d at 93.  As the vehicles were not themselves nuisances, their destruction cannot fall within the "nuisance exception" to the Takings Clause and cannot be said to have served the public purpose of nuisance abatement.

11
We reject the district court's application of the "conceivable basis" test to hold the jury could have concluded that the County destroyed Schneider's vehicles to further a legitimate governmental purpose.  The County has never contended on appeal or pointed to evidence in the record that Schneider's vehicles were destroyed to protect taxpayers from storage costs or for any purpose other than nuisance abatement.  It has consistently insisted that they were destroyed to serve the public purpose of nuisance abatement.

12
Finally, Schneider was not required to exhaust state remedies to succeed with his takings claim because his property was not taken to serve a legitimate public purpose.  See Armendariz, 75 F.3d at 1320-21 n. 5 (because a taking that does not serve a public purpose cannot be constitutional even if compensated, a plaintiff alleging such a taking would not need to seek compensation in state proceedings before filing a federal takings claim).

13
C. LIABILITY FOR THE CONSTITUTIONAL VIOLATIONS

14
The County is liable under Section 1983 because it followed its official policy in disposing of Schneider's vehicles.  See Monell v. Department of Soc. Serv., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (municipality is liable under Section 1983 if its "action pursuant to official municipal policy of some nature cause[s] a constitutional tort.");  Owen v. City of Independence, 445 U.S. 622, 650, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) (no good-faith exception); Evers v. County of Custer, 745 F.2d 1196, 1203-4 (9th Cir.1984) (County not immune from Section 1983 liability merely because it acted in accordance with state law).

15
Reybro is liable under Section 1983 because it jointly engaged with County officials under color of state law in the destruction of Schneider's vehicles.  See Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980) (Section 1983 plaintiff need only allege that some person has deprived him of a federal right and that the person who deprived him of that right acted under color of state or territorial law); Goichman v. Rheuban Motors, Inc., 682 F.2d 1320, 1322 (9th Cir.1982) (private persons act under color of state law when they are "jointly engaged with state officials in [a] prohibited action"); Howerton v. Gabica, 708 F.2d 380, 384 & n. 10 (9th Cir.1983) (no good-faith immunity under Section 1983 for private parties in Reybro's situation, although courts sometimes award only nominal damages).

16
The fact that Reybro is a private contractor acting at the direction of the County, which in turn failed to meet its constitutional obligation to provide notice, does not excuse the towing company from liability.  See Stypmann v. City and County of San Francisco, 557 F.2d 1338, 1341-42 (9th Cir.1977); Goichman, 682 F.2d at 1322.  We also reject Reybro's argument that as a private company, it cannot be held liable under Section 1983 for a federal taking.  See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 432-33 n. 9, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (a taking authorized by the state is a taking without regard to whether the state or a party authorized by the state does the actual physical taking).

D. SANCTIONS AGAINST SCHNEIDER'S ATTORNEY

17
Sanctions are inappropriate.  Schneider's attorney, Chesebro, did not lodge a frivolous appeal, unreasonably multiply appellate proceedings, or misrepresent facts relevant to a significant disputed issue.  See Malhiot v. Southern California Retail Clerks Union, 735 F.2d 1133, 1138 (9th Cir.1984) (discussing Fed.  R.App. P. 38 and 28 U.S.C. § 1927).  Counsel explained in the first footnote of Appellant's Opening Brief that "[a]s required under the applicable standard of review, the relevant facts are presented with all credibility determinations construed in the defendants' favor."  Accordingly, when he stated that Schneider received the Registered Owner Notification, counsel was properly construing the facts in the light most favorable to the defendants.  Similarly, counsel is not subject to sanctions for representing that Schneider appealed the claims contained in the Registered Owner Notifications, since those notifications were sent as a matter of courtesy in conjunction with the original Notice and Order to Abate.  Because Schneider clearly appealed the Notice and Order to Abate, it was not improper for counsel to represent that Schneider had also appealed the substance of the related Registered Owner Notifications.

18
REVERSED AND REMANDED.

**
 Honorable Robert R. Merhige, Senior United States District Judge for the Eastern District of Virginia, sitting by designation

*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.  R. 36-3


307 S.C. 371 (1992)
415 S.E.2d 406
James ANDERS and Barbara Anders, Respondents
v.
SOUTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant.
1770
Court of Appeals of South Carolina.
Heard January 20, 1992.
Decided February 24, 1992.
Robert J. Thomas of Sherrill & Rogers, Columbia, for appellant.
*372 David A. Fedor and David E. Massey both of Fedor, Massey & Whitlark, Columbia, for respondents.
Heard Jan. 20, 1992.
Decided Feb. 24, 1992.
Per Curiam:
Plaintiffs-Respondents, James Anders and Barbara Anders, bring this declaratory judgment action against Defendant-Appellant, South Carolina Farm Bureau Mutual Insurance Company, asking the court to hold that the insurance company failed in its duty, as required by § 38-77-160 of the South Carolina Code, to offer underinsured-motorist coverage incident to the issuance of a motor vehicle liability insurance policy. The circuit court granted Plaintiffs summary judgment. We reverse.
James Anders (father of Barbara Anders) purchased a policy of insurance from the Defendant through its agent Mary Eager. Herein we refer to James Anders as the Plaintiff. While the policy was in effect, the daughter was injured by an at fault driver. The at fault driver's insurance company has offered the limits of coverage, but in an amount alleged to be less than the damages sustained. The Plaintiff alleges that he was not offered underinsurance at the time the policy was issued as required by statute. The statute, § 38-77-160 of the South Carolina Code, in relative part reads as follows:
... Such carriers shall also offer, at the option of the insured, underinsured motorist coverage up to the limits of the insured liability coverage to provide coverage in the event that damages are sustained in excess of the liability limits carried by an at fault insured or underinsured motorist.
Several cases have been decided by the Supreme Court of South Carolina interpreting this provision. In State Farm Mutual Automobile Insurance Company v. Wannamaker, 291 S.C. 518, 354 S.E. (2d) 555 (1987), our court adopted the Minnesota Rule designating the requirements for compliance with this statutory provision as follows:
... (1) [T]he insurer's notification process must be commercially reasonable, whether oral or in writing; (2) the *373 insurer must specify the limits of optional coverage and not merely offer additional coverage in general terms; (3) the insurer must intelligibly advise the insured of the nature of the optional coverage; and (4) the insured must be told that optional coverages are available for an additional premium.
Based on affidavits and depositions, the trial judge granted summary judgment in keeping with Rule 56 of the South Carolina Rules of Civil Procedure, holding that there was no genuine issue of fact to be determined by a jury. It is well established that summary judgment should be granted "... in cases in which plain, palpable and indisputable facts exist on which reasonable minds cannot differ." Main v. Corley, 281 S.C. 525, 316 S.E. (2d) 406 (1984). The rule is simple but not always easy to apply. Relief granted under Rule 56 is drastic because it terminates the cause of action on the merits. Relief granted by way of summary judgment is a first cousin to a directed verdict. Rule 56 speaks in terms of "no genuine issue of fact." A directed verdict speaks in terms of "only one reasonable inference." In each instance the party granted relief prevails as a matter of law and the litigation is ended.
By granting a summary judgment or a directed verdict, the judge in effect holds as a matter of law: "The evidence is all on one side; the facts are not debatable; a jury must believe the movants interpretation of the facts and the inferences to be drawn therefrom." The showing before the court falls short of such requirement.
Plaintiff contends that underinsured motorist coverage should be available to him notwithstanding the fact that he never contracted to purchase the coverage from the defendant because it was never offered to him. The Defendant asserts its policy with the Plaintiff does not include underinsured coverage because it effectively offered the coverage which was declined.

FACTS
Most of the facts as developed by the affidavits, exhibits and depositions are not greatly in dispute. Others are in`substantial contest.
The Plaintiff applied to the Defendant to procure a liability insurance policy on his vehicle and was served by an agent *374 who was an old friend of some twenty years. One of the reasons for buying insurance from this company was the friendship of the agent.
The insured is a highly sophisticated attorney at the Columbia bar who served with the Office of the Attorney General and later as Solicitor for sixteen years. He is now practicing law. In his affidavit, he stated that he was "... completely unfamiliar with the laws regarding underinsurance in South Carolina."
In Plaintiff's deposition, he testified as follows:
Q. Your objective was to have the premium as low as possible?
A. I got tired of giving money, so much money to insurance companies every year, yes.

* * * * * *
Q. Did she [the agent] ever discuss prices or quote prices to`you in advance of requesting a check?
A. I don't think so. I think I just told her I wanted the minimum and I had to pay a membership fee. I remember that. I don't understand why I have to pay a membership fee, but I've been paying it ever since.
The affidavit of agent Eager includes the following:
In response to Anders' request, I developed a quotation for coverage on the described vehicles which included bodily injury liability limits in the amount of $50,000 per person/$100,000 per accident and property damage liability coverage in the amount of $25,000 per accident. In addition, my quotation included the price of uninsured motorist coverage and underinsured motorist coverage with the same limits as that cited for bodily injury and property damage liability. My quotation also included the price of Personal Injury Protection coverage in the amount of $1000. This quotation was communicated to Anders with my recommendation that he carry higher than the minimum limits of liability insurance and that he also carry uninsured and underinsured coverages equal to the liability limits on the vehicles.

* * * * * *

*375 Anders agreed to purchase liability limits of 50/100/25 as recommended but insisted that he was not interested in any other optional coverages that South Carolina law did not require in order to comply with financial responsibility requirements.

* * * * * *
... I hand-carried the applications to Mr. Anders' office that same day where he signed the application I had prepared, initialed the spaces indicating that he had rejected the optional excess uninsured and underinsured motorist coverages and provided me with check for the premium reflected in the applications. In initialing these spaces, I specially advised that his initials were to indicate his rejection of the other optional coverages we discussed.

DISCUSSION
The trial judge ruled "... it is clear at the very least that Farm Bureau has not met the third prong of Wannamaker in that there is no evidence whatsoever that its agent intelligibly advised James Anders of the nature of the optional underinsurance coverage. It is encumbered upon Farm Bureau to prove that it has met all four prongs of the Wannamaker test. This it has failed to do."
The burden of proving that there was no genuine issue of fact to be determined by a jury was upon the Plaintiff. He might prevail by showing, to the exclusion of other reasonable inferences, that the Defendant failed as to at least one prong of the requirements of Wannamaker.
At the summary judgment stage of the proceeding, it was only necessary for the Defendant to submit a scintilla of evidence warranting a determination by the jury. This it has done.
The case was not before the trial judge and it is not before this court on the merits. The only question for determination is that of "genuine issue." There is evidence which, if believed, would warrant the conclusion that the Defendant mailed to Plaintiff literature sufficient to constitute the offer required by statute and Wannamaker. But assuming this is not sufficient, we think such evidence, along *376 with other evidence, supports the inference that a meaningful offer was made and intelligently refused. The Plaintiff indicated with check marks on the application that he did not want underinsurance.
In determining whether sufficient advice was given to the Plaintiff, the sophistication of the applicant may be considered. One who is ignorant and unwary might require more explanation than a sophisticated applicant. In a kindred matter, the Supreme Court recognized this fact in Burwell v. S.C. National Bank, 288 S.C. 34, 340 S.E. (2d) 786 (1986). In that case the Court said ". . n an individual's education, business experience and intelligence are all considered."
The two issues submitted to the court for determination at this time, as taken from Defendant's brief, are as follows:
1. Is an issue of fact presented as to whether Respondent James Anders, who is both a lawyer and a businessman, understood underinsured-motorist coverage when such coverage was offered to him by Appellant's agent and when Respondent James Anders initialed rejection blocks declining offers of such coverage?
2. Is an issue of fact presented as to whether Respondent James Anders, who is both a lawyer and a businessman, waived the statutory right to have underinsured-motorist coverage explained to him?
We hold that a genuine issue of fact is involved and that the Defendant is entitled to prevail on both issues.
The order of the judge is reversed and the case is remanded for further proceedings.
Reversed and remanded.


                       United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                 _____________

                                No. 96-2807WA
                                _____________

McMillian/McMillian, Inc.,             *
                                       *
            Plaintiff-Appellant,       *
                                       *
      v.                               *
                                       *
Monticello Insurance Co.,              * Appeal from the United States
                                       * District Court for the Western
            Defendant-Appellee,        * District of Arkansas.
                                       *
      v.                               *
                                       *
David McMillian,                       *
                                       *
            Third Party-Appellant.     *
                                 _____________

                          Submitted: March 13, 1997
                              Filed: June 17, 1997
                               _____________

Before FAGG and HEANEY, Circuit Judges, and NANGLE,* District Judge.
                           _____________

FAGG, Circuit Judge.

      *
        The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri, sitting by designation.
         A laundromat owned by McMillian/McMillian, Inc. (M/M) burned down.
Believing the fire had been deliberately set, Monticello Insurance Company denied
coverage under a policy exclusion for incendiary fires, and M/M sued Monticello for
breach of contract. Monticello filed a third-party claim for indemnification against
M/M’s president, David McMillian, asserting McMillian set the fire himself. After
McMillian evaded Monticello’s attempts to serve him personally, Monticello served
process by warning order, see Ark. R. Civ. P. 4(f)(1), but McMillian never answered
the third-party complaint. Monticello secured an entry of default by the clerk of court
and then moved for a default judgment. Roused at last, McMillian filed a cross-motion
to set aside the entry of default. The district court denied McMillian’s motion and
entered a default judgment. A few days later, the underlying coverage dispute was
tried. The jury was instructed that McMillian had suffered a default judgment, and as
a result he could not contest the third-party complaint’s assertion that McMillian had
set the fire. The case went to the jury on the sole question of whether McMillian was
acting as M/M’s agent when he burned the laundromat. The jury found in favor of
Monticello, and the district court denied M/M’s and McMillian’s posttrial motions to
set aside the default judgment and for a new trial. McMillian and M/M appeal the
denial of their posttrial motions. McMillian also appeals from the default judgment
itself, assigning error to the denial of his motion to set aside the clerk’s entry of default.
We affirm.
         In its default judgment, the district court awarded Monticello “full indemnity
from David McMillian for any and all damages that may be awarded against Monticello
Insurance Company by way of the underlying suit in this matter.” Having prevailed in
the underlying suit, Monticello incurred no liability for McMillian to indemnify. Thus,
the default judgment entered against McMillian would be a moot issue were it not for
the role the judgment played at trial. What McMillian and M/M really want is a new
trial, with no default judgment jury instruction adversely determining the key material
fact. We will reverse the denial of a motion for a new trial only if the denial
“‘represents a clear abuse of discretion or a new trial is necessary to avoid a

                                             -2-
miscarriage of justice.’” Lamb Eng’g & Constr. Co. v. Nebraska Pub. Power Dist.,
103 F.3d 1422, 1430 (8th Cir. 1997) (quoting Farmland Indus., Inc. v. Morrison-Quirk
Grain Corp., 54 F.3d 478, 483 (8th Cir. 1995)). Having reviewed the record and the
parties’ briefs, we conclude the district court properly denied McMillian’s and M/M’s
new trial motion because the district court acted within its discretion in refusing to set
aside both the entry of default and the default judgment. See Canal Ins. Co. v.
Ashmore, 61 F.3d 15, 17 (8th Cir. 1995) (per curiam); Pretzel & Stouffer v. Imperial
Adjusters, Inc., 28 F.3d 42, 44-45 (7th Cir. 1994).

        McMillian contends he showed good cause for the district court to set aside
entry of default, see Fed. R. Civ. P. 55(c), because Monticello’s service of process on
McMillian was defective. According to McMillian, Monticello neglected to enclose
a copy of its third-party complaint with the warning order, as it was obliged to do. See
Ark. R. Civ. P. 4(f)(1). By affidavit, counsel for Monticello attested he mailed
McMillian both the warning order and the complaint. The district court believed
counsel for Monticello, and we defer to the district court’s credibility assessment.
McMillian also complains that M/M’s attorney was not notified in June 1995 that the
district court had granted Monticello leave to file its third-party complaint. Failure to
notify counsel for M/M in 1995 is not good cause to set aside McMillian’s default
because M/M’s attorney did not begin representing McMillian until after the clerk
entered the default in April 1996. Because McMillian failed to show good cause for
his default as Rule 55(c) requires, the district court did not abuse its discretion when
it declined to consider the meritoriousness of McMillian’s defense to the third-party
complaint or the potential prejudice to Monticello from setting aside the entry of
default. See Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th Cir.
1996); Pretzel & Stouffer, 28 F.3d at 46. Besides, McMillian’s so-called defense was
lame. He claimed that injuries he sustained in a severe beating made it physically
impossible for him to be present at the scene of the fire the night the laundromat
burned. He admitted, however, that he visited the scene the very next morning.

                                           -3-
       M/M and McMillian also contend the district court should have vacated the
default judgment and granted a new trial because the default judgment was entered
prematurely and thus the jury never should have heard about it in the first place.
Relying on Frow v. De La Vega, 82 U.S. (15 Wall.) 552 (1872), McMillian and M/M
argue the district court was obliged to wait until the trial was over before entering the
default judgment. In Frow, De La Vega sued Frow and thirteen others, claiming they
had conspired to defraud him of title to property. The court entered judgment against
Frow when Frow defaulted, but then dismissed De La Vega’s claims against the rest
of the defendants. As a result, conflicting judgments declared De La Vega both had
and had not been defrauded of title. To prevent this kind of “absurdity,” Frow, 82 U.S.
at 554, the Supreme Court held that when defendants are sued as jointly liable, and less
than all default, the court may not enter default judgment against the defaulted
defendants until the liability of the nondefaulted defendants has been decided. See
generally In re Uranium Antitrust Litigation, 617 F.2d 1248, 1256-58 (7th Cir. 1980)
(explaining Frow). Frow has no bearing on this case, however. Although McMillian
and M/M share closely related interests, they were not codefendants facing lawsuit on
a theory of joint liability, where “no one defendant may be liable unless all defendants
are liable.” 10 James Wm. Moore et al., Moore’s Federal Practice § 55.25 (3d ed.
1997). McMillian’s responsibility for the fire would not have implicated M/M if
McMillian had acted on his own and not as M/M’s agent. Further, because Monticello
sued McMillian for indemnification, McMillian’s liability hinged on Monticello’s, not
M/M’s.

      Finally, although it is unlikely M/M preserved the issue for our review, M/M
contends the district court improperly instructed the jury that the default judgment cut
off McMillian’s right to testify he did not cause the fire. Contrary to M/M’s view,
when a default judgment has been entered, facts alleged in the complaint--here, that
McMillian was responsible for the fire--may not be contested by the defaulted party.
See Black v. Lane, 22 F.3d 1395, 1399 (7th Cir. 1994).

                                          -4-
       We thus affirm both the district court’s default judgment and its judgment on the
jury’s verdict in favor of Monticello.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

                                          -5-


11th Court of Appeals
Eastland, Texas
Memorandum Opinion

Michael G. Brown, M.D.
            Appellant
Vs.                  No. 11-03-00259-CV – Appeal from Harris County
Medical Office Buildings of Texas, L.P.
            Appellee

            Michael G. Brown, M.D. and Medical Office Buildings of Texas, L.P. have filed in this court
a joint motion to dismiss this appeal.  In their motion, the parties state that the dispute has been
mediated and a settlement has been reached.  The motion is granted.
            The appeal is dismissed.

                                                                                PER CURIAM

May 6, 2004
Not designated for publication.  See TEX.R.APP.P. 47.2(a).
Panel consists of:  Arnot, C.J., and
Wright, J., and McCall, J.


     Case: 17-30789       Document: 00514690468         Page: 1     Date Filed: 10/19/2018

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                Fifth Circuit

                                                                                FILED
                                     No. 17-30789                           October 19, 2018
                                   Summary Calendar                           Lyle W. Cayce
                                                                                Clerk

STEVEN ANTHONY WALCOTT, JR.,

                                                  Plaintiff - Appellant

v.

PAT NAQUIN; TERREBONNE PARISH JAIL MEDICAL DEPARTMENT;
RICHARD NEAL, Head Nurse/Doctor; TERREBONNE PARISH
CONSOLIDATED GOVERNMENT,

                                                  Defendants - Appellees

                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:16-CV-15587

Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Proceeding pro se and in forma pauperis, Steven Anthony Walcott, Jr.,
Terrebonne Parish # 51734 and Louisiana prisoner # 344820, contests the
dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state
a claim on which relief can be granted.                He contends defendants were

       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
    Case: 17-30789     Document: 00514690468      Page: 2    Date Filed: 10/19/2018

                                  No. 17-30789

deliberately indifferent to his serious medical needs by denying him effective
and immediate dental care.
      We must, however, determine sua sponte whether we have jurisdiction
to review this appeal. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A
timely appeal is a jurisdictional prerequisite if, as here, the time limit is set by
statute. Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 16 (2017);
Bowles v. Russell, 551 U.S. 205, 214 (2007); 28 U.S.C. § 2107(a).
      In a civil matter, a notice of appeal must be filed within 30 days of entry
of the judgment or order being appealed. 28 U.S.C. § 2107(a); Fed. R. App. P.
4(a)(1)(A). The final judgment dismissing Walcott’s complaint was entered on
22 August 2017. Walcott averred he placed his notice of appeal in the prison
mailing system on 25 September 2017. See Stoot v. Cain, 570 F.3d 669, 671
(5th Cir. 2009) (prison mailbox rule). Therefore, Walcott’s notice of appeal is
untimely.
      Although his appeal was filed within the 30-day period to seek an
extension of time based on excusable neglect or good cause, Fed. R. App.
P. 4(a)(5)(A), his notice of appeal is not such a request because he did not
provide any explanation for his late filing, see Durham v. Anderson, 699 F.
App’x 389, 389 (5th Cir. 2017); Nichols v. Hickman, 699 F. App’x 330, 330–31
(5th Cir. 2017). Therefore, this appeal is dismissed for lack of jurisdiction. See
Hamer, 138 S. Ct. at 16; Bowles, 551 U.S. at 215.
      DISMISSED.

                                         2


942 F.Supp. 732 (1996)
UNITED STATES of America,
v.
Pedro RIVERA, et al., Defendants.
Crim. No. 95-084 (HL).
United States District Court, D. Puerto Rico.
August 14, 1996.
Joseph C. Laws, Hato Rey, PR, Rachel Brill, Hato Rey, PR, and Nicolas Jimenez-Torres, Luquillo, PR, for Pedro Rivera, defendant.
Ramon Garcia-Garcia, Santurce, PR, and Gustavo A. Gelpi-Abarca, Federal Public Defender's Office, Old San Juan, PR, for Bunker Group Puerto Rico, defendant.
Yolanda A. Collazo-Rodriguez, Bayamon, PR, for Bunker Group Incorporated, defendant.
Jorge L. Arroyo-Alejandro, San Juan, PR, for New England Marine Services, Inc., defendant.
Jorge E. Vega-Pacheco, U.S. Attorney's Office District of P.R., Criminal Division, Hato Rey, PR, Michael J. Woods, Trial Attorney, Charles A. DeMonaco, Assistant Chief, Environmental Crimes Section U.S. Department of Justice, and Rose Rodriguez-Velez, Executive Attorney to the U.S. Attorney, U.S. Department of Justice, Washington, DC, for the U.S.

OPINION AND ORDER
LAFFITTE, District Judge.
Before the Court is Defendant Pedro Rivera's motion for judgment of acquittal of count three of the indictment, pursuant to Fed.R.Crim.P. 29. Following an eight-day jury trial, Rivera was found guilty of counts one and three of the indictment. This case arises out of an oil spill in Puerto Rico on January 7, 1994, involving the tugboat Emily S and the tankbarge Morris J. Berman. In *733 the early hours of January 7, 1994, the towing wire that the Emily S was using to tow the Morris J. Berman parted. The crew of the Emily S repaired the towing wire. The repair proved to be faulty, however, and when the Morris J. Berman came adrift a second time later that same morning, it ran aground at Escambrón Beach in San Juan.
Rivera was the general manager of Defendant Bunker Group Puerto Rico. He managed the operations of the Emily S and the Morris J. Berman. Count one of the indictment charged him with knowingly sending the Emily S to sea in an unworthy state that was likely to endanger the lives of the crew members or the lives of other individuals, in violation of 46 U.S.C. § 10908. Count three charged him with willingly and knowingly failing to notify the Captain of the Port that a hazardous condition  specifically that the towing wire had parted and left the Morris J. Berman adrift  existed on board the Emily S, in violation of 33 U.S.C. § 1232(b)(1) and 33 C.F.R. § 160.215.
The evidence at trial demonstrated that the wire the Emily S was using to tow the Morris J. Berman was in poor condition and had already snapped while it was being used on a trip in August 1993.[1] Rivera was aware of the wire's condition, and by January 1994 he had made provisions to replace it.[2] On the evening of January 6, 1994, the Emily S began a trip to tow the Morris J. Berman, half-loaded with oil, to Antigua.[3] Although Rivera had made provisions to replace the tow wire, he was not able to do so prior to the trip to Antigua.[4] The Emily S and the Morris J. Berman began the trip shortly after 10:00 at night.[5] At a little after 11:00 the tugboat and barge had left San Juan's harbor.[6]
Between 12:30 and 1:00 a.m. on January 7, 1994, the Emily S' towing wire parted.[7] Roy McMichael, the captain of the Emily S, temporarily repaired the wire by forming a loop fastened by clips.[8] The proper method, the use of a "thimble," was available to the crew, but it was not used.[9] George Emanuel, a tugboat captain employed by Rivera, had been monitoring the radio channels used by tugboats and other ships.[10] Emanuel overheard radio transmissions between the tugboat Emily S and the barge Morris J. Berman discussing the parting of the tow wire, realized that there was a problem, and he called McMichael to inquire whether he needed assistance.[11] McMichael declined the offer of assistance, and Emanuel told McMichael to call him back if he needed help.[12] After speaking with McMichael, Emanuel attempted to contact Rivera to inform him what had happened, but he was initially unable to locate him.[13] McMichael did not contact Rivera about the parting.[14]
Between 2:00 and 2:30 a.m. Emanuel went to Rivera's home and called McMichael back to see if the problem had been solved.[15] Emanuel and McMichael discussed the situation, *734 and they decided that McMichael should continue on to St. Thomas to have the wire repaired, rather than return to San Juan to do so.[16] It was at this time that Rivera first learned of the problem.[17] Rivera consulted with Emanuel as to whether the barge should be called back; Emanuel advised him to allow McMichael to continue on with his voyage.[18] After he spoke with Emanuel, Rivera called the Emily S at about 3:00 a.m. and spoke with Victor Martínez, the first mate.[19] The rest of the crew was asleep at this time, and Martínez told Rivera that everything was normal and that there was not a problem.[20] At around 4:00 a.m. Martínez realized that the Emily S was no longer towing the barge.[21] At this same time one of the crew members of the Morris J. Berman radioed the Coast Guard to report that the barge had run aground and to request rescue.[22] The oil spill at Escambrón Beach ensued.[23]
At trial Rivera moved for a judgment of acquittal on count three pursuant to Criminal Rule 29(a). At that time, the Court denied the motion.[24] Rivera timely filed the present motion pursuant to Rule 29(c). Upon further reflection and following a careful review of the record and the transcript of the trial, however, the Court grants Rivera's motion.

DISCUSSION
Under Criminal Rule 29 the court must determine whether the evidence, viewed in the light most favorable to the Government, would enable a rational jury to find each element of the offense beyond a reasonable doubt. United States v. Laboy-Delgado, 84 F.3d 22, 26 (1st Cir.1996). In making the determination, the court must draw all reasonable evidentiary inferences and all credibility determinations in harmony with the jury's verdict. United States v. DiMarzo, 80 F.3d 656, 660 (1st Cir.1996). It does not matter whether a different jury might draw alternative inferences or might reach a different result. Laboy-Delgado, 84 F.3d at 26-27.
In count one of the indictment Rivera was charged with a violation of 46 U.S.C. § 10908. That section reads as follows:
A person that knowingly sends ... or that is a party to sending ... a vessel of the United States to sea, in an unseaworthy state that is likely to endanger the life of an individual, shall be fined not more than $1,000, imprisoned for not more than 5 years, or both.
Count three of the indictment reads in pertinent part:
At or about 12:30 a.m. on January 7, 1994, within the jurisdiction of this Court, Defendants Pedro Rivera, Bunker Group Puerto Rico, Bunker Group Incorporated, and New England Marine Services willfully and knowingly failed to notify the Captain of the Port that a hazardous condition existed on board the M/V Emily S, namely, that the towing wire had parted leaving the Morris J. Berman adrift,
In violation of Title 33, United States Code, Section 1232(b)(1) and Title 33, Code of Federal Regulations, Section 160.215.
Section 1232(b)(1) of title 33 reads as follows:
(1) Any person who willfully and knowingly violates this chapter or any regulation issued hereunder commits a class D felony.
At the time of the oil spill 33 C.F.R. § 160.215 read as follows:
§ 160.215 Notice of hazardous conditions.
Whenever there is a hazardous condition on board a vessel, the owner, master, agent or person in charge shall immediately notify the Captain of the Port of the port or place of destination and the Captain *735 of the Port of the port or place in which the vessel is located of the hazardous condition.
The federal regulations at the time of the oil spill defined "hazardous condition" as follows:
Hazardous condition means any condition that could adversely affect the safety of any vessel, bridge, structure, or shore area or the environmental quality of any port, harbor, or navigable water of the United States. This condition could include but is not limited to, fire, explosion, grounding, leaking, damage, illness of a person on board, or a manning shortage.
33 C.F.R. § 160.203 (1994).
In the case before the Court, there is not sufficient evidence to establish beyond a reasonable doubt that Rivera willfully and knowingly failed to notify the Captain of the Port of the hazardous condition. The Government presented evidence that Rivera knew about the first parting of the wire and that he did not notify the Captain of the Port. However, the evidence further demonstrated that Rivera did not learn of this first parting until some time between 2:00 and 2:30 a.m., after the Emily S crew had repaired the wire.[25] After he learned of said parting, Rivera asked Emanuel what he should do, and Emanuel advised him to allow the Emily S to continue on with its voyage.[26] Rivera also called the Emily S at 3:00 a.m. and spoke with Victor Martínez, the only crew member who was awake at the time.[27] Martínez told Rivera that everything was normal and that there was no problem.[28] Rivera's conversations with Martínez and Emanuel demonstrate that he attempted to determine the status of the tow wire. The Government failed to present evidence that Rivera was aware that the repair was faulty or that the barge came adrift a second time. There is thus no evidence that Rivera ever knew of a hazardous condition caused by the parting of the tow wire. Therefore, he could not have willfully or knowingly failed to notify the Captain of the Port of a hazardous condition of which he was unaware.
At trial the Court denied Rivera's Rule 29 motion because Rivera knew that the cable was deteriorated, that it had parted during the trip to Antigua, and that the Morris J. Berman was carrying oil. Upon a review of the record the Court now concludes that the evidence presented could enable a rational jury to reasonably infer that Rivera had knowingly sent the Emily S to sea in an unseaworthy state, in violation of count one of the indictment. The evidence was not sufficient, however, to enable a rational jury to reasonably infer that Rivera had willfully and knowingly failed to notify the Captain of the Part that a hazardous condition  specifically that the towing wire had parted and the Morris J. Berman had come adrift  existed, as charged in count three of the indictment. Accordingly, the Court finds that the evidence, viewed in the light most favorable to the Government, could not enable a rational jury to find that Rivera violated 33 U.S.C. § 1232(b)(1).
WHEREFORE, the Court hereby grants Rivera's motion as to judgment of acquittal (docket no. 191) for count three of the indictment.
IT IS SO ORDERED.
NOTES
[1]  Transcript, docket no. 166, at 405-06, 452-55; docket no. 167, at 472, 533-34, 550-52, 577-79; docket no. 168, at 607, 612-14, 618-19; docket no. 170, at 888.
[2]  Transcript, docket no. 164, at 188-90, 195, 262; docket no. 166, at 406; docket no. 167, at 551-52, 579-80; docket no. 168, at 613-14.
[3]  Transcript, docket no. 164, at 194, 197; docket no. 166, at 404, 453.
[4]  Transcript, docket no. 164, at 195; docket no. 166, at 452.
[5]  Transcript, docket no. 164, at 199; docket no. 166, at 408-09.
[6]  Transcript, docket no. 164, at 200.
[7]  Transcript, docket no. 164, at 205-13; docket no. 166, at 410-11; docket no. 167, at 503-07, 522.
[8]  Transcript, docket no. 164, at 206; docket no. 166, at 412.
[9]  Transcript, docket no. 164, at 206-08; docket no. 166, at 439-40.
[10]  Transcript, docket no. 167, at 493, 503.
[11]  Transcript, docket no. 164, at 209; docket no. 167, at 503-06.
[12]  Transcript, docket no. 164, at 209, 255; docket no. 167, at 505-06.
[13]  Transcript, docket no. 167, at 508-10.
[14]  Transcript, docket no. 164, at 245.
[15]  Transcript, docket no. 167, at 506-12.
[16]  Transcript, docket no. 164, at 212-13; docket no. 167, at 512.
[17]  Transcript, docket no. 167, at 514-15.
[18]  Transcript, docket no. 167, at 513-17, 527.
[19]  Transcript, docket no. 166, at 414-15.
[20]  Transcript, docket no. 166, at 413-15, 441.
[21]  Transcript, docket no. 166, at 416-17, 447.
[22]  Transcript, docket no. 163, at 149-50; docket no. 167, at 539.
[23]  Transcript, docket no. 167, at 538-40.
[24]  Transcript, docket no. 171, at 972-1001.
[25]  Transcript, docket no. 167, at 507-16.
[26]  Transcript, docket no. 167, at 513-17, 527.
[27]  Transcript, docket no. 166, at 413-15.
[28]  Transcript, docket no. 166, at 413-15, 441.


899 F.2d 1227
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.CLEMENTS INDUSTRIES, INC., and Ben Clements & Sons, Inc.,Plaintiff-Appellant,v.A. MEYERS & SONS CORP., Defendant-Appellee.
No. 89-1597.
United States Court of Appeals, Federal Circuit.
March 9, 1990.

Before MARKEY, Chief Judge, PAULINE NEWMAN, Senior Circuit Judge, and JOHN C. LIFLAND, District Judge*:
Judgment
PER CURIAM.

1
AFFIRMED.  See Fed.Cir.R. 36.

*
 Judge JOHN C. LIFLAND of the District of New Jersey, sitting by designation


15-2029
Haygood v. ACM Medical Laboratory, Inc.,

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 14th day of March, two thousand sixteen.

Present:       ROBERT A. KATZMANN,
                    Chief Judge,
               AMALYA L. KEARSE,
                    Circuit Judge,
               GREGORY H. WOODS,
                    District Judge.*

HAROLD L. HAYGOOD,

       Plaintiff-Appellant,

               -v-                                  No. 15-2029

ACM MEDICAL LABORATORY, INC.,
and DAWN CRUZ, Homebound Services
Supervisor, individually,

       Defendants-Appellees.**

For Plaintiff-Appellant:                            Ryan C. Woodworth, Rochester, NY.

*
   The Honorable Gregory H. Woods, of the United States District Court for the Southern District
of New York, sitting by designation.
**
    The Clerk of the Court is respectfully directed to amend the caption to conform to the above.

                                                1
For Defendants-Appellees:                             Daniel J. Moore, Harris Beach PLLC,
                                                      Pittsford, NY.

       Appeal from the United States District Court for the Western District of New York
(Telesca, S.J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is AFFIRMED.

        Harold Haygood alleges that he was subject to racial discrimination, a hostile work

environment, and unlawful retaliation by his supervisor, Dawn Cruz, during the two years he was

employed by ACM Medical Laboratory, Inc. (“ACM”). Haygood, acting pro se, filed two

substantially identical charges of discrimination on the same date, one with the Equal

Employment Opportunity Commission (“EEOC”) and one with the New York State Division of

Human Rights (the “Division”). The EEOC did not find any violations of anti-discrimination

laws and sent Haygood a dismissal notice on January 30, 2014. The Division, which held a fact-

finding conference to investigate the allegations, also dismissed Haygood’s complaint. Haygood

appealed the Division’s determination to the EEOC, which issued a second dismissal notice on

May 20. Both EEOC dismissal notices informed Haygood that he had 90 days to file suit or his

right to sue based on those claims would be lost.

       On August 13, 2014, Haygood filed a complaint against ACM and Cruz, alleging

violations of 42 U.S.C. §1981, Title VII of the Civil Rights Act of 1964, and the New York State

Human Rights Law. His complaint was filed within 90 days of receiving the EEOC’s second

dismissal notice, but more than 90 days after he received the first. The defendants jointly moved

to dismiss for lack of jurisdiction. The United States District Court for the Western District of

New York (Telesca, S.J.) granted the motion and dismissed all of Haygood’s claims. It

determined that Haygood’s Title VII claims were untimely and denied him equitable tolling. The

                                                 2
court also concluded that Haygood’s § 1981 claims were collaterally estopped because he had a

full and fair opportunity to litigate before the Division. Haygood now appeals on both grounds.

       We find that the district court did not err in granting the defendants’ motion to dismiss, as

Haygood’s complaint was filed well after the expiration of the 90-day deadline from his first

dismissal notice. We also conclude that the district court did not abuse its discretion in

determining that Haygood had not met the “extraordinary” burden to invoke equitable tolling.

See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (“[A] litigant seeking equitable tolling bears

the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way.”). As a unanimous Supreme Court

recently “reaffirm[ed],” “the second prong of the equitable tolling test is met only where the

circumstances that caused a litigant’s delay are both extraordinary and beyond its control.”

Menominee Indian Tribe of Wisc. v. U.S., 136 S. Ct. 750, 756 (2016); see also Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (tolling should be “applied sparingly”).

       Although there is no indication here that Haygood sought two dismissal notices in a

deliberate attempt to get around the statutory time limits, see, e.g., Soso Liang Lo v. Pan

American World Airways, Inc., 787 F.2d 827 (2d Cir. 1986) (per curiam), the deadline stated in

the first notice was controlling. Because Haygood’s filing was indisputably untimely and he has

not shown any “extraordinary circumstances” warranting equitable tolling, we affirm the district

court’s judgment dismissing the Title VII claims.

       We have examined the remainder of Haygood’s arguments and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK

                                                  3


                                                       t/i-UA i or ;-.;•'i   ..ms-^ L.> r i

                                                        201^ APR 28 AH 9=59

         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             NO. 69648-3-1

                     Respondent,                 DIVISION ONE

                    v.

MELINA K. HARRIS,                                UNPUBLISHED OPINION

                     Appellant.                  FILED: April 28, 2014

       LAUi j. —a criminal defendant is entitled to a unanimous verdict. When the State
presents evidence of several distinct acts, any one of which could form the basis of a
criminal charge, the trial court must instruct the jury that it must reach a unanimous
verdict on one particular incident as the basis for the conviction. Multiple acts that
amount to a continuing course of conduct, however, do not require a unanimity
instruction. Because Melina Harris's assault on a police officer constitutes a continuous
course of conduct, the trial court properly refused to give a unanimity instruction. And
because the third degree assault and obstruction of a police officer offenses do not
69648-3-1/2

contain the same elements, the double jeopardy clause does not prevent convictions for

both offenses. We affirm.

                                        FACTS

      On October 29, 2011, the Saturday before Halloween, Kent police officers were

responding to a number of noise complaints, including a Halloween party at Melina

Harris's house at approximately 11:20 pm. Detective Jonathan Thompson and Officer

Eric Doherty responded to the call. Both officers heard loud music coming from the

house as they approached on foot.

      Harris came to the front door dressed in a long dress and high heels. Harris

removed her shoes and walked to the middle of the cul de sac, stating repeatedly that

she could not hear anything, the party was not very loud, and she wanted to know who

had complained.

      While Officer Doherty was attempting to speak with Harris about the noise, Harris

pointed at Detective Thompson, whom she thought she recognized and said, "He's

been doing this for a while. I'm talking to him instead." Report of Proceedings (RP)

(Oct. 16, 2012) at 124). Thompson suggested how the noise could be controlled.

      Harris started to walk back toward her house. Officer Doherty followed Harris

asking again for her name. Harris refused. Officer Doherty continued to follow Harris

back to the house. Harris retrieved her shoes and turned to face Officer Doherty.

Because of the darkness, Officer Doherty shined his flash light at Harris. When Harris

complained about the flashlight, Officer Doherty lowered it and asked whether it was

any better. Harris hit Officer Doherty with her shoes. Officer Doherty raised his hands

to block her and pushed her hands away with his forearm. Harris grabbed Officer

                                         -2-
69648-3-1/3

Doherty's collar while still holding on to one of her shoes. Officer Doherty maneuvered

Harris to the ground. At that point, Officer Doherty noticed that Harris's lip was

bleeding. Officer Doherty tried to control her flailing arms and legs to get Harris in a

face down position. Harris bit Officer Doherty's hand. Officer Doherty pushed Harris's

head away and moved his hand. Thompson helped to subdue Harris. This entire

confrontation occurred quickly.

      After aid personnel treated Harris, she was booked into Kent city jail. The State

charged Harris with third degree assault and obstructing a law enforcement officer. A

jury found Harris guilty of both charges. Harris appeals.

                                         ANALYSIS

       Harris argues that the court erred in refusing to instruct the jury that it must be

unanimous as to which act constituted the third degree assault. She argues that the

jury could have found separate acts of assault based on hitting Officer Doherty with her

shoes and then biting him while she was on the ground.

       Unanimity Instruction

       The standard of review depends on whether the trial court's refusal to grant the

jury instruction was based on a matter of law or facts. State v. Walker. 136 Wn.2d 767,

771-72, 966 P.2d 883 (1998). A trial court's refusal to give instructions to a jury, if

based on a factual dispute, is reviewable only for abuse of discretion. Walker. 136

Wn.2d at 771-72. The trial court's refusal to give an instruction based upon a ruling of

law is reviewed de novo.1 Walker. 136 Wn.2d at 772. Here, we review the trial court's

refusal to give a jury instruction for abuse of discretion.

       1 We reach the same result under either standard of review.
                                            -3-
69648-3-1/4

       Criminal defendants in Washington are entitled to a unanimous jury verdict.

State v. Ortega-Martinez. 124 Wn.2d 702, 707, 881 P.2d 231 (1994). When the State

presents evidence of multiple acts that could each form the basis for one charged crime,
the State must choose which of the acts it relied on or the court must give a Petrich2

instruction to the jury requiring them to agree on a specific criminal act. State v.

Coleman. 159 Wn.2d 509, 511, 150 P.3d 1126 (2007).

       The necessity for a unanimity instruction arises only in multiple acts cases, not

where the evidence indicates a continuing course of conduct. State v. Handran, 113

Wn.2d 11, 17, 775 P 2d 453 (1989V overruled on other grounds by State v. Kitchen.
110Wn.2d403, 756 P.2d 105(1998). To determine whether there is a continuing

course of conduct, we evaluate the facts in a commonsense manner considering the

time separating the criminal acts and whether the criminal acts involved the same
parties, location, and ultimate purpose. State v. Brown. 159 Wn. App 1,14, 248 P.3d
518 (2010). Evidence that a defendant engaged in a series of actions intended to
secure the same objective supports the characterization ofthose actions as a
continuing course of conduct rather than as several distinct acts. State v. Fiallo-Lopez,
78 Wn. App. 717, 724, 899 P.2d 1294 (1995).

        Here, Harris's actions of hitting Officer Doherty with her shoes, wrestling with him
as she was taken down, and biting him as he tried to restrain her all constituted a
continuing course of conduct. The conduct involved one location, the same victim, and
 a brief time period. Accordingly, the trial court properly refused to give a Petrich
 instruction.

        2State v. Petrich. 101 Wn.2d 566, 683 P.2d 173 (1984), overruled on other
 grounds by State v. Kitchen. 110 Wn.2d 403, 405-06, 756 P.2d 105 (1988).
                                            -4-
69648-3-1/5

       Double Jeopardy

       Harris also argues that her convictions for third degree assault and obstructing a

law enforcement officer violate double jeopardy. The guaranty against double jeopardy

in the United States and Washington Constitutions protects against multiple

punishments for the same offense. State v. Calle. 125 Wn.2d 769, 776, 888 P.2d 155

(1995). The State is permitted to file and prosecute multiple counts where the evidence

supports the charges, as long as convictions are not entered in violation of double

jeopardy protections. Calle. 125 Wn.2d at 777 n.3. Harris contends that the jury should

have been instructed that it was required to find "separate and distinct acts" as the basis

for the third degree assault and obstruction convictions.

       In analyzing whether a crime falls within the prohibition against double jeopardy,

Calle sets forth a three-part test to determine whether multiple punishments were

intended by the legislature. Calle. 125 Wn.2d at 776. First, the court examines the

statutory language to determine if the applicable statutes expressly permit punishment

for the same act or transaction. State v. Smith. 177 Wn.2d 533, 545, 303 P.3d 1047

(2013) (quoting State v. Hughes, 166 Wn.2d 675, 681, 212 P.3d 558 (2009)); Calle. 125

Wn.2d at 776; State v. Martin. 149 Wn. App. 689, 698, 205 P.3d 931 (2009).

       Second, ifthe relevant statutes do not reveal an express intent to impose

multiple punishments, Washington courts apply a "same evidence test" that is similar to
the rule set forth in Blockburger v. United States. 284 U.S 299, 304, 52 S. Ct. 180, 6 L.

Ed. 306 (1932), i.e., offenses are the "same offense" for purposes of double jeopardy
when the crimes are the same in fact and in law. State v. Vladovic. 99 Wn.2d 413, 423,

662 P.2d 853 (1983). "Offenses are the same in fact when they arise from the same act
69648-3-1/6

or transition. They are the same in law when proof of one offense would also prove the
other." Martin. 149 Wn. App. at 699 (citing Calle 125 Wn.2d at 777-78.)

       Third, when two offenses satisfy the Blockburger "same evidence" test, courts

look for any evidence of contrary legislative intent that would rebut the presumption that
multiple convictions are appropriate. In instances where the degree of one offense is

elevated by conduct constituting a separate offence, "the merger doctrine may help

determine legislative intent     " State v. Kier. 164 Wn.2d 798, 804, 194 P.3d 212

(2008) (citing Vladovic. 99 Wn.2d at 419).

       At issue here is the second prong, the same evidence test. As charged and

proved in this case, the jury found that Harris committed the crime of third degree

assault because she assaulted a law enforcement officer who was performing his

official duties at the time of the assault. RCW 9A.36.031(1)(g). An assault is an

unlawful touching that is harmful or offensive. State v. Jarvis. 160 Wn. App. 111, 117-

18, 246 P.3d 1280 (2011). In contrast, a person commits the crime of obstructing a law

enforcement officer if that person "willfully hinders, delays or obstructs any law

enforcement officer in the discharge of his or her official powers or duties." RCW

9A.76.020(1).

       These two offenses are not the same in law or in fact. State v. Nystra. 168 Wn.

App. 30, 275 P.3d 1162 (2012). Third degree assault contains an assault element,

while obstructing contains a hinder, obstruct, or delay element. Because each offense

contains an essential element the other does not, they are not the same in law for

double jeopardy purposes. Nor are they the same in fact. To prove third degree

assault, the State must prove a harmful or offensive touching against a law enforcement
69648-3-1/7

officer who was performing his or her duties. No proof of hindrance or delay of those

duties is required. But to prove obstructing, the State must prove that the defendant

willfully engaged in conduct that hindered, delayed, or obstructed the officer in the

discharge of his or her duties. No proof of touching is required. That each offense

requires proof of facts that the other does not, demonstrates they are not the same in

fact. Harris establishes no double jeopardy violation.3

       Statement of Additional Grounds

       In a statement of additional grounds, Harris challenges the sufficiency of the

evidence. The test for reviewing a defendant's challenge to the sufficiency of evidence

in a criminal case is whether, after viewing the evidence in the light most favorable to

the State, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable double. State v. Montgomery. 163 Wn.2d 577, 586, 183 P.3d 267

(2008). Issues of conflicting testimony, witness credibility, and persuasiveness of the

evidence are matters within the province of the trier of fact.   State v. Truong. 168 Wn.

App. 529, 534-35, 277 P.3d 74 (2012). We do not disturb credibility determinations on

appeal. State v. Camarillo. 155 Wn.2d 60, 71, 794 P.2d 850 (1990).

       3 We note Harris provides no evidence that the legislature did not intend to
punish these two offenses separately. And her reliance on State v Borsheim, 140 Wn.
App. 357, 165 P.3d 417 (2007). and State v. Noltie. 116 Wn.2d 831, 809 P.2d 190
(1991), is not persuasive. Unlike here, the defendants there were charged with multiple
counts of the same crime based on multiple separate acts. See Borsheim. 140 Wn.
App. at 366-67 (separate and distinct language necessary where defendant charged
with four counts of first degree rape of a child to ensure that jury did not convict
defendant of more than one count based on a single act); Noltie. 116 Wn.2d at 843
(instruction that jury must "'unanimously agree that at least one separate act of sexual
intercourse pertaining to each count has been proved . . .'" was appropriate where
defendant was charged with two identical counts of statutory rape).
69648-3-1/8

       To prove third degree assault, the State had to prove that Harris assaulted a law

enforcement officer who was performing his or her official duties at the time of the

assault. RCW 9A.36.031(1)(g). Assault is an unlawful touching that is harmful and

offensive. Jarvis. 160 Wn. App. at 117-18. To prove obstruction, the State had to prove

that Harris "willfully hinders, delays or obstructs any law enforcement officer in the

discharge of his or her official powers or duties." RCW 9A.76.020(1). Officer Doherty

testified that Harris swung her shoes at him, grabbed him, and bit him in the webbing of

his hand. Harris testified that she did not recall what happened but remembered

struggling on the ground with Officer Doherty. When viewed in a light most favorable to

the State, sufficient evidence supports the third degree assault and obstruction

convictions.

       Harris's challenges are really challenges to the credibility of the witnesses and

thus not reviewable.

                                      CONCLUSION

       For the reasons discussed above, we affirm.

WE CONCUR:

V^w? ^                                                      ^J'
                                           -8-


921 N.E.2d 53 (2010)
McCOY
v.
STATE.
No. 49A02-0907-CR-700.
Court of Appeals of Indiana.
February 8, 2010.
BROWN, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
MATHIAS, J., concurs.
BARNES, J., Concurs in result.


709 F.2d 1508
Stantonv.Secretary of Health and Human Services
81-5901
UNITED STATES COURT OF APPEALS Sixth Circuit
2/8/83

1
E.D.Tenn.

REMANDED


                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                             No. 99-1143

In Re: KONDIAN R. RAJARAM,

                                                             Debtor.
_________________________

PHILLIP MIZRACH,

                                              Plaintiff - Appellant,

          versus

KONDIAN R. RAJARAM,

                                              Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Alexander Harvey II, Senior District
Judge. (CA-98-2272-H, BK-97-50467-ESD, AP-97-5233-ESD)

Submitted:   July 22, 1999                 Decided:    July 28, 1999

Before ERVIN, HAMILTON, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Phillip Mizrach, Appellant Pro Se.     Jonathan Stewart Rosenthal,
Baltimore, Maryland, for Appellee.

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

     Phillip Mizrach appeals from the district court’s order af-

firming the bankruptcy court’s decision that the debt owed to

Mizrach by Kondian Rajaram is dischargeable in bankruptcy. We have

reviewed the record and the lower courts’ opinions and orders and

find no abuse of discretion and no reversible error.   Accordingly,

we affirm on the reasoning of the district court.   See Mizrach v.

Rajaram, Nos. CA-98-2272-H; BK-97-50467-ESD (D. Md. Dec. 29, 1998

& Jan. 13, 1999).*   We dispense with oral argument because the

facts and legal contentions are adequately presented in the ma-

terials before the court and argument would not aid the decisional

process.

                                                           AFFIRMED

     *
       Although the district court’s order is signed December 28,
1998, the district court’s records show that it was entered on the
docket sheet on December 29, 1998. Pursuant to Rules 58 and 79(a)
of the Federal Rules of Civil Procedure, it is the date that the
order was entered on the docket sheet that we take as the effective
date of the district court’s decision. See Wilson v. Murray, 806
F.2d 1232, 1234-35 (4th Cir. 1986).

                                2


165 F.3d 38
Bushv.U.S.*
NO. 96-5328
United States Court of Appeals,Eleventh Circuit.
November 25, 1998

1
Appeal From:  S.D.Fla. , No.96-08193-CIV-SH

2
Affirmed.

*
 Fed.R.App.P. 34(a); 11th Cir.R. 34-3