816 F.2d 818
Eva RAFFUCCI ALVARADO, et al., Plaintiffs, Appellees,v.Carmen SONIA ZAYAS, Defendant, Appellant.Digno C. GIRAUD RIVERA, Plaintiff, Appellee,v.Carmen SONIA ZAYAS, etc., Defendant, Appellant.
Nos. 86-1675, 86-1810.
United States Court of Appeals,First Circuit.
Argued Feb. 3, 1987.Decided April 24, 1987.

Marcos Ramirez Lavandero, with whom Ramirez & Ramirez, Hato Rey, P.R., and Hon. Hector Rivera Cruz, Secretary of Justice, Commonwealth of Puerto Rico, were on brief, for defendant, appellant.
Jose Ramon Perez-Hernandez, Old San Juan, P.R., with whom Jorge A. Pierluissi, Jr., Hato Rey, P.R., was on brief for plaintiffs, appellees.
Before BOWNES, Circuit Judge, WISDOM,* Senior Circuit Judge, and TORRUELLA, Circuit Judge.
BOWNES, Circuit Judge.

1
In this opinion we decide two interlocutory appeals, which were briefed and argued separately.  The cases are two of the many arising from the spate of political discharges that followed the Popular Democratic Party's victory in the 1984 Puerto Rico gubernatorial election.  Specifically, we consider whether the Social Services Secretary was entitled to qualified immunity against personal liability for removing two New Progressive Party members from Regional Director positions in the Social Services Department.  We hold that qualified immunity should have been granted, and on that basis we vacate the district courts' orders denying motions for summary judgment.

2
In January 1985 Carmen Sonia Zayas, a member of the Popular Democratic Party, was installed as Social Services Secretary.  On March 15, 1985, she removed Eva Raffucci Alvarado and Digno C. Giraud Rivera, both members of the New Progressive Party, as Regional Directors for the Ponce and Guayama Regions, respectively.  They were transferred to much lower-paying positions elsewhere in the Social Services Department.

3
According to Raffucci Alvarado and Giraud Rivera, they were removed as Regional Directors because of their party affiliation.  They brought civil rights suits under 42 U.S.C. Sec. 1983 (1982), claiming that their summary demotion violated due process and their first amendment right to associate with the political party of their choice.  They seek reinstatement to their former positions, back pay, and damages.1   Sonia Zayas moved for summary judgment in both cases, claiming she was protected by qualified immunity.  Her motions were denied, and she brought this appeal to obtain interlocutory review of the denials of summary judgment on her claims of qualified immunity.   See De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1188-90 (1st Cir.1986) (holding that an interlocutory appeal lies from a denial of summary judgment on a qualified immunity claim).

4
Qualified immunity may shield a government official performing discretionary functions from damages liability in civil rights actions.   Bonitz v. Fair, 804 F.2d 164, 166 (1st Cir.1986);  see Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).  "An official is entitled to immunity if, at the time of the challenged action, the statutory or constitutional right allegedly violated was not 'clearly established.' "   Bonitz v. Fair, 804 F.2d at 166 (quoting Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738).

5
Raffucci Alvarado and Giraud Rivera have urged that Sonia Zayas's legal experience be considered as relevant to our analysis of whether the law was clearly established when she removed them.  She had been a superior court judge and Dean of the Interamerican University Law School.  The standard to be applied in reviewing a qualified immunity claim, however, is not affected by the defendant's particular state of knowledge about the law;  the test is "the objective reasonableness of an official's conduct."   Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738.  The Supreme Court has expressly rejected broad-ranging inquiries into "the decisionmaker's experiences, values, and emotions" when deciding whether qualified immunity is available.   Id. at 816, 102 S.Ct. at 2737.  "If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identified as unlawful."   Id. at 818, 102 S.Ct. at 2738.  The law does not require prescience.   De Abadia v. Izquierdo Mora, 792 F.2d at 1193.  If the law was not clearly established when Raffucci Alvarado and Giraud Rivera were removed, it does not matter that Sonia Zayas may have had superior skills for predicting its future contours.

6
We first consider the due process claims.  In their complaints, Raffucci Alvarado and Giraud Rivera state that they were removed as Regional Directors without a hearing.  According to them, this was arbitrary, capricious, and violated statutory protections and constitutional principles of fairness.  Sonia Zayas argues that they had no constitutionally protected interest in continued employment, so they could be removed summarily.2

7
Summary dismissal violates due process only if the employees "had a property right in continued employment."   Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985);  Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).  Federal constitutional rights to due process are not implicated if the employees served at their employer's "will."   Laureano-Agosto v. Garcia-Caraballo, 731 F.2d 101, 103 (1st Cir.1984);  Beitzell v. Jeffrey, 643 F.2d 870, 874 (1st Cir.1981).  A claim of entitlement to continued employment is "decided by reference to state law."    Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976).  Under the Puerto Rico Public Service Personnel Act of 1975, Regional Directors hold positions of "trust and confidence," and as such they are subject to "free selection and removal."    L.P.R.A. tit. 3, Sec. 1350 (1978).3   On the basis of this statutory classification, Sonia Zayas reasonably could have concluded that Raffucci Alvarado and Giraud Rivera had no property right in continued employment as Regional Directors, and that they could be summarily dismissed without violating due process.  Therefore, because her actions did not violate any clearly established federal due process rights, Sonia Zayas is entitled to qualified immunity on these claims.

8
First amendment protections, however, are not necessarily coextensive with the limits of due process.  An employee serving at the will of a state employer may well be shielded by the first amendment from political firing.  The law governing first amendment protection against politically motivated dismissal was analyzed recently by this court in Mendez-Palou v. Rohena-Betancourt, 813 F.2d 1255 (1st Cir.1987).  We adopt that analysis here.  We noted that the case law demonstrates that the inquiry into whether a particular position is protected from politically motivated dismissal is a fact-specific one that "makes it difficult in any given case to decide the merits solely on the basis of precedent."   Id. at 1258.  It could hardly be said that under the case law as it existed in 1985 these plaintiffs and others who held positions with similar duties had a clearly established right to retain their offices in the face of a change in the governing political party.  As we said in Mendez-Palou,

9
[t]he nature of the precedent plainly demonstrates that "[a]lthough the law seems clear at either end of the ... spectrum, not enough precedent dealing with upper-level governmental positions in the middle of the spectrum ha[d] yet emerged to enable" the defendant[ ] in the instant cases to determine conclusively whether plaintiffs were entitled to first amendment protection.   De Abadia, 792 F.2d at 1194 (Campbell, C.J., concurring).  Thus, there was no clearly established constitutional protection against patronage dismissal for those individuals whose positions potentially concerned matters of partisan political interest and involved at least a modicum of policymaking responsibility, access to confidential information, or official communication.

10
Id. at 1258-59.

11
This court recently applied these principles in a case involving the dismissal of a former Social Services Regional Director of the Caguas Region.   Alicea Rosado v. Sonia Zayas, 813 F.2d 1263 (1st Cir.1987).  In that case we held that the Social Services Secretary was entitled to qualified immunity.  We see no justification for departing from that precedent, which is, for qualified immunity purposes, indistinguishable from the cases presently before us.

12
As in Alicea Rosado, the complaints in these cases state only that "political affiliation was neither a de jure nor a de facto job requirement for the effective performance of plaintiff's occupied position in public service."    We must therefore go beyond the bare complaint and look at other uncontested facts in the record to address the immunity question.   See Mendez-Palou, 813 F.2d at 1259-60.

13
The records in these cases include official Job Classification Questionnaires, which are prepared for individual positions and describe their duties.  We rely on these documents "because [they] contain[ ] precisely the information we need concerning the position[s'] inherent powers and responsibilities to address the issue of qualified immunity."   Id. at 1260.  The questionnaires for the positions held by Raffucci Alvardo and Giraud Rivera, which are not contested, are functionally identical to each other, and they describe the same duties that this court found in Alicea Rosado to indicate "substantial policy-making responsibility."    Id. at 1265.  According to the questionnaires, the Social Services Regional Directors "carry out work of a great executive responsibility and direction in the coordination, direction, supervision and evaluation of the social services programs within a region according to the division of the Social Services Department."    They are described as the regional representatives of the Social Services Secretary, who is the head of a department that has an extraordinarily broad charter as "the agency responsible for carrying out the programs of the Commonwealth directed toward the solution or mitigation of the social problems of Puerto Rico."    L.P.R.A. Sec. 211b (1982).  As Regional Directors, therefore, Raffucci Alvarado and Giraud Rivera had duties that "involved the politically sensitive issue of the provision of social services."   Alicea Rosado, 813 F.2d at 1266.

14
Many of the functions described in the questionnaires entail responsibilities that normally would not be required for a position where party affiliation would be irrelevant.  The Regional Directors plan, coordinate, and supervise programs adapted to the special needs of their regions.  They execute social service programs, evaluate their effectiveness, train personnel and supervise their activities, and control expenses and disbursements.  And they are responsible for establishing and maintaining positive relations with citizens, civic groups, and representatives of other service areas.

15
Furthermore, their classification as "confidential" employees, although not determinative of whether these positions were protected against politically motivated dismissals, "indicates that the position[s] [were] viewed as entailing sensitive responsibilities."   Collazo Rivera v. Torres Gaztambide, 812 F.2d 258, 262 (1st Cir.1987).  According to Puerto Rico law, "[c]onfidential employees are those who intervene or collaborate substantially in the formulation of the public policy, who advise directly or render direct services to the head of the agency...." L.P.R.A. tit. 3, Sec. 1350 (1978).  "Within the agency at least, plaintiffs were considered to be at the policymaking end of the spectrum."   Jimenez Fuentes v. Torres Gaztambide, 807 F.2d 236, 246 (1st Cir.1986).

16
In sum, the Regional Directors have significant policymaking and spokesperson functions that are related to partisan political interests.  We hold that it would have been objectively reasonable for Sonia Zayas to conclude that Raffucci Alvarado and Giraud Rivera could be removed from their positions on the basis of party affiliation;  it was not clearly established that she could not do so.  She is entitled to qualified immunity from damages liability on the first amendment claims, as well as on the due process claims.

17
Vacated and remanded with instructions to enter summary judgment for defendant in both cases on the issue of damages liability on the federal claims.

18
TORRUELLA, Circuit Judge (Dissenting).

19
For the reasons stated in my dissenting opinion in Alicea Rosado v. Carmen Sonia Zayas, 813 F.2d 1263 (1st Cir.1987) (Torruella, J., dissenting), I cannot concur in the reasoning or outcome of this opinion.  This court continues to ignore the clear holding of the Supreme Court in Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980) and to rely on Puerto Rican statutory law for labels ("confidential," ante at 822;  "policy-making," ante at 821) discarded by that case.   Id. at 518, 100 S.Ct. at 1294.  Yet, while leaning on such statutes the majority overlooks, at the same time, the Puerto Rico Supreme Court's interpretation of that same law.  Franco v. Municipality of Cidra, 113 D.P.R. 260 (1982) (discharge of confidential employee for political affiliation invalid);  Clemente Gonzalez v. Department of Housing, 114 D.P.R. 763 (1983);  Colon v. Urban Renewal and Housing Corporation, 84 J.T.S. 52 (June 4, 1984).  Furthermore, this court continues to apply a different standard in Puerto Rican political discharge cases, in determining what is "clearly established law," than it does in other civil rights cases, see Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986), a standard that is contrary to the ruling in Harlow v. Fitzgerald, 457 U.S. 800, 815-19, 102 S.Ct. 2727, 2736-38, 73 L.Ed.2d 396 (1982).

20
Additionally, I disagree with the majority's conclusion that appellant has met the burden of proof established by Branti.    This burden requires that "the hiring authority ... demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved."   Branti, 445 U.S. at 518, 100 S.Ct. at 1295.  There is no such evidence on the record in either case.   See de Choudens v. Government Development Bank of Puerto Rico, 801 F.2d 5, 10 (1st Cir.1986) (en banc).  A reading of the questionnaires, the only evidence on the record allegedly in support of appellant's motions for summary judgment, does not overcome the heavy burden that must be met by appellant.   See Elrod v. Burns, 427 U.S. 347, 362, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976);  Buckley v. Valeo, 424 U.S. 1, 94, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976).  This is particularly the case where, as here, appellant has not even made an affirmation in support of the motions for summary judgment that there was any reliance, or even knowledge, by appellant of the contents of the questionnaires in either case.  "In the instant case, care must be taken not to confuse the interest of partisan organizations with governmental interests.  Only the later will suffice."   Elrod, 427 U.S. at 362, 96 S.Ct. at 2684.

21
Last but not least, there is a serious question whether there exists interlocutory appellate jurisdiction to consider these matters.  There are outstanding state pendent damage actions which are unaffected by the motions for summary judgment.   See Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 3106, 87 L.Ed.2d 114 (1985).  Because the personal damage actions will remain to be litigated together with the claims for equitable relief, I have a substantial doubt that we have interlocutory appellate jurisdiction.   See also Bever v. Gilbertson, 724 F.2d 1083, 1086-87 (4th Cir.1984), cert. denied sub. nom.  Rockefeller v. Bever, 469 U.S. 948, 105 S.Ct. 349, 83 L.Ed.2d 285 (1984).   Cf., Harlow, 457 U.S. at 819 n. 34, 102 S.Ct. at 2739 n. 34.

22
I therefore dissent.

*
 Of the Fifth Circuit, sitting by designation

1
 Their complaints also contained pendent local law claims.  The only issue before us in this interlocutory appeal, however, is whether Sonia Zayas is entitled to qualified immunity on the federal constitutional claims.  The effect of pendent local law claims on the qualified immunity doctrine was neither briefed nor argued

2
 Raffucci Alvarado and Giraud Rivera have not briefed or argued the due process claims.  In Sonia Zayas's motions for summary judgment, however, she argued that she was entitled to qualified immunity on the due process claims, and she has briefed and argued this contention on appeal.  We, therefore, consider the issue to be before us for decision

3
 Under Puerto Rico law, "[e]very regular employee in a career position who is appointed to a confidential position shall be entitled to be reinstated in a position equal or similar to the last one he held in the career service."    L.P.R.A. tit. 3, Sec. 1350 (Supp.1985).  This apparently was done with Raffucci Alvarado and Giraud Rivera.  Their due process claims are not based on the inadequacy of the positions to which they were reassigned, but on a claim of entitlement to the Regional Director positions


265 F.3d 556 (7th Cir. 2001)
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.HENRY DON JEFFRIES, DEFENDANT-APPELLANT.
No. 00-2373
U.S. Court of Appeals, Seventh Circuit
Argued January 10, 2001September 07, 2001

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 98 CR 57--William C. Lee, Chief Judge.
Before Ripple, Kanne, and Williams, Circuit Judges.

Kanne, Circuit Judge

1
On August 27, 1999, Henry Don Jeffries signed a plea agreement in which he agreed to plead guilty to one count of mail fraud, pay restitution in excess of 2.4 million dollars, and waive his appellate rights with respect to sentencing. In return, the government agreed to recommend an acceptance of responsibility reduction and to dismiss the remaining five counts of the indictment. The district court conducted an extensive Rule 11 colloquy and then accepted Jeffries' plea. At Jeffries' sentencing hearing, the district court again reviewed the parameters of the plea agreement and then sentenced him to forty-three months imprisonment.

2
Jeffries does not attempt to appeal his sentence, as he clearly waived that right in his plea agreement. Rather, he seeks to invalidate the entire plea by arguing that it was not entered into voluntarily and knowingly. He alleges that his plea agreement is invalid because he did not realize that, if he had gone to trial, he could have appealed any resulting conviction. Jeffries also asserts that his trial counsel was ineffective in failing to attack the plea as invalid. He thus seeks to withdraw his plea and go to trial.

3
At least initially, the parties disputed whether Jeffries had the right to seek judicial review of his plea agreement. We have explained, however, that even where a plea agreement waives a defendant's appellate rights, the defendant is still entitled to appeal if "the agreement is involuntary or otherwise unenforceable." United States v. Wenger, 58 F.3d 280, 282 (7th Cir. 1995). The government now recognizes that Jeffries can challenge the voluntariness of his plea, yet asserts that his plea agreement is valid because it was voluntary and "taken in compliance with Rule 11" of the Federal Rules of Criminal Procedure. Id. Because Jeffries did not file a motion to withdraw his guilty plea in the district court, we will review the district court proceedings for plain error. See United States v. Gilliam, 255 F.3d 428, 433 (7th Cir. 2001); United States v. Akinsola, 105 F.3d 331, 333 (7th Cir. 1997).

4
Prior to accepting a guilty plea, a district court is required to make certain that a defendant is fully informed of his rights and capable of making a decision between the various choices available to him. United States v. Fernandez, 205 F.3d 1020, 1024 (7th Cir. 2000). Rule 11 sets forth detailed guidelines to ensure that a defendant is so informed. "Before accepting a plea of guilty . . . , the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands" six categories of rights that will be affected by the plea. Fed. R. Crim. P. 11(c). With respect to going to trial, the rule requires a court to inform the defendant of:

5
(3) . . . the right to be tried by a jury and at that trial the right to the assistance of counsel, the right to confront and cross-examine adverse witnesses, and the right against compelled self-incrimination; and

6
(4) that if a plea of guilty . . . is accepted by the court there will not be a further trial of any kind, so that by pleading guilty . . . the defendant waives the right to a trial.

7
Id. at (c)(3), (4). Rule 11 does not, by its terms, require a district court judge to inform a criminal defendant that if he went to trial and was convicted, he would be able to appeal his conviction. The advisory committee notes recognize that it might be "desirable to inform a defendant of additional consequences which might follow from his plea of guilty" but the decision to do so lies in the judge's discretion. Fed. R. Crim. P. 11 advisory committee's note. This court has never held that a judge must advise a defendant that if he did not plead guilty but instead went to trial and was then convicted, his conviction could be appealed. See, e.g., Wenger, 58 F.3d at 282 (noting that "warnings about waivers of appeal" are not one of the elements required to be included in the Rule 11 colloquy). Nor have we found any other federal circuit court opinions that address the issue. We do not mean to suggest that it would not be prudent for a judge to discuss this issue with the defendant, we simply decline to find that Rule 11 requires such a discussion.

8
Jeffries does not contend that his Rule 11 colloquy was deficient in any other way, and it seems clear that it was not. The record created at a Rule 11 proceeding is accorded a "presumption of veracity," United States v. Standiford, 148 F.3d 864, 868 (7th Cir. 1998) (quotation omitted), and the record in this case indicates that the district court judge complied with every applicable element of the rule. In sum, there is no indication that Jeffries' guilty plea was not knowing and intelligent.

9
Thus, we turn to Jeffries' contention that his trial counsel was ineffective for failing to attack the validity of his plea agreement. Defendants are entitled to the assistance of counsel, and that counsel is expected to be reasonably com petent. See Strickland v. Washington, 466 U.S. 668, 687-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). "A defendant who desires to withdraw his plea because counsel rendered ineffective assistance must show that advice he received 'was not within the range of competence demanded of attorneys in criminal cases' and that there is a 'reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different.'" United States v. Gwiazdzinski, 141 F.3d 784, 790 (7th Cir. 1998) (citations omitted); see also Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir. 2000). Given that judges are not required to inform defendants, during a Rule 11 plea colloquy, that if they went to trial there would be an opportunity to appeal, we find that it was not unreasonable for Jeffries' attorney to not object to the validity of the plea on this basis. Further, the record indicates that counsel performed competently in all other respects, evidenced in part by his ability to secure the dismissal of the money laundering counts (which carried a higher sentence than the mail fraud count) and to negotiate a plea in which the government agreed to recommend an acceptance of responsibility reduction. We thus conclude that Jeffries' counsel was not ineffective.

10
Because we find Jeffries' plea agreement to be valid, his conviction is AFFIRMED


239 F.Supp.2d 262 (2002)
Elane BLEICH, Plaintiff,
v.
The REVENUE MAXIMIZATION GROUP, INC. and Nassau Health Care Corporation, Defendants.
No. CIV.01-5168.
United States District Court, E.D. New York.
January 10, 2002.
Katz & Kleinman by Lawrence Katz, Esq., Uniondale, NY, for Plaintiff.
Ahmuty, Demers & McManus by Joseph M. O'Connor, Esq., Albertson, NY, for Defendant The Revenue Maximization Group, Inc.
Parisi & Smitelli by Gregg H. Grossman, Esq., Rockville Centre, NY, for Defendant Nassau Health Care Corporation.

MEMORANDUM AND ORDER
WEXLER, District Judge.
This is an action commenced by Plaintiff Elane Bleich ("Plaintiff or "Bleich") pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA"). The complaint named as defendants The Revenue Maximization Group, Inc., a collection agency that sent a debt collection letter to *263 Plaintiff ("Revenue") and Nassau Health Care Corporation, the entity to which the debt was originally owed ("Nassau" or the "Hospital"). A prior opinion of this court granted summary judgment to Revenue. Presently before the court is the motion for summary judgment of the Hospital, the only remaining defendant. For the reasons set forth below, the Hospital's motion for summary judgment is granted.

BACKGROUND

I. Factual Background

The undisputed facts of this case have been recited in the earlier opinion of this court and will be only briefly set forth herein. On January 8, 2001, Plaintiff was administered a flu shot for which she paid to the Hospital a $25 fee. Despite the fact that Plaintiff paid the $25, her account was never credited and, despite Plaintiffs attempts, the Hospital continually took the position that the debt remained due and outstanding. Ultimately, the Hospital referred the $25 debt to Revenue to pursue collection. Shortly after Revenue commenced its collection effort, this action was filed.

II. The Allegations of the Complaint and the Grant of Summary Judgment to Revenue

It was Plaintiffs contention that the collection letter sent by Revenue violated the FDCPA because it alleged that the debt was due and owing when, in fact, it had been paid in full. Revenue moved for summary judgment arguing that the false statement relied upon was insufficient to support an FDCPA cause of action. In support of its motion, Revenue argued that the FDCPA contains a specific mechanism for challenging the validity of a debt that is the subject of a collection letter. The presence of this specific statutory procedure was argued to negate the right to state an FDCPA cause of action based only upon the alleged invalidity of a debt.
This court agreed with Revenue and granted its motion for summary judgment. Specifically, the court held that where a debt collector has included appropriate language regarding the FDCPA debt validation procedure, the allegation that the debt is invalid, standing alone, cannot form the basis of a lawsuit alleging fraudulent or deceptive practices in connection with the collection of a debt.

III. The Hospital's Motion

In the opinion granting summary judgment to Revenue that court noted that while the Hospital had expressed an interest in moving for summary judgment, it had not yet interposed such a motion and remained a defendant in this lawsuit. The anticipated motion for summary judgment is now properly before the court. In support of its motion, the Hospital argues: (1) that it cannot be vicariously liable for the acts of Revenue and (2) that it is not a "bill collector" within the meaning of the FDCPA and therefore can have no liability under the statute. The court turns now to the merits of the motion.

IV. Disposition of the Motion

A. Vicarious Liability

In light of Revenue's dismissal and this court's holding that Revenue has no liability under the FDCPA, the Hospital cannot be held liable on a theory of vicarious liability. Accordingly, the court turns to the issue of whether or not the Hospital can be held directly liable under the statute.

B. The Hospital Is Not A Debt Collector

The FDCPA prohibits deceptive and misleading practices by "debt collectors." *264 15 U.S.C. § 1692e. The statute specifically defines debt collectors as those engaged in "any business the principle purpose of which is the collection of any debts, or who regularly collects or attempts to collect ... debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692e (emphasis added). Thus, by its terms, the FDCPA limits its reach to those collecting the debts "of another" and does not restrict the activities of creditors seeking to collect their own debts. Maguire v. Citicorp Retail Services, Inc., 147 F.3d 232, 235 (2d Cir.1998), Harrison v. NBD Inc., 968 F.Supp. 837, 841 (E.D.N.Y.1997), see also Kloth v. Citibank, 33 F.Supp.2d 115, 119 (D.Conn.1998).
When restricting the reach of the FDCPA to exempt creditors, Congress recognized that the activities of creditors seeking to collect their own debts are restrained by the creditors' desire to retain their good will with consumers. Those collecting debts due to another were thought not to be similarly restrained and therefore more likely to engage in the type of unscrupulous activities the act seeks to prevent. Harrison, 968 F.Supp. at 841.
There is no question that the Hospital cannot be held liable as a bill collector. The Hospital attempted to collect its own debt and not, as required by the FDCPA, a debt owed to another. Nor did the Hospital use a name other than its own in an attempt to collect a debt. See 15 U.S.C. § 1692a(6) (imposing FDCPA liability when a creditor uses "any name other than its ow which would indicate that a third person is collecting or attempting to collect" a debt).
Under these circumstances, the Hospital is not a bill collector under the FDCPA. Therefore, despite the fact that the Hospital's actions were no doubt frustrating to Plaintiff, it cannot be liable under the statute.

CONCLUSION
For the foregoing reasons, the motion of defendant Nassau Health Care Corporation for summary judgment is granted. The Clerk of the Court is directed to terminate the motion and close the file in this case.
SO ORDERED.


759 F.2d 19
*Williamsv.Skaggs Companies
84-1730
United States Court of Appeals,Fifth Circuit.
3/20/85

1
N.D.Tex.

AFFIRMED

2
---------------

* Fed.R.App.P. 34(a);  5th Cir.R. 34.2.


                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 05a0989n.06
                             Filed: December 20, 2005

                                            No. 04-3908

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

AHLAAM YOUSEF MATTE, KHZEL JAMEEL                         )
YOUSIF, and SAOHAN KHZEL JAMEEL,                          )
                                                          )        ON PETITION FOR REVIEW
          Petitioners-Appellants,                         )        OF A DECISION OF THE
                                                          )        BOARD OF IMMIGRATION
v.                                                        )        APPEALS
                                                          )
ALBERTO GONZALES, Attorney General,                       )
                                                          )                           OPINION
          Respondent-Appellee.                            )

BEFORE:          DAUGHTREY and COLE, Circuit Judges, and BARZILAY, Judge*

          R. GUY COLE, JR., Circuit Judge. The petitioners seek review of a final order of the

Board of Immigration Appeals (BIA) dismissing the petitioners’ appeal of the Immigration Judge’s

(IJ) denial of their application for asylum. For the following reasons, we DENY the petition for

review.

                                                  I.

          Lead petitioner Khzel Jameel Yousif (“lead petitioner,” or “Yousif”), his spouse Ahlaam

Yousef Matte, and their son Saohan Khzel Jameel (collectively, “the petitioners”), are natives and

citizens of Iraq. They identify their ethnicity as Chaldean and their religion as Christian. According

          *
         The Honorable Judith M. Barzilay, Judge of the United States Court of International Trade,
sitting by designation.
No. 04-3908
Matte v. Gonzales

to State Department reports, Christians comprise less than three percent of the Iraqi population, and

Chaldean Christians comprise a smaller subset of that percent. At the time the petitioners last

resided in Iraq, political power rested in the Arab Ba’ath Socialist Party, controlled by Saddam

Hussein and his family.

       In April 2001, the petitioners left Iraq with the intent to relocate to the United States. The

petitioners traveled first to Jordan, Ecuador, Guatemala, and Mexico before entering the United

States in December 2001 and requesting asylum. The Immigration and Naturalization Service (now

the Department of Homeland Security, both referred to hereinafter as the “Service”) initiated

removal proceedings within a week of the petitioners’ arrival, and the petitioners admitted they had

arrived as aliens and were subject to removal but requested the opportunity to file an application for

asylum, request for withholding of removal, and request for relief under the Convention Against

Torture.

       The applications were consolidated into the lead petitioner’s application and a hearing was

conducted on April 29, 2003. The following facts were established through Yousif’s written asylum

application and hearing testimony: Yousif was granted refugee status in the United States in 1976

because of fear of the Ba’ath political party then in power in Iraq, but eleven months after obtaining

asylum returned to Iraq to get married. Yousif again visited the United States in 2000 for fifty-nine

days, but returned to Iraq without seeking permission for a longer stay. Yousif’s 2001 application

for asylum describes “mistreatment, harm, and threats throughout [his] life in Iraq because of [his]

religion and race.” Yousif was jailed for over a month in 1991 for allegedly “bad mouthing”

Saddam Hussein. The incident arose when a cousin of Hussein arrived at Yousif’s restaurant and

                                                -2-
No. 04-3908
Matte v. Gonzales

physically assaulted the workers. The next day Yousif arrived at his restaurant to find it surrounded

by men with machine guns who took Yousif and his employees away in trucks. When Yousif asked

why he and his employees were being detained, he was cursed at and told that they had insulted the

president. After over a month, Yousif and his workers were transported to another facility where

they were searched and told that Hussein was releasing them. Yousif said the release was

characterized as an amnesty for those imprisoned for political reasons, but he disclaims doing or

saying anything to insult Hussein. Upon his release from prison, Yousif decided to close his

restaurant.

       Approximately seven years later, Yousif opened a liquor store. Yousif’s application for

asylum claims that he was routinely called upon to supply free liquor to the Iraqi police. Yousif

testified that on one occasion a captain with three stars on his shoulder demanded a free bottle of

whiskey and instructed Yousif to report to the station the next day. When Yousif arrived at the

station, it was indicated to him that his supply of free liquor was expected to become routine. In or

around July 2000, on a day when Yousif’s store was closed, a cousin of Hussein and a second, large

man came to Yousif’s home demanding alcohol. When Yousif refused to serve them because of

legal restrictions on liquor sales, the official struck him and one of the men pointed a gun at Yousif

and threatened to shoot him. The altercation ended with the two men laughing and leaving. The

incident was witnessed by Yousif’s son. Yousif also testified that his liquor store was burned down

in November 2000. He indicated that the police performed a cursory investigation. Yousif

presented no evidence concerning who started the fire, but testified, “I don’t know if it was the

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government or Islam. But mostly I would think it was because of Islam.” When asked why he

believed this, he responded “because they hate us as Christians in general.”

       After the fire Yousif sold his liquor license and what remained of his store. Yousif did not

mention this incident in his asylum application, and when asked the reason, explained that he did

not include every incident on his application because he expected to elaborate when he came to

court. Yousif’s testimony also included a description of health problems and mobility limitations,

his concern that his children would be forced to serve in the Iraqi military, his brother’s

imprisonment on a firearms charge arising apparently from self-defense to an assault by guards,

Yousif’s generalized fear of the majority Islamic community, and Yousif’s second-hand account

of a recent Muslim attack upon a Chaldean Christian home.

       Between the time of the petitioners’ departure from Iraq in April 2001 and the time of their

asylum hearing in April 2003, Iraq underwent a dramatic regime change. At the hearing, neither

Yousif nor the Service introduced written documentation of current events in Iraq. The IJ asked

whether the Service had information on “the fall of the regime, which is critical to this application,”

and the Service responded that it assumed judicial notice would be taken of those events. In its

cross-examination of Yousif, the Service asked why he could not return to Iraq now that Hussein’s

government was no longer in power. Yousif first expressed a desire to stay with his siblings in the

United States, described his physical disability and lack of economic resources in Iraq, and then

expressed a generalized fear of the Shi’a Muslim majority and the type of new government that

would be imposed.

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       The IJ delivered an oral decision denying petitioners’ application for asylum and withholding

of removal, and denying their requests for relief under the Convention Against Torture. The IJ’s

detailed opinion stressed inconsistencies between Yousif’s testimony and application, and suggested

that the testimony was embellished. The IJ took judicial notice of the fall of Saddam Hussein’s

regime, the power vacuum in Iraq, and the two-thirds majority of Shi’a Muslims, but noted Yousif’s

failure to provide documentary evidence of Shiite attacks on Christians or significant enmity

between the two groups. The IJ concluded that the recent regime change eliminated the grounds for

Yousif’s alleged fear of persecution, and that there was no objective evidence in the record to

support a fear of persecution from the Shiite majority. In evaluating the significance of Yousif’s

claims of past persecution, the IJ stressed Yousif’s voluntary returns to Iraq in 1976 and 1990 as

well as the lengthy stretches of time when Yousif lived in Iraq without incident. The IJ also

observed that no conclusions could be reached regarding the cause of the store fire and therefore this

incident could not support a claim of persecution. The IJ concluded that, having failed to meet the

necessary burden for an asylum claim, Yousif also failed to meet the burden for withholding of

removal, and likewise failed to establish likelihood of torture that would provide relief under the

Convention Against Torture.

       The petitioners filed a timely appeal with the BIA, and the BIA concurred with the IJ and

dismissed their appeal. In a brief opinion, the BIA rejected the IJ’s suggestion that Yousif was not

credible, but nevertheless found that the harm suffered on account of the family’s Chaldean ethnicity

and Christian religion constituted discrimination and harassment but not persecution. The BIA

found that Yousif’s detention for one month was not on account of his ethnicity or religion, and that

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the forced provision of free liquor to officials was nothing more than petty corruption. Finally the

BIA took notice that “Saddam Hussein has been removed from power, an international coalition of

forces currently has control and sovereignty will soon pass to Iraqis,” and concluded that Yousif and

his family had no objective basis for fearing future harm in Iraq.

       This timely appeal followed from the BIA’s decision. The petitioners argue on appeal that

the denial of their asylum claim was not supported by substantial evidence, that their due process

rights were violated by the BIA’s taking notice of changed conditions, and that a remand is

warranted because recent events in Iraq have rendered the administrative record stale.

                                                 II.

A. Standard of review

       This Court has jurisdiction to review final orders of removal by the BIA under 8 U.S.C. §

1252(a)(1). The standard for reviewing the BIA’s factual findings is deferential: factual findings

are conclusive, unless the court determines that the evidence is “so compelling that no reasonable

factfinder could fail to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478,

483-84 (1992). The BIA’s determination must be upheld if supported by reasonable, substantial,

and probative evidence on the record considered as a whole. Id. This Court cannot reverse a BIA

determination simply because it would have decided the matter differently; rather, this Court can

only reverse if the evidence presented by Yousif not only supports a contrary conclusion, but indeed

compels it. Mikhailevitch v INS, 146 F.3d 384, 387 (6th Cir. 1998).

       Under the Immigration and Nationality Act (“INA”), the Attorney General has the discretion

to grant asylum to applicants who demonstrate that they are “refugees.” 8 U.S.C. § 1158(b)(1). If

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an applicant demonstrates that she is a refugee under the meaning of the INA, she may obtain a grant

of asylum only if she further demonstrates that she “merits a favorable exercise of discretion by the

Attorney General.” Mikhailevitch, 146 F.3d at 389.

       A “refugee” is a person unwilling or unable to return to her country “because of persecution

or a well-founded fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). An applicant must

demonstrate that she either has suffered past persecution, or has a well-founded fear of future

persecution, on account of one of these five protected grounds. 8 C.F.R. § 208.13(b). “Persecution

is an extreme concept that does not include every sort of treatment our society regards as offensive.”

Ali v. Ashcroft, 366 F.3d 407, 410 (6th Cir. 2004) (quoting Ghaly v. INS, 58 F.3d 1425, 1431 (9th

Cir. 1995) (internal quotation marks omitted)). Harassment or discrimination without more does not

rise to the level of persecution, particularly when limited to a few isolated incidents of verbal

harassment or intimidation. Gilaj v. Gonzales, 408 F.3d 275 (6th Cir. 2005); Ali, 366 F.3d at 410;

Mikhailevitch, 146 F.3d at 389-90 (6th Cir. 1998). A petitioner also cannot demonstrate persecution

merely by showing she was the victim of a random crime or indiscriminate abuse. Gilaj, 408 F.3d

at 285. However, “persistent death threats and assaults on one’s life, family, and business” have

been held to rise to the level of persecution. See Ouda v. INS, 324 F.3d 445, 454 (6th Cir. 2003)

(quoting Andriasian v. INS, 180 F.3d 1033, 1042 (9th Cir. 1999)).

B. Past Persecution

       If an asylum applicant establishes past persecution, a presumption of a well-founded fear of

future persecution arises, which the Service may rebut by establishing upon a preponderance of

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evidence that country conditions have changed in such a manner as to negate the particular alien’s

well founded fear of being persecuted. 8 C.F.R. § 208.13(b)(1)(I); Ouda, 324 F.3d at 452. The BIA

characterized some of the harms suffered by Yousif as not being on account of any of the five

protected grounds, and characterized other harms as not rising to the level of persecution. The

petitioners challenge both of these findings, and claim that the evidence compels a conclusion that

they have suffered harms on account of their religion and their political opinions, and that these

harms rise to the level of persecution. The petitioners’ argument fails on both grounds.

        The record does not contain any indication that in the course of Yousif’s capture and

detention there was any mention by the authorities of Yousif’s religious beliefs or ethnicity. The

petitioners argue that this detention must be viewed in context, and that religious motivation can be

inferred from the pattern of events experienced by Yousif. However, the record does not reflect a

pattern, but rather a few isolated incidents over several decades of life in Iraq, coupled with Yousif’s

perception that Chaldean Christians are hated. These facts do not compel an inference of religious

or ethnic persecution. The petitioners also assert on appeal that Christian Iraqis “routinely suffer

the same sorts of treatment experienced by the petitioners.”           There is no evidence in the

administrative record to support this assertion, and the evidence introduced in the petitioners’

appellate brief cannot be considered by this Court. 8 U.S.C. § 1252(a)(1) (providing reviewing court

cannot take additional evidence); id. § 1252(b)(4)(A) (limiting judicial review to administrative

record upon which removal order is based).

        On appeal, the petitioners argue that Yousif’s detention constituted persecution for Yousif’s

political opinion, specifically his perceived opposition to the Ba’ath party, and the petitioners

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attempt to tie Yousif’s 1991 arrest to whatever political grounds formed the basis of Yousif’s

successful 1976 asylum application. The record does not compel this conclusion. Yousif’s

testimony instead suggests that his 1991 arrest was arbitrary and not founded upon a perception of

Yousif’s particular political beliefs. Yousif’s employees were already surrounded by armed soldiers

when Yousif arrived, and Yousif has explicitly disclaimed doing or saying anything in opposition

to the Hussein regime. Yousif’s arbitrary arrest and detainment by a corrupt regime, although

clearly unjust, cannot, standing alone, satisfy the requirements for asylum. Gilaj, 408 F.3d at 285;

see also Namo v. Gonzales, 401 F.3d 453, 457 (6th Cir. 2005) (upholding denial of asylum where

applicant’s arrest was motivated by his refusal to cooperate with the Iraqi government and not by

particular political belief).

        Similarly, the evidence on record does not compel a conclusion that the Iraqi police officers’

demands upon Yousif for free liquor constitute persecution. The evidence does not suggest that

these demands brought serious harm to Yousif or that they were motivated by one of the five

protected grounds. The petitioners argue that the BIA should have considered these bribery

demands in the proper social context, where Yousif’s Chaldean Christian identity made him a more

conspicuous target. But a reasonable adjudicator could also conclude that Yousif was a target

simply because the soldiers wanted free liquor. The petitioners introduce evidence that liquor stores

in Iraq are all Christian-run, and therefore common targets of anti-Christian violence. This evidence

was not part of the administrative record and cannot be considered by this Court. 8 U.S.C. §

1252(a)(1); id. § 1252(b)(4)(A). Furthermore, such evidence would not compel a conclusion that

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the officials who demanded bribes from Yousif were motivated by anti-Christian sentiment, as

opposed to a desire for free liquor.

       Consideration of the other harms suffered by Yousif and his family likewise does not compel

a conclusion that Yousif has suffered past persecution. There is no evidence that Yousif’s store was

burned in order to target Yousif for ethnic, religious, or any other protected reason, or even that the

fire resulted from arson. The arrest and imprisonment of Yousif’s brother appears to be upon a

firearms charge. Yousif’s general fear of the Shi’a Muslim community likewise does not constitute

persecution. Citing several Ninth Circuit cases, the petitioners argue that the experiences of

Yousif’s family considered cumulatively amount to persecution. The cases cited by the petitioners,

e.g., Korablina v. INS, 158 F.3d 1038 (9th Cir. 1998), involved much harsher circumstances than

those suffered by the petitioners. While it is true that this Court looks to the “overall context of the

applicant’s situation,” see Gilaj, 408 F.3d at 285, the overall context here counsels against a finding

of asylum eligibility. The petitioners remained in Iraq many months after the last incident of harm,

and many years passed with no incident at all. Taken as a whole, the record reflects evidence of a

difficult life in a volatile country, but does not compel a conclusion of past persecution.

C. Fear of Future Persecution

       Absent evidence of past persecution, an applicant may still receive asylum solely on the basis

of a fear of future persecution by satisfying both an objective and subjective requirement. The

petitioners must show that their fear is genuine and that a reasonable person in their circumstances

would have a similar fear. Namo, 401 F.3d at 456. The applicant must “present evidence

establishing an ‘objective situation’ under which his fear can be deemed reasonable.” Perkovic v.

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INS, 33 F.3d 615, 621 (6th Cir.1994) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31

(1987)).

       Yousif expressed his perception of mistreatment from both the Ba’ath party in power under

Hussein and the Shi’a Muslim majority population. Regarding Yousif’s fears of the Hussein regime,

the BIA properly took notice of the fall of that regime. See infra, II.D. The petitioners argue that

the change in regime does not guarantee safety from continued insurgencies by Hussein

sympathizers. Nevertheless, fear of general conditions of violence and upheaval does not qualify

an alien for asylum. Perkovic, 33 F.3d at 621.

       The evidence does not compel a conclusion that Yousif’s fears of the Muslim majority were

objectively well-founded. The only evidence offered by Yousif is his hearsay account of a single

attack upon a Chaldean Christian home, his uncorroborated speculation that Islamic fundamentalists

burned down his store, and his general belief that Iraqi Muslims hate Chaldean Christians and will

engage in a holy war against them. None of this compels a conclusion of a well-founded fear of

future persecution.

       In their brief, petitioners attempt to introduce substantial new evidence pertaining to recent

violence targeted against Christians in Iraq. They cite New York Times articles from 2004 describing

attacks upon Christian churches; the targeting of traditionally Christian-run businesses such as liquor

stores, beauty salons, and stores selling Western music; and the flight of Christians from Iraq to

Syria. They also cite a 2004 United Nations High Commissioner for Refugees advisory that strongly

advises states to suspend the forced return of all Iraqi nationals. This Court cannot consider any of

this new evidence in evaluating whether the BIA’s decision was supported by substantial evidence.

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See 8 U.S.C. § 1252(a)(1); id. § 1252(b)(4)(A). We conclude that the BIA’s opinion finding no

well-founded fear of future persecution was substantially supported by the evidence contained in

the administrative record.

D. Administrative Notice and Due Process

       The petitioners argue that the BIA violated their due process rights by taking notice of

changed conditions in Iraq, depriving the petitioners of an opportunity to rebut this evidence. Their

due process argument fails.

       Administrative notice is appropriate “only in situations involving commonly known facts

. . . or the agency's expertise . . . .” Vasha v. Gonzales, 410 F.3d 863, 874 n.5 (6th Cir. 2005); see

also Kaczmarczyk v. INS, 933 F.2d 588, 593-95 (7th Cir. 1991) (BIA may take official notice of

“uncontroverted facts”); Llana-Castellon v. INS, 16 F.3d 1093, 1097 (10th Cir. 1994) (BIA make

take notice of facts that “are not subject to reasonable dispute and are easily verified”). The BIA

did not err in Yousif’s case by taking notice of such an incontrovertible fact as the fall of Hussein’s

regime.

       Nevertheless, the petitioners argue that given the opportunity they would have presented

evidence to rebut the presumption that the fall of Hussein’s regime eliminated the basis for their well

founded fear of persecution. This argument fails because Yousif was clearly provided with the

opportunity to rebut the argument that the change in the Iraqi regime improved his condition.

Because the fall of Hussein’s regime occurred before Yousif’s hearing took place, Yousif could have

reasonably anticipated the issue and thus he had the opportunity to gather new documentation and

tailor his testimony in light of recent events before his removal hearing. In cross-examination at his

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No. 04-3908
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hearing, the Service asked Yousif why he still did not feel safe returning to Iraq with Hussein out

of power, and Yousif’s response, that he feared the Shi’a regime that would likely be instituted, is

on the record. Given the circumstances surrounding the BIA’s administrative notice-taking, the

petitioners’ due process rights were not violated.

E. Recent Changed Conditions in Iraq

       The petitioners request in the alternative that we remand this case to the BIA to update the

current record. As noted above, the petitioners’ brief cites to several sources from 2004 that suggest

a recent increase in Christian-targeted violence in Iraq. Indeed, several circuits have expressed

concern over the increasingly common problem of global events outpacing the asylum review

process, resulting in asylum decisions being affirmed on grossly outdated records. See, e.g.,

Berishaj v. Ashcroft, 378 F.3d 314 (3d Cir. 2004); Sivaainkaran v. INS, 972 F.2d 161, 165-66 (7th

Cir. 1992). The petitioners call our attention to a new internal policy of the Department of Justice,

described in detail in Abartsoumian v. Ashcroft, 388 F.3d 85, 95 (3d Cir. 2004), that attempts to

address this problem by encouraging the government “as a matter of prosecutorial discretion” to

screen out, and seek remand of, asylum cases whose records are out-of-date. The government has

declined to exercise that discretion in the present case.

       We determine that remand due to changed country conditions is inappropriate in the

petitioners’ case. Although we have recently asserted our ability to take judicial notice of clear

changes in country conditions and remand for further proceedings, Namo, 401 F.3d at 458, we

conclude that this case is not one involving such obviously changed conditions. While the fall of

Hussein’s regime is an incontrovertible fact, see id., recognizing a recent increase in Christian-

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targeted violence in Iraq requires a judgment as to severity and pervasiveness that is inappropriate

for this Court to make.

       The petitioners could more efficiently call the Service’s attention to changes in Iraq

warranting a grant of asylum if they use the administrative procedure designed for that purpose - the

motion to reopen procedure described in 8 C.F.R. § 1003.2. The time limitations set forth in the

section do not apply to petitions to reopen due to changed country conditions. See 8 C.F.R. §

1003.2(c)(3)(ii). We remind the petitioners, however, that such a motion would not automatically

stay their deportation. See 8 C.F.R. § 1003.2(f).

                                                III.

       For the foregoing reasons, we hereby DENY the petition for review.

                                               - 14 -


      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                      NO. 03-02-00655-CR

                                   Ever Guardado, Appellant

                                                 v.

                                  The State of Texas, Appellee

    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
        NO. 9024188, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

                            MEMORANDUM OPINION

               Appellant Ever Guardado fatally stabbed his uncle, Alfredo Velasquez, in the house

they shared with appellant’s mother, Juana Guardado, and other family members. A jury found

appellant guilty of murder and assessed punishment, enhanced by a previous felony conviction, at

seventy years in prison. See Tex. Pen. Code Ann. § 19.02 (West 2003).

               Juana Guardado witnessed the stabbing and later gave a written statement to the

police that was introduced in evidence. She also testified. In his first point of error, appellant

contends this evidence raised an issue as to whether he killed Velasquez under the immediate

influence of sudden passion arising from an adequate cause, and that the court erred by refusing to

submit this issue to the jury at the punishment stage. See id. § 19.02(d). He also complains of jury

selection error. We will overrule these contentions and affirm the conviction.
               Juana Guardado moved to the United States from El Salvador in 1985 with appellant,

who was then nine years old, and his sister. Velasquez had recently begun living with them, but it

is not clear from the record how long he had been in this county. Appellant and Velasquez worked

together as painters. There is evidence that the two men had worked as usual on the day of the

stabbing, and that they appeared to be in good spirits, laughing and talking.

               Juana Guardado said she arrived home from work at about 6:00 p.m. She went to

appellant’s bedroom and found him watching television. He was angry and crying. This concerned

her because appellant had a bad temper. Appellant told his mother that Velasquez had insulted him

as they were coming home from work. Appellant said Velasquez told him that “when he had his

beers, he was a man, but without his beers, he wasn’t a man.” At another point in her testimony, she

indicated that Velasquez had told appellant that “if you do not drink, you have no balls.” She

testified that in El Salvador, Velasquez’s insult was “very horrible. It’s a very foul word for us.”

Guardado told appellant that Velasquez “was just teasing him” and to ignore him. She suggested

that appellant go outside or take a shower to cool off. As Juana Guardado and appellant sat in his

bedroom talking, Velasquez came to the door and said, “Well, now you are telling your mother what

happened, aren’t you.” She said that Velasquez’s tone was harsh.

               Velasquez continued on through the kitchen and into the garage. Appellant also went

to the kitchen, followed by his mother. In her written statement, Juana Guardado said that she saw

appellant go to a drawer and open it. She did not see him take anything from the drawer, but she did

“see him do something with his pants pocket.” Velasquez opened the door from the garage and

stood in the doorway. He raised his hands and told appellant, “Go ahead and hit me.” Appellant

                                                 2
then reached into his pocket, removed a knife, and stabbed Velasquez in the throat. He then bent

the knife and left the house. In her trial testimony, Guardado said she did not remember seeing

appellant reach in the drawer, seeing the knife in his hand, or seeing him break the knife after the

stabbing.

               “Sudden passion,” within the meaning of section 19.02(d), means “passion directly

caused by and arising out of provocation by the individual killed . . . which arises at the time of the

offense and is not solely the result of former provocation.” Id. § 19.02(a)(2). Thus, the victim’s

provocative conduct must have occurred at the time of the offense. Marras v. State, 741 S.W.2d

395, 405 (Tex. Crim. App. 1987). Passion cannot be “sudden” if it is based on earlier events.

Hobson v. State, 644 S.W.2d 473, 478 (Tex. Crim. App. 1983); Oliva v. State, 663 S.W.2d 656, 658

(Tex. App.—Corpus Christi 1983, no pet.). The provocative conduct must have been adequate to

“produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to

render the mind incapable of cool reflection.” Tex. Pen. Code Ann. § 19.02(a)(1). A defendant is

entitled to a sudden passion instruction if there is some evidence to support it, even if that evidence

is weak, impeached, contradicted, or unbelievable. Trevino v. State, 100 S.W.3d 232, 238 (Tex.

Crim. App. 2003).

               In the trial court, appellant argued that the sudden passion issue was raised by his

mother’s testimony describing the “horrible” insult that so angered and embarrassed him: his uncle’s

remark that he was not a man except when he was drinking. Assuming that a jury could have

reasonably found this remark to be “adequate cause,” it did not justify a sudden passion instruction

because it was not made at the time of the offense. Instead, the remark was made as the two men

                                                  3
were returning home from work, well before the stabbing. Whatever passion the remark may have

aroused in appellant, it was not “sudden passion” when he stabbed Velasquez.

               Appellant now presents a more elaborate justification for the requested instruction.

He argues that the evidence supports a finding that: (1) he was still in the emotional grip of his

uncle’s insulting remarks when his mother arrived home; (2) his “rage and resentment” were

exacerbated when his uncle “mocked” him for telling his mother about the insult; and (3) when he

was “confronted” by Velasquez in the kitchen, the invitation to hit him “could reasonably be

interpreted as a provocation.” In other words, appellant argues that his uncle’s statement in the

kitchen was provocative because appellant was still angry about the earlier insult. We believe this

rationale, which was not presented to the trial court, is inconsistent with the language of section

19.02.

               Even appellant does not contend that Velasquez’s remark in the kitchen was one that

would commonly produce a degree of anger, rage, or resentment in a person of ordinary temper

sufficient to render the mind incapable of cool reflection. Instead, he asks the Court to consider the

effect of the remark, not on a person of ordinary temper, but on a person who had spent a substantial

period of time brooding over Velasquez’s earlier insult. Appellant’s argument also overlooks the

undisputed fact that he had armed himself with a knife before the final encounter with Velasquez,

which clearly suggests that he contemplated killing his uncle before the “provocation” in the kitchen.

Viewed in the light most favorable to appellant, the evidence does not raise an issue as to whether

appellant was acting under the immediate influence of sudden passion when he stabbed Velasquez.

The trial court did not err by refusing to instruct the jury on sudden passion.

                                                  4
               Even if the court erred by refusing the requested instruction, the error was not

calculated to injure appellant’s rights and was therefore harmless. See Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1985) (op. on reh’g) (standards of review for charge error). This is true

even if the error was constitutional, and not merely statutory, as appellant argues. See Tex. R. App.

P. 44.2(a); see also Jimenez v. State, 32 S.W.3d 233, 235-37 (reconciling Almanza and rule 44.2).

Appellant pleaded true to the allegation that he had previously been convicted of a felony.

Therefore, the court instructed the jury that the applicable punishment range was fifteen years to life.

See Tex. Pen. Code Ann. § 12.42(c)(1) (West 2003) (punishment for first-degree felony enhanced

by one previous felony conviction). If the court had given a sudden passion instruction, and if the

jury had found in appellant’s favor on that issue, the range of punishment would have been five years

to life. See id. § 12.42(b) (punishment for second-degree felony enhanced by one previous felony

conviction). We are satisfied beyond a reasonable doubt that the jury’s decision to assess seventy

years’ imprisonment would not have been affected had it been instructed that the minimum

punishment was five years instead of fifteen. Point of error one is overruled.

               In his second point of error, appellant contends the trial court erred by granting one

of the State’s challenges for cause during jury selection. Because he did not object when the

challenge was granted, appellant did not preserve this contention for review. Ortiz v. State, 93

S.W.3d 79, 88 (Tex. Crim. App. 2002). Moreover, he does not contend that the court’s ruling denied

him a lawfully constituted jury. See Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998).

Point of error two is overruled.

                                                   5
              The judgment of conviction is affirmed.

                                              __________________________________________

                                              Mack Kidd, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: September 25, 2003

Do Not Publish

                                                6