522 F.3d 591 (2008)
CITIBANK TEXAS, N.A., Plaintiff-Appellee,
v.
PROGRESSIVE CASUALTY INSURANCE CO., Defendant-Appellant.
No. 07-10142.
United States Court of Appeals, Fifth Circuit.
March 31, 2008.
Stuart Mallory Reynolds, Jr. (argued), Winstead, PC, Dallas, TX, for Plaintiff-Appellee.
Paul D. Schoonover (argued), Kleiman, Lawrence, Baskind, Fitzgerald, LLP, Dallas, TX, for Defendant-Appellant.
Edward Graham Gallagher, Surety & Fid. Ass'n of America, Washington, DC, for Amicus Curiae, Surety & Fid. Ass'n of America.
Before WIENER, DeMOSS, and PRADO, Circuit Judges.
*592 WIENER, Circuit Judge:[1]
Plaintiff-Appellee Citibank Texas, N.A. ("Citibank") sued Defendant-Appellant Progressive Casualty Insurance Co. ("Progressive") as the issuer of a Financial Institution Bond (the "Bond"), claiming Progressive should cover a loss Citibank sustained in a prior state court action filed against it by a depositor on a claim of unauthorized endorsement. Both Citibank and Progressive filed motions for summary judgment. The district court agreed with Citibank on its breach of contract claim and held Progressive liable for Citibank's loss. As we now disagree with the district court's holdings that (1) Progressive is collaterally estopped from contesting the state court's determination and (2) the endorsements were "unauthorized" within the intendment of the Bond, we reverse the district court and render a take-nothing judgment against Citibank.

I. FACTS AND PROCEEDINGS
GoldenLife/Richardson L.P. ("GoldenLife") was a Texas limited partnership formed by Todd P. Lindley to develop and operate a skilled nursing facility in Richardson, Texas. Lindley was also the president and owner of Pilatus Company, GoldenLife's general partner. The limited partners of GoldenLife invested $2,570,000 in the partnership. Between February and September of 2002, Citibank allowed Lindley, an authorized signatory on GoldenLife's account as well as on another Citibank account in the name of Lindley Properties, to endorse and deposit into his personal Lindley Properties account sixteen checks payable to GoldenLife totaling $1,170,000. Lindley used these GoldenLife funds in an unauthorized manner, inconsistent with the intent of the GoldenLife partnership.[2]
In 2005, after GoldenLife discovered Lindley's misuse of the funds, it accused Citibank of conversion for allowing Lindley to misdeposit the sixteen checks into his own account and filed a suit for damages against Citibank in Texas state court. Progressive was Citibank's insurer under the Bond, which provided up to $7,000,000 in coverage for losses resulting from counterfeiting, forgeries, "unauthorized" signatures, and other dishonest or fraudulent acts. Under the Bond, Progressive had the right (but not the obligation) to join in Citibank's defense of the state court action but, at its election, declined to do so. The state court bifurcated the trial, first addressing liability and eventually entering partial summary judgment in favor of GoldenLife on that facet of the claim. The court reasoned that, as Citibank had accepted and paid checks belonging to GoldenLife with Lindley's unauthorized endorsements, Citibank had taken the checks with notice of Lindley's breach of fiduciary duty and thus was not a holder in due course. The state court held Citibank responsible for misdepositing GoldenLife's checks. Subsequent to this liability determination, and prior to the court's determination of the amount of GoldenLife's loss, Citibank and GoldenLife settled their dispute for $845,000.
Citibank then sought reimbursement from Progressive for the $845,000 settlement *593 payment. Insuring Agreement D of the Bond indemnified Citibank for "[l]oss resulting directly from ... [f]orgery or alteration of, on or in any Negotiable Instrument...." Under the Bond's Unauthorized Signature Rider (the "Rider"), Insuring Agreement D was modified as follows: "Accepting, paying or cashing any Negotiable Instruments or Withdrawal Orders that bear unauthorized signatures or endorsements shall be deemed to be a Forgery under this Insuring Agreement."[3] As the state court had held that Lindley's endorsements of the GoldenLife checks were unauthorized, Citibank contended that these checks were "unauthorized endorsements," and thus forgeries for purposes of Insuring Agreement D, as modified by the Rider, making Citibank's underlying state court loss to its depositor recoverable under the Bond.
When Progressive refused payment, Citibank sued in federal court for breach of contract and breach of the duty of good faith and fair dealing in violation of the Texas Insurance Code. Citibank sought to recover: (1) the amount of its settlement less the Bond's deductible; (2) attorneys' fees incurred in defending the GoldenLife case in state court; and (3) damages for its breach of the duty of good faith and fair dealing claim. Progressive took the position that the Bond did not cover any part of the sum for which Citibank had been held liable to GoldenLife in state court.
The district court held for Citibank on its breach of contract claim but denied recovery on its claims for attorneys' fees incurred in defending the GoldenLife case in state court and bad faith violations of the Texas Insurance Code. The court stated two alternative bases for its holding that Citibank's settlement payment was a loss covered by the Bond. First, the court credited Citibank's reliance on the doctrine of collateral estoppel, rejecting Progressive's contention that it was not bound by the state court judgment and could contest the Bond's coverage of Citibank's loss by relitigating the issue of Citibank's liability to GoldenLife for honoring purportedly unauthorized endorsements. The court ruled, in the alternative, that even if Progressive were not collaterally estopped from relitigating whether Lindley's endorsements were "unauthorized" for the purpose of the Bond, the district court would hold, as had the state court on the merits, that Lindley's endorsements were "unauthorized" under the Bond. The district court held Progressive liable for the settlement amount less the Bond's deductible, plus pre-judgment and post-judgment interest, and attorneys' fees incurred in federal court, awarding Citibank approximately $823,000.[4] Progressive timely filed a notice of appeal.

II. STANDARD OF REVIEW
We review the district court's grant of summary judgment de novo.[5] A motion for summary judgment should be granted only when there is no genuine issue of material fact.[6] In determining whether there is a genuine issue of material fact, we view all facts and draw all inferences *594 therefrom in favor of the non-moving party.[7]

III. ANALYSIS

A. Collateral Estoppel
The fourth paragraph General Agreement F of the Bond stipulates that if "the Underwriter elects not to defend any causes of action, neither a judgment against the Insured, nor a settlement of any legal proceeding by the Insured, shall determine the existence, extent or amount of coverage under this Bond for loss sustained by the Insured ...." Progressive interprets this language to mean that Citibank is required to prove that Lindley's endorsements were "unauthorized" under the Bond, independently of the state court judgment, viz., the Bond bars the state court's decision from having collateral estoppel effect. Citibank counters that General Agreement F prevents a third-party judgment or settlement from determining the Bond's coverage, but not Progressive's liability; if an insurer elects not to participate in the defense of such a third-party action, collateral estoppel may still apply to the issue of liability. Agreeing with Citibank's interpretation, the district court held that Progressive is collaterally estopped from attacking the state court's holding that Lindley's endorsement were unauthorized. The district court reasoned that General Agreement F explicitly gave Progressive the right to conduct or support Citibank's state court defense and that Progressive had notice of the GoldenLife suit, yet Progressive declined to participate in it. This, concluded the district court, bound Progressive to the state court determination.
The district court appeared to follow well-established precedent, as an insurer who has the duty to defend a suit against an insured but fails to do so is generally bound by the liability judgment in that suit.[8] The court failed to distinguish, however, between: (1) the ubiquitous general liability policy, under which an insurer is duty bound to defend (as well as to indemnify) the insured, but may do so under a reservation of rights; and (2) the Financial Institution Bond issued in the instant case, under which Progressive had the option (but not the duty) to defend, and if opting not to defend, would do so without waiving its defenses. The third paragraph of General Agreement F of the Bond specifies that, "[i]f the Underwriter elects to defend the Insured," a judgment or settlement of any claim, and all fees and costs, "shall be a loss covered" by the Bond.[9] Thus, under the Bond, Progressive *595 had no legal ability to defend Citibank in state court under a reservation of rights: If Progressive had opted to defend Citibank, it would have committed itself not only to pay Citibank's defense costs but also to pay the full amount of any judgment against it.
Progressive chose not to defend Citibank in state court because, inter alia, the language of General Agreement F expressly prevented Progressive from exercising its option to defend Citibank in state court without waiving its rights. It would be inequitable, then, for us to prevent Progressive from having any opportunity to contest its liability for Citibank's loss in court. We hold that the district court erred in applying the doctrine of collateral estoppel here, so Progressive is not bound by the state court's determination that Lindley's endorsements were unauthorized.[10]

B. Unauthorized Endorsements
As collateral estoppel does not apply, we must address the substantive issue presented, viz., whether, for purposes of the Bond's coverage, Lindley's endorsements of the GoldenLife checks to his own account were "unauthorized." The Bond's terms and definitions were not before the state court in the suit between Citibank and GoldenLife, so that court applied the definition of unauthorized endorsement found in the Uniform Commercial Code ("UCC") (as codified in the Texas Business & Commerce Code), i.e., that an endorsement is unauthorized any time it is made "without actual, implied, or apparent authority."[11] In contrast, the Rider defines an "unauthorized endorsement" as an "endorsement not reflected on the appropriate signature card or named in the Insured's records for the account or accounts in question." The state court's determination that Lindley's endorsements were unauthorized under the UCC definition is neither in dispute nor legally relevant to this appeal. Rather, we must decide whether the district court correctly held that Lindley's endorsements were "unauthorized" under the Bond.
We believe that the district court's interpretation of the type of "unauthorized endorsement" covered by the Bond was overly expansive.[12] As a general *596 rule, an endorsement is unauthorized if the person signing either (1) had no authority whatsoever to endorse negotiable instruments for the named payee (i.e., the person was not authorized to endorse anything and thus is an unauthorized endorser per se) or (2) had some authority to endorse for the named payee but exceeded the scope of his endorsement authority. The Bond covers the former situation but not the latter. Lindley falls into the latter as he indisputably had some endorsement authority for GoldenLife.
Section 1 of the Rider specifies, inter alia, that, as a condition precedent to Citibank's right of recovery for an "unauthorized... endorsement[ ],"[13] Citibank must "have on file the signatures of all persons authorized to sign" negotiable instruments. As Lindley was listed by name in Citibank's records for GoldenLife's accounts, and as his signature was on record for GoldenLife's accounts, he clearly had authority to endorse checks payable to GoldenLife. Thus, the Rider's condition precedent was satisfied. Moreover, even though Lindley exceeded the scope of his endorsement authority when he endorsed the sixteen checks at issue to his personal account, he was nevertheless an authorized endorser of GoldenLife checks for some purposes. The language of the Rider makes clear that Bond coverage does not depend on the authorized endorser's purpose for endorsing a check. As Lindley was an authorized endorser, the determination of coverage under the Bond ends there, irrespective of whether he endorsed GoldenLife checks to GoldenLife, or to himself, or to anyone else for that matter.
This is further confirmed by the observation that the Bond covers both forgery ("unauthorized signatures") and "unauthorized endorsements," but specifically excludes coverage of the type of behavior engaged in by Lindley. Section 3 of the Rider expressly limits covered "unauthorized... endorsement[s]" to those non-forgery endorsements (i.e., those in which the person signing is the person whose name is signed) that are executed by persons whose signatures or names are not on file at the bank for the account of the customer in question  here, GoldenLife:
For the purpose of this rider, unauthorized signature or endorsement shall mean a signature or endorsement not reflected on the appropriate signature card or named in the Insured's records for the account or accounts in question.
As Lindley's signature was "reflected on the appropriate signature card" and he was "named in" Citibank's records for the GoldenLife account, this language makes pellucid that Lindley's endorsement of GoldenLife's instruments is not a covered "unauthorized... endorsement." Obviously, therefore, the intent of the Bond was to insure only against (1) forged endorsements (not at issue here) and (2) endorsements by totally unauthorized endorsers: It was not intended to insure against endorsements by endorsers like Lindley who are authorized but simply exceed the scope of their endorsement authority. Citibank's broad construction of the Rider would cover many different types of unauthorized-endorsement losses, but the plain wording of the Rider demonstrates that there is *597 nothing an endorser whose signature and identity are on file for the accounts of the depositor in question can do to render his endorsement "unauthorized" for purposes of coverage by the Bond  even if, as here, it might be deemed unauthorized under the UCC.
In short, we are bound by the precise language of the Bond which confirms that the losses resulting from Lindley's activities were not covered. We are well aware that Lindley's endorsements represented attempts to defraud Citibank's customer, GoldenLife, and that Citibank undoubtedly purchased the Bond from Progressive to protect itself from various kinds of fraudulent activity. Citibank and Progressive, however, are large and sophisticated parties, and the only reasonable reading of the Bond leads inextricably to the conclusion that Lindley's endorsements were not "unauthorized" for purposes of the Bond's coverage. Contrary to the district court's holding, Progressive is not liable for Citibank's loss.

IV. CONCLUSION
We hold that the ruling of the state court in an action to which Progressive was not a party does not estop Progressive from contesting its liability under the Bond. We further hold that Lindley was not an "unauthorized endorser" on GoldenLife's accounts for purposes of the Bond. Thus, Lindley's abuse of his endorsement authority does not come within the Bond's coverage. We therefore reverse the district court and render judgment in favor of Progressive: Citibank shall take nothing from Progressive under the Bond as a result of Lindley's contested endorsements of the GoldenLife instruments.
REVERSED and RENDERED.
NOTES
[1]  This opinion replaces the opinion reported at 508 F.3d 779 (5th Cir.2007), which was previously withdrawn on panel rehearing.
[2]  GoldenLife's claims against Lindley are not before the court.
[3]  Emphasis added.
[4]  The district court awarded Citibank: (1) $695,000 (the $845,000 Citibank paid to GoldenLife less the Bond's $150,000 deductible); (2) $48,540 pre-judgment interest; and (3) $79,591.84 in attorneys' fees for prosecuting its claim on the Bond against Progressive, for a total judgment of $823,132.35 (plus post-judgment interest at the rate of 4.99% per annum).
[5]  Am. Int'l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.2003).
[6]  Weeks Marine, Inc. v. Fireman's Fund Ins. Co., 340 F.3d 233, 235 (5th Cir.2003).
[7]  Id.
[8]  See, e.g., Columbia Mut. Ins. Co. v. Fiesta Mart, Inc., 987 F.2d 1124, 1127 (5th Cir. 1993) ("It is well-settled in Texas that when an insurer breaches a duty to defend its insured, it is bound, in subsequent proceedings, by a settlement or judgment rendered against the insured. But, of course, an insured's liability and whether there is concomitant coverage are separate and distinct matters; and a prior judgment establishing liability is not binding in a subsequent proceeding on coverage. Furthermore, whether an insurer is bound by a specific finding from the liability action  i.e., whether it is collaterally estopped from contesting that finding  depends upon whether the fact determined in the prior suit was essential to the judgment in the prior suit, and whether the necessary requirement of privity exists between the parties.") (internal quotation marks and citations omitted); see also Enserch Corp. v. Shand Morahan & Co., Inc., 952 F.2d 1485, 1493 (5th Cir.1992); Hartford Cas. Co. v. Cruse, 938 F.2d 601, 605 (5th Cir. 1991).
[9]  The third paragraph of General Agreement F of the Bond reads in its entirety: "If the Underwriter elects to defend the Insured, in whole or in part, any judgment against the Insured on those counts or causes of action which the Underwriter defended on behalf of the Insured or any settlement in which the Underwriter participates and all attorneys' fees, costs and expenses incurred by the Underwriter in the defense of the litigation shall be a loss covered by this bond."
[10]  On appeal, Progressive does not address the related but distinct question whether it should be estopped from contesting the $845,000 settlement amount agreed on by GoldenLife and Citibank after the judgment of liability was rendered but before any determination of the quantum of GoldenLife's loss. Progressive has thus waived any right it might have had to contest the quantum of the GoldenLife/Citibank settlement. See Tex. Commercial Energy v. TXU Energy, Inc., 413 F.3d 503, 510 (5th Cir.2005) (recognizing that arguments not raised before the district court are waived on appeal). Because we hold that Progressive is not liable for any portion of the GoldenLife/Citibank settlement, however, this point is moot.
[11]  TEX. BUS. & COM.CODE ANN. § 1.201(b)(41).
[12]  The general rule that ambiguities in insurance contracts are to be construed strictly against the underwriter does not apply in this case. As Judge Wisdom noted in Calcasieu-Marine National Bank v. American Employers' Insurance Co., 533 F.2d 290, 295 n. 6 (5th Cir. 1976), "banker's blanket bonds" (e.g., Financial Institution Bonds) are often drafted by the joint efforts of associations represented by insurers and insureds. If the banks and the insurers are equally responsible for the language in the "Standard Form" Bond, the general principle that our interpretation of ambiguous contract language favor the insured would be inapt. See also Nat'l Bank of Commerce in New Orleans v. Fid. & Cas. Co. of N.Y., 312 F.Supp. 71 (E.D.La.1970) (Judge Rubin holding that because bankers' blanket bond resulted from joint efforts and negotiations of American Bankers Association and Surety Association of America, bond terms should not be applied hostilely against insurer), aff'd, 437 F.2d 96 (5th Cir.1971). But cf. Shoals Nat'l Bank of Florence v. Home Indem. Co., 384 F.Supp. 49, 54 (N.D.Ala.1974) (holding that, although bankers' blanket bond resulted from efforts of two organizations, because "record is absent any evidence that this plaintiff or any association acting for it negotiated the language of the" bond, general rule that ambiguities in insurance contracts are to be construed against underwriter applied).
[13]  Emphasis added.


380 F.Supp. 1176 (1974)
Gabriel G. RUBIN
v.
UNITED STATES of America.
Civ. A. No. 72-350.
United States District Court, W. D. Pennsylvania.
September 3, 1974.
*1177 *1178 David M. Kaufman, Pittsburgh, Pa., Carroll J. Savage, Washington, D. C., for plaintiff.
Thomas Daley, Robert M. Adler, Dept. of Justice, Washington D. C., for defendant.

OPINION
KNOX, District Judge.
The question in this civil action is whether the plaintiff Gabriel G. Rubin is liable under Internal Revenue Code, Section 6672[1] as a person who willfully failed to collect, truthfully account for and pay over to the United States certain withholding taxes of the Minnesota Pipers, Inc., a Minnesota corporation. The Commissioner of Internal Revenue assessed a 100% penalty of $44,213.92 against Rubin for the fourth quarter of 1968 and the first three quarters of 1969.[2] Rubin paid $25.00 of the penalty for each quarter, filed a claim for refund which was denied, and brought suit. The United States counterclaimed for $44,113.92, the unpaid balance of the assessment. After a week long trial, a jury found Rubin liable for the third quarter of 1969, but not liable for the three previous quarters.[3] The result of all this was that Rubin was held liable for $85.41, out of the total assessment of $44,213.92.
Both the United States and Rubin have moved to alter or amend judgment, or alternatively, for judgment notwithstanding the verdict or a new trial. The United States contends that since the jury found Rubin to be a "responsible person" acting "willfully" for the third quarter of 1969, then preferences by Rubin to creditors other than the government make him liable for whatever taxes were then due, without regard to whether the preferences occurred in the same or a later period than that in which the tax liability arose and regardless of whether Rubin at any time during these quarters had corporate funds in his hands to pay these taxes. The government urges that on the record before us Rubin must be found liable for *1179 the entire tax, and that the jury's verdict of liability only for the third quarter of 1969 is inconsistent and contrary to the court's charge. Rubin disputes the government's interpretation of the facts and the law and further urges that the jury's findings of "responsibility" and "willfullness" for the third quarter of 1969 are not supported by the evidence and are conjectural in light of the jury's implicit finding for the three prior quarters that Rubin was not responsible or did not act willfully.
Not without difficulty, the court has determined that the jury verdict is proper and that the judgment entered pursuant to that verdict will stand.
In our charge to the jury, we incorporated defendant's Requested Jury Instruction No. 19:
"Even if you determine that Gabriel G. Rubin became a responsible person only at the time that the Minnesota Pipers returned to Pittsburgh in July of 1969, I charge you that he may still be liable for the taxes in dispute for the fourth quarter of 1968, and the first three quarters of 1969. The plaintiff is liable for such taxes if after the Minnesota Pipers returned to Pittsburgh, he became a responsible person of the company, as I have previously defined `responsible' for you. If you determine that Gabriel G. Rubin became a responsible person at that time, you must then go on to determine whether Mr. Rubin acted `willfully'. He acted willfully, if after July of 1969, he had knowledge of the delinquent withholding taxes of the Minnesota Pipers, Inc., but nonetheless directed funds to pay suppliers, employees' net take home salaries, rent, or any creditor, other than the government."
The court also gave the defendant's Requested Jury Instruction No. 20:
"If you find that, as Gabriel G. Rubin contends, that he had no knowledge of the delinquent withholding tax liability of the Minnesota Pipers, Inc. until the first week of July, 1969, you must still determine that he acted willfully, if you find that after that date, he decided to use funds of the Minnesota Pipers, Inc. to pay suppliers, employees' net take home salaries, rent, or any creditor, other than the government."
These charges do not preclude a finding of nonliability for earlier quarters despite a finding of liability for the third quarter of 1969. The jury was told that the plaintiff "may" be liable. The charge read as a whole allows the possibility of judgment for the United States for some, but not all, of the four periods in question. The defendant not only submitted the points for charge Nos. 19 and 20 but also failed to object to the form of the special interrogatories[4] which on their face permitted the jury to find liability for any combination of the four tax quarters. Regarding the form of the verdict, the court instructed the jury as follows:
"Now, if you answer these questions [Nos. 1 and 2] `no' why, that is the end of the case and you need not bother with number 3. If, however, your answers on both of the above two questions are `yes', then for which quarters do you find him to be liable? I am asking you to take up each quarter, the last quarter of 1968 and the first three quarters of 1969, and answer `yes' or `no' as to each one of those quarters, whether you find him liable in the event you have answered questions 1 and 2 `yes'." Transcript, page 446.
Some federal courts have indicated that a failure to object to interrogatories before the jury retires precludes a later challenge that the interrogatories were erroneous. Kirkendoll v. Neustrom, 379 F.2d 694 (10th Cir. 1967); cf., Bernstein v. Olian, 77 F.Supp. 672 (S. D.N.Y.1948) (explicit charge without objection that jury could find against *1180 one or more of the defendants precluded challenge of inconsistency to verdict exonerating two defendants but not the third). That rule is implied through the more general statement in Rule 51, F.R.C.P.:
"No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."
We realize, of course, that the United States does not purport to challenge the instructions or special interrogatories as erroneous. Their position is that the answers are inconsistent in light of the charge. Nevertheless, where the United States insists that Rubin cannot be found liable only for the third quarter of 1969 but the charge and interrogatories permitted that result, the net effect is a challenge to the interrogatories. The United States cannot have the best of both worlds by sitting back and allowing the jury to deliberate and to reach a verdict, perhaps through compromise, with the jury believing that they can find the plaintiff liable for only one of the quarters in question, only to later stand up and ask for judgment for all four quarters on the basis of the jury's determination of liability for one quarter alone.
We do not, however, rest our decision on this technical, narrow basis. As we have stated, the court believes the verdict to be supported by substantial evidence.
The standards to be applied in reviewing a jury verdict have often been stated. One such statement appears in Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1945):
"It is no answer to say that the jury's verdict involved speculation and conjecture. * * * Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable."
The facts in this case are lengthy, but must be set out in some detail to show the issues before the jury. Surprisingly, there is little dispute over the underlying facts. The difficulty is what inferences and conclusions are to be drawn from them. Since our purpose is to determine whether the verdict is supported by sufficient evidence, our statement of the facts here does not necessarily represent findings by the court, although we cannot say the verdict is against the weight of the evidence thus necessitating a new trial.
The story of this case begins with plaintiff Rubin's ownership of and association with a professional basketball team known as the Pittsburgh Pipers. In 1968, Rubin sold this team to a Mr. William Erickson of Minneapolis, Minnesota, for $500,000, of which $225,000 was paid down and the balance of which was covered by notes. These notes were never paid. In addition, Rubin received a fifteen percent interest in the stock of the new buyer, Minnesota Pipers, Inc. Rubin was named Chairman of the Board, a title he considered honorary and bestowed for publicity reasons. Rubin's relationship to Minnesota Pipers, Inc., is the question on which this case centers.
From the outset, the Minnesota Pipers suffered financial difficulties. In November of 1968, an agreement (Plaintiff's Exhibit 6) was signed between the Minnesota Pipers, Inc. and the Pipers Basketball Club, Inc., a buying group that supposedly had a firm underwriting commitment. Stock of Pipers Basketball Club, Inc., was to be sold publicly, and the proceeds used to pay the purchase price for the Minnesota Piper *1181 team. Rubin had a four percent beneficial interest in the buying group, Pipers Basketball Club, Inc. Rubin explains his minority interests in Minnesota Pipers, Inc., and Pipers Basketball, Inc., as the result of persuasion to lend his advice, experience in league matters, and knowledge of players to those corporations, along with his general interest in basketball.
An unsuccessful season in Minnesota led to a decision to move to a new playing site. Both the American Basketball Association and the Securities Exchange Commission desired to know the playing site for the 1969-1970 season. A decision was made to return the team to Pittsburgh.
The underwriting efforts for the proposed public offering encountered difficulties. Little interest was shown in the stock in Western Pennsylvania, and in general the stock market was unfavorable in the summer and fall of 1969.
The move from Minnesota to Pittsburgh was made in July of 1969. From that time on, Rubin directed the operations of the team. All disbursements were made through an account in Rubin's own name. Rubin paid all of the bills, including funds to ballplayers, coach, trainers, printing and advertising firms, airlines, hotels and the Pittsburgh Civic Arena. The operation of the team in Pittsburgh was pursuant to an agreement between the Pipers Basketball Club, Inc., and the Minnesota Pipers, Inc. (Defendant's Exhibit Z). Rubin understood this agreement to represent a promise to reimburse him for all expenses incurred by him in the operation of the team in Pittsburgh.
Rubin's agreement to operate the team in Pittsburgh was due in part to his desire to see that outstanding league assessments were paid and the franchise kept intact until the time of the eventual public sale of stock. At the time the team returned to Pittsburgh, Rubin still had hopes that the underwriting would succeed. By September, 1969, however, both the initial underwriting effort and a later attempt by another underwriter failed. Rubin's interest in the sale of the team, of course, was because of the outstanding notes payable to him, which were uncollectible, and his fifteen percent ownership of stock in Minnesota Pipers. Numerous private efforts to sell the Minnesota team were also made through October, 1969.
After the sale possibilities diminished, Rubin asked the A.B.A. to revoke the Minnesota franchise and give him a new one. The league agreed to this, provided dues and assessments in arrears were paid. Rubin on an uncertain date paid the league $45,000 in dues and assessments owed by the Minnesota Pipers. On or about January 7, 1970, the league revoked the Minnesota franchise for non-payment of assessments.
Between July 1, 1969, and December 31, 1969, gate receipts at the Arena were $34,226.89. The season actually opened however, October 15, 1969, and most of those receipts were after that date. Total expenses during this period were $286,000. Rubin paid these expenses from his own personal funds, or from funds he personally borrowed. Rubin testified that when the season started at the Civic Arena, the arena collected all monies at the box office and credited them to the nightly rental. The receipts were so small that they continually ran behind the rental and Rubin seldom, if ever, received any of those funds.
The lease with the Arena was signed in Rubin's own name. The bank account and checks were also in his name. Rubin paid withholding taxes for the 1969-1970 season under his own government number and name. No corporate funds were ever transferred or used by the plaintiff. Never while Rubin operated the team in Pittsburgh did he receive any monies from Erickson or Mikkelson, officials of the Minnesota Pipers. Rubin did not have the books or records, minute book, checkbook, or seal of the Minnesota Pipers in his possession. He did receive possession of certain equipment *1182 and paraphernalia in the summer of 1970. Their value would be small.
The evidence further showed that Rubin was a signatory on the Minnesota Pipers, Inc. checking account, but two signatures were required to draw a check and there was no evidence that he ever signed one. Rubin's signature did appear on many corporate minutes and documents, including player contracts. Signing up of new players was a condition of the selling agreement between Rubin and Minnesota Pipers Inc. As to the other corporate documents, Rubin says he signed them perfunctorily when Mikkelson or Erickson presented them to him.
The only other funds in Rubin's possession when he ran the team in Pittsburgh were $20,000, sent to him by members of the purchasing group, Pipers Basketball Club, to pay the league and reserve the Arena.
This statement of facts suggests a number of matters for the jury to resolve. When Rubin paid certain debts of the Minnesota Pipers after he took over the operations after July 1, 1969, did he do so pursuant to a contract with Pipers Basketball Club, Inc., rather than as an agent of the Minnesota Pipers? Did Rubin actually have control of corporate funds with which he favored other creditors or did he use only his own funds? Was Rubin's relationship to Minnesota Pipers such that by "loaning" his own funds to pay corporate debts, his funds became corporate funds? Did Rubin have the authority or consent of Minnesota Pipers to pay the back withholding taxes, or was he only permitted to operate the team and pay necessary current expenses? Were the $34,000 in gate receipts in 1969 actually within Rubin's control, or as Rubin testified, was the agreement with the Pittsburgh Civic Arena the only method by which he could secure a site for games? When Rubin obtained the league franchise in 1970 by paying past due league assessments, was he simply paying a Minnesota Piper debt or was he purchasing the franchise in his own behalf at a price, set by the league, yet reflective of the amount due from the Minnesota Pipers?
These and other questions may have been considered by the jury in determining whether Rubin was a responsible person who willfully failed to pay the Minnesota Piper taxes. The jury had before them considerable evidence on both sides from which they could have reached either conclusion. Their actual conclusion that only in the third quarter of 1969 did Rubin have the necessary responsibility and willfullness is a plausible one, for that is the time when Rubin became most active in the day to day operations of the team and began disbursing funds, whether his own or otherwise, to pay debts associated with the team.
The jury also had an evidentiary basis to determine that Rubin did not have sufficient corporate, rather than personal, funds within his control to charge him with the responsibility to pay taxes arising in previous taxable quarters, even though they found him liable for the quarter in which he actively managed the team. We are not prepared to say as a matter of law that such a determination was arbitrary. Different factors are involved in holding a responsible person liable for taxes arising prior to his term of responsibility than for taxes arising during his "reign" as a responsible corporate agent. "Current" liability could be based on the mere payment of wages, while "prior" liability must be predicated in part by the availability of corporate funds or property with which the responsible person might have paid the past-due taxes.
The government argues that the line of cases represented by Stake v. United States, 347 F.Supp. 823 (D.C.Minn. 1972) and Walker v. United States, 24 A.F.T.R.2d 69-5661 (D.C.Ga.1969), aff'd per curiam, 438 F.2d 127 (5th Cir. 1971), require entry of judgment for the United States for all four quarters in issue. In Stake and Walker, judgment was entered for the United States for prior tax *1183 quarters where the jury found the plaintiffs to be responsible persons and the record clearly showed that they subsequently preferred other creditors over the United States despite knowledge of the tax obligations. The fact that the tax obligations arose prior to the time plaintiff became a responsible person was deemed irrelevant. While the court believes the Stake and Walker decisions to be sound, we do not find them controlling in this case.
Implicit in the cases cited by the United States is the fact that the persons held liable had within their control substantial funds of the corporation which they paid to other creditors. Insofar as the cases indicate, those funds exceeded, in toto, the past tax liabilities. Liability under Section 6672 was predicated on knowledge of the tax and the willful failure to pay. Willfulness, in this context, would require the availability of corporate funds. These cases therefore actually involve misapplication of corporate funds to the payment of other creditors instead of first applying the funds to the preferred claims of the United States for withholding taxes.
We do not believe the law to be that a preference to one creditor, no matter how small, would make the responsible agent personally accountable for the entire tax obligation, no matter how great. Rather, Section 7501 creates a trust, and a trustee who wrongfully applies trust funds will be held liable. But that liability would not exceed the amount entrusted. Thus, if "C", the custodian of "A's" property, transfers it to "R", the recipient, and that transfer is fraudulent as to "A's" creditor "Cr", then both "C" and "R" might be liable to "Cr" for the amount transferred, but not for "A's" entire debt to "Cr".
Similarly, here, even though the jury found Rubin to be a responsible person who willfully failed to pay the taxes to the United States in the third quarter of 1969, it does not follow, ipso facto, that he is liable for the entire tax for all four quarters at issue. On the record in this case, the jury had sufficient evidence on which they might determine willfullness lacking as to these prior quarters.
In this regard, the present case is distinguishable from Stake, supra, and Walker, supra. Here, the jury faced a viable question as to whether plaintiff paid corporate creditors with corporate funds in deliberate and conscious preference over the government. In Stake and Walker the plaintiffs unquestionably used corporate funds to pay those debts, and the mere finding by the jury of responsibility and willfullness as of a later time was sufficient basis for the court to impose liability for taxes arising at an earlier time. To so rule here would be to take from the jury a question of fact which they have determined adversely to the government.
The court therefore concludes that the verdict of the jury is not inconsistent and is based on sufficient evidence. An appropriate order will be entered.
NOTES
[1]  Internal Revenue Code § 6672, 26 U.S.C. 6672, reads as follows:

"Failure to Collect and Pay Over Tax,
Or Attempt to Evade or Defeat Tax.
Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. No penalty shall be imposed under section 6653 for any offense to which this section is applicable."
[2]  A breakdown of the assessment by quarters, though not appearing on the face of any exhibits, is agreed by the parties to be:

      Tax Period           Penalty Assessed
      ----------           ----------------
  4th quarter of 1968         $   466.80
  1st quarter of 1969          36,214.91
  2nd quarter of 1969           7,446.80
  3rd quarter of 1969              85.41
                              __________
       Total                  $44,213.92

[3]  The Special verdict submitted to the jury was in the following form:

SPECIAL VERDICT
The jury is directed to answer the following questions:
1. Was Gabriel G. Rubin a responsible person who was under a duty to truthfully account for and to pay over to the United States the taxes withheld from the employees of Minnesota Pipers, Inc. under previous instructions of the court?
ANSWER: Yes
2. Was Gabriel G. Rubin a person who wilfully failed to collect such tax or truthfully account for and pay over such tax?
ANSWER: Yes
3. If your answers to both of the above two questions are "yes", then for which quarters do you find him to be liable?
    19684th quarterAnswer: No
    19691st quarterAnswer: No
    19692nd quarterAnswer: No
    19693rd quarterAnswer: Yes

[4]  Transcript, page 466.


Affirmed and Memorandum Opinion filed March 6, 2008

Affirmed and Memorandum Opinion filed March 6, 2008.

In The

Fourteenth Court of
Appeals
_______________

NO. 14-06-01104-CR
_______________

SYLVESTER EARL LOFTON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause No. 1022750

M E M O R A N D U M   O P I N I O N
A jury convicted Sylvester Earl
Lofton of aggravated robbery with a deadly weapon and the trial court assessed
his punishment at 60 years confinement.  Appellant raises three issues
contending that: (1) the trial court erred by admitting county jail
disciplinary records because they were inadmissible under the Confrontation
Clause of the Sixth Amendment of the Untied States Constitution; (2) his trial
counsel was ineffective because he failed to object to the introduction of
appellant=s jail disciplinary records; and (3) his trial counsel was ineffective
because he failed to file a pretrial motion to suppress the witnesses= identification of appellant.   We
affirm.

Background
At about 10:30 p.m. on March 12,
2005, Delia Rodriguez and her daughter, Azalea Flores, had just returned to their
apartment complex.  While Flores was retrieving packages from the car,
Rodriguez exited her car and began to walk to a nearby vehicle where her
friend, Rene Sanchez, was waiting for her.  Appellant passed within 15 feet of
Flores and looked straight at her, then approached Rodriguez from the rear.
Rodriguez, sensing someone following her, turned to face appellant.  Appellant
pointed a gun at Rodriguez=s face and demanded her purse.
Sanchez, observing the robbery as he
exited his vehicle, approached the scene of the robbery.  Appellant then
pointed the gun at Sanchez.  Appellant ran to a nearby SUV and fled the scene.
Sanchez returned to his vehicle and followed appellant, writing down the SUV=s licence plate number.  After
appellant fired two shots at Sanchez=s vehicle as it followed the SUV,
Sanchez returned to Rodriguez=s apartment complex and gave the police the license plate
number.
In her initial report, Rodriguez
described appellant as a black male, about 19 to 20 years of age, 180 pounds,
and wearing a black cap that covered the top of his head but did not cover his
face.  An investigation of the license plate number determined that the vehicle
was registered to appellant=s grandmother and had been reported as stolen.  Rodriguez and
Flores could not definitively identify appellant in a photo spread, but claimed
they could positively identify him if they saw him in person.  Appellant was
placed in a lineup and both Rodriguez and Flores identified appellant in the
lineup and again at trial as the individual who had robbed Rodriguez at
gun-point.
Analysis
1.         Confrontation
Clause
In his first issue, appellant argues
that the trial court erred in admitting his county jail disciplinary records at
the punishment phase of the trial because this admission violated his Sixth
Amendment right to confront the witnesses against him.

To preserve error
in admitting evidence, a party must make a timely objection and obtain a ruling
on that objection.  Tex. R. App. P. 33.1(a); Valle v. State, 109 S.W.3d
500, 509 (Tex. Crim. App. 2003).  Appellant=s counsel failed to object to the admission of his
disciplinary records at trial.  When the State offered the records into evidence,
appellant=s counsel stated that he had no objection to their
admission.  No complaint has been preserved
for our review.
Appellant=s first issue is overruled.
2.         Ineffective
Assistance of Counsel
In his second and third issues,
appellant contends he was denied effective assistance of counsel because his
trial counsel failed to (1) object to the admission of his jail disciplinary
records during the punishment phase of trial, and (2) file a pretrial motion to
suppress Rodriguez=s and Flores=s identification of appellant.
Standard of Review
To prevail on an ineffective
assistance claim, appellant must show that (1) his trial counsel=s performance fell below an objective
standard of reasonableness; and (2) there is a reasonable probability that, but
for the error, the result of the proceeding would have been different.  Wiggins
v. Smith, 539 U.S. 510, 521, 534 (2003); Garza v. State, 213 S.W.3d
338, 347-48 (Tex. Crim. App. 2007); Hernandez v. State, 988 S.W.2d 770,
772 (Tex. Crim. App. 1999) (applying Strickland standard at punishment
phase of non‑capital trial).  Appellate review of trial counsel=s representation is highly deferential
and presumes that counsel=s actions fell within the wide range of reasonable and
professional assistance.  Garza, 213 S.W.3d at 348.

If counsel=s reasons for his conduct do not
appear in the record and there is at least a possibility that the conduct could
have been grounded in legitimate trial strategy, we will defer to counsel=s decisions and deny relief on an
ineffective assistance claim on direct appeal.  Id.  To warrant reversal
where trial counsel has not been afforded an opportunity to explain those
reasons, the challenged conduct must be so outrageous that no competent
attorney would have engaged in it.  Roberts v. State, 220 S.W.3d 521,
533‑34 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 282
(2007).
Failure to Object to Admission of
Jail Disciplinary Records at Punishment Phase
In his second issue, appellant argues
that he was denied effective assistance of counsel because his trial counsel
failed to object to the admission of his jail disciplinary records during the
punishment phase of trial.
Appellant did not file a motion for new
trial, and there is nothing in the record to indicate trial counsel=s reasons for not objecting to the
admission of appellant=s jail disciplinary records.  Because appellant has not
developed a record of trial counsel=s reasons for his actions, appellant
has failed to rebut the presumption of sound trial strategy.  Thompson v.
State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).  Appellant also makes no
attempt to show or explain how there is a reasonable probability that, but for
counsel=s allegedly deficient conduct, the
result of the proceeding would have been different, i.e. the assessment
of punishment would have been less severe.  Milburn v. State, 15 S.W.3d
267, 270 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d); see also Ex parte Gonzalez,
204 S.W.3d 391, 393-94 (Tex. Crim. App. 2006).
Additionally, the trial court stated
the following reasons for sentencing appellant:
Most disturbing to the Court, of course, is the nature
of these allegations and the crime for which you=ve now been found guilty.  This aggravated robbery is particularly
violent.   . . .  [A] gun was pointed at least at two people, maybe three.
And, of course, there=s the whole issue of the firing the shots, another
aggravated assault.  But then you make bond on this very serious offense and
you pick up two new charges.  So, it is instructive, I think, that on a very
serious aggravated assault in juvenile court you were sent to T.Y.C. with the
hope that you would get the kind of help that you needed and redirect your
life.  And that didn=t happen.  . . .  That tells me a lot about where you
are.  And it=s not just trespasses or small drug cases, you know,
like a possession of marijuana that you=re
picking up.  You=re picking up felonies.

The trial court never mentioned
appellant=s jail disciplinary records as one of the considerations for assessing
appellant=s punishment at 60 years confinement.  In light of the record before us,
including evidence of five prior convictions, it is unlikely that the
disciplinary records significantly increased appellant=s sentence.  We overrule appellant=s second issue.
Pretrial Motion to Suppress
Identification
In his third issue, appellant asserts
that he was denied effective assistance of counsel because his trial counsel
failed to file a pretrial motion to suppress Rodriguez=s and Flores=s pretrial identification of
appellant.
Again, the record is undeveloped and
does not reflect trial counsel=s motives for not filing a pretrial motion to suppress
appellant=s identification.  Additionally, a trial counsel=s failure to file a motion to
suppress is not per se ineffective assistance of counsel. Hollis v. State,
219 S.W.3d 446, 456 (Tex. App.CAustin 2007, no pet.); Huynh v. State, 833 S.W.2d 636,
638 (Tex. App.CHouston [14th Dist.] 1992, no pet.).  To prevail on an ineffective
assistance claim premised on counsel=s failure to file a motion to
suppress,  appellant must show by a preponderance of the evidence that the
motion to suppress would have been granted.  Jackson v. State, 973
S.W.2d 954, 956‑57 (Tex. Crim. App. 1998).

However, the record does not reflect
that the pretrial identification was impermissibly suggestive to warrant
suppression; nor does appellant make any attempt to show that a pretrial
attempt to exclude Rodriguez=s and Flores=s identification would have been successful.  Finally, a
review of the record reveals that trial counsel attempted to discredit the
witnesses= identification of appellant by cross-examining Rodriguez and Flores
extensively.  Trial counsel emphasized that neither Rodriguez nor Flores was
able to identify appellant in a photo spread and only later identified him in a
lineup.  Trial counsel also elicited that appellant was the only man who had
been placed in both the photo spread and the lineup.  In his closing argument,
trial counsel tried to discredit witnesses by pointing to inconsistencies in
their respective testimony and tried again to emphasize Rodriguez=s and Flores=s inability to identify appellant
after viewing a photo spread shortly after the robbery when their memory Ashould have been sharp and crisp.@  Trial counsel pointed out that the
witnesses could  identify appellant only after they saw him in the lineup, and
that appellant had been the only man who had both been placed in the photo
spread and in the lineup.
Appellant=s claim of ineffective assistance of
counsel cannot be sustained on this record.  Accordingly, appellant=s third issue is overruled and the
judgment of the trial court is affirmed.

/s/        William
J. Boyce
Justice

Judgment rendered and Memorandum Opinion filed March 6, 2008.
Panel consists of Chief Justice Hedges, Justices Anderson,
and Boyce.
Do not publish C Tex.
R. App. P. 47.2(b).


	OSCN Found Document:FEE SCHEDULE FOR STATE BD. OF EXAMINERS OF CERTIFIED COURTROOM INTERPRETERS

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FEE SCHEDULE FOR STATE BD. OF EXAMINERS OF CERTIFIED COURTROOM INTERPRETERS2015 OK 1Decided: 01/12/2015THE SUPREME COURT OF THE STATE OF OKLAHOMA
Cite as: 2015 OK 1, __ P.3d __

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

IN RE: FEE SCHEDULE FOR THE STATE BOARD OF EXAMINERS OF CERTIFIED COURTROOM INTERPRETERS

ORDER

PURSUANT TO the provisions of 20 O.S. § 1707, the Court hereby approves and authorizes the following Fee Schedule for the State Board of Examiners of Certified Courtroom Interpreters, effective immediately.

Fees for Interpreter Credentialing

Application for Provisional Status

$100.00

Application for Certification by Reciprocity

$100.00

Application to Become a Registered Courtroom Interpreter  Full Program (Fee includes enrollment in one Two-Day Orientation Training, one Written Examination and one Written Translation Basic Proficiency Assessment)

$200.00

Application to Become a Registered Courtroom Interpreter  Application Only

$100.00

Background Check

$15.00 (or actual cost, whichever is greater)

Two-Day Orientation Training

$100.00

Court Interpreter Written Examination

$50.00

Basic Proficiency Assessment  Written Translation Test

$50.00

Basic Proficiency Assessment -- Oral Proficiency Interview

$75.00

Oral Examination

$250.00

Fees for Certificate Renewal and Continuing Education

Annual Certificate Renewal Fee

Annual certificate renewal shall become effective on January 1, 2016

$30.00

Delinquent Payment Fee

Assessed for failure to renew certificate on or before February 15

$100.00

Continuing Education Penalty Fee

Assessed for failure to obtain CE hours on or before December 31 of the year in which they are required
Annual CE requirements shall become effective on January 1, 2016

$100.00

Continuing Education Suspension Fee

$100.00

Reinstatement After Administrative Revocation or Inactive Status

$100.00

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 12th DAY OF JANUARY, 2015.

/S/CHIEF JUSTICE

REIF, C.J., COMBS, V.C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, COLBERT, and GURICH, JJ., concur.
TAYLOR, J., dissents.

Citationizer© Summary of Documents Citing This Document

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Citationizer: Table of Authority

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5 F.3d 544NOTICE: 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.
Susan WATTS, Plaintiff-Appellant,v.UNITED STATES of America;  Richard Thornburgh, AttorneyGeneral of the United States;  Ruth Ann Myers,District Director, Immigration andNaturalization Service,Defendant-Appellee.
No. 92-15422.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 9, 1993.Decided Sept. 22, 1993.

Before:  SNEED, POOLE, and TROTT, Circuit Judges.

1
MEMORANDUM*

2
Appellant Susan Watts appeals from the district court's order denying her motion for attorneys' fees and costs in her action against the Immigration and Naturalization Service ("INS").  Watts, a citizen of Great Britain, had requested certain documents from the INS pursuant to the Freedom of Information Act ("FOIA") in connection with proceedings to deny her application for Waiver of Requirement to file Joint Petition for Removal of Conditions via form I-752, pursuant to Sec. 216(c)(4) of the Immigration and Nationality Act.  8 U.S.C. Sec. 1186a(c)(4).  She sought an injunction pendente lite and a temporary restraining order forbidding the INS from further proceeding against her until she had exhausted her administrative remedies under the FOIA.  The district court denied the requests for the TRO and the injunction.  In lieu of the TRO and the injunction, the court ordered the INS to produce the requested document within 48 hours and further ordered that Watts' time to respond to the INS be extended to October 9, 1991.

3
The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1331.  We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.  Because appellant failed to supply the district court with sufficiently detailed information identifying the nature of the work performed, we affirm the district court's denial of attorneys' fees.

4
* ATTORNEYS' FEES

5
A fee applicant bears the burden of documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked.  Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).  The fee applicant must prove by a preponderance of the evidence that the hours expended on the litigation were reasonable and must submit detailed time records.  Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir.1986), reh'g denied, opinion amended, 808 F.2d 1373 (9th Cir.1987).

6
The court may reduce the allowable hours on the grounds of inadequate documentation, overstaffing, duplicative hours, or excessive or otherwise unnecessary hours.  Chalmers, 796 F.2d at 1210.  The court has a great deal of discretion in determining the reasonableness of the fee award, including the decision regarding the reasonableness of the hours claimed by the prevailing party.  Hensley, 461 U.S. at 437;  Chalmers, 796 F.2d at 1213.

7
In the instant case, the district court denied the fees on the basis of inadequate documentation.  Indeed, a review of the documents submitted to the court in support of the attorneys' fees request reveals a system of law firm codes identifying, in a very general way, work that was done.  For example, several slips are marked with a "P" which stands for preparation.  Several other slips are marked with an "R" for research.  Others are marked with an "A" for court appearance.  Because of this extremely general billing description, the district court had a difficult time discerning how much of the time was "reasonable."   Because the plaintiff provided inadequate documentation to receive an award of attorneys' fees, we affirm.

8
AFFIRMED.

*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


Filed 11/23/15 P. v. Requejo CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                F069053
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF279258)
                   v.

ALEXIS MICHAEL REQUEJO,                                                                  OPINION
         Defendant and Appellant.

                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County. Brett R.
Alldredge, Judge.
         Conness A. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and John G. McLean, Deputy Attorneys General, for
Plaintiff and Respondent.

*        Before Gomes, Acting P.J., Franson, J. and Smith, J.
                                         -ooOoo-
                                    INTRODUCTION
       On January 16, 2014, a jury found defendant guilty of one count of possession of a
firearm by a felon (Pen. Code, § 29800, subd. (a)), and one count of possession of
ammunition by a felon (Pen. Code, § 30305, subd. (a)(1)). In a separate proceeding, the
trial court found allegations that defendant had been imprisoned on three occasions for
felony convictions and on each occasion had failed to stay out of custody for a period of
five years to be true, and subsequently sentenced defendant to an aggregate term of five
years in prison.
       On appeal, defendant argues the trial court abused its discretion by failing to
conduct a Marsden1 hearing after defendant voiced displeasure with his trial counsel’s
performance. We affirm.
                                          FACTS
       On February 8, 2013, police found defendant, a convicted felon, inside a hotel
room containing a sawed-off shotgun and 15 shotgun shells. As a result of these events,
an amended information was filed charging defendant with unlawful possession of a
firearm and unlawful possession of ammunition. The information also alleged a number
of prior felony convictions. A jury found defendant guilty of the unlawful possession
charges and, in a bifurcated proceeding, the trial court found the prior conviction
allegations to be true.
       Following the bench trial on his prior convictions, defendant informed the court
that defense counsel had never visited him in jail, had rescheduled all of their meetings
while defendant was out on bail, and did not ask defendant to outline his version of the
events in question until the day jury selection began. Defendant stated he felt
“railroaded” and that he would have been “better off pro per.” During these allegations,

1      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

                                             2.
defense counsel indicated he was prepared to do a Marsden hearing, but after defendant
concluded his complaints, the trial court stated it had heard defendant’s statements and
did not feel it was necessary for defense counsel to make a response.
        The trial court subsequently imposed an aggregate term of five years in prison, and
this appeal followed.
                                       DISCUSSION
        Defendant contends the trial court erred by failing to conduct a Marsden hearing
after defendant raised detailed complaints about the performance of his trial counsel. We
disagree.
        Under Marsden, a trial court may not deny an indigent defendant’s request for a
new attorney without first providing the defendant with the opportunity to present
argument or evidence in support of the request. (Marsden, supra, 2 Cal.3d at p. 123.)
“[A] trial court must conduct such a Marsden hearing only when there is at least some
clear indication by the defendant, either personally or through counsel, that the defendant
wants a substitute attorney.” (People v. Sanchez (2011) 53 Cal.4th 80, 84.)
        In the instant case, we do not find any such clear indication on the part of
defendant. While defendant expressed dissatisfaction over his counsel’s performance,
there was no indication defendant desired the appointment of new counsel. Indeed, given
the late stage of the proceedings, defendant’s complaints appear to be purely after-the-
fact criticism of his trial counsel. “Mere grumbling” about counsel’s performance—in
the absence of a clear indication of a desire for a substitute attorney—is insufficient to
trigger the procedures outlined in Marsden. (People v. Lee (2002) 95 Cal.App.4th 772,
780.)
        Further, even if defendant did clearly indicate a desire for new counsel, we are not
persuaded the trial court failed to fulfill its Marsden obligations. As noted above, under
Marsden, a trial court may not deny an indigent defendant’s request for new counsel
without first allowing the defendant an opportunity to detail the specific reasons for the

                                              3.
request. (Marsden, supra, 2 Cal.3d at p. 123.) As the trial court provided defendant with
ample opportunity to do exactly that, the Marsden requirements were satisfied.
       While it is true the trial court did not question defense counsel about defendant’s
allegations, a trial court may, in certain circumstances, fulfill its obligations under
Marsden without making such inquiries. (People v. Young (1981) 118 Cal.App.3d 959,
965-966.) Here, we find no error in the trial court’s decision to simply conclude the
matter after allowing defendant to detail his specific grievances. When a Marsden
motion is made, “the inquiry is forward-looking in the sense that counsel would be
substituted in order to provide effective assistance in the future.” (People v. Smith (1993)
6 Cal.4th 684, 695.) As defendant aired his grievances after the conclusion of his trials
on both the charged offenses and special allegations, all that remained in defendant’s
lower court proceedings was the matter of sentencing. Despite the non-trivial nature of
defendant’s complaints concerning counsel, we cannot conclude the trial court erred by
declining to find that defendant would be better served by replacement counsel for the
purposes of sentencing only. Accordingly, we affirm.
                                       DISPOSITION
       The judgment is affirmed.

                                              4.


457 P.2d 394 (1969)
Maude Bessie DAVIS, Successor Trustee under the William C. Maddox Will, Plaintiff in Error,
v.
Earl C. MADDOX, Individually, and as Trustee under the William C. Maddox Will; Earl C. Maddox, Jr.; M and M Ice Vending Company, a Colorado corporation; and Ice Service Company, a Colorado corporation, Defendants in Error.
No. 22560.
Supreme Court of Colorado, In Department.
July 28, 1969.
Rehearing Denied August 25, 1969.
J. Bayard Young, Leonard P. Plank, Denver, for plaintiff in error.
*395 Ralph A. Cole, Robert A. Schiff, Thomas C. Singer, Denver, for defendants in error.
Donald A. Klene, William J. Caskins, Jr., Denver, amici curiae.
GROVES, Justice.
The writ of error involved here is addressed to the action of the trial court in sustaining motions to dismiss and strike an amended complaint in intervention by a successor testamentary trustee. The facts which we set forth are in reality allegations contained in this amended complaint and in the complaint in the principal action.
The last will and testament of William C. Maddox, deceased, was admitted to probate on August 3, 1942. It provided that the decedent's property should pass in trust to his son, Earl C. Maddox; that the income from the trust estate should be paid 40% to Earl C. Maddox and 20% to each of the decedent's three daughters; that upon the death of each child his or her share should be paid to his or her descendants; and that upon the death of the last child the trust estate shall pass to the decedent's descendants per stirpes. One of the daughters is Mrs. Davis, the aforementioned succeeding testamentary trustee and plaintiff in error here.
The trust came into being with Earl C. Maddox as trustee. In 1956 the three daughters of the decedent brought an action against him, alleging that he had misappropriated funds, converted property to the use of himself and members of his immediate family and in many particulars had violated his fiduciary obligations. His removal as trustee was prayed and judgment for $750,000, along with other relief, was asked. The children of Earl C. Maddox were joined as defendants in the original action. No descendants of the three daughters were parties.
In 1958 a compromise settlement of this earlier action was made pursuant to stipulation of the parties. The stipulation provided for continuance of Earl C. Maddox as trustee; employment of each of the daughters in a business operated by the trustee; payment of legal and accounting expenses; disposition of certain property; settlement of certain claims of the parties; and reciprocal releases. According to the brief of defendants in error an order and judgment was entered on the stipulation and thereafter the decedent's daughters attempted unsuccessfully in two actions to have these set aside.
In 1963 some of the decedent's grandchildren brought the principal action involved here. The defendants in this action were Earl C. Maddox, individually and as trustee, the three daughters of the decedent, other grandchildren of the decedent, and two corporations. The complaint alleges that prior to 1958 Earl C. Maddox misappropriated funds of the trust estate in the approximate amount of $1,272,000; that he violated his fiduciary duty; and that in conspiracy with other defendants he has established businesses which compete with the trust estate to its detriment. The prayer is for injunctive relief, removal of Earl C. Maddox as trustee, an accounting, judgment in favor of the trust estate in the amount of $1,272,000, exemplary damages, and body judgment, and to set aside the aforementioned stipulation to which the plaintiffs were not parties.
The defendants in error state in their brief that Earl C. Maddox resigned as trustee on December 31, 1965, pursuant to a stipulation of the parties that the resignation was without prejudice and not an acknowledgment of any fault; and that Mrs. Davis then became the successor trustee. The will provides that she is to be the succeeding trustee upon the resignation of Earl C. Maddox.
Early in 1966 Mrs. Davis, as succeeding trustee, moved for leave to intervene and to file a complaint in intervention which was tendered with the motion. Her motion was granted on March 15, 1966. The complaint in intervention refers to property listed in Exhibit A attached thereto (but Exhibit A is not in the record here). The prayer of the complaint in intervention is for a declaratory judgment *396 declaring the items in Exhibit A as being the property of the succeeding trustee and for an order restraining Earl C. Maddox from removing any of the property listed in Exhibit A.
On May 12, 1966 a hearing was held after notice to counsel for the parties upon a petition of the successor trustee. At the conclusion of the hearing the court granted her ten days within which to file an amended complaint. Timely filing of the amended complaint in intervention was made. It adopts all of the allegations in the complaint in the principal action and alleges that as a result the trust estate has been damaged in the amount of $1,500,000. It contains further allegations to the following effect: that as succeeding trustee she is entitled to the property listed in Exhibit A attached to her original complaint in intervention; that as trustee Earl C. Maddox permitted the business of the trust estate "to deteriorate and waste and lose its customers" to the damage of the trust estate in the amount of $1,500,000; that Earl C. Maddox has failed to render proper accounting; and that Earl C. Maddox, his son and the two corporations, "have derived assets which are traceable to assets that either were or should have been assets of the Trust Estate and these defendants derived income from the assets * * * to the damage of the Trust Estate in the amount of $1,000,000."
The defendants in error filed motions to strike and to dismiss the amended complaint in intervention. The following were the sole grounds stated in these motions:
1. That the original parties, and not the succeeding trustee, are the real parties in interest;
2. That the amended complaint in intervention enlarges the scope of the matters set forth in the original complaint in intervention;
3. That the additional costs and attorneys' fees incurred as a result of the intervention places an additional and unnecessary burden upon the trust estate;
4. That certain of the parties defendant in the amended complaint in intervention were not in the original complaint in intervention (but they were all named as parties in the complaint in the principal action).
The court granted the motions to strike and to dismiss and denied Mrs. Davis' motion for a new trial without stating the reasons underlying its rulings.
Confining ourselves to the reasons set forth in the motions to strike and to dismiss we hold that such motions should have been denied. None of the grounds stated in them is sufficient to justify striking or dismissing the complaint.
We regard this as an action in which the succeeding trustee is an indispensable party. In 2 W. Barron and A. Holtzoff, Federal Practice and Procedure § 512, we find the following apt quotation:
"Indispensability of parties is determined on practical considerations and the Supreme Court has said that `there is no prescribed formula for determining in every case whether a person is an indispensable party.' [Niles-Bement Pond Co. v. Iron Moulders' Union Local No. 68, 254 U.S. 77, 41 S.Ct. 39, 65 L.Ed. 145.] The classic definition of indispensable parties by the Supreme Court is: `Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.' [Shields v. Barrow, 17 How. 130, 58 U.S. 130, 15 L.Ed. 158.] This definition is frequently repeated. Thus it is said that the test of indispensability is whether the absent person's interest in the controversy is such that no final judgment or decree can be entered which will do justice between the parties actually before the court, without injuriously affecting the rights of others not brought into the action. Though injury to the absent party *397 is the most important factor in determining indispensability, other factors which have received recognition in opinions include the danger of inconsistent decisions, avoidance of a multiplicity of suits and the reluctance of a court to render a decision which will not finally settle the controversy before it."
Present trust property is involved here. In the event that a money judgment is recovered in the action, it will be property of the trust. In such a situation the holder of the legal title should be a party. The defendants in error state in their brief, "The outcome of the case can in no way affect the trust or the successor trustee." This is obviously an incorrect statement.
It may well be that objections to the amended complaint in intervention, other than those presented in the motion, may be made. The ruling in this opinion, however, is confined to the grounds as set forth in the motions.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.
McWILLIAMS, C. J., and KELLEY and LEE, JJ., concur.


287 F.Supp.2d 1015 (2003)
Leroy CARHART, M.D., William G. Fitzhugh, M.D., William H. Knorr, M.D., and Jill L. Vibhakar, M.D., on behalf of themselves and the patients they serve, Plaintiffs,
v.
John ASHCROFT, in his official capacity as Attorney General of the United States, and his employees, agents and successors in office, Defendant.
No. 4:03 CV 3385.
United States District Court, D. Nebraska.
November 5, 2003.
Janet L. Crepps, Nan E. Strauss, Priscilla J. Smith, Suzanne Novak, Center for Reproductive Rights, New York City, Jerry M. Hug, Omaha, NE, for Plaintiff.
Andrew I. Warden, Anthony J. Coppolino, U.S. Department of Justice, Washington, *1016 DC, Paul D. Boeshart, Assistant United States Attorney  Lincoln, Lincoln, NE, Preeya M. Noronha, Terry M. Henry, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM AND ORDER
KOPF, Chief Judge.
Congress has passed the "Partial-Birth Abortion Ban Act of 2003." The President has signed it. After hearing the views of the parties, and considering the evidence offered by them, I now temporarily restrain enforcement of the Act.
The Supreme Court, citing the factual findings of eight different federal trial judges (appointed by four different Presidents) and the considered opinion of the American College of Obstetricians and Gynecologists, has found a very similar law unconstitutional because it banned "partial-birth abortions" without the requisite exception for the preservation of the health of the woman. Stenberg v. Carhart, 530 U.S. 914, 930-33, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). The law challenged here appears to suffer from a similar vice. While it is also true that Congress found that a health exception is not needed, it is, at the very least, problematic whether I should defer to such a conclusion when the Supreme Court has found otherwise. Id. at 930-38, 120 S.Ct. 2597. Therefore, applying the familiar Dataphase[1] factors, and especially given the fact that the health of women may be harmed if I do otherwise,
IT IS ORDERED that:
1. The request for a temporary restraining order (a part of filing 3) is granted. That is, John Ashcroft, in his official capacity as Attorney General of the United States, and his employees, agents, and, successors in office, are temporarily restrained from enforcing the "Partial-Birth Abortion Ban Act of 2003," S.3., 108th Congress (not yet codified), against the plaintiffs and their officers, agents, servants, and employees, including those individuals and entities (both medical and non-medical) with whom plaintiffs work, teach, supervise, or refer. This temporary restraining order shall remain in effect until further order of the court.
2. Plaintiffs' counsel shall arrange and schedule a telephone conference call between counsel of record and the undersigned United States district judge to occur on Wednesday, November 12, 2003, to discuss scheduling of the preliminary injunction hearing, other progression-related issues, and whether the court should retain its own experts.
NOTES
[1]  Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981) (en banc) (court should consider four factors when deciding whether to grant injunctive relief: irreparable harm to the moving party; the balance of harms between the parties; the probability of success on the merits; and the public interest).