25 S.W.3d 875 (2000)
Bryan CHAPNICK, Appellant,
v.
The STATE of Texas, Appellee.
No. 14-99-01134-CR.
Court of Appeals of Texas, Houston (14th Dist.).
August 3, 2000.
*876 Aronld Gene Jones, Jr., Katy, for appellants.
Peyton Peebles, Houston, for appellees.
Panel consists of Justices MAURICE E. AMIDEI, ANDERSON, and FROST.

OPINION
JOHN S. ANDERSON, Justice.
After the trial court denied his motion to suppress, Bryan Chapnick, appellant, pleaded guilty with an agreed recommendation to driving while intoxicated. (DWI). He was sentenced to 180 days confinement in Harris county jail, probated for one year, and fined $300. In one point of error, appellant challenges the trial court's denial of his motion to suppress. Appellant asserts the trial court erred by denying his motion because at the hearing, the police officer did not demonstrate she had probable cause to arrest him for DWI. We affirm.

I.

Factual Background
The record of the suppression hearing demonstrates that at approximately one o'clock in the morning, Officer K.R. Gibbs observed appellant traveling at a high rate of speed as he approached railroad tracks and an intersection. At the hearing, Gibbs testified that appellant was traveling so quickly toward the intersection that although Gibbs had the right of way, she stopped at the green light because she was concerned appellant was going to run his red light. Gibbs further testified that after speeding across the railroad tracks, appellant skidded to a stop at the intersection, and that in order to do so, he must have been "stand[ing] on the brakes." Gibbs followed appellant, turned on her flashing lights, and saw him bump into the curb twice. Appellant did not stop immediately, *877 so Gibbs sounded her siren. Appellant finally stopped his car, but not before he drove over a traffic barrier and into the oncoming traffic lane. When Gibbs approached appellant, she noticed his bloodshot eyes, the scent of alcohol on his breath and his slurred speech. After appellant failed a field sobriety test, Gibbs arrested him for driving while intoxicated. (DWI).

II.

Standard of Review
In a hearing on a motion to suppress, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given to their testimony. See Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim. App.1990); see also Taylor v. State, 916 S.W.2d 680, 681 (Tex.App.Waco 1996, pet. ref'd) As a general rule, almost total deference is given to a trial court's findings of fact, especially when those findings are based on an evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 87 (Tex.Crim.App.1997). However, appellate inquiry into the issue of whether probable cause or reasonable suspicion exists for a warrantless arrest involves a mixed question of law and fact. See id. Therefore, if the issue to be determined on appeal is whether the officer had probable cause to seize a suspect, under the totality of the circumstances, "the trial judge is not in an appreciably better position than the reviewing court to make that determination." Id. at 87. Therefore, appellate courts review probable cause and reasonable suspicion issues de novo. See id.; see also State v. Arriaga, 5 S.W.3d 804, 805 (Tex.App.-San Antonio 1999, pet. ref'd).

III.

Reasonable Suspicion
Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than that required for probable cause to arrest. See Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); see also Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App.1991). An investigatory stop requires only reasonable suspicion to justify the stop. See United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). To justify an investigative detention, the officer must have specific articulable facts which, premised upon his experience and personal knowledge, when coupled with the logical inferences from those facts, would warrant intruding upon the detained citizen's freedom. See Garza v. State, 771 S.W.2d 549, 558 (Tex.Crim.App.1989). The validity of the stop is determined from the totality of the circumstances. See Sokolow, 490 U.S. at 8, 109 S.Ct. at 1585.
Here, Gibbs testified she stopped appellant because he was speeding and failed to control the speed of his car. Speeding and failure to control speed are traffic violations. See TEX. TRANS. CODE ANN. § 545.351 (Vernon 1999). An officer may lawfully stop and detain a person for a traffic violation. See McVickers v. State, 874 S.W.2d 662, 664 (Tex.Crim.App.1993); see also Gajewski v. State, 944 S.W.2d 450, 453 (Tex.App.-Houston [14th Dist.] 1997, no pet.). Therefore, Gibbs stopped appellant based on the articulable fact of his traffic violations. Accordingly, Gibbs had reasonable suspicion to stop appellant.

IV.

Probable Cause
After an officer stops a defendant for a traffic offense, there must be additional facts constituting probable cause to arrest the defendant for driving while intoxicated. See McClain v. State, 984 S.W.2d 700, 702-03 (Tex.App.-Texarkana 1998); see also Texas Dep't of Public Safety v. Rodriguez, 953 S.W.2d 362, 364 (Tex. App.-Austin 1997, no pet.). There must be some causal link between the reasonable suspicion to stop the vehicle and the subsequent *878 probable cause to arrest the motorist for driving while intoxicated. See Rodriguez, 953 S.W.2d at 364-65. Probable cause exists where the police have reasonably trustworthy information sufficient to warrant a reasonable person to believe a particular person has committed or is committing an offense. See Guzman, 955 S.W.2d at 87; see also Amores v. State, 816 S.W.2d 407, 413 (Tex.Crim.App.1991). Probable cause deals with probabilities; it requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence. See Guzman, 955 S.W.2d at 87; see also Texas Dept. of Public Safety v. Walter, 979 S.W.2d 22, 29 (Tex.App.-Houston [14th Dist.] 1998, no pet.)
A person commits the offense of DWI if he is intoxicated while operating a motor vehicle in a public place. See TEX. PEN.CODE ANN. § 49.04 (Vernon Supp. 2000). The definition of intoxication is: (1) not having the normal use of mental or physical faculties by reason of introduction of alcohol or other substances in the body; or (2) having an alcohol concentration of 0.08 or more. See TEX. PEN.CODE ANN. § 49.01 (Vernon Supp.2000).
Here, the record reflects the officer had probable cause to arrest appellant for DWI. First, after Gibbs turned on her flashing lights and began following appellant, he twice ran into the curb. Second, in order to stop, he drove over a traffic barrier and parked in the oncoming traffic lane. Third, when she approached appellant, Gibbs noticed appellant's speech was slurred, his eyes were bloodshot, and he smelled of an alcoholic beverage. Appellant confirmed he had been drinking when Gibbs asked. Fourth, appellant failed the Romberg field sobriety test which consists of the driver standing outside the car, with both feet together, and estimating in his mind the passage of thirty seconds. Gibbs testified that appellant obviously swayed as he stood with both feet flat on the ground and inaccurately estimated only twelve of the thirty seconds. Based on a thorough review of the record, we hold Officer Gibbs possessed probable cause to arrest appellant for DWI. See Held v. State, 948 S.W.2d 45, 51 (Tex.App.-Houston [14th Dist.] 1997, pet. ref'd); see also State v. Stolte, 991 S.W.2d 336, 340 (Tex. App.-Fort Worth 1999, no pet.). Therefore, the trial court did not err in denying appellant's motion to suppress. Accordingly, we overrule appellant's sole point of error.


847 F.2d 493
25 Fed. R. Evid. Serv. 1240
UNITED STATES of America, Appellee,v.Vernon John HERMES, Appellant.UNITED STATES of America, Appellee,v.Anthony George HARTMAN, Appellant.
Nos. 87-5266, 87-5267.
United States Court of Appeals,Eighth Circuit.
Submitted May 12, 1988.Decided May 31, 1988.

Michael F. Fetsch, St. Paul, Minn., for appellant Hermes.
Charles L. Hawkins, Minneapolis, Minn., for appellant Hartman.
Elizabeth de la Vega, Minneapolis, Minn., for appellee.
Before LAY, Chief Judge, and PECK* and HENLEY, Senior Circuit Judges.
PER CURIAM.

1
Vernon John Hermes and Anthony George Hartman appeal their convictions of conspiracy to destroy and damage by fire a building used in and affecting interstate commerce, in violation of 18 U.S.C. Secs. 371 & 844(i).  Hermes was sentenced by the district court1 to two years imprisonment and a special assessment of fifty dollars.  Hartman was sentenced to imprisonment for one year and a day and a fifty dollar assessment.

2
The events leading to the convictions began with Hermes' association with an individual named Scott DeLong.  DeLong owned the DeLong Branch Saloon in Hammond, Wisconsin, which he burned in order to collect insurance proceeds.  He retained Hermes, a public claims adjuster, to assist him with the insurance claim.  In the summer of 1985 DeLong was charged with arson in a Wisconsin state court.  Subsequently, a special agent of the Bureau of Alcohol, Tobacco and Firearms (BATF), sought DeLong's cooperation in an investigation of Hermes.  DeLong agreed to cooperate in exchange for the BATF's assistance in obtaining a sentence of five years probation on the state arson charge.

3
Pursuant to that agreement, DeLong participated in several recorded conversations with Hermes in which Hermes advised DeLong on how to testify at the arson trial and told DeLong how he should have started the fire.  Hermes also stated that he had arranged a fire in a bar in St. Paul.  DeLong told Hermes that he had a friend who needed Hermes' help.  Hermes instructed DeLong to have his friend call him.  The following day BATF agent Donald Roggenbauer, posing as DeLong's friend under the assumed name of Don Rogers, called Hermes and set up a meeting.  At the meeting Roggenbauer told Hermes that he had business property that he wished to have burned.  Hermes told Roggenbauer that he would arrange for another person to actually burn the building.  He asked several questions about the building's location, contents and construction.  It was agreed that Hermes would receive ten per cent of the insurance proceeds and $5,000.00 for arranging the fire.

4
The two men met again to visit the building, which is owned by the Leamington Company, a commercial real estate holding company that owns and leases trucking terminals and storage space.  Four loading bays were rented, but no space inside the building was rented.  Hermes obtained the keys from Roggenbauer, and told him he would send the arsonist out to the building.  Hermes stated that the arsonist was a carpenter and a contractor, and that he would act as if he were rehabilitating the building while preparing to burn it.  After they left the building, Roggenbauer gave Hermes $1,000.00 as a down payment.

5
The next day BATF agents observed Hermes and Hartman inspecting the building.  The two left, but Hartman returned alone and went inside for a few minutes.  Subsequently Hermes told Roggenbauer that his "guy" had determined that the way to burn the building was to bring flammable materials in and make it appear as if vandals had started the fire.  Hermes and Hartman were then arrested.  At the time of his arrest, Hartman had the keys to the building in his pocket.

6
Both Hermes and Hartman contend that the evidence was insufficient to establish the existence of a conspiracy.  Hermes argues that the evidence shows instead that he was merely performing a "scam" on Roggenbauer to recoup money owed to him by DeLong.  The jury was clearly entitled to disbelieve this story.  DeLong owed Hermes a total of $19,545.00;  yet when Roggenbauer offered more than a one thousand dollar down payment for the arson, Hermes declined, saying it was unnecessary.  We agree with the government that the jury well could have believed that Hermes' refusal of a larger down payment was inconsistent with a scheme to defraud Roggenbauer, and that it was more consistent with a plan to recover ten per cent of the $300,000.00 in insurance proceeds.  Hermes' claim that he was trying to defraud Roggenbauer is unsupported by any evidence aside from his own testimony.  We cannot conclude as a matter of law that the jury must have entertained a reasonable doubt as to Hermes' intent.

7
Both defendants urge that there was insufficient proof of an agreement between them to commit arson.  We summarized the rules pertaining to the agreement element of conspiracy in United States v. Pintar, 630 F.2d 1270 (8th Cir.1980):

8
The agreement need not be formal or express, and may consist of nothing more than tacit understanding.  The existence of the agreement may be shown by circumstantial evidence, including the conduct of the conspirators and any attending circumstances, particularly circumstances indicating that the defendants acted in concert to achieve a common goal.

9
Id. at 1275 (citations and internal quotations omitted).  "On review, the evidence of agreement must be viewed in the light most favorable to the government, and the court must accept all reasonable inferences which tend to support the verdict."   Id. at 1276 (citations omitted).

10
We have already observed that the jury was entitled to disbelieve Hermes' "scam" explanation.  In the absence of that explanation, there was no evidence of any other legitimate reason for Hermes and Hartman to visit the building and for Hartman to have the keys in his possession at the time of his arrest.  Hermes had told Roggenbauer that the arsonist was sixty-three years old and a carpenter, a description fitting Hartman.  Evidence was introduced that Hermes told Roggenbauer that "his guy" had checked the insulation in the building to determine whether it was fireproof.  The jury might have believed that this testimony was bolstered by Hartman's returning to the building alone for a few minutes, conceivably to obtain a piece of insulation.  It follows that the jury was entitled to believe that the conduct of Hermes and Hartman indicated an agreement to carry out the scheme that Hermes had entered into with Roggenbauer.

11
Hartman contends that, even if the evidence showed an agreement, the evidence did not show that an overt act in furtherance of the conspiracy was committed subsequent to the agreement, because it was not established when the agreement occurred.  The jury quite reasonably could have believed, however, that one or more of the defendants performed overt acts after entering into an agreement to burn the building.  Hartman's act of taking the keys with him, his testing the insulation for flammability, and Hermes' meeting with Roggenbauer to discuss the method of burning the building all logically could follow an agreement between the defendants that they were going to commit the arson.  The government need show that only one of the conspirators engaged in one overt act in furtherance of the conspiracy, and the act itself need not be criminal in nature.   United States v. Hobson, 686 F.2d 628, 630 (8th Cir.1982);  United States v. Bass, 472 F.2d 207, 213 (8th Cir.), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973).  In sum, we do not find the evidence as to the existence of a conspiracy insufficient.

12
Both appellants contend that the building was not being used in an activity affecting interstate commerce within the meaning of 18 U.S.C. Sec. 844(i), which makes it a crime to damage or destroy by fire or explosive "any building ... used in interstate commerce or in any activity affecting interstate or foreign commerce."    In order to satisfy the interstate commerce requirement, only a de minimis connection to interstate commerce is required.   United States v. Muza, 788 F.2d 1309, 1311 (8th Cir.1986) (citing United States v. Voss, 787 F.2d 393, 397 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 286, 93 L.Ed.2d 261 (1986)).  When it enacted Sec. 844(i), Congress intended to exercise its full power under the commerce clause of the Constitution.   Russell v. United States, 471 U.S. 858, 859, 105 S.Ct. 2455, 2456, 85 L.Ed.2d 829 (1985).  "The rental of real estate is unquestionably ... an activity [affecting interstate commerce.]"  Id. at 862, 105 S.Ct. at 2458.2

13
Appellants argue that the interior of the building was not in use at the time of the indictments and had not been for quite some time, that it was dilapidated with the door boarded up, and that it was therefore not in interstate commerce.  The reference in Sec. 844(i) to property "used in" interstate commerce has been held to require merely that the property "has some relationship to an activity of commercial nature."   United States v. Andrini, 685 F.2d 1094, 1095-96 (9th Cir.1982);  accord, United States v. Patterson, 792 F.2d 531, 533-34 (5th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 220, 93 L.Ed.2d 149 (1986).  Appellants do not dispute that the owner of the building advertised the space for lease.  Appellants argue that the advertisement included other properties as well, but do not explain how that detracts from the commercial nature of the property they were accused of conspiring to burn.  Appellants do not contend that the property could not have been leased.  Thus, we are left with the inescapable conclusion that the property was held out by its owner as, and was in fact, available for commercial purposes.

14
That the building was not currently occupied by a tenant does not detract from its character as commercial property.  In Voss, supra, we observed in dicta that a vacant single family residence owned by a company engaged in the rehabilitation and resale of real estate would satisfy the interstate commerce requirement.  787 F.2d at 398.  More recently we held that a bar undergoing rehabilitation by its owner after previous firebombings did not lose its commercial nature even though it was closed to the public.   United States v. Shriver, 838 F.2d 980, 982-83 (8th Cir.1988).   See also United States v. Grossman, 608 F.2d 534, 535-37 (4th Cir.1979) (nexus to interstate commerce established with respect to backhoe that was not in use for over two years but was advertised for sale).  Accordingly, we must reject appellants' argument that the government failed to establish that the building was used in or affected interstate commerce.

15
Finally, Hermes asserts that the district court erred by admitting evidence of prior acts.  In the course of Hermes' recorded conversation with DeLong, Hermes stated that he had arranged a fire in a bar in St. Paul.  Hermes claims that the trial court's admission of this statement violated Rule 404(b) of the Federal Rules of Evidence, which bars evidence of prior acts introduced solely for the purpose of showing that defendant "acted in conformity therewith."    However, the rule does allow evidence of prior acts for other legitimate purposes.  The trial judge has discretion to admit prior acts evidence if it is relevant to a purpose other than the defendant's character, the evidence is clear and convincing, and the potential for unfair prejudice does not outweigh the probative value of the evidence.   United States v. DeLuna, 763 F.2d 897, 912-13 (8th Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985).  If the evidence is proffered on issues such as intent, knowledge or plan, the prior acts must be "similar in kind and reasonably close in time to the offense charged" at trial.   United States v. Drury, 582 F.2d 1181, 1184 (8th Cir.1978).  Rule 404(b) is a rule of inclusion.  The trial court has broad discretion in determining whether to admit the evidence, and its decision will not be overturned unless the appellant shows that "the evidence in question clearly had no bearing upon any of the issues involved."   United States v. Estabrook, 774 F.2d 284, 287 (8th Cir.1985).

16
We agree with the government that Hermes' admission that he was involved in a prior arson scheme was relevant to his intent.   United States v. Bourgeois, 746 F.2d 401, 405 (8th Cir.1984).  The prior act was essentially identical to the object of the conspiracy.  The evidence, consisting of Hermes' own recorded statement, was clear and convincing.  Hermes does not object that it was too remote in time.  The prior arson was highly probative of his intent, particularly in light of his defense that he was merely running a scam on Roggenbauer to recoup money that DeLong owed him, and therefore outweighs any prejudicial effect of its admission.  Thus, we conclude that the trial court did not err in admitting the prior act evidence.

17
Because we find no error by the district court or failure of proof at trial, we affirm appellants' convictions.

*
 The Honorable John W. Peck, United States Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation

1
 The Honorable Harry H. MacLaughlin, United States District Judge, District of Minnesota

2
 The Supreme Court has made clear that a determination that an activity affects interstate commerce need not depend upon any interstate movement connected with the activity.  It suffices that the activity is "an element of a much broader commercial market" that Congress has the power to regulate.   Russell, 471 U.S. at 862, 105 S.Ct. at 2458.  Thus, we need not perform the type of analysis we undertook in United States v. Hansen, 755 F.2d 629, 630 (8th Cir.)  (tenants of building were transients from other states), cert. denied, 474 U.S. 834, 106 S.Ct. 105, 88 L.Ed.2d 85 (1985).   See Voss, 787 F.2d at 398 & n. 2


                     FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

BRUCE L. JENNINGS; B.L. JENNINGS,           
INC.,
              Plaintiffs-Appellants,
                v.                                 No. 05-16869
MICHAEL MUKASEY;* U.S.                              D.C. No.
                                                 CV-03-00284-LRH
DEPARTMENT OF JUSTICE; BUREAU OF
ALCOHOL, TABACCO AND FIREARMS;                      OPINION
MARY B. LERCH, Director of
Industry Operations DOJ/BATF,
            Defendants-Appellees.
                                            
         Appeal from the United States District Court
                  for the District of Nevada
          Larry R. Hicks, District Judge, Presiding

                   Argued and Submitted
         October 16, 2007—San Francisco, California

                     Filed December 20, 2007

     Before: Arthur L. Alarcón, David R. Thompson, and
             Richard C. Tallman, Circuit Judges.

              Opinion by Senior Judge Thompson

   *Michael Mukasey is substituted for his predecessor, Alberto R. Gon-
zales, as Attorney General of the United States, pursuant to Fed. R. App.
P. 43(c)(2).

                                 16567
                    JENNINGS v. MUKASEY              16569

                       COUNSEL

James C. Sabalos, Newport Beach, California, for the appel-
lants.
16570                JENNINGS v. MUKASEY
Greg Addington, Assistant United States Attorney, Reno,
Nevada, for the appellees.

                         OPINION

THOMPSON, Senior Circuit Judge:

   The Bureau of Alcohol, Tobacco, and Firearms (“ATF”)
denied the petitioners-appellants Bruce L. Jennings’
(“Jennings”) and B.L. Jennings, Inc.’s (“B.L. Jennings”)
application for renewal of B.L. Jennings’ federal firearms
license (“FFL”). The ATF denied the renewal application
because Jennings had been convicted in California of a misde-
meanor crime of domestic violence (“MCDV”); in addition,
Jennings had failed to disclose that conviction on the license
renewal questionnaire.

   Jennings did not disclose his MCDV conviction because,
he argues, it was “expunged” by a 1999 expungement order
granted under California law. Jennings contends this “ex-
pungement” wiped out the conviction and the ATF was
thereby precluded from using it, or his failure to disclose it,
to deny the FFL renewal application. The district court dis-
agreed and upheld the ATF’s action.

   We have jurisdiction under 28 U.S.C. § 1291 and we affirm
the district court. The “expungement” provided under Califor-
nia law did not eliminate the MCDV conviction, and the ATF
properly relied on it to deny B.L. Jennings’ FFL renewal
application.

                    I.   BACKGROUND

  On or about April 9, 1985, Jennings was charged in San
Bernardino County, California with assault by means likely to
produce great bodily injury in violation of California Penal
                        JENNINGS v. MUKASEY                       16571
Code section 245(a). The information alleged that Jennings
inflicted great bodily injury on his former wife. On October
17, 1985, as part of a plea agreement, Jennings pled nolo con-
tendere to a misdemeanor violation of California Penal Code
section 245(a), assault with force likely to produce great bod-
ily injury.1 Jennings was sentenced to 90 days in jail and 24
months supervised probation.

   In 1996, Congress amended the Gun Control Act (“GCA”),
making it unlawful for any person convicted of an MCDV to
“ship or transport in interstate or foreign commerce, or pos-
sess in or affecting commerce, any firearm or ammunition; or
to receive any firearm or ammunition which has been shipped
or transported in interstate or foreign commerce.” 18 U.S.C.
§ 922(g)(9). The ATF is required to deny a federal firearm
license to anyone subject to the prohibitions of 18 U.S.C.
§ 922(g)(9), or to any company controlled by such a person.
18 U.S.C. § 923(d)(1)(B).

   On or about April 1, 1998, B.L. Jennings filed a Renewal
of Firearms License application as a Dealer in Firearms Other
Than Destructive Devices. As part of the application, Jen-
nings, owner and president of B.L. Jennings, executed ATF
Form 8, Part II, “Renewal Questionnaire.” Question 11 asked:

      Have you ever been convicted in any court of a[n]
      [MCDV]? This includes any misdemeanor convic-
      tion involving the use or attempted use of physical
      force committed by a current or former spouse, par-
      ent, or guardian of the victim or by a person with a
      similar relationship with the victim.

Jennings checked “no” in response to this question. He signed
the questionnaire, certifying that the statements contained
therein were true and correct.
  1
   Under California law, a plea of nolo contendere is “the same as a plea
of guilty and upon a plea of nolo contendere, the court shall find the
defendant guilty.” Cal. Penal Code § 1016.
16572                 JENNINGS v. MUKASEY
  On June 23, 1999, ATF issued a Notice of Revocation of
License, ATF Form 4500, advising B.L. Jennings that ATF
was revoking its FFL because (1) Jennings, as a responsible
party for B.L. Jennings, was a person prohibited from pos-
sessing firearms under 18 U.S.C. § 922(g)(9); and (2) Jen-
nings falsely stated on an application to renew the FFL that
he had never been convicted of an MCDV.

   On September 23, 1999, the Superior Court of California,
County of San Bernardino, issued an “Order Expunging Con-
viction Nunc Pro Tunc to October 18, 1987.” That order
granted Jennings relief under California Penal Code section
1203.4, replaced his nolo contendere plea with a “not guilty”
plea and dismissed the case against him. The California
court’s order, however, required Jennings “to disclose the fact
of this misdemeanor conviction in response to any direct
question contained in any questionnaire or application for
public office, for licensure by any state or local agency, or for
contracting with the California State lottery.”

   On June 22, 2001, B.L. Jennings filed a Renewal of Fire-
arms License application, listing Bruce L. Jennings as sole
shareholder and manager of litigation for B.L. Jennings. An
administrative hearing was held, and on March 25, 2003, the
ATF issued a Final Notice of Denial of Application or Revo-
cation, revoking B.L. Jennings’ FFL. The ATF found that
Jennings, who was the responsible person for B.L. Jennings,
(1) was prohibited under 18 U.S.C. § 922(9)(g) from trans-
porting, shipping, receiving or possessing firearms, and (2)
violated 18 U.S.C. § 924(a)(1)(A) by responding falsely to
question 11 on the application to renew B.L. Jennings’ FFL.

   Jennings then filed a petition with the district court for the
District of Nevada seeking to overturn the ATF’s decision. On
July 25, 2005, after de novo review, the district court affirmed
the ATF’s revocation of B.L. Jennings’ FFL, and this appeal
followed.
                     JENNINGS v. MUKASEY                16573
              II.   STANDARD OF REVIEW

   Our review of a district court’s interpretation of the Gun
Control Act is de novo. United States v. Dahms, 938 F.2d
131, 133 (9th Cir. 1991). We review de novo whether a prior
conviction may be used as a predicate offense under that Act.
United States v. Laskie, 258 F.3d 1047, 1049 (9th Cir. 2001).
An agency’s interpretation or application of a statute is a
question of law reviewed de novo. Schneider v. Chertoff, 450
F.3d 944, 952 (9th Cir. 2006). In the context of a decision by
the ATF to revoke a firearms license, we “review freely ques-
tions of law.” Perri v. Dep’t of Treasury, 637 F.2d 1332, 1336
(9th Cir. 1981). Factual findings will not be disturbed unless
“clearly erroneous.” Id. at 1335.

  In reviewing the district court’s decision, we may affirm on
any ground supported by the record. Smith v. Block, 784 F.2d
993, 996 n. 4 (9th Cir. 1986).

                    III.   DISCUSSION

A.   Expungement

   [1] The parties do not dispute that Jennings had a previous
MCDV conviction. Persons who have had MCDV convictions
are prohibited by 18 U.S.C. § 922(g)(9) from, among other
things, transporting, shipping, possessing, or receiving fire-
arms. Persons so prohibited and the companies they have the
power to direct or control do not qualify for an FFL. 18
U.S.C. § 923(d)(1)(B).

   [2] The parties disagree as to whether Jennings’ MCDV
conviction has been “expunged.” Jennings maintains his con-
viction was indeed “expunged” and, therefore, B.L. Jennings
is not prohibited from having an FFL. For purposes of 18
U.S.C. § 922(g)(9), a person shall not be considered to have
been convicted of an MCDV if
16574                 JENNINGS v. MUKASEY
     the conviction has been expunged or set aside, or is
     an offense for which the person has been pardoned
     or has had civil rights restored (if the law of the
     applicable jurisdiction provides for the loss of civil
     rights under such an offense) unless the pardon,
     expungement, or restoration of civil rights expressly
     provides that person may not ship, transport, possess,
     or receive firearms.

18 U.S.C. § 921(a)(33)(B)(ii).

   The government contends that Jennings did not receive an
“expungement” as that term is used in 18 U.S.C.
§ 921(a)(33)(B)(ii), regardless of whether or not he obtained
relief under California Penal Code section 1203.4 or section
1203.4a.

1.   Section 1203.4

   The September 23, 1999 State court “Order Expunging
[Jennings’ MCDV] Conviction Nunc Pro Tunc to October 18,
1987” states that “the petitioner is eligible for relief as pro-
vided in California Penal Code Section 1203.4.” Section
1203.4, however, does not provide the extent of relief Jen-
nings contends he received.

   Although “a number of courts have used forms of the word
‘expunge’ to describe the relief” under section 1203.4, “the
statute does not in fact produce such a dramatic result.” Peo-
ple v. Frawley, 82 Cal. App. 4th 784, 790-91 (Cal. Ct. App.
2000) (citations omitted). In Frawley, the defendant sustained
a felony conviction in the early 1990s. That conviction was
dismissed under section 1203.4 in August 1997. In 1999,
Frawley was charged with, among other things, possession of
ammunition and a firearm by an ex-felon. Id. at 787. Frawley
moved to dismiss on the ground that his prior conviction had
been expunged under section 1203.4. The California Court of
Appeals rejected that argument:
                     JENNINGS v. MUKASEY                   16575
    Section 1203.4 does not, properly speaking, “ex-
    punge” the prior conviction. The statute does not
    purport to render the conviction a legal nullity.
    Instead, it provides that, except as elsewhere stated,
    the defendant is “released from all penalties and dis-
    abilities resulting from the offense.” The limitations
    on this relief are numerous and substantial, including
    other statutes declaring that an order under 1203.4 is
    ineffectual to avoid specified consequences of a
    prior conviction. Furthermore, by the statute’s own
    terms, an order under section 1203.4 “does not
    relieve” the ex-offender of “the obligation to dis-
    close the conviction in response to any direct ques-
    tion contained in any questionnaire or application for
    public office [or] for licensure by any state or local
    agency . . . .” (§ 1203.4, subd. (a).)

    Indeed, section 1203.4 contains a sweeping limita-
    tion on the relief it offers, stating that “in any subse-
    quent prosecution of the defendant for any other
    offense, the prior conviction may be pleaded and
    proved and shall have the same effect as if probation
    had not been granted or the accusation or informa-
    tion dismissed.” This provision alone precludes any
    notion that the term “expungement” accurately
    describes the relief allowed by the statute.

Id. at 791-92 (citations omitted; alterations in original); see
also United States v. Hayden, 255 F.3d 768, 771 (9th Cir.
2001) (defining expunge as “ ‘to erase or [to] destroy,’ and an
‘expungement of record’ [as] ‘[t]he removal of a conviction
. . . from a person’s criminal record’ ” and holding California
Penal Code section 1203.4 does not meet definition of
expungement for purposes of Federal Sentencing Guidelines)
(first and third alterations in original) (quoting BLACK’S LAW
DICTIONARY 603 (7th ed. 1999)).

  We analyzed the effect of section 1203.4 relief in the GCA
context in United States v. Andrino, 497 F.2d 1103 (9th Cir.
16576                  JENNINGS v. MUKASEY
1974). There, Andrino had received section 1203.4 relief for
a felony conviction in California. Id. at 1106. After his section
1203.4 relief, Andrino bought firearms in Arizona and certi-
fied on Firearms Transaction Records that he had not been
convicted of any crime punishable by a term of imprisonment
exceeding one year. Thereafter, Andrino was charged with
making a false statement in connection with the purchase of
firearms. Id. at 1105.

   [3] Andrino argued that he had been relieved from his prior
conviction under section 1203.4. Id. at 1106. After examining
California law and noting that California’s legislature had
amended section 1203.4 to provide that a dismissal under that
section did not permit a person to possess a firearm, we
rejected Andrino’s argument. Id. at 1107. We stated, “the Cal-
ifornia legislature, by specific enactment, has negated the very
theory under California law by which Andrino seeks to dem-
onstrate the absence” of his underlying conviction. Id.
Accordingly, we held that Andrino remained convicted for
GCA purposes even though he had received relief under sec-
tion 1203.4. Id.; accord United States v. Tankersley, 269 F.
Supp. 2d 1178, 1188 (D. Neb. 2003) (stating that “even had
defendant sought and obtained a withdrawal of guilty plea and
a section 1203.4 dismissal of her 1998 burglary conviction,
the 1998 burglary remains a prior felony which may be
pleaded and proved” for purposes of 18 U.S.C. § 922(g)(1)).

  [4] In the present case, as in Andrino, although Jennings
obtained relief under section 1203.4 by the 1999 State court
order, that relief did not expunge his conviction for purposes
of 18 U.S.C. § 922(g)(9).

2.   Section 1203.4a

   Despite the fact that the 1999 court order provides that sec-
tion 1203.4 was the basis for Jennings’ relief, Jennings con-
tends he actually received relief under section 1203.4a. As the
district court stated, however, “they have failed to present any
                     JENNINGS v. MUKASEY                 16577
evidence that Petitioners sought relief under § 1203.4a as
opposed to § 1203.4(a).” Indeed, in the 1999 order, the Supe-
rior Court in San Bernardino county granted relief to Jennings
under subsection (a) of section 1203.4. For simplicity pur-
poses, we refer to section 1203.4 instead of its subsection
1203.4(a). Relief was not granted under section 1203.4a.

   Nevertheless, during the pendency of this appeal, on
December 8, 2005, Jennings filed in the Superior Court of
California, County of San Bernardino, a “[Proposed] Notice
of Motion and Motion to Correct Typographical Error in
Order Expunging Conviction Nunc Pro Tunc to October 18,
1987.” Jennings also filed a supporting Memorandum of
Points and Authorities, his declaration, and a “[Proposed]
Corrected Order Expunging Conviction Nunc Pro Tunc to
October 18, 1987.” Jennings’ December 8, 2005 motion and
supporting documents claimed that the September 23, 1999
order granting Jennings’ request for relief under California
Penal Code section 1203.4 contained a “typographical error”
and that the 1999 order should have granted relief under sec-
tion 1203.4a. The San Bernardino County Superior Court
granted this request and issued an order in December 2005
that replaces references to section 1203.4 in the 1999 order
with references to section 1203.4a.

  Jennings then moved this court, on or about December 29,
2005, to supplement the record in this appeal with the Decem-
ber 2005 State court order, take judicial notice of that order,
amend the briefing schedule, and allow him to file an
amended opening brief and supplemental excerpt of record.
The appellees filed their response on January 11, 2006,
opposing the motion.

   [5] We deny Jennings’ motion. The December 2005 State
court order is not relevant to this judicial proceeding, which
is a review of the district court’s affirmance of the ATF’s
March 2003 final decision to revoke Jennings’ firearm
license. The general rule is “that agency actions are to be
16578                     JENNINGS v. MUKASEY
judged on the agency record alone, without discovery.” Public
Power Council v. Johnson, 674 F.2d 791, 794 (9th Cir. 1982).
Although certain circumstances warrant supplementation,
none is applicable here. Id. at 793-94 (stating that a court is
justified in expanding the record of an agency when it is nec-
essary to explain administrative action, when the agency has
relied upon documents or materials not in the record, when
supplementation is necessary to explain technical terms, or
when a claim of agency bad faith is made). Although Jennings
may wish to file a new application for an FFL and argue the
significance of the December 2005 order, he may not use in
this appeal the December 2005 order to challenge the validity
of the agency’s March 2003 decision.2

3.       Laskie’s “anti-mousetrapping” rule

   [6] Jennings also argues he is not a convicted person under
18 U.S.C. § 921(a)(33)(B)(ii) because the 1999 State court
expungement order does not specifically limit his ability to
possess firearms. In this way, Jennings attempts to align him-
self with the defendant in United States v. Laskie, 258 F.3d
1047 (9th Cir. 2001). In Laskie, however, the defendant was
subject to a broader “Discharge Order” and a different statu-
tory scheme. Id. at 1049-50. Laskie’s “Discharge Order”
expressly purported to restore all of his civil rights. Id. at
1049. Because of this, the Laskie Court applied “an anti-
mousetrapping rule. If the state sends the felon a piece of
paper implying that he is no longer ‘convicted’ and that all
     2
    Moreover, it appears that by the December 2005 order Jennings may
have obtained relief to which he is not entitled. For example, Jennings rep-
resented to the Superior Court, “There is no explanation other than a typo-
graphical error which would explain the entry of relief under Section
1203.4(a) rather than 1203.4a.” This is not the case. In fact, section 1203.4
is precisely the relief Jennings requested and appears to be the only relief
for which Jennings was eligible. Section 1203.4a applies to a “nonproba-
tioned misdemeanant.” (emphasis added). Jennings was on probation for
two years. As a result, it seems likely Jennings could not have received
relief under section 1203.4a.
                      JENNINGS v. MUKASEY                  16579
civil rights have been restored, a reservation in a corner of the
state’s penal code can not be the basis of a federal prosecu-
tion.” Id. at 1049-50. By contrast, Jennings’ 1999 expunge-
ment order is much narrower and does not purport to restore
his civil rights. In fact, it is qualified and notes that he must
disclose his conviction in certain circumstances. Accordingly,
unlike Laskie, he has not been “released from all penalties
and disabilities resulting from the offense or crime of which
he has been convicted.” Id. at 1050.

   In addition, the Nevada statute under which Laskie was
granted relief served to “set aside” Laskie’s judgment of con-
viction, which the Nevada Supreme Court analogized to the
“pardon power.” Id. (quoting Creps v. State, 581 P.2d 842,
846 n. 5 (Nev. 1978)). California Penal Code sections 1203.4
and 1203.4a, on the other hand, do not provide such broad
relief. Indeed, they specifically provide that a conviction such
as Jennings received may be used in any subsequent prosecu-
tion and that persons may still be prosecuted under State fire-
arms laws. Because of this, Jennings was not “mousetrapped”
as was Laskie, and he cannot take advantage of Laskie’s anti-
mousetrapping rule.

B.    18 U.S.C. § 924(a)

   [7] Jennings’ final argument is that the district court erred
when it refused to determine whether he violated 18 U.S.C.
§ 924(a) by failing to disclose his conviction in the 1998 FFL
renewal application. We disagree. Because the district court
had already determined that Jennings was prohibited from
possessing firearms by 18 U.S.C. § 922(g)(9), there was no
reason to determine whether Jennings made a false statement
regarding his conviction.

     AFFIRMED.


33 Wn. App. 720 (1983)
658 P.2d 674
THE STATE OF WASHINGTON, Respondent,
v.
GEORGE WILLIE BLEDSOE, Appellant.
No. 10716-0-I.
The Court of Appeals of Washington, Division One.
January 17, 1983.
*722 George Willie Bledsoe, pro se, and Elizabeth Selleck of Washington Appellate Defender Association, for appellant.
Norm Maleng, Prosecuting Attorney, and Dennis Nollette, Deputy, for respondent.
SWANSON, J.
George W. Bledsoe was convicted in a trial before a jury of first degree murder while armed with a deadly weapon. He appeals alleging (1) the trial court erred in admitting evidence arising out of his conversation with a police officer and (2) the trial court's jury instructions were improper. We affirm.
At trial, the evidence revealed that early on the morning of February 20, 1981, Bledsoe told two persons he had just killed a woman. On February 22, three girls found the body of Vanessa Kelly. Kelly had died from a .38 caliber revolver shot 2 or 3 days before. Kelly and Bledsoe had been acquainted.
Police arrested Bledsoe on April 1, 1981. That afternoon Detective Peterson of the King County Police Department met with the defendant. The detective informed Bledsoe of his Miranda rights. Bledsoe signed forms waiving and acknowledging receipt of his Miranda rights.
On April 9, pursuant to a properly authorized search warrant, police searched Bledsoe's house. They found a .38 caliber revolver subsequent tests revealed had fired the bullet that killed Kelly. In addition, the police found bloodstains in the living area.
Peterson, on April 10, again met with Bledsoe who still had not been formally charged. The pretrial hearing established that Bledsoe again signed forms acknowledging receipt of his rights and a waiver. He then told Peterson that his attorney had told him not to talk to the police about the case. Nevertheless, Peterson questioned Bledsoe, obtaining information the trial judge found was used to obtain a search warrant for Bledsoe's car. The car contained additional evidence that Bledsoe committed the *723 murder.[1]
Bledsoe contends that evidence obtained as a result of his April 10 meeting with Detective Peterson was inadmissible because it was obtained in violation of his right against self-incrimination guaranteed by the fifth and fourteenth amendments to the United States Constitution and article 1, section 9 of Washington's Constitution. Bledsoe claims he invoked his right to counsel at the April 10 meeting with Peterson and, therefore, evidence obtained as a result of subsequent interrogation was inadmissible.
[1] At the outset, we note the state constitutional protection against self-incrimination is no broader than the federal protection. State v. Mecca Twin Theater & Film Exch., Inc., 82 Wn.2d 87, 91, 507 P.2d 1165 (1973). Accordingly, an analysis under the federal provisions is conclusive.
An accused has a Fifth and Fourteenth Amendment right to counsel during interrogation. Edwards v. Arizona, 451 U.S. 477, 482, 68 L.Ed.2d 378, 101 S.Ct. 1880 (1981). If an accused "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Miranda v. Arizona, 384 U.S. 436, 444-45, 16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974 (1966); accord, State v. Chapman, 84 Wn.2d 373, 377, 526 P.2d 64 (1974). Determinative of the issue here, then, is whether Bledsoe's statement to Peterson, that his attorney had advised him not to talk to the police, invoked his right to counsel. The issue of whether defendant's statement invoked his right to counsel involves a question of law. See State v. Chapman, at 377.
[2, 3] We conclude that Bledsoe's statement that his attorney told him not to speak to the police about the case did not invoke his right to counsel under the Fifth and Fourteenth Amendments. Bledsoe did not ask for his attorney. Rather, he merely told Peterson what his attorney had advised. The preferred procedure, even under these circumstances, *724 would have been to stop the inquiry after Bledsoe's statement. But because Bledsoe's statement did not invoke his right to counsel, the further questioning was permissible and evidence arising out of that questioning was admissible.
An examination of the primary policy underlying the rule that once an accused requests counsel the interrogation must cease reinforces this disposition. By preventing further interrogation until the accused's attorney is present, the rule primarily serves to ensure that the accused exercises free choice in making any statement after invoking his right to counsel. See Miranda, at 474. Here Bledsoe exercised free choice in making his statements. He had signed two forms waiving and two forms acknowledging receipt of his rights. He testified Peterson explained his constitutional rights to him. Peterson testified that Bledsoe stated he fully understood his rights. Of course, we are mindful that if a defendant invokes his right to counsel, any subsequent statement is inadmissible unless defendant initiates communication. Where the accused invokes his right to counsel, the question of whether the accused exercised free choice is irrelevant. But where, as here, the defendant does not invoke his right to counsel, it is important to determine whether the statements were provided freely. We are persuaded that Bledsoe spoke freely. Any evidence arising out of his statements to Peterson was admissible.
Bledsoe also alleges his questioning violated his right to counsel under the sixth and fourteenth amendments to the United States Constitution and article 1, section 22 (amendment 10) of Washington's Constitution. Bledsoe's constitutional rights were not violated.
[4] Although the Washington Supreme Court has suggested that Washington's constitutional provision may be read more broadly than the federal provisions, State v. Fitzsimmons, 94 Wn.2d 858, 620 P.2d 999 (1980), the state courts have not read it more broadly. See, e.g., State v. Hartzog, 96 Wn.2d 383, 635 P.2d 694 (1981). It follows that an analysis under the federal constitution is determinative *725 here.
[5] The Sixth Amendment also provides the accused with a right to counsel. "[T]he right to counsel does not depend upon a request by the defendant ..." Brewer v. Williams, 430 U.S. 387, 404, 51 L.Ed.2d 424, 97 S.Ct. 1232 (1977). Thus, even if Bledsoe did not explicitly assert his right to counsel, that right exists and a waiver must be shown to admit evidence arising out of statements made at the police interrogation. To establish a waiver of the right to counsel, the State must prove an intentional relinquishment of a known right to counsel. E.g., Brewer, at 404. If there is substantial evidence to support the trial court's decision that defendant waived his right to counsel, the decision will be upheld. See State v. Braun, 82 Wn.2d 157, 160, 509 P.2d 742 (1973).
Here, there was substantial evidence to support the trial court's decision that Bledsoe waived his right to counsel. In State v. Vannoy, 25 Wn. App. 464, 610 P.2d 380 (1980), the court recognized that a signed waiver form alone is strong, but not sufficient, evidence to prove waiver. Vannoy, at 470. In this case there was evidence Bledsoe signed two forms each waiving and acknowledging his rights. Furthermore, there was evidence Bledsoe stated to the interrogating officer that he fully understood his rights. There was substantial evidence to find Bledsoe waived his right to counsel.
[6] Even assuming the court erred in admitting evidence resulting from the April 10 conversation, the error was harmless. Even an error affecting a constitutional right may be harmless. Chapman v. California, 386 U.S. 18, 22, 17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065 (1967); State v. Evans, 96 Wn.2d 1, 4, 633 P.2d 83 (1981). To find such error harmless the court must find it harmless beyond a reasonable doubt. Chapman v. California, at 24; Evans, at 4.
The error was harmless beyond a reasonable doubt because the evidence presented unconnected with the April 10 meeting shows beyond a reasonable doubt that defendant *726 committed first degree murder. There was testimony that Bledsoe admitted to two witnesses that he had killed a woman. The witnesses also noticed blood on Bledsoe. Police found the revolver that fired the shots that killed Kelly in Bledsoe's bedroom. In addition, there was testimony that a blanket wrapping the body was from defendant's home. Without the evidence resulting from the April 10 meeting, it is clear beyond a reasonable doubt that the jury would have found Bledsoe guilty. Even assuming the court erred in admitting evidence arising out of the April 10 interrogation, it was harmless error.
Bledsoe next complains the trial court erred by failing to define intent in its jury instructions. The court's instructions were proper. Instruction 6 stated:
A person commits the crime of murder in the first degree when, with a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person.
Premeditated means thought over beforehand. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.
[7] We find the trial court's instructions on intent were proper for a number of reasons. First, the defendant waived his right to object to the lack of an instruction defining "intent." "In the absence of either a violation of a defendant's constitutional right or a request to instruct, there can be no error assigned on appeal to a trial court's failure to give an instruction." State v. Davis, 27 Wn. App. 498, 505, 618 P.2d 1034 (1980). Here, defendant failed to request a jury instruction on a definition of intent. Thus, to raise the issue on appeal the failure to define "intent" in the instruction must have deprived defendant of a constitutional right.
[8] The failure to define intent in the instruction was *727 not an error of constitutional magnitude. In State v. Pawling, 23 Wn. App. 226, 597 P.2d 1367 (1979), this court stated:
The constitutional requirement is only that the jury be instructed as to each element of the offense charged.... The failure of the court ... to define further one of those elements is not within the ambit of the constitutional rule.
Pawling, at 232-33. Here the trial court instructed the jury on each element of the crime. Where the element is not commonly understood, however, failure to define it does fall within the constitutional rule. Davis, at 505. The term "intent" is commonly understood. Cf. State v. Shipp, 93 Wn.2d 510, 516, 610 P.2d 1322 (1980) ("The word `knowledge' has an ordinary and accepted meaning."). There was no constitutional requirement to further define intent in the instructions. There was no violation of a constitutional right and, consequently, the issue may not be raised on appeal.
[9] Furthermore, in light of other instructions, the lack of an instruction defining intent, even if error, was harmless. In State v. Wheeler, 95 Wn.2d 799, 808, 631 P.2d 376 (1981), the court indicated that an error in instructions may be made harmless if other instructions were sufficient. Here, the court's instruction on premeditation addressed the considerations an instruction on intent would have addressed. Moreover, where defendant's theory of defense does not involve the issue of intent, an improper instruction on intent is harmless. See State v. Fernandez, 29 Wn. App. 278, 281, 628 P.2d 827 (1981). Here Bledsoe's theory of defense was that he did not commit the murder. His state of mind was not relevant to the defense. The alleged error was harmless.
Finally, the defendant in his pro se brief argues the trial court's burden of proof instruction was improper because it shifted the burden of proof. The court used the standard instruction. Defendant's argument is without merit.
*728 We affirm the judgment of the trial court.
WILLIAMS and CORBETT, JJ., concur.
Reconsideration denied April 4, 1983.
Review denied by Supreme Court June 3, 1983.
NOTES
[1]  It should be noted that the State had obtained a search warrant for the car prior to Peterson's questioning of Bledsoe on April 10, 1981.


287 U.S. 308 (1932)
BANKERS POCAHONTAS COAL CO.
v.
BURNET, COMMISSIONER OF INTERNAL REVENUE.
No. 104.
Supreme Court of United States.
Argued November 18, 1932.
Decided December 5, 1932.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.
*309 Mr. Camden R. McAtee, with whom Mr. Wells Goodykoontz was on the brief, for petitioner.
Assistant Attorney General Youngquist, with whom Solicitor General Thacher, and Messrs. Whitney North Seymour, Sewall Key, and Andrew D. Sharpe were on the brief, for the respondent.
MR. JUSTICE STONE delivered the opinion of the Court.
Petitioner, in 1912, acquired West Virginia coal lands in fee and, by assignment from the prior owners, certain leases or contracts entered into by them with various coal *310 operators, by which the latter acquired the right to enter upon and use the lands for the production of coal and coke for a specified period, in consideration of stipulated royalties for the coal and coke produced, including minimum royalty payments in each year. In determining petitioner's income and profits taxes for the years 1920 to 1926, the Commissioner of Internal Revenue treated the royalty payments, after deducting a depletion allowance of 3.6¢ per ton of coal mined, as taxable income of petitioner, and assessed a corresponding increase in the tax. On appeal this ruling of the Commissioner was sustained, both by the Board of Tax Appeals, 18 B.T.A. 901, and the Court of Appeals for the Fourth Circuit, 55 F. (2d) 626. We granted certiorari on a petition which assails the judgment below on three grounds, which will be separately considered.
First. It is insisted that no part of the royalties is taxable income of petitioner. Petitioner rests this contention on what is stated to be a rule of law of West Virginia, that under coal leases, like those presently involved, the title to the coal, in place, passes to the lessee or operator immediately on execution of the lease. From this it is argued that the royalties received were but payments for capital assets acquired and sold before the adoption of the Sixteenth Amendment, and that their taxation as income is not authorized either by the statute or by the Sixteenth Amendment, because not apportioned.
The question whether payments of bonus and royalties from the lessee to the lessor of an oil lease are income within the meaning of the Revenue laws taxing income, or a return of capital as upon a sale of the oil, was recently before this Court in Burnet v. Harmel, ante, p. 103. Although it was contended there, as it is here, that by state law the title to the mineral content of the leased land passed to the lessee upon execution of the lease, it was *311 held that this characterization of the transaction in the local law did not affect the conclusion that the payments were gross income subject to tax, after the deductions allowed by the taxing act. The considerations which led to the conclusion that bonus and royalties paid to the lessor of Texas oil lands are taxable income and not a conversion of capital, as upon a sale of capital assets, are equally applicable to West Virginia coal leases, whether the title to the coal in place passes to the lessee at the date of the lease, or only upon severance by the lessee.
The applicable statutes thus construed and applied do not tax any part of petitioner's capital investment before March 1, 1913. Section 234 (a) (9) of the Revenue Act of 1918, c. 18, 40 Stat. 1057, 1077, and regulations under it, require depletion allowances upon bonus and royalty payments received by the lessor of mineral lands, sufficient to provide for a return in full of his invested capital. The provisions of that section, and the related Treasury Regulations have been continued with the later Revenue Acts, see Murphy Oil Co. v. Burnet, decided this day, ante, p. 299. The fact that the depletion allowance under the Revenue Act of 1913 was more limited is not pertinent here. Burnet v. Thompson Oil & Gas Co., 283 U.S. 301.
Second. In a suit brought by the petitioner in the District Court for Northern West Virginia, Bankers Pocahontas Coal Co. v. White, Collector of Internal Revenue, with respect to taxes for the years 1914 to 1919, it was held that petitioner was entitled to a depletion allowance on royalties received from the leases involved in the present suit, of 5¢ per ton of coal mined. It is insisted that the decision in that case was res adjudicata of that issue, and that in fixing the depletion allowance of the present case at 3.6¢ per ton, the court below and the Board of Tax Appeals erroneously refused to follow the decision of the District Court in the earlier case. With respect to *312 this contention it is sufficient to say that the suit in the District Court was not against the Commissioner of Internal Revenue, the respondent here, but against the Collector, judgment against whom is not res adjudicata against the Commissioner or the United States. Graham & Foster v. Goodcell, 282 U.S. 409, 430; Sage v. United States, 250 U.S. 33; see Smietanka v. Indiana Steel Co., 257 U.S. 1; compare Union Trust Co. v. Wardell, 258 U.S. 537.
Third. After the Board of Tax Appeals had filed its findings of fact and opinion, both respondent and petitioner submitted recomputations of the amount of the deficiency under the Board's report, as provided by Rule 50 of the Board's Rules of Practice. In petitioner's recomputation, the claim was made for the first time that the minimum royalty payments stipulated by the leases had in some instances exceeded the amount of the per ton royalty which would have been payable on actual production, and it was asked that the depletion allowance be computed upon the basis of the actual payments made, instead of upon the number of tons extracted. Petitioner, at a hearing on the recomputation, tendered evidence in support of this claim. The Board rejected the evidence and denied petitioner's motion for a rehearing in order to present this contention. The court below upheld this action.
The Board is authorized to prescribe rules of practice and procedure for the conduct of proceedings before it. § 601, Revenue Act of 1928, c. 852, 45 Stat. 791, 871, 872, amending § 907 (a), Revenue Act of 1924, as amended; see Goldsmith v. Board of Tax Appeals, 270 U.S. 117. Rule 50 prescribes the procedure for computing the amount of the deficiency after the Board has heard and decided the issues raised and presented on the merits. In terms, it directs that the hearing on the computation *313 which it authorizes is to be "confined strictly to the consideration of the correct computation of the deficiency or overpayment resulting from the determination already made, and no argument will be heard upon or consideration given to . . . any new issues." The Board has held that under the Rule new issues may not be raised and urged on a hearing upon the computation. Great Northern Ry. Co. v. Commissioner, 10 B.T.A. 1347, affirmed on other issues 40 F. (2d) 372. The rule was a proper exercise of the power of the Board to prescribe the practice in proceedings before it. See O'Meara v. Commissioner, 34 F. (2d) 390, 395; Boggs & Buhl v. Commissioner, 34 F. (2d) 859, 861; Metropolitan Business College v. Blair, 24 F. (2d) 176, 178; compare Sooy v. Commissioner, 40 F. (2d) 634.
The purpose of the tendered evidence was to bring the case within the ruling of the Court of Appeals for the Ninth Circuit affirmed in Murphy Oil Company v. Burnet, supra, that bonus payments to the lessor of a mineral lease are to be treated as advanced payments of royalties and depletion allowed. This was a new issue. We need not consider the contention of the government that it does not clearly appear either that the stipulated minimum payments exceeded the total per ton royalties upon the leases or that, even if they did, the excess of the minimum royalties over the royalties computed on actual production can, upon a proper construction of the leases, be treated as advance payment of the per ton royalties to accrue in future years. It is not shown that the evidence tendered was not available to the petitioner in ample time to present it before the Board had made and filed its findings of fact and opinion. Under the circumstances, we cannot say that the Board abused its discretion in denying a rehearing.
Affirmed.


                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1

               United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                            Submitted September 22, 2015 *
                             Decided September 25, 2015

                                        Before

                      FRANK H. EASTERBROOK, Circuit Judge

                      MICHAEL S. KANNE, Circuit Judge

                      DIANE S. SYKES, Circuit Judge

No. 14-2477

UNITED STATES OF AMERICA,                      Appeal from the United States District
     Plaintiff-Appellee,                       Court for the Central District of Illinois.

      v.                                       No. 12-CR-20025-001

JERRY L. HENDRICKS,                            Sue E. Myerscough,
     Defendant-Appellant.                      Judge.

                                      ORDER

       Jerry Hendricks, who is 68, was prosecuted on multiple counts in federal court
after photographing himself molesting a young girl. At sentencing the district court
concluded—and Hendricks agreed—that life imprisonment plus ten years was the
minimum sentence that could be imposed given the defendant’s prior convictions for
sex crimes against children. The court did not think that the minimum sentence was long
enough, however, and instead imposed life plus 30 years. On appeal Hendricks has
changed course and now argues that life imprisonment was not mandatory on any count

      *We granted the parties’ motion to waive oral argument. Thus, the appeal is
submitted on the briefs and record. See FED. R. APP. P. 34(f).
No. 14-2477                                                                          Page 2

of conviction. We conclude that he has waived any challenge to his sentence and affirm
the district court’s judgment.

        Hendricks, a longtime resident of South Carolina, has incurred 20 felony
convictions in that state since 1970. Among them are two for committing a lewd act on a
child under 16, see S.C. CODE ANN. § 16-15-140 (1996); three others for second-degree
criminal sexual conduct with a minor, id. § 16-3-655(2) (1984); and five for “assault and
battery of a high and aggravated nature,” see State v. Jones, 130 S.E. 747, 751 (S.C. 1925)
(defining elements of common-law offense), overruled on other grounds by State v. Foust,
479 S.E.2d 50 (S.C. 1996). All of the convictions for assault and battery involved offensive
touching of a sexual nature, and one of the victims was a minor. Shortly after completing
his most recent South Carolina sentence, Hendricks moved to Illinois to live with a
former girlfriend. At her home he used a cell phone to photograph himself engaging in
sexual contact with the woman’s seven-year-old daughter. The child told her mother,
and authorities seized the cell phone. Hendricks was charged with possessing child
pornography, 18 U.S.C. § 2252(a)(4)(B); four counts of sexually exploiting a child,
id. § 2251(a); and committing a felony sex offense while required to register as a sex
offender, id. § 2260A. A jury returned guilty verdicts on all six counts.

        A probation officer calculated a guidelines term of life imprisonment based on a
total offense level of 43 and criminal-history category V. The probation officer
concluded, though, that a recidivism enhancement for offenders convicted of
enumerated sex crimes against children, see id. § 3559(e), mandated life sentences on the
§ 2251(a) counts. The probation officer also concluded that Hendricks faced statutory
minimums of ten years on the two remaining counts, with the sentence on the § 2260A
count required to run consecutively to the life terms. Hendricks did not object to the
probation officer’s understanding of the statutory penalties, and, in fact, at sentencing
his lawyer expressly concurred that the district court was compelled to impose a life
sentence. The judge too concluded that § 3559(e) applies; a single “prior sex conviction”
is enough under the statute, and the judge reasoned that Hendricks’s three convictions
for criminal sexual conduct with a minor and his conviction for assault and battery
involving a child victim all qualify (the judge was uncertain if committing a lewd act on
a child under 16 also qualifies). The judge decided, however, that even a life term plus
the consecutive ten years required by § 2260A was too little given Hendricks’s “horrific
sex crimes” against children. The court imposed life terms on the four § 2251(a) counts
plus consecutive sentences of 20 years on the § 2252(a)(4)(B) count and 10 years on the
§ 2260A count, for a total of life plus 30 years.
No. 14-2477                                                                          Page 3

       On appeal Hendricks is represented by different counsel. He challenges the
application of § 3559(e) principally on the ground that his prior convictions that
triggered the recidivism enhancement were not alleged in the indictment or proven to a
jury. Hendricks acknowledges that Almendarez-Torres v. United States, 523 U.S. 224, 239–
47 (1998), rejects this contention, but he anticipates the decision being overruled by the
Supreme Court. Unless that happens, however, the opinion binds us. See United States v.
Shields, 789 F.3d 733, 741–42 (7th Cir. 2015); United States v. Browning, 436 F.3d 780, 782
(7th Cir. 2006).

        In any event, Hendricks stipulated at trial to his prior convictions, did not object
to the probation officer’s account of his criminal history, and indeed his lawyer expressly
conceded at sentencing that life imprisonment is mandatory. Thus, Hendricks has
waived this argument and all other challenges to the recidivism enhancement. See United
States v. DeSilva, 505 F.3d 711, 717 (7th Cir. 2007); United States v. Walton, 255 F.3d 437,
441–42 (7th Cir. 2001).

                                                                               AFFIRMED.


                                                                              [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________                        FILED
                                                                           U.S. COURT OF APPEALS
                                            No. 10-14034                     ELEVENTH CIRCUIT
                                        Non-Argument Calendar                   MARCH 28, 2011
                                      ________________________                    JOHN LEY
                                                                                CLERK
                                           Agency No. A090-347-417

YING CHEN,

llllllllllllllllllllllllllllllllllllllll                                                   Petitioner,

                                                   versus

U.S. ATTORNEY GENERAL,

                                                      llllllllllllllllllllllllllllllllllllllllRespondent.

                                     ________________________

                               Petition for Review of a Decision of the
                                    Board of Immigration Appeals
                                    ________________________

                                              (March 28, 2011)

Before HULL, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

         Ying Chen, a native and citizen of China, petitions for review of the
decision of the Board of Immigration Appeals that affirmed an order of her

removal. Chen argues that the Board erroneously found that her application for

asylum was untimely and that her testimony at her removal hearing was incredible.

Chen also contends that she established past persecution and a well-founded fear

of future persecution. We dismiss in part and deny in part Chen’s petition.

      We lack jurisdiction to review the finding that Chen’s application for

asylum was untimely. An application for asylum must be “filed within 1 year after

the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). An

untimely application “may be considered . . . if the alien demonstrates to the

satisfaction of the Attorney General either the existence of changed circumstances

which materially affect the applicant’s eligibility for asylum or extraordinary

circumstances relating to the delay in filing an application.” Id. § 1158(a)(2)(D).

Section 1158(a)(3) “divests our Court of jurisdiction to review a decision

regarding whether an alien complied with the one-year time limit or established

extraordinary circumstances that would excuse his untimely filing.” Mendoza v.

U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). We dismiss Chen’s

petition to review the finding that her application for asylum was untimely.

      When the Board enters a written opinion and expressly adopts the reasoning

of the immigration judge, we review the decisions of both the Board and the

                                          2
immigration judge. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).

We review the findings of the Board and the immigration judge under the

substantial evidence test. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230–31 (11th

Cir. 2006). Under that test, we will not disturb a finding if it is “supported by

reasonable, substantial, and probative evidence on the record considered as

whole.” Al Najjar, 257 F.3d at 1284. An adverse credibility determination “‘can

be reversed only if the evidence “compels” a reasonable fact finder to find

otherwise.’” Chen, 463 F.3d at 1231 (quoting Sepulveda v. U.S. Att’y Gen., 401

F.3d 1226, 1230 (11th Cir. 2005)). An adverse credibility determination may be

based on any inconsistency, regardless of whether the inconsistency goes to the

heart of the claim. Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1277 (11th Cir. 2009);

8 U.S.C. § 1158(b)(1)(B)(iii). Even when an applicant is not credible, the Board

must examine all evidence in the record before denying an application. Forgue v.

U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). “The weaker an

applicant’s testimony . . . the greater the need for corroborative evidence.” Yang

v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). In addition, “the burden

is on the applicant alien to show that the credibility decision was not supported by

‘specific, cogent reasons’ or was not based on substantial evidence.” Forgue, 401

F.3d at 1287.

                                          3
      Substantial evidence supports the finding by the Board and the immigration

judge that Chen’s testimony was incredible. Chen initially alleged fear of forced

sterilization if returned to China, but later alleged past persecution based on

religion. Chen also provided inconsistent evidence about her religion and

contradictory explanations about the inconsistency. Chen failed to mention in

either her first application or asylum interview her alleged earlier arrest, detention,

and beating in China, and Chen implausibly alleged that she resided in Orlando

while her three children resided in New York. The Board and the immigration

judge provided specific and cogent reasons for finding Chen’s testimony

incredible.

      Chen’s remaining evidence does not compel a finding of past persecution or

a well-founded fear of future persecution. The Board and the immigration judge

reviewed Chen’s remaining evidence and reasonably explained that Chen failed to

offer authentic documentary evidence or credible testimony that she will likely be

singled out for persecution if returned to China. We deny Chen’s petition to

review the denial of her application for withholding of removal.

      PETITION DISMISSED in part, DENIED in part.

                                           4


925 A.2d 1099 (2007)
282 Conn. 917
BRJM, LLC
v.
OUTPUT SYSTEMS, INC., et al.
Supreme Court of Connecticut.
Decided May 15, 2007.
David L. Weiss, East Haven, in support of the petition.
Susan M. Phillips, in opposition.
The petition by the defendants, Output Systems, Inc., and Howard Engelsen, for certification for appeal from the Appellate Court, 100 Conn.App. 143, 917 A.2d 605 (2007), is denied.


896 F.2d 547Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Nicholas A SLOAN;  Mary E. Sloan, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 88-2988.
United States Court of Appeals, Fourth Circuit.
Submitted:  Oct. 20, 1989.Decided:  Feb. 7, 1990.

Nicholas A. Sloan, Mary E. Sloan, appellants pro se.
Gary R. Allen, Janet A. Bradley, David E. Brunori, United States Department of Justice, for appellee.
Before MURNAGHAN and WILKINSON, Circuit Judges, and HARRISON L. WINTER, Senior Circuit Judge.
PER CURIAM:

1
Nicholas A. Sloan and Mary E. Sloan appeal from the United States Tax Court's order holding Mr. Sloan's legal activities did not rise to the level of a trade or business.  Our review of the record and the Tax Court's opinion discloses that this appeal is without merit.  Accordingly, we affirm on the reasoning of the Tax Court.  Sloan v. Commissioner of Internal Revenue, Tax Ct. No. 84-17444 (Sept. 15, 1988).  We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

2
AFFIRMED.