987 F.2d 927
122 A.L.R.Fed. 825
UNITED STATES of America, Appellee,v.Dwight G. TOWNSEND, Defendant-Appellant.
No. 747, Docket 92-1399.
United States Court of Appeals,Second Circuit.
Argued Jan. 5, 1993.Decided March 8, 1993.

R. Peter Decato, Lebanon, NH (Nighswander, Martin & Mitchell, of counsel), for defendant-appellant.
David V. Kirby, Chief, Crim.  Div., D.Vt.  (Charles A. Caruso, U.S. Atty., Peter W. Hull, Asst. U.S. Atty., D.Vt., of counsel), for appellee.
Before:  KEARSE, WINTER, and ALTIMARI, Circuit Judges.
ALTIMARI, Circuit Judge:

1
Defendant-appellant Dwight G. Townsend appeals from a judgment entered after a jury trial in the United States District Court for the District of Vermont (Franklin S. Billings, Jr., Judge.), convicting him of intentionally intercepting the telephone conversations of third parties without their knowledge or consent in violation of 18 U.S.C. § 2511(1)(a) (1988).   Townsend was sentenced to a prison term of twelve months to be followed by two years of supervised release.

2
On appeal, Townsend contends that his conviction should be reversed because the district court erroneously instructed the jury as to the mens rea element of the crime charged.   Specifically, Townsend contends that the district court instructed the jury that it could find Townsend guilty if he "knowingly" intercepted the telephone conversations, whereas the statute under which Townsend was prosecuted required the government to prove that he had acted "intentionally."  18 U.S.C. § 2511(1)(a) (1988).   Townsend further argues that the district court committed reversible error by excluding evidence which Townsend claims supported his professed motive in taping phone calls made to his office and residence.

3
For the reasons set forth below, we affirm the judgment of the district court.

BACKGROUND

4
In September 1990, Special Agent Charles McGinnis, Jr. of the FBI began an investigation of Townsend's conduct as Sheriff of Orange County in Vermont.   The investigation was prompted by a complaint lodged by a former deputy sheriff alleging that Townsend routinely used automatic recording equipment to capture the telephone conversations of his employees.

5
In an initial interview with Special Agent McGinnis, Townsend denied that he had ever recorded conversations of third parties, and specifically denied recording a telephone conversation between Roseann Sayers and Reevie Rockhill, a present and a past employee respectively.   Townsend did, however, admit that he had purchased recording equipment capable of automatically recording calls.

6
Almost immediately after this initial interview, Townsend's attorney called Special Agent McGinnis in order to schedule another interview for Townsend to explain his answers, conceding that Townsend had not been "completely candid" in the first interview.   In the second interview, Townsend admitted that he had "accidentally" taped the specific conversation about which Special Agent McGinnis had previously questioned him.   However, Townsend continued to maintain that the equipment was routinely used to record only his own conversations.   Townsend explained that he had been getting harassing phone calls at the sheriff's complex, which included his office and official residence, and was trying to capture these conversations on tape.

7
Townsend was subsequently indicted in May 1991, and his one count indictment charged him with violating 18 U.S.C. § 2511(1)(a) by surreptitiously recording the telephone conversations of third parties without their knowledge or consent.   In February 1992, Townsend was tried by a jury before the United States District Court for the District of Vermont (Billings, J.).   At trial, the government introduced Special Agent McGinnis's testimony concerning Townsend's initial denial and subsequent admissions.   The government also presented the testimony of Townsend's former wife, who recounted that Townsend had purchased the automatic recording equipment and she observed that it was turned on most of the time.   Moreover, Townsend's ex-wife testified that Townsend had played for her the specific conversation about which Special Agent McGinnis had questioned Townsend.   The topic of this recorded conversation was the antipathy that both Roseann Sayers and Reevie Rockhill felt for Townsend.   According to Townsend's ex-wife, one of the reasons Townsend gave for recording this conversation was to "find out who might be in the office that was betraying him [sic]."  This recording was also played for one of Townsend's deputies who testified that Townsend explained that this was his way of keeping track of his employees' loyalties.   Another of Townsend's former deputies testified that Townsend had played for him a recording of a conversation between the deputy and the deputy's wife.   The deputy testified that after playing the recording Townsend told him:  "this shows you what I can do."

8
Townsend testified in his own defense, stating that he had purchased the equipment in order to capture harassing telephone calls he had received.   Townsend admitted to recording only one conversation not involving himself--the conversation between Roseann Sayers and Reevie Rockhill about which both his ex-wife and former deputy had previously testified--but, according to Townsend, his recording of this conversation was accidental.

9
Townsend also sought to introduce testimony about the "bad blood" between himself and the previous sheriff, specifically concerning the condition in which Townsend found the sheriff's complex upon assuming the office.   Townsend claims to have found dead rats, weapons missing, and a picture of a pig with the notation "Kill the Pig, Townsend."   Townsend attempted to introduce this testimony to support the proposition that he had additional reasons to be concerned about getting harassing phone calls.   Through this testimony Townsend hoped to establish that he had a proper motive for employing the recording equipment.   The district court excluded this testimony, pursuant to Fed.R.Evid. 403, on the ground that it was tangential to Townsend's motivation for putting in the recording equipment.   The district court ruled that Townsend could testify to the harassing phone calls, but not to the unrelated problems with the former sheriff, since there was no evidence of any connection between the two.

10
Following a two-day trial, the jury convicted Townsend of the one count contained in the indictment.   Thereafter, the district court denied Townsend's motion for a new trial, and sentenced Townsend to twelve months imprisonment.

11
Townsend now appeals.

DISCUSSION
I. The Jury Instruction

12
On appeal, Townsend first contends that the district court erred by failing to provide the jury with the proper definition of "intentionally"--the mens rea element of 18 U.S.C. § 2511(1)(a).   Specifically, Townsend argues that the district court improperly employed a model jury charge adapted from the definition of "knowingly," whereas the statute under which he was prosecuted required the government to prove that he had acted "intentionally."  18 U.S.C. § 2511(1)(a).

13
In order to convict Townsend, the jury had to find that he "intentionally" intercepted the conversations of third parties without their knowledge or consent.  18 U.S.C. § 2511(1)(a).   However, there are apparently no model jury instructions that define the word "intentionally" in this context.   See, e.g., 1 Leonard B. Sand et al., Modern Federal Jury Instructions (Criminal) § 3A.01;  Comm. on Model Criminal Jury Instructions Within the Eighth Cir., Manual Of Model Criminal Jury Instructions for the Dist. Courts Of The Eighth Cir. § 7 (1992);  U.S. Sixth Cir.  Dist. Judges Ass'n., Pattern Criminal Jury Instructions §§ 2.05-2.09 (1991);  United States Fifth Cir.  Dist. Judges Ass'n., Pattern Jury Instructions:  Criminal Cases §§ 1.35-1.36 (1990).   The court, therefore, solicited a proposed charge.

14
Townsend's counsel proposed that the following charge be given:

15
In the case before you, the government must prove beyond a reasonable doubt that the defendant's acts were intentional.   As used in the Electronic Communications Privacy Act, the term intentional is narrower than the dictionary definition of intentional.   Intentional means more than that one voluntarily engaged in conduct or caused the result.   Such conduct or the causing of the result must have been the person's conscious object.   An intentional state of mind means that one's state of mind is intentional as to one's conduct or the result of one's conduct if such conduct or result is one's conscious objective.   The intentional state of mind is applicable only to conduct and results.   Since one has no control over the existence of circumstances, one cannot intend them.   A common means to describe conduct as intentional or to say that one causes the result intentionally, is to state that it was done or accomplished on purpose.   The term intention is not meant to connote the existence of a motive.   Liability for intentionally engaging in prohibited conduct is not dependent on an assessment of the merit of the motive that led the person to disregard the law.

16
The district court rejected this definition and instead provided the following definition, which was derived from a model jury instruction definition of "knowingly":

17
The third element which must be proved by the government beyond a reasonable doubt is that the defendant acted intentionally when he intercepted the wire communication.   Thus, before you can find that the defendant acted knowingly, you must be satisfied beyond a reasonable doubt that [the defendant] acted deliberately, intentionally, and understandingly;  that is, that he knew what he was doing when he intercepted the wire communication.

18
[A. 63].  See Leonard B. Sand, et al., 1 Modern Federal Jury Instructions (Criminal) § 3A.01, at 3A-1.

19
According to Townsend, this charge misdefined the element of "intent" by utilizing a less restrictive requirement.   Specifically, Townsend argues that by employing a "knowingly" standard the charge failed to provide for a defense of inadvertence.   We disagree with this contention.

20
Initially we take heed of the warning issued in United States v. Bailey, 444 U.S. 394, 403, 100 S.Ct. 624, 631, 62 L.Ed.2d 575 (1980), that "[f]ew areas of criminal law pose more difficulty than the proper definition of the mens rea required for any particular crime."   While admittedly the charge given by the district court could have been more artfully drawn, the charge did make clear to the jury that it had to find that Townsend acted "deliberately, intentionally, and understandingly."   Consequently, Townsend cannot justifiably complain that the jury might misinterpret such a charge and convict him on the basis of finding that he negligently or inadvertently intercepted the telephone conversations of third parties without their knowledge or consent.   One cannot deliberately act inadvertently.   By convicting Townsend on the district court's charge, the jury necessarily discredited his testimony that the taping was inadvertent.

21
The district court's charge required that the jury find that the defendant acted "knowingly", "deliberately", "intentionally" and "understandingly."   Townsend cannot be heard to complain about the use of the term "deliberately" or "intentionally" which are synonyms of the term "purposefully."   While it is true that the terms "knowingly" and "understandingly" were mingled in the charge, the court instructed the jury to find that Townsend "acted deliberately, intentionally, and understandingly, that is, that he knew what he was doing when he intercepted the wire communication."   Although the charge also used the term "knowingly," viewed as a whole, there can be no doubt that the definition provided excluded any interception that might have been inadvertent.   Therefore, we conclude that the charge in question properly instructed the jury as to the degree of culpability that the government needed to prove in order to meet its burden under the statute.

22
Finally, in order to forestall such problems in the future, we suggest that the following definition of "intentionally" be used when appropriate:

23
The government must prove beyond a reasonable doubt that the defendant acted intentionally when [he or she committed the act charged].  Before you can find that the defendant acted intentionally, you must be satisfied beyond a reasonable doubt that the defendant acted deliberately and purposefully;  that is, defendant's act must have been the product of defendant's conscious objective rather than the product of a mistake or an accident.

II. The Evidentiary Ruling

24
Townsend also asserts that the district court erred in excluding Townsend's proffered testimony of his troubles with the previous sheriff.   This testimony concerned the fact that dead rats had been left in the office, weapons had been taken from the office, and a picture of a pig had been left in the sheriff's residence with the notation "Kill the Pig, Townsend."   According to Townsend, the district court abused its discretion and committed reversible error in excluding this testimony on the ground that it was tangential.   This argument is without merit.

25
Pursuant to Federal Rule of Evidence 403, a trial judge can exclude evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."   Fed.R.Evid. 403.   This court will not reverse a decision to exclude evidence as tangential under Rule 403 unless it constitutes an abuse of discretion.   See, e.g., In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 840 (2d Cir.1992).   Here no such abuse occurred.

26
Townsend contends that the excluded testimony was necessary to establish a proper motive for the automatic taping, i.e., to capture the harassing phone calls made to him on tape.   There was, however, no established connection between these phone calls and the excluded evidence.   Since Townsend was able to testify about the harassing phone calls, it was not error for the court to exclude the far less relevant testimony concerning Townsend's conflict with the former sheriff.

27
Moreover, 18 U.S.C. § 2511(a)(1) only requires intentional interception of communications, not willful interception.   The question of whether the defendant had a good or evil purpose in utilizing the automatic recording equipment is, therefore, irrelevant.   See S.Rep. No. 541 99th Cong., 2d Sess. 23 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3578.   All that is relevant is that Townsend intentionally intercepted communications between two unknowing and unconsenting individuals.

28
Finally, even if evidence of motivation had in some way been relevant, Townsend cannot complain that he was not provided with an opportunity to present such evidence.   Townsend testified at length as to the harassing phone calls, which were the only reliable evidence of motive.   The other evidence was only probative of Townsend's dispute with the former sheriff, not the harassing phone calls, and was properly excluded.

CONCLUSION

29
Based on the foregoing, the judgment of the district court is affirmed.


                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 11-3076
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                             OLAJIDE ABDUL-GANIU,
                                    Appellant
                                 _____________

                   On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              District Court No. 2:10-cr-16
                 District Judge: The Honorable David Stewart Cercone

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  April 17, 2012

               Before: SCIRICA, AMBRO, and SMITH, Circuit Judges

                                 (Filed: May 3, 2012)
                               ____________________

                                     OPINION
                               ____________________

SMITH, Circuit Judge.

      A jury convicted Olajide Abdul-Ganiu of possession with the intent to distribute

100 grams or more of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(i) and

of importing a controlled substance into the United States in violation of 21 U.S.C.
§§ 952(a) and 960(b)(2)(A).       This timely appeal followed, challenging both his

conviction and his sentence. 1 For the reasons set forth below, we will affirm.

                                            I.

       Abdul-Ganiu challenges the validity of the second search warrant, the execution

of which resulted in the seizure of evidence from his North Avenue apartment supportive

of his intent to distribute heroin. 2 In his view, the District Court erred because, in

concluding that the second search warrant was supported by probable cause, the Court

considered the averments of an earlier anticipatory search warrant for an express mail

package from India containing 246 grams of heroin in the false bottom of a shirt box that

was the subject of a controlled delivery. As a result, Abdul-Ganiu contends that the

Court deviated from the well established rule that the probable cause determination must

be confined to the four corners of the affidavit in support of the search warrant. Without

the averments from the first search warrant, Abdul-Ganiu submits that the affidavit in

support of the second search warrant failed to establish that there was a nexus between

the controlled delivery and his North Avenue apartment. Furthermore, Abdul-Ganiu

asserts that the deficiencies in the second search warrant cannot be remedied by

1
   The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
   In reviewing the District Court’s denial of a motion to suppress, we apply a clear error
standard to the District Court’s factual findings and conduct plenary review of the
District Court’s application of law to fact. United States v. Stabile, 633 F.3d 219, 230
(3d Cir. 2011).

                                             2
application of the good faith exception to exclusionary rule established in United States

v. Leon, 468 U.S. 897 (1984).

       In United States v. Stearn, 597 F.3d 540 (3d Cir. 2010), we explained that a

magistrate judge may not infer probable cause to search a defendant’s residence or

property solely because there is evidence that he has committed a crime involving drugs.

Id. at 559. Rather, we instructed that there must be “some evidence that the home

contains contraband linking it to the drug dealer’s activities[.]” Id. (quoting United

States v. Burton, 288 F.3d 91, 104 (3d Cir. 2002)). This requirement, we pointed out,

moored the inferences of drug dealing “back to the ‘practical, common-sense decision,

whether, given all the circumstances set forth in the affidavit . . . there is a fair

probability that contraband or evidence of a crime will be found in a particular place.’”

Id. (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). In other words, there must be a

nexus between a defendant’s drug activity and the place to be searched. The nexus, we

noted, may be established by numerous factors, including “a defendant’s attempts to

evade officers’ questions about his address, the conclusions of experienced officers

‘regarding where evidence of a crime is likely to be found,’. . . [and] probable cause to

arrest the defendant on drug-related charges[.]” Id. at 559-60 (footnotes omitted).

       The probable cause affidavit in support of the search warrant for the North

Avenue apartment did not incorporate the earlier anticipatory search warrant. As a

result, the second search warrant does not present a clear picture of Abdul-Ganiu as a

drug dealer, as there was only a single controlled delivery without any averment as to the
                                            3
quantity of heroin involved. But the parcel had been opened within minutes of its

delivery and Abdul-Ganiu was apprehended carrying the heroin. After being advised of

his Miranda rights, 3 Abdul-Ganiu became nervous and claimed that he had not violated

the law as he ordered clothing from India. He admitted, however, that the parcel was for

him and acknowledged receiving other parcels from India. He then denied receiving

parcels from India, stated this was his first parcel from India, and said that he had

received other packages from China which contained clothes. These averments were

sufficient to support an inference that Abdul-Ganiu had been involved in similar drug

activity on more than one occasion.

       The affidavit also linked Abdul-Ganiu’s drug activity with his North Avenue

apartment. Abdul-Ganiu identified himself as a Nigerian citizen, but claimed that his

brother, a truck driver who was on the road, possessed his immigration documents. He

readily consented to a search of his rental vehicle and executed a consent to search form.

Abdul-Ganiu’s responsiveness to questioning changed, however, when they showed him

a piece of mail addressed to him at the North Avenue address. He asserted his brother

lived at the address.     Although Abdul-Ganiu acknowledged that his immigration

documents were located at that apartment, he declined the offer of the agents to

accompany him there to retrieve the immigration documents. Instead, Abdul-Ganiu

indicated his desire to call his brother and stated that he did not “want security officers

going to his residence and angering his brother.”          The law enforcement agents

3
    See Miranda v. Arizona, 384 U.S. 436, 467-73 (1966).
                                            4
subsequently learned from the rental agent that Abdul-Ganiu had leased the North

Avenue apartment and occasionally allowed his brother to stay there. Mail delivered to

the North Avenue apartment, however, was addressed only to Abdul-Ganiu.              This

evasive behavior was sufficient to establish a link between Abdul-Ganiu’s drug activity

and his North Avenue apartment, which the agents had verified was in fact leased by

Abdul-Ganiu. Stearn, 597 F.3d at 559-60 (noting that a defendant’s attempts to evade

officers’ questions is one of many factors that “help establish the required nexus between

a defendant’s drug-dealing activities and his home”).

      Accordingly, we conclude that the second search warrant for the North Avenue

apartment contained sufficient averments to link Abdul-Ganiu’s drug activity with his

North Avenue apartment. Even if we were to conclude that the averments failed to

establish the requisite nexus, we would not set aside the District Court’s order denying

the motion to suppress. Leon’s good faith exception applies, as the law enforcement

agents reasonably relied on the issuance by the magistrate judge of the second search

warrant. 468 U.S. at 922.

                                           II.

      Abdul-Ganiu asserts that the District Court also erred when it rejected his request

to instruct the jury on the applicable five-year mandatory minimum sentence. 4 He

4
    “We review a district court’s decisions regarding jury instructions for abuse of
discretion. We will order a new trial on account of a district court’s refusal to give a
proposed jury instruction only when the requested instruction was correct, not
substantially covered by the instructions given, and was so consequential that the refusal
                                            5
acknowledged that existing authority weighs against his argument, for “[i]t is well

established that when a jury has no sentencing function, it should be admonished to

‘reach its verdict without regard to what sentence might be imposed.’” Shannon v.

United States, 512 U.S. 573, 579 (1994) (quoting Rogers v. United States, 422 U.S. 35,

40 (1975)). This is because “as a general matter, jurors are not informed of mandatory

minimum or maximum sentences, nor are they instructed regarding probation, parole, or

the sentencing range accompanying a lesser included offense.” Id. at 586-87.

       Abdul-Ganiu contends that the legal landscape has evolved to the point that the

general principles noted above are no longer good law. As persuasive authority, Abdul-

Ganiu cites a decision from the Eastern District of New York. United States v. Polizzi,

549 F. Supp. 2d 308, 405 (E.D.N.Y. 2008), reversed sub nom. United States v. Polouizzi,

564 F.3d 142, 160 (2d Cir. 2009). We are not persuaded, and will heed the Supreme

Court’s instruction that its “decisions remain binding precedent until [it] see[s] fit to

reconsider them, regardless of whether subsequent cases have raised doubts about their

continuing vitality.” Hohn v. United States, 524 U.S. 236, 252-53 (1998); see also

Agostini v. Felton, 521 U.S. 203, 237 (1997) (“reaffirm[ing] that ‘[i]f a precedent of this

Court has direct application in a case, yet appears to rest on reasons rejected in some

other line of decisions, the Court of Appeals should follow the case which directly

to give the instruction was prejudicial to the defendant.” United States v. Hoffecker, 530
F.3d 137, 167 (3d Cir. 2008) (internal quotation marks and citation omitted).
                                            6
controls, leaving to this Court the prerogative of overruling its own decisions’” (citation

omitted)). Abdul-Ganiu is, of course, free to make this argument to the Supreme Court.

                                           III.

       Abdul-Ganiu argues that his conviction should be set aside as he was deprived of

his Sixth Amendment right to a public trial when the District Court held a portion of the

voir dire proceedings outside the presence of the public. Because Abdul-Ganiu did not

object to the District Court’s decision to conduct a portion of the voir dire behind closed

doors, our review is for plain error. United States v. Bansal, 663 F.3d 634, 661 (3d Cir.

2011). After consideration of the record before us, we conclude that this claim, both

factually and legally, is indistinguishable from the claim pressed in Bansal. As in

Bansal, we conclude that the circumstances, given our review for plain error, do not

warrant an order setting aside Abdul-Ganiu’s conviction.

       Abdul-Ganiu also seeks to vacate his conviction on the ground that his Sixth

Amendment right to a public trial was violated when the government’s case agent

approached two individuals seated in the courtroom who were observing the proceeding,

and asked them questions about their immigration status. The government’s contact, in

Abdul-Ganiu’s view, intimidated one of the individuals, and resulted in that person

choosing not to observe the balance of the proceeding. Abdul-Ganiu timely objected to

the government’s conduct as an infringement of his Sixth Amendment right to a public

trial. Accordingly, our review is plenary. United States v. Lnu, 575 F.3d 298, 300 (3d

Cir. 2009).
                                            7
       The Sixth Amendment guarantees the accused “the right to a . . . public trial[.]”

U.S. Const. amend. VI. “The requirement of a public trial is for the benefit of the

accused; that the public may see he is fairly dealt with and not unjustly condemned[.]”

Waller v. Georgia, 467 U.S. 37, 46 (1984) (internal quotation marks and citation

omitted). In Presley v. Georgia, __ U.S. __, 130 S. Ct. 721, 725 (2010), the Supreme

Court instructed that “[t]rial courts are obligated to take every reasonable measure to

accommodate public attendance at criminal trials.”

       Given the circumstances in this case, we conclude that the government’s action

did not constitute a Sixth Amendment violation. The record establishes that neither

member of the public was excluded from observing the proceeding.                  In fact, the

government’s inquiries were made while the Court recessed for lunch. When Court

resumed, defense counsel raised its concern with the Court. The Court asked what the

defense was “seeking as a remedy?” Counsel replied: “Instruction not to do that. I

would like to know the purpose of it . . . .” The Court agreed to the request for an

instruction, and ordered the government to refrain from contacting any members of the

public while they were in the courtroom. Accordingly, we conclude that Abdul-Ganiu

was not deprived of his right to a public trial and that the Court fulfilled its obligation “to

accommodate public attendance at criminal trials.” Presley, 130 S. Ct. at 725.

                                             IV.

       Abdul-Ganiu also challenges the propriety of the District Court’s order at

sentencing that he surrender his Nigerian passport. We conclude that Abdul-Ganiu lacks
                                              8
standing to contest the District Court’s directive as passports are the property of the

issuing sovereign, not the holder of the passport. See Richard A.C. Alton & Jason Reed

Struble, The Nature of a Passport at the Intersection of Customary International Law

and American Judicial Practice, 16 Ann. Surv. Int’l & Comp. L. 9, 15 (2010); Cf. 22

C.F.R. § 51.7 (providing that “[a] passport at all times remains the property of the United

States”).

                                            9


                                                                            FILED
                               NOT FOR PUBLICATION                           JAN 11 2010

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS

                               FOR THE NINTH CIRCUIT

 JOSE LUIS REBOLLEDO RODRIGUEZ,                   No. 08-72140

                Petitioner,                       Agency Nos. A095-196-303
                                                             A095-196-304
    v.

 ERIC H. HOLDER Jr., Attorney General,            MEMORANDUM *

                Respondent.

                        On Petition for Review of an Order of the
                            Board of Immigration Appeals

                                                            **
                              Submitted December 15, 2009

Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.

         Jose Luis Rebolledo Rodriguez, a native and citizen of Mexico, petitions pro

se for review of the Board of Immigration Appeals’ denial of his fourth motion to

reopen the underlying denial of his application for cancellation of removal.

           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
           **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

jlf/Inventory
         Petitioner sought to reopen based on new evidence to establish the requisite

hardship to his qualifying relatives by providing evidence that his United States

citizen son Angel has developed severe asthma and a speech impairment, and

petitioner has a newborn United States citizen child.

         The BIA did not abuse its discretion in denying petitioner’s fourth motion to

reopen as untimely and numerically barred, and the motion did not meet any of the

regulatory exceptions. See 8 C.F.R. § 1003.2(c)(2) - (3). Because the motion is

time and numerically barred, we deny the petition for review, and we need not

address petitioner’s remaining challenge.

         PETITION FOR REVIEW DENIED.

jlf/Inventory                               2                                   08-72140


647 F.2d 1005
1981-1 Trade Cases   64,098
PETROL STOPS NORTHWEST, Plaintiff-Appellee,v.CONTINENTAL OIL COMPANY and Douglas Oil Company ofCalifornia, Defendants- Appellants,andGeorge Edward Clark and William L. Martin, II, Applicantsfor Intervention.PETROL STOPS NORTHWEST, Plaintiff-Appellee,v.CONTINENTAL OIL COMPANY and Douglas Oil Company ofCalifornia, et al., Defendants,andGeorge Edward Clark and William L. Martin, II, Appellantsand Applicants for Intervention.
Nos. 80-5321, 80-5320, and 80-5470.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Jan. 13, 1981.Decided June 12, 1981.Rehearing Denied Aug. 12, 1981.

Stuart P. Jasper, Los Angeles, Cal., for defendants-appellants.
Smaltz & Neelley, Los Angeles, Cal., for Clark.
Thomas Burton, Houston, Tex., for Continental.
Jay D. Gurmankin, Salt Lake City, Utah, for Petrol; Richard Casey, Salt Lake City, Utah, on brief.
Appeal from the United States District Court for the District of Arizona.
Before PREGERSON and ALARCON, Circuit Judges, and SMITH*, District Judge.
PREGERSON, Circuit Judge:

1
These consolidated appeals stem from efforts by Petrol Stops Northwest (Petrol Stops), a private antitrust plaintiff, to gain access to testimony and documents given to a grand jury during an investigation that led to a criminal antitrust indictment against appellant Douglas Oil Company (Douglas), one of the defendants in Petrol Stops's civil suit.  The matter is before us for the second time.  In an earlier opinion we affirmed a district court's order granting Petrol Stops's request.  Petrol Stops Northwest v. United States, 571 F.2d 1127 (9th Cir. 1978).  The Supreme Court reversed, however, because the California district court having custody of the grand jury materials had acted without drawing on the superior knowledge of the Arizona district court where the civil suit was pending.  Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979).  On remand the procedure outlined by the Supreme Court has been followed by the two district courts and has resulted in a new order by the Arizona district court granting Petrol Stops the access it seeks.  Appellants appeal from this order.  The individual appellants appeal also from the denial of their motion to intervene.  We affirm, but vacate the Arizona district court's attempted modification of the order from which two of these appeals are taken.

I.

2
In December 1973, Petrol Stops filed a civil antitrust action in the District Court for the District of Arizona against twelve oil companies, including Douglas and its parent, appellant Continental Oil Company (now Conoco).  While this proceeding was in a pre-trial stage, a lengthy federal investigation in the Central District of California culminated in March 1975 in a grand jury indictment of six companies, including Douglas and the Phillips Petroleum Company (Phillips), for conspiring to fix prices.  All defendants in this criminal prosecution initially pleaded not guilty but changed their pleas to nolo contendere.  Before changing their pleas, Douglas and Phillips asked the District Court for the Central District of California for transcripts of the testimony their employees had given before the grand jury; this request was granted.

3
In December 1976, Petrol Stops petitioned the District Court for the Central District of California, under Fed.R.Crim.P. 6(e), for disclosure of the transcripts furnished to Douglas and Phillips and the documents subpoenaed by the grand jury from those companies.  The district court granted Petrol Stops's petition, subject to protective conditions, and we affirmed.  Petrol Stops Northwest v. United States, 571 F.2d 1127 (9th Cir. 1978).

4
The Supreme Court reversed, holding that the California district court had abused its discretion by evaluating Petrol Stops's need for the transcripts and documents without sufficient knowledge of the details of the civil suit pending in Arizona.  Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 228-29, 99 S.Ct. 1667, 1677-1678, 60 L.Ed.2d 156 (1979).  The Court directed that, upon remand, the California district court should make a written evaluation of the need for continued grand jury secrecy and a preliminary determination of the appropriateness of disclosure.  The materials were then to be sent to the Arizona district court, which would make the final determination on whether to grant disclosure.

5
That procedure has now been followed.  The California district court, after a hearing, filed on February 6, 1980 its preliminary determination that the need for continued grand jury secrecy should be "lightly weighted."  The requested materials were then forwarded to Arizona where a hearing was held on March 31 on Petrol Stops's petition for disclosure.  On April 3, 1980, the Arizona district court granted Petrol Stops access to the requested materials, finding that portions of the transcripts could be used "to impeach, refresh the recollection, or test the credibility of witnesses, who testified before the grand jury."

6
At the March 31 hearing, counsel for appellants Clark and Martin appeared and sought to be heard on the merits of Petrol Stops's petition.  Clark and Martin were former Douglas executives whose testimony before the Central District of California grand jury was among that which Petrol Stops was seeking.  The court refused to hear any arguments on their behalf until they properly sought to intervene, pursuant to Fed.R.Civ.P. 24.  On April 10, 1980 (a week after Petrol Stops's disclosure petition had been granted) Clark and Martin formally moved to intervene in the action to oppose disclosure.  After a hearing, on April 21, the court entered an order denying the application to intervene as untimely and because the would-be intervenors failed to show that their interests were not adequately protected by the existing parties.  The court also found that intervention would "unduly prejudice" Petrol Stops.  After rehearing, the court reaffirmed its denial of the intervention motion and noted its suspicion that Douglas was attempting to relitigate the issues by sponsoring closely allied interests.

II.

7
Appellants Douglas and Conoco contend that the Arizona district court abused its discretion by ordering disclosure of the testimony of their employees.  They argue that the grand jury testimony is not relevant to the civil action, that no particularized or compelling need for the disclosure has been shown, and that it was error to grant Petrol Stops full access to all the requested materials rather than limiting access to "discrete portions" for which a "particularized need" had been shown.

8
Grants of disclosure under Fed.R.Crim.P. 6(e) are reviewed for abuse of discretion.  See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 228, 99 S.Ct. 1667, 1677, 60 L.Ed.2d 156 (1979); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399, 79 S.Ct. 1237, 1240-1241, 3 L.Ed.2d 1323 (1959).  To decide whether the Arizona district court abused its discretion, we must consider its decision in light of the California district court's prior determination, after remand from the Supreme Court, that the interest in continued grand jury secrecy was slight. "(A)s the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification."  Douglas Oil Co. v. Petrol Stops Northwest, supra, 441 U.S. at 223, 99 S.Ct. at 1675.  The California district court examined those considerations1 and found them only minimally implicated here.2 Given that determination, we cannot say that it was an abuse of discretion for the Arizona court to find that Petrol Stops's need for disclosure of the contested transcripts and documents outweighed the need for continued grand jury secrecy.  Nor did the court abuse its discretion in determining that Petrol Stops had shown a compelling and particularized need to use the transcripts and documents to impeach, refresh recollections, and test credibility.

III.

9
Appellants Clark and Martin contend that the Arizona district court erred in denying their request for intervention as of right.  They also assert that grand jury witnesses are entitled to notice and an opportunity to be heard in response to a petition to disclose their testimony to civil plaintiffs.

10
The latter assertion, though novel, is not without merit.  Under different circumstances we might find it compelling.3 Here, however, Clark and Martin did have notice of Petrol Stops's petition and filed objections to it prior to the March 31 hearing before the Arizona district court.  Hence the question of their right to notice is irrelevant to the issues on this appeal.  As for appellants' claim of a right to be heard, we believe this is properly evaluated by applying the standards for intervention as of right under Fed.R.Civ.P. 24(a)(2).4

11
Denial of a motion to intervene as of right is an appealable final order.  Blake v. Pallan, 554 F.2d 947, 951 n.5 (9th Cir. 1977).  A motion to intervene meets the requirements of Fed.R.Civ.P. 24(a)(2) for intervention as of right if: (1) the motion is timely; (2) the movant asserts an interest relating to the property or transaction that is the subject of the action; (3) without intervention the disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest; and (4) that interest is inadequately represented by the other parties.  County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir. 1980).  In its April 23, 1980 order the Arizona district court based its denial of Clark and Martin's motion on untimeliness and on the fact that "(t)he arguments available to Petitioner Clark have already been thoroughly and capably presented by Defendants Phillips and/or Douglas."

12
We will overturn a district court ruling that an intervention motion is untimely only if the court abused its discretion.  NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973).  There was no abuse of discretion here.  We have previously stated that the factors usually weighed in determining timeliness are the stage of the proceedings, the reasons for and length of the delay, and the prejudice to other parties if intervention is permitted.  Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir.)  (per curiam), cert. denied sub nom.  Beaver v. Alaniz, 439 U.S. 837, 99 S.Ct. 123, 58 L.Ed.2d 134 (1978).  Here, the district court found that Martin was aware by March 7, 1978 that Petrol Stops sought his grand jury testimony.5 Yet Martin and Clark's counsel first expressed a desire to be heard on behalf of his clients on March 27, 1980.  In its supplemental memorandum filed after rehearing the motion to intervene, the court further noted that before entering a nolo contendere plea in the criminal proceeding in December 1975, Douglas had requested transcripts of all testimony by its employees, and that Petrol Stops had filed its original petition for the grand jury testimony in December 1976.  In light of this chronology, we cannot find that the Arizona district court abused its discretion in denying the motion to intervene as untimely.

13
Moreover, the district court also considered the extent to which permitting intervention would prejudice Petrol Stops perhaps the most important factor in determining the timeliness of a motion to intervene as of right.  McDonald v. E. J. Lavino Co., 430 F.2d 1065, 1073 (5th Cir. 1970).  In its supplemental memorandum the court summarized the effect of the proposed intervention on Petrol Stops:

14
The proposed intervenors first appeared in this case years after plaintiff's original petition for the grand jury transcripts, one working day before a hearing which may have yielded plaintiff's long sought remedy, and with pleadings arguing that all, not simply Martin and Clark's grand jury testimony, should not be turned over to plaintiff.

15
The court concluded that Petrol Stops "would be greatly and unjustly prejudiced by the arrival of intervenors at this late stage of the proceedings."  Thus the crucial prejudice factor, as well as considerations of chronology, supports the court's finding that the intervention motion was untimely.

IV.

16
Appellants Douglas and Conoco challenge the district court's attempt to modify its order of April 3, 1980 by providing, in a minute order dated October 20, 1980, that Petrol Stops "be granted leave to examine such Grand Jury documents, and copy such documents as (it) may find material for the trial of this case."  The April 3 order, from which Appeals Nos. 5320 and 5321 were taken, provided that "no transcript or copy provided pursuant to this Order shall be further copied or reproduced in whole or in part."

17
Appellants filed their notice of appeal on April 30, 1980.  This step transferred jurisdiction over any matters involved in the appeal from the district court to this court.  G & M, Inc. v. Newbern, 488 F.2d 742, 746 (9th Cir. 1973).  Even if the district court's October 20 minute order may be characterized as mere correction of a "clerical mistake" or "oversight" pursuant to Fed.R.Civ.P. 60(a), the district court was without power to issue that order without obtaining leave of this court.  Huey v. Teledyne, Inc., 608 F.2d 1234, 1237 (9th Cir. 1979).

18
Accordingly, we vacate the October 20, 1980 minute order.  On remand, the district court will have jurisdiction properly to amend its April 3 order should it determine that modification is appropriate.

19
The minute order of October 20, 1980 is vacated.  The April 3, 1980 order granting Petrol Stops access to the documents at issue is affirmed, as is the denial of appellants Clark and Martin's motion to intervene.  The case is remanded for further proceedings in conformity with this opinion.

*
 The Honorable Russell E. Smith, Senior District Judge for the District of Montana, sitting by designation

1
 The California district court relied on the five reasons for grand jury secrecy that the Supreme Court had approved in United States v. Procter & Gamble Co., 356 U.S. 677, 681 n.6, 78 S.Ct. 983, 986 n.6, 2 L.Ed.2d 1077 (1958), and reaffirmed in Douglas Oil Co. v. Petrol Stops Northwest, supra, 441 U.S. at 219 n.10, 99 S.Ct. at 1673, n.10.  These are:
(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial when there was no probability of guilt.

2
 The California district court noted that the first three reasons for grand jury secrecy were "of no pertinence whatsoever" in the instant case, since the grand jury was no longer in session and the criminal proceedings had terminated.  The weight of the fourth factor encouraging untrammeled disclosure was sharply reduced by the fact that the transcripts Petrol Stops sought had already been released to Douglas and Phillips, so that disclosure to Petrol Stops would create no additional risk of reprisal by Douglas and Phillips against employees who had testified.  The relevance of the fifth factor was greatly diminished because Douglas and Phillips had pleaded nolo contendere

3
 We note that the Eighth Circuit approved a district court's order that provided that witnesses whose transcribed grand jury testimony was to be disclosed would be notified of that fact and given an opportunity, should they so desire, to read the portions of their testimony that were to be disclosed.  In re Disclosure of Testimony Before the Grand Jury, 580 F.2d 281 (8th Cir. 1978)

4
 Fed.R.Civ.P. 24(a)(2) provides:
Upon timely application anyone shall be permitted to intervene in an action: (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

5
 The district court was unable to determine when Clark first became aware that his testimony was sought.  The burden is on Clark, however, to demonstrate that the conditions for intervention, including timeliness, were satisfied.  United States Postal Service v. Brennan, 579 F.2d 188, 191 (2nd Cir. 1978)


819 So.2d 429 (2002)
Billye S. COHEN, et vir.
v.
BROOKSHIRE BROTHERS INC., et al.
No. 01-1159.
Court of Appeal of Louisiana, Third Circuit.
June 5, 2002.
*430 Chris Smith, III, The Smith Law Firm, L.L.P., Leesville, LA, for Plaintiffs/Appellants, Billye S. Cohen, et vir.
David A. Hughes, Hughes & Lafleur, Alexandria, LA, for Defendant/Appellee, Brookshire Grocery Company.
Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD, JIMMIE C. PETERS, MICHAEL G. SULLIVAN and ELIZABETH A. PICKETT, Judges.
COOKS, Judge.
The plaintiffs, Billye Cohen and Harold W. Cohen (the Cohens), appeal the judgment of the trial court finding their original suit did not interrupt prescription, and dismissing their lawsuit with prejudice. For the reasons which follow, we reverse the judgment of the trial court and remand this action for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND
This action arises out of a slip and fall incident in a Super 1 Food Store located at 604 MacArthur Drive, in Alexandria, Louisiana. On June 22, 1998, while shopping with her husband, Mrs. Billye Cohen alleges she slipped and fell, as a result of water running from beneath a produce bin. She and her husband subsequently filed an action for personal injuries on June 21, 1999.
In the petition, plaintiffs named as defendants, Brookshire Brothers Inc./Super 1 Foods, and its insurer, XYZ Insurance Company. The Super 1 Food Store at 604 MacArthur Drive is actually owned and operated by Brookshire Grocery Company, a Texas corporation with the CT Corporation as its agent for service of process in the state of Louisiana. The Cohens attempted to request service on Brookshire Brothers, Inc. through CT Corporation Systems in Baton Rouge, Louisiana, the entity whom they believed was the agent for service of process designated by the owner/operator of the Super 1 Food Store.
After becoming aware Brookshire Brothers, Inc. was not the proper name for the defendant, the Cohens filed a First Amended and Supplemental Petition naming "Brookshire Foods Stores, L.L.C./Super 1 Foods" as the defendant on August 25, 1999. This petition named Marvin Massey of Tyler, Texas as its agent for service of process. Service was made on Massey, through the Louisiana Long Arm statute, on September 3, 1999. Massey forwarded the petition to Brookshire Grocery Company on September 7, 1999.
In response to the Cohen's First Amended and Supplemental Petition, Brookshire Grocery Company filed dilatory exceptions of insufficiency of citation, insufficiency of service of process, and a peremptory exception of prescription on September 16, 1999.
Learning from Defendant's pleadings they again improperly named it, the Cohens *431 filed a Second Supplemental and Amending Petition on October 3, 2000, substituting the name Brookshire Grocery Company/Super 1 Foods as the proper defendant. CT Corporation System of Baton Rouge was served again as its agent for service of process.
On January 3, 2001, Brookshire Grocery renewed its exceptions of insufficiency of citation, insufficiency of service of process, and prescription. After a hearing on the exceptions, the trial court issued written reasons on February 28, 2001, finding the filing of the original suit did not interrupt prescription, and dismissing the Cohen's lawsuit with prejudice. The Cohens appeal the trial court's judgment.

ANALYSIS
The question before us is whether plaintiffs' Second Supplemental and Amending Petition relates back to the date of filing of the original petition on June 21, 1999. La. Code Civ.P. art. 1153 provides as follows:
When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.
The supreme court in Ray v. Alexandria Mall, Through St. Paul Property & Liab. Ins., 434 So.2d 1083, 1087 (La.1983), established the following criteria for determining whether article 1153 allows an amendment which changes the identity of the party defendant to relate back to the original petition:
(1) The amended claim must arise out of the same transaction or occurrence set forth in the original pleading;
(2) The purported substitute defendant must have received notice of the institution of the action such that he will not be prejudiced in maintaining a defense on the merits;
(3) The purported substitute defendant must know or should have known that but for a mistake concerning the identity of the proper party defendant, the action would have been brought against him;
(4) The purported substitute defendant must not be a wholly new or unrelated defendant, since this would be tantamount to assertion of a new cause of action which would have otherwise prescribed.
The trial court examined this case in light of Ray and concluded that the second and fourth prong of the Ray requisites were not met. The trial court reasoned as follows:
This action began with the filing of the suit on June 21, 1999. Brookshire Grocery Company did not receive notice regarding the suit until over two months later. Defendants argue that no one with Brookshire Grocery Company was aware of the filing of the instant suit until a copy of the original and First Amended and Supplemental Petition was received on September 7, 1999 by Marvin Massey, the chief financial officer of Brookshire Grocery Company. It was not until over a year later that the proper defendant was served properly with the Second Amended and Supplemental Petition regarding the instant suit. As stated earlier, Brookshire Grocery Company is a Texas corporation with C.T. Corporation Systems of Baton Rouge, Louisiana as its agent for service of process in the State of Louisiana. Defendant's notice of the institution of the action was hindered in such a way that could prejudice defendant in maintaining a defense of this action.
Further, Brookshire Grocery Company has asserted that it is no way affiliated with the initial defendant in this *432 action, Brookshire Brothers. The Court in the Ray matter provided that the substitute defendant must not be a wholly new or unrelated defendant. Because Brookshire Grocery Company and Brookshire Brothers are two independent, unrelated companies, another prong of the Ray test is not satisfied. This fact joined with other mentioned facts support defendant's assertion that the amendments made following the initial pleadings do not satisfy the Ray requisites and thus, do not interrupt prescription.
Applying the Ray criteria to the facts of the present case, we first note the amended claim clearly arose out of the same occurrence set forth in the original pleading, namely, the slip and fall at the Super 1 Foods store. As to the third criteria, the defendant should have known that but for plaintiffs' mistake in suing the similarly named Brookshire Brothers, Inc., the action would have been brought against it.
The trial court found plaintiffs did not satisfy the fourth prong of the Ray test. We disagree. Brookshire Grocery Company was not a wholly new or unrelated defendant. The original petition clearly establishes plaintiffs intended to sue the owner-operator of the Super 1 Food Store located at 604 MacArthur Drive, in Alexandria, Louisiana. There was only one such store at that location, much as there was only one Alexandria Mall in Ray. Noting the number of Texas corporations named Brookshire, i.e, Brookshire Brothers, Inc., Brookshire Food Stores, L.L.C., and Brookshire Grocery Company, it was not unreasonable for plaintiffs to twice misname the defendant. Yet, in each petition, plaintiffs made clear that they intended to pursue a claim against the business known as Super 1 Food Store operating at 604 MacArthur Drive, in Alexandria, Louisiana. These facts clearly present a case of an amending petition correcting a misnomer rather than adding a wholly new and unrelated defendant. Ray, 434 So.2d 1083; See also Sonnier v. Norwood Constr. Co., 617 So.2d 580 (La.App. 3 Cir. 1993); Sutton v. Short Stop Hamburgers, 31,841 (La.App. 2 Cir. 5/5/99), 737 So.2d 157.
The trial court also found the second prong of the Ray test was not met, specifically finding the defendant's "notice of the institution of the action was hindered in such a way that could prejudice [it] in maintaining a defense of this action." The supreme court in Findley v. City of Baton Rouge, 570 So.2d 1168, 1170 (La.1990) discussed in detail the second Ray criteria, stating as follows:
The gravamen of the second criteria is prevention of prejudice to the defendant in preparing and conducting its defense. A fundamental purpose of prescriptive statutes is to protect a defendant from stale claims and from the loss or non-preservation of relevant proof. Prescriptive statutes seek to prevent prejudice to a defendant either by a delay in notification of the claim (the prejudice usually being the deprivation of an opportunity to perform a timely investigation of the claim) or by the loss of documents or witnesses which the defendant would have gathered or preserved if timely notified. Tate, Amendment of Pleadings in Louisiana, 43 Tulane Law Review 211 (1969). While designed to protect a defendant against prejudice from lack of notification of a claim within the period of limitation, prescriptive statutes are not designed to protect a defendant against non-prejudicial pleading mistakes that his opponent makes in filing the claim within the period. Allstate Insurance Co. v. Theriot, 376 So.2d 950 (La.1979); Giroir v. South Louisiana Medical Center, 475 So.2d 1040 (La. *433 1985). The federal courts have liberally applied the doctrine of relation back, especially if no disadvantage will accrue to the opposing party. Williams v. United States, 405 F.2d 234 (5th Cir. 1968); 1A Barron & Holt, Federal Practice and Procedure § 448 (Wright ed.1960).
In the present case we do not find any essential protective purpose of the prescriptive statute is violated by permitting relation back. Although the original pleading named "Brookshire Brothers Inc./Super 1 Foods" as defendant, rather than "Brookshire Grocery Company," we note the petition requested service of process on Brookshire Brothers, Inc. through CT Corporation Systems in Baton Rouge, Louisiana. CT Corporation Systems was in fact Brookshire Grocery Company's agent for service of process in Louisiana as well. The original petition also clearly established that plaintiffs intended to sue the owner-operator of the Super 1 Food Store located at 604 MacArthur Drive, in Alexandria, Louisiana. Thus, the original pleading should have informed defendant's agent for service that judicial relief was being sought from Brookshire Grocery Company; and it should have been put on notice and had opportunity to collect and preserve the evidence.
The doctrine of relation back of amended pleadings should be liberally applied, particularly in the absence of prejudice. Giron v. Housing Auth. of Opelousas, 393 So.2d 1267 (La.1981); Strouse v. M & M Properties, 32,792 (La.App. 2 Cir. 3/3/00), 753 So.2d 434. Prescription statutes are designed to protect defendants against lack of notification of a formal claim within the prescriptive period, not to protect against pleading mistakes that an opponent makes in filing the formal claim within the period. Giroir v. South Louisiana Medical Center, Division of Hospitals, 475 So.2d 1040 (La.1985); Gorham v. HCA Health Services of Louisiana, 34,721 (La.App. 2 Cir. 5/17/01), 786 So.2d 348.
We conclude the amended petition naming Brookshire Grocery Company as defendant relates back under La.Code Civ.P. art. 1153 to the date of filing of the original petition. Accordingly, the trial court's judgment to the contrary dismissing plaintiffs' lawsuit with prejudice is reversed. The case is remanded to the district court for further proceedings. All costs of this appeal are assessed against defendant-appellee, Brookshire Grocery Company.
REVERSED AND REMANDED.
SULLIVAN, J. dissents and assigns written reasons.
PETERS, J. dissents for the reasons assigned by SULLIVAN.
SULLIVAN, J., dissenting.
I respectfully disagree with the majority's conclusion that because there were three Texas corporations with Brookshire in their names "it was not unreasonable for plaintiffs to twice misname[] the defendant." By correspondence dated August 25, 1998, ITT Specialty Risk Services, Inc. (ITT), which provides claim services to Brookshire Grocery Company, responded to a claim filed by Plaintiffs regarding the incident at issue. In that correspondence, ITT denied liability for Plaintiffs' claim, offered to pay $500.00 in medical expenses, and properly identified Brookshire Grocery Company. Accordingly, when suit was filed on June 21, 1999, the information regarding the proper defendant was in Plaintiffs' possession, and the trial court's dismissal with prejudice was proper.


135 Wis.2d 334 (1986)
400 N.W.2d 56
Frank G. GUERTIN, Plaintiff-Appeallant,[]
v.
HARBOUR ASSURANCE COMPANY OF BERMUDA, LTD., International Harvester Company, Royal Insurance Company of America, Ryder Truck Rental, Inc., Edward Krissman, ABC Insurance Company and XYZ Corporation, Defendants-Respondents.
No. 85-2316.
Court of Appeals of Wisconsin.
Submitted on briefs August 5, 1986.
Decided November 21, 1986.
*335 For the plaintiff-appellant the cause was submitted on the briefs of Hope K. Olson and Dean M. Horwitz from the firm of Goldberg, Previant, Uelmen, Gratz, Miller & Brueggeman of Milwaukee.
For the defendants-respondents Harbour Assurance Company of Bermuda, Ltd., and International Harvester Company the cause was submitted on the briefs of Michael J. Gonring from the firm of Quarles & Brady, Milwaukee.
*336 For the defendants-respondents Ryder Truck Rental, Inc. and Edward Krissman the cause was submitted on the briefs of Douglas J. Carroll of Arnold, Murray, O'Neill & Schimmel, Milwaukee.
Before Moser, P.J., Wedemeyer and Sullivan, JJ.
SULLIVAN, J.
Frank G. Guertin appeals a summary judgment dismissing his complaint for personal injuries sustained in Illinois. The trial court applied the borrowing statute, sec. 893.07(1), Stats., and concluded that the action was barred by Illinois's two-year statute of limitations. We agree with the trial court and, accordingly, affirm the judgment.
This case arises out of personal injuries sustained by Guertin on February 15, 1982. Guertin, a truck driver, was hurt when he fell from the fuel tank of his employer's semi-tractor. The semi-tractor, designed and manufactured by International Harvester Company, was sold or leased by Ryder Truck Rental, Inc., to Guertin's employer, JWI Trucking, Inc. Ryder's employee, Edward Krissman, maintained and serviced the truck at Ryder's Milwaukee garage prior to Guertin's injuries. Guertin, a Wisconsin resident, was in Illinois when he fell off the truck.
Guertin commenced this suit in Wisconsin on October 22, 1984, against Harvester, Ryder, Krissman, and their insurers, alleging negligence and strict liability. Harvester moved for dismissal of the complaint on the ground that the action was barred by Illinois's two-year statute of limitations. Harvester's insurer, Harbour Assurance Company of Bermuda, Ltd., moved for dismissal on the grounds of misjoinder and lack of personal jurisdiction. The trial court granted Harvester's motion and therefore declined to address Harbour's motion. *337 Judgment was entered dismissing Guertin's complaint on the merits, and Guertin appeals.
At issue is the meaning of the phrase "foreign cause of action" in sec. 893.07, Stats., which reads as follows:
(1) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies has expired, no action may be maintained in this state.
(2) If an action is brought in this state on a foreign cause of action and the foreign period of limitation which applies to that action has not expired, but the applicable Wisconsin period of limitation has expired, no action may be maintained in this state.
This section replaced sec. 893.205(1), Stats. (1977), which read as follows:
An action to recover damages for injuries to the person [shall be brought within three years]....But no action to recover damages for injuries to the person, received without this state, shall be brought in any court in this state when such action is barred by any statute of limitations of actions of the state or country in which such injury was received unless the person so injured shall, at the time of such injury, have been a resident of this state.
Guertin contends that Wisconsin's "center of gravity" approach to conflict of laws questions must be applied to the various contacts in this case to determine whether his cause of action is foreign. He concludes that Wisconsin has had more significant contacts than Illinois has had in this case. The defendants asserts, a the trial court held, that a cause of action is foreign or local depending on where the cause of action accrues. They reason that no cause of action accrues until there is an injury and that the injury in this case occurred in a *338 foreign state. Hence, they conclude, it is a foreign cause of action. We agree.
The interpretation of a statute is a question of law, which we review without deference to the trial court's reasoning. Town of Seymour v. City of Eau Claire, 112 Wis. 2d 313, 319, 332 N.W.2d 821, 823 (Ct. App. 1983). The primary goal in statutory construction is to give effect to legislative intent. Barth v. Board of Education, 108 Wis. 2d 511, 517, 322 N.W.2d 694, 697 (Ct. App. 1982). A statute, phrase, or word is ambiguous when capable of being interpreted by reasonably well-informed persons in two or more senses. When a statute or part there of is ambiguous, it is permissible to look to the legislative intent, which is to be found in the language of the statute, in relation to the statute's context, scope, history, subject matter, and the object intended to be accomplished. Town of Seymour, 112 Wis. 2d at 319, 332 N.W.2d at 824.
In the context of a personal injury action, the phrase "foreign cause of action" is ambiguous because it can reasonably mean either a cause of action accruing in a foreign state or one with which the foreign state has had more significant contacts. We therefore look to the Judicial Council Committee's 1979 note to sec. 893.07, Stats. (emphasis added):
Sub. (1) applies the provision of s. 893.05 that the running of a statute of limitations extinguishes the right as well as the remedy to a foreign cause of action on which an action is attempted to be brought in Wisconsin in a situation where the foreign period has expired. Sub. (1) changes the law of prior s. 893.205(1), which provided that a resident of Wisconsin *339 could sue in this state on a foreign cause of action to recover damages for injury to the person even if the foreign period of limitation had expired.

Sub. (2) applies the Wisconsin statute of limitations to a foreign cause of action if the Wisconsin period is shorter than the foreign period and the Wisconsin period has run.
This note, in effect, equates an "action to recover damages for injuries to the person, received without this state," sec. 893.205(1), Stats. (1977), with "a foreign cause of action" under sec. 893.07. This note exhibits the history and the object intended to be accomplished by the legislature in adopting sec. 893.07. We agree with the Committee's implicit interpretation.
Guertin relies on Officer Supply Co. v. Basic/Four Corp., 538 F. Supp. 776 (E.D. Wis. 1982), the only decision to date addressing the interpretation of sec. 893.07, Stats. The Officer Supply court applied Wisconsin's center of gravity conflict of laws analysis to the facts of a contract case, concluding that it was not "a foreign cause of action" under sec. 893.07. Id. at 782. Guertin suggests that the center of gravity approach must be used in this case as well, and that such an analysis would show that his cause of action is not foreign. His reliance on Office Supply, however, is misplaced.
In interpreting sec. 893.07, Stats., the Office Supply court said that the legislature's use of the term "foreign cause of action" "suggests that where the cause of action arises in Wisconsin, Wisconsin's statute of limitations is applicable to it." Id. at 782. The court then followed the center of gravity analysis that was used in Air Products & Chemicals, Inc. v. Fairbanks Morse, Inc., 58 Wis. 2d 193, 201-04, 206 N.W.2d 414, 418-19 (1973), to decide a conflict of laws question involving statutes of limitations *340 in a contract case. The Office Supply court used the center of gravity approach to determine where the cause of action arose, 538 F. Supp. at 782, concluding that "the parties' most significant contacts involving the contract are with Wisconsin and thus the cause of action arose in Wisconsin and [Wisconsin's] six-year statute of limitation policy. . . is applicable. . . ."Id.
We agree with the Office Supply court that the phrase "foreign cause of action" refers to a cause of action that arose outside of Wisconsin. We must next determine whether Guertin's cause of action arose in Illinois or Wisconsin.
It may be that a center of gravity analysis must be done to decide where a contract action arose and, hence, whether it is a foreign cause of action. That question, however, is not before us. To determine where Guertin's personal injury action arose, we need only look at where the last element of the cause of action, his injury, took place. Because Guertin was injured in Illinois, his cause of action is foreign for the purposes of sec. 893.07, Stats., and the shorter Illinois statute of limitations applies.
Guertin argues that this interpretation revives the doctrine of lex loci delicti, which states that the court must apply the substantive law of the place of the injury. This doctrine was expressly rejected for conflict of laws questions in favor of the center of gravity approach. See Air Products, 58 Wis. 2d at 202-03, 206 N.W.2d at 418-19. We are dealing here, however, with a question of statutory interpretation, not with a common law conflict of laws question. A borrowing statute would be meaningless if it did not preclude a traditional conflict of laws analysis. If the legislature intended the *341 courts to apply the center of gravity approach to all conflicts between statutes of limitations, it would not have created sec. 893.07, Stats. A statute should not be construed such that any part of its rendered surplusage. We may not presume that any part of a statute, much less an entire statute, is superfluous. See State v. Wisconsin Telephone Co., 91 Wis. 2d 702, 714, 284 N.W.2d 41, 46 (1979).
We conclude that Guertin's complaint addressed a foreign cause of action that arose in Illinois. Illinois's two-year statute of limitations, rather than Wisconsin's three-years statute, applies to bar the action. Sec. 893.07, Stats. We thus affirm the judgment dismissing the complaint on the merits, and it is unnecessary to address whether the court had personal jurisdiction over Harbour.
By the Court.Judgment affirmed.
NOTES
[]  Petition to review granted.