471 F.Supp.2d 1207 (2006)
Jessica SOUTHERN, Plaintiff,
v.
PFIZER, INC., individually and as successor in interest to Parke-Davis and Warner Lambert Company, et al., Defendants.
No. 2:06-CV-836-VEH.
United States District Court, N.D. Alabama, Southern Division.
June 23, 2006.
*1208 *1209 *1210 *1211 Timothy C. Davis, W. Lewis Garrison, Jr., William L. Bross, IV, Heninger Garrison & Davis LLC, Birmingham, AL, for Plaintiff.
Andrew B. Johnson, F.M. Haston, III, Bradley Arant Rose & White, Birmingham, AL, for Defendants.

MEMORANDUM OPINION
HOPKINS, District Judge.
Pending before the court is Plaintiffs Emergency Motion to Remand (doc. 10). This motion has been briefed extensively and is ripe for review. A hearing has not been requested on the instant motion, and the court is satisfied that a decision can be reached based on the papers submitted by the parties.[1] For the reasons stated herein, the Motion to Remand is due to be DENIED.

Procedural History
Plaintiff Jessica Southern commenced this action in the Circuit Court of Jefferson County, Alabama, on March 9, 2006, by filing a Complaint against Defendants Pfizer Inc., individually and as successor in interest to Parke-Davis and Warner-Lambert Company LLC, Tracy Ocampo, and Rochelle Hendricks. Pfizer Inc. is a Delaware corporation having its headquarters in New York. Warner-Lambert Company LLC is a Delaware limited liability corporation with Pfizer Inc. as its sole shareholder. Parke-Davis is an unincorporated division of Warner-Lambert Company LLC, and is not a separate corporation or legal entity. Tracy Ocampo and Rochelle Hendricks are both citizens of Alabama.
Plaintiff Southern is a citizen of Alabama.
*1212 The Complaint asserts claims against all Defendants for violation of the Alabama Extended Manufacturer's Liability Doctrine (AEMLD), failure to warn, breach of an implied warranty of merchantability, breach of an implied warranty of fitness for a particular purpose, breach of an express warranty, unjust enrichment, negligence, fraudulent misrepresentation, negligent and reckless misrepresentation, and civil conspiracy.
Defendants removed this action to the United States District Court for the Northern District of Alabama on April 28, 2006. The basis for removal is that complete diversity among the parties to this action exists due to the fraudulent joinder of Ocampo and Hendricks. On May 5, 2006, Defendants filed a Motion to Stay this action pending transfer of this case to a Judicial Panel on Multidistrict Litigation (hereinafter "MDL") that has been established in the District of Massachusetts.[2] Southern filed an Emergency Motion to Remand on May 10, 2006.

Facts[3]
In November, 2003, Dr. Scott Williams, M.D. prescribed Neurontin to Southern to treat her chronic fatigue syndrome, a condition for which the drug did not have FDA approval. Southern continued taking Neurontin until she attempted suicide on March 15, 2004. Southern alleges that her suicide attempt is the proximate and legal result of ingesting Neurontin.
Neurontin, a product developed, manufactured, and promoted by Defendant Pfizer, Inc. was approved by the FDA in 1993 as adjunctive therapy for the treatment of certain types of epilepsy. During the early to mid 1990's, Defendant Pfizer Inc. filed patents for Neurontin claiming it to be effective in the treatment of depression, neurogenerative disease, mania, bipolar disease, anxiety, and panic. Neurontin was not approved by the FDA for those uses. Neurontin is still sold to consumers in the United States as a prescription medication.
Beginning in 1995, Pfizer Inc. and Warner-Lambert Company LLC (hereinafter "Corporate Defendants") began to craft marketing and sales techniques designed to promote Neurontin as a treatment for diseases and ailments with respect to which the drug had not received FDA approval. The Corporate Defendants consciously decided to circumvent the normal regulatory process of the FDA pertaining to the marketing of a drug for a specific use and proceeded to actively market Neurontin for certain off-label uses.[4] The Corporate *1213 Defendants realized increased profits as a result of their illegal actions.
In response to the Corporate Defendants' off-label marketing scheme, the United States Attorney for the District of Massachusetts brought criminal charges against the Corporate Defendants. Concurrently, the attorneys general from each of the 50 states commenced litigation against the Corporate Defendants under the relevant consumer protection statutes of those states. On May 13, 2004, the Corporate Defendants agreed to plead guilty to federal criminal charges and simultaneously entered into settlement agreements with the attorneys general.
Tracy Ocampo has been employed by Pfizer Inc. as a Territory Representative since 1998. She has never been an employee of Warner-Lambert Company LLC nor has she ever worked for Pfizer Inc. as a medical liaison. At no time has she called on physicians, including Southern's treating physician, regarding Neurontin. Prior to March 15, 2004, Ocampo made no statements or representations to physicians regarding the safety or efficacy of Neurontin.
Rochelle. Hendricks was the sales representative who called on Southern's treating physician regarding Neurontin during the period of Southern's treatment with Neurontin for chronic fatigue syndrome.[5] Hendricks never provided verbal or written information to any physicians, including Southern's treating physician, regarding the use of Neurontin to treat chronic fatigue syndrome. If a physician requested information regarding an off-label use of Neurontin, Hendricks forwarded the request to Pfizer for a response. Any such response was communicated directly to the requesting physician from Pfizer, and such a communication did not travel through Hendricks.
The information used by Ocampo and Hendricks during the course of their employment was provided to them exclusively by Pfizer Inc. Ocampo and Hendricks had no involvement in the manufacture, development, or testing of Neurontin nor were they involved in the development or preparation of the prescribing information, including the written warnings and labels, for the drug. Ocampo and Hendricks were not expected to nor did they conduct any independent research regarding Neurontin.

Standard of Review
"Fraudulent joinder is a judicially created doctrine that provides an exception to the requirement of complete diversity." Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998). Under Eleventh Circuit precedent, joinder is fraudulent in three situations: (1) when there is no possibility that the plaintiff can prove a cause of action against the resident defendant; (2) when there is outright fraud in the plaintiffs pleading of jurisdictional issue; and (3) when a diverse defendant is joined with a nondiverse defendant *1214 as to whom there is no joint, several or alternative liability and where the claim against the diverse defendant has no real connection to the claim against the nondiverse defendant.[6]Id.See also Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir.1983), superceded by statute on other grounds as stated in Georgetown Manor, Inc. v. Ethan Allen, Inc., 991 F.2d 1533 (11th Cir.1993); Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1360 (11th Cir.1996), overruled as conflicting with prior panel decision on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir.2000). If any of these situations are present, the nondiverse defendant has been fraudulently joined and its citizenship should be ignored for purposes of determining jurisdiction. Id.
"In evaluating a motion to remand, the removing party bears the burden of demonstrating federal jurisdiction." Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1373 (11th Cir.1998). "The determination of whether a resident defendant has been fraudulently joined must be based upon the plaintiffs pleadings at the time of removal, supplemented by the parties." Id. at 1380. "While the proceeding appropriate for resolving a claim of fraudulent joinder is similar to that used for ruling on a motion for summary judgment under Fed.R.Civ.P. 56(b) . . . the jurisdictional inquiry must not subsume substantive determination." Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.1997) (internal citations and marks omitted). A district court must resolve all questions of fact in favor of the plaintiff; however, there must be some dispute of fact before the court can resolve that fact in the plaintiff's favor. Legg v. Wyeth, 428 F.3d 1317, 1323 (11th Cir.2005). When a defendant's affidavits are not disputed by the plaintiff, the court "cannot then resolve the facts in the [plaintiffs] favor based solely on the unsupported allegations in the Plaintiffs complaint." Id.
A federal court must be certain of its jurisdiction before "embarking upon a safari in search of a judgment on the merits." Crowe, 113 F.3d at 1538. A "district court's authority to look into the ultimate merits of the plaintiffs claims must be limited to checking for obviously fraudulent or frivolous claims." Crowe, 113 F.3d at 1542.

Discussion[7]
I Southern cannot maintain a cause of action against Hendricks or Ocampo
Southern's arguments as to the improper removal of this case are based solely on the claims asserted against Hendricks and Ocampo. The issue before this court is whether a possible claim for violation of the AEMLD, failure to warn, breach of an implied warranty of merchantability, breach of an implied warranty *1215 of fitness for a particular purpose, breach of an express warranty, unjust enrichment, negligence, fraudulent misrepresentation, negligent and reckless misrepresentation, or civil conspiracy might be maintained against Hendricks or Ocampo in state court. A possibility of success as to any of the aforementioned claims will lead to a determination that Hendricks or Ocampo is not fraudulently joined in this action, that complete diversity does not exist among the parties, and that this action is due to be remanded.
It is undisputed that Hendricks. and Ocampo transmitted information to Southern's prescribing physician regarding Neurontin. Further, it is undisputed that Hendricks and Ocampo: (1) did not prescribe Neurontin to Southern; (2) did not participate in the development or preparation of the prescribing information, including the warnings, for Neurontin; and (3) did not make any knowing misrepresentations concerning the safety of efficacy of Neurontin to any person.
A. As a matter of law, Southern cannot possibly maintain a claim for violation of the AEMLD against Hendricks or Ocampo in state court.
Following a close scrutiny of the case law cited by both parties, and after careful consideration, the court concludes that there is no possibility that Southern could establish or maintain a claim against Hendricks or Ocampo in Alabama state court for a violation of the AEMLD. The AEMLD establishes a cause of action against "a manufacturer, or supplier, or seller, who markets a product not reasonably safe when applied to its intended use in the usual and customary manner, [thereby] constitut[ing] negligence as a matter of law." Casrell v. Altec Industries, Inc., 335 So.2d 128, 132 (Ala.1976). In order to establish liability under the AEMLD, Southern must prove:
[She] suffered injury or damages to [herself] or [her] property by one who sold a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, if (a) the seller was engaged in the business of selling such a product, and (b) it was expected to, and did, reach the user or consumer without substantial change in the condition in which it was sold.
Key v. Maytag Corp., 671 So.2d 96, 101 (Ala.Civ.App.1995); quoting Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976).
Southern asserts that, as a "seller" of Neurontin, Hendricks or Ocampo faces possible liability under the AEMLD. Defendants argue that Hendricks and Ocampo are corporate agents and are not "sellers" as defined under the AEMLD; thus, neither can be held liable for a violation of the doctrine.
The Alabama Supreme Court has not yet addressed the question of whether a sales representative is a "seller" exposed to possible liability under the AEMLD or, conversely, is an agent of the "seller" who would be shielded from liability.
Southern contends that because Alabama courts have never addressed the issue at hand and due to the lack of a clear mandate by Alabama courts on the issue, an Alabama court might determine Hendricks or Ocampo to be a "seller" under the AEMLD. The bright-line rule is that a "seller who markets a product not reasonably safe when applied to its intended use in the usual and customary manner" is exposed to liability under the AEMLD "[a]s long as there is a causal relationship between the defendant's conduct and the defective product." Casrell v. Altec Industries, Inc., 335 So.2d 128, 132 (Ala.1976) *1216 (emphasis added).[8] The parties have not cited, and this court is unaware of the existence of, any published opinion from an Alabama court addressing liability under the AEMLD of a sales representative who is employed by the manufacturer of a product. However, there are persuasive cases that distinguish between a sales representative and a "seller." The court agrees with Defendants that these cases indicate that a sales representative is not a "seller" as defined under the AEMLD in certain instances. While numerous persuasive decisions exist supporting both sides of this argument, the court is persuaded that Hendricks and Ocampo, under the specific facts and allegations in `this case, are corporate agents and not "sellers" for purposes of the AEMLD.
Southern argues that this court's Memorandum Opinion in Tracy v. Eli Lilly, Case No. 2:06-cv-00536-VEH, is dispositive of the issues presented in the instant case.. The facts of Tracy are readily distinguishable from the facts of this action. In Tracy, this court was presented with a pharmaceutical sales representative who had constructive knowledge that a drug was unsafe, the representative marketed the drug as being safe to a plaintiff's treating physician, and the plaintiff suffered the known ill-effects of the drug. The instant case presents a different set of circumstances. In Tracy, this court held that where a pharmaceutical sales representative has actual or constructive knowledge that a specific drug being marketed by that representative has a particular dangerous side effect, where the drug company's training of its sales force required sales representatives to employ various tactics of evading physicians' questions regarding a particular known side effect of a drug, where the sales representative represents that the drug is safe as to that side effect to a plaintiff's treating physician, where a plaintiff is subsequently prescribed the drug by that physician, and where the plaintiff suffers from the side effect known to the sales representative, that such a representative faces potential liability as a "seller" under the AEMLD due to that representative's unique ability to prevent the harmful product from reaching the plaintiff.
Southern's allegations against Hendricks and Ocampo that are contrary to Hendricks' and Ocampo's sworn affidavits are not adequately refuted by, the evidence offered by Southern. See Legg, 428 F.3d at 1323. Specifically, Tracy differs from this action in that Southern's allegations and evidence fail to indicate even the possibility of certain necessary causal links indicating that Hendricks or Ocampo knew Neurontin might be unsafe, that Hendricks or Ocampo were trained to evade physicians' questions regarding the safety of the drug, or that Hendricks or Ocampo represented Neurontin as being safe, as to the side effect of increased risk for attempting suicide, to Southern's treating physician. Southern's voluminous evidence detailing methodical planning on the part of Pfizer Inc. to market Neurontin for various off-label uses does not establish Hendricks' or Ocampo's knowledge of Neurontin's alleged negative side effects; specifically that Neurontin has been linked to increased instances of suicide when the drug is used in an off-label capacity to treat chronic fatigue syndrome. The limited holding in Tracy is not applicable to the facts of the instant action.
Defendants direct the court to the case of In re Rezulin Products Liability Litigation, *1217 133 F.Supp.2d 272, 288 (S.D.N.Y. 2001), in which the court considered Alabama law and opined that holding a pharmaceutical sales representative liable under the AEMLD would contravene the doctrine's purpose and scope.[9] The court observed, "[t]he AEMLD is founded on broader moral notions of consumer protection and on economic and social grounds, placing the burden to compensate for loss incurred by defective products on the one best able to prevent the distribution of these products." Id. at 287 (quoting Atkins v. American Motors Corp., 335 So.2d 134, 139 (Ala.1976)) (internal marks omitted). The court found that there was "no reasonable basis for supposing that [an Alabama court] would impose liability on the sales representative" due to the representative's status as merely an agent of the manufacturer/seller and, as a corporate employee, the sales representative was not "the best one able to prevent sales of defective drugs." Id. at 288 (internal marks omitted).
Applying the holding of In re Rezulin, a United States District Court for the. Middle District of Alabama held that a sales representative who sold a replacement hip that later proved defective "is not deemed a `seller' within the meaning of the AEMLD." Bloodsworth v. Smith & Nephew, 2005 WL 3470337, *6 (M.D.Ala.2005). While the Bloodsworth court relied heavily on In re Rezulin, the court noted an unpublished opinion by the MDL Court in In re Baycol Products Liability Litigation, M.D.L. No. 1431, *4-*7 (D.Minn. March 26, 2004), which held that "the purpose of the AEMLD did not support a claim against a sales agent who had no authority to compel or prevent the distribution of particular products." Id. (internal marks omitted).
The court finds the holdings in Rezulin and Bloodsworth persuasive and applicable to the facts of the instant case. There is simply no evidence that Hendricks or Ocampo, in either's capacity as a Territory Representative employed by Pfizer Inc., had any meaningful control over the distribution of Neurontin or that either could have prevented, in any`substantial way, the dispersion of Neurontin to consumers; specifically, to Southern.
Based on the foregoing, the court finds that the parameters of Alabama law are sufficiently established so as to lead to the conclusion that there is no reasonable possibility for concluding that, under the specific facts of this case, an Alabama state court would find Hendricks liable under the AEMLD. See Triggs, 154 F.3d at 1287.
B. As a matter of law, Southern cannot possibly maintain a claim for fraudulent misrepresentation or negligent misrepresentation against Hendricks or Ocampo in state court.
A claim for fraudulent misrepresentation comprises the following elements: "(1) a false representation (2) concerning a material fact (3) relied upon by the plaintiff (4) who was damaged as a proximate result." Fisher v. Comer Plantation, 772 So.2d 455, 463 (Ala.2000) (quoting Baker v. Bennett, 603 So.2d 928, 935 (Ala.1992)). "An essential element of fraudulent-misrepresentation and fraudulent-suppression claims is a duty to disclose." Nesbitt v. Frederick, 941 So.2d 950, 955-56 (Ala.2006).
*1218 Pfizer Inc., not Hendricks or Ocampo, had a duty to disclose any dangers regarding Neurontin to Southern's prescribing physician. Pursuant to the learned intermediary doctrine, which has been adopted by the Supreme Court of Alabama, any duty to disclose would be owed to Southern's prescribing physician, and not to Southern, by Pfizer Inc., and not by Hendricks or Ocampo individually. See Stone v. Smith, Kline, and French Laboratories, 447 So.2d 1301 (Ala.1984) (citing Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir.1974)) (the court applied the learned intermediary doctrine and determined that makers of prescription drugs have a duty to warn a patient's prescribing physician, and not the patient, regarding potential dangers associated with prescription medications). See also, Walls v. Alpharma USPD, Inc., 887 So.2d 881 (Ala.2004). As a matter of law, Hendricks and Ocampo had no duty to disclose any information to Southern; accordingly, Southern cannot possibly maintain a cause of action against either Defendant for fraudulent misrepresentation in state court. See Fisher, 772 So.2d at 463.
In Legg, supra, applying Alabama law, the Eleventh Circuit held that a negligent misrepresentation claim is untenable against a pharmaceutical sales representative absent a showing of bad faith. Legg, 428 F.3d at 1324. The court opined that "those who are only conduits through which faulty information is supplied by one person to a third person cannot be held liable for fraud unless they acted in bad faith." Id. "A misrepresentation claim predicated on an allegation that a sales representative `innocently passed on incorrect information' about a manufacturer's product simply is not cognizable under Alabama law." Bloodsworth, 2005 WL 3470337 at *8 (quoting Legg, 428 F.3d at 1324). Hendricks' and Ocampo's affidavits clearly establish that both acted as mere "conduits" of information for Pfizer Inc. As such, the court concludes that Southern's claim predicated on negligent misrepresentation cannot possibly survive in state court. See Id.
C. As a matter of law, Southern cannot possibly maintain a claim for failure to warn against Hendricks or Ocampo in state court.
The court finds no reasonable basis under Alabama law to support a failure to warn claim against Hendricks or Ocampo. Pursuant to the learned intermediary doctrine, any duty to warn would be owed to Southern's prescribing physician by Pfizer Inc. and not by Hendricks. See Stone v. Smith, Kline, and French Laboratories, 447 So.2d 1301 (Ala.1984) (citing Reyes v. Wyeth Laboratories, 498 F.2d 1264 (5th Cir.1974)) (applied the learned intermediary doctrine and determined that makers of prescription drugs have a duty to warn a patient's prescribing physician, and not the patient, regarding potential dangers associated with prescription medications). See also, Walls v. Alpharma USPD, Inc., 887 So.2d 881 (Ala.2004). As a matter of law, Southern's failure to warn claims are untenable.
D. As a matter of law, Southern cannot possibly maintain a claim for breach of warranty or negligence against Hendricks or Ocampo in state court.
The court finds no reasonable basis under Alabama law to support Southern's claims for breach of an implied warranty of merchantability, breach of an implied warranty of fitness for a particular purpose, and breach of express warranty against Hendricks or Ocampo.
It has been clearly established that warranty and negligence claims are *1219 not subsumed by the AEMLD. See Tillman v. R.J. Reynolds Tobacco Co., 871 So.2d 28, 34-35 (Ala.2003). However, Southern's claims against Hendricks or Ocampo for breach of warranty and negligence do not present a possibility of success under Alabama law.
A breach of warranty claim is viable only against the "seller" of the goods. See Ala.Code §§ 7-2-313(1), 7-2-314(1), 7-2-315(1) (express and implied warranty claims refer only to Warranties created by the seller of a product). As discussed supra, Hendricks and Ocampo are not "sellers" of Neurontin; rather, they are agents of the "seller." Accordingly, under Alabama law, Southern cannot maintain a breach of warranty claim against Hendricks or Ocampo.
In keeping with this court's holding that Hendricks and Ocampo are not "sellers" of Neurontin, Southern's negligence claims against Hendricks and Ocampo fail. Southern asserts that "Defendants . . . have a duty to exercise the necessary degree of care . . . required by manufacturers of health care products." [Pl. Compl., ¶ 84]. A reading of Southern's complaint removes Hendricks and Ocampo from any possibility of liability under Southern's negligence claim due to the unchallenged assertion in Hendricks' and Ocampo's affidavits that neither had "any involvement with the manufacture, development, or testing of Neurontin." [Hendricks Aff., ¶ 9; Ocampo Aff., ¶ 7]. In addition, "a claim for negligent manufacture or sale is cognizable against [only] the manufacturer or seller." Bloodsworth, 2005 WL 3470337, *7. Hendricks and Ocampo are neither; thus, Southern's negligence claim against Hendricks and Ocampo has no possibility of survival in Alabama state court.
E. As a matter of law, Southern cannot possibly maintain a claim for unjust enrichment against Hendricks or Ocampo in state court.
As stated by the Alabama Supreme Court, to prevail on an unjust enrichment claim, a plaintiff must establish either that the defendant holds money that, in equity and good conscience, belongs to the plaintiff, or that the defendant holds money that was improperly paid because of mistake or fraud. See Avis Rent A Car Systems, Inc. v. Heilman, 876 So.2d 1111, 1123 (Ala.2003).
In the instant case, Southern asserts that Defendants "have knowingly received, and continue, to receive, a substantial benefit at the expense of Plaintiff." [Pl. Compl., ¶ 81]. Further, Southern argues that Tit would be unjust and unconscionable to permit Defendants to enrich themselves at the expense of Plaintiff, and to retain the funds that Defendant [sic] wrongfully obtained from Plaintiff." [Pl. Compl., ¶ 82].
Southern's unjust enrichment claim against Hendricks and Ocampo are inextricably linked to the success of Southern's fraudulent misrepresentation claim against either Defendant.[10]See Id. Where a plaintiff cannot maintain a fraudulent misrepresentation claim against a defendant, that plaintiff will not be permitted a viable claim of unjust enrichment which is based on an untenable fraudulent misrepresentation claim. As this court has determined *1220 that Southern's fraudulent misrepresentation claim against Hendricks fail under Alabama law, Southern cannot possibly maintain a claim of unjust enrichment against Hendricks or Ocampo premised on a failed fraudulent misrepresentation claim.
F. As a matter of law, Southern cannot possibly maintain a claim for civil conspiracy against Hendricks or Ocampo in state court.
Southern contends that Defendants "entered into a conspiracy to suppress and fraudulently misrepresent material information that they were under a duty to disclose to Plaintiff." [Pl. Compl, ¶ 99]. The Alabama Supreme Court has held that:
"A civil conspiracy requires a combination of two or more individuals to accomplish an unlawful purpose or to accomplish a lawful end by unlawful means." McLemore v. Ford Motor Co., 628 So.2d 548, 550 (Ala.1993). "Where civil liability for a conspiracy is sought to be enforced, the conspiracy itself furnishes no cause of action. The gist of the action is not the conspiracy alleged but the wrong committed." Id. (quoting O'Dell v. State ex rel. Patterson, 270 Ala. 236, 117 So.2d 164 (1959) (internal citations omitted)). To establish [a] conspiracy to defraud claim, [a plaintiff] must present evidence of a viable underlying fraud claim. McLemore, 628 So.2d at 550.
Wilson v. Gayfers Montgomery Fair Co., 953 F.Supp. 1415, 1423 (M.D.Ala.1996).
Under Alabama law, Southern's claim against Hendricks and Ocampo for conspiracy to fraudulently misrepresent material information regarding Neurontin can only be maintained if Southern presents evidence of a viable underlying fraudulent misrepresentation claim. See Id. As a threshold matter, Southern's conspiracy claim against Hendricks and Ocampo fails in light of this court's holding, discussed supra, that Hendricks and Ocampo owed no duty to Southern; thus, as a matter of law, neither Defendant can be held liable under the theory of fraudulent misrepresentation. Fraudulent misrepresentation requires that a defendant owe a duty to a plaintiff. See Nesbitt, 941 So.2d 950, 955-56. Hendricks and Ocampo owe no duty to disclose to Southern. See Stone v. Smith, Kline, and French Laboratories, 447 So.2d 1301 (Ala.1984). Because Southern cannot maintain the underlying claim of fraudulent misrepresentation against Hendricks in state court, Southern additionally cannot maintain a claim of conspiracy to fraudulently misrepresent against those same Defendants. See Nesbitt, 941 So.2d 950, 955-56.
In addition, the intra-corporate conspiracy doctrine precludes the possibility that Southern could maintain a claim of civil conspiracy against Hendricks or Ocampo. The intra-corporate conspiracy doctrine holds that:
acts of corporate agents are attributed to the corporation itself, thereby negating the multiplicity of actors necessary for the formation of a. conspiracy. Simply put, under the doctrine, a corporation cannot conspire with its employees, and its employees, when acting in the scope of their employment, cannot conspire among themselves. The doctrine is based on the nature of a conspiracy and the legal conception of a corporation. It is by now axiomatic that a conspiracy requires a meeting of the minds between two or more persons to accomplish a common and unlawful plan. However, under basic agency principles, the acts of a corporation's agents are considered to be those of a single legal actor. Therefore, just as it is not legally possible for an individual person to conspire *1221 with himself, it is not possible for a single legal entity consisting of the corporation and its agents to conspire with itself.
McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th Cir.2000) (internal citations and quotations omitted). It is "not legally possible" for Hendricks or Ocampo, acting as agents of Pfizer Inc. and within the scope of their employment, to conspire with one another or with Pfizer Inc. Id. It has been clearly established that Hendricks and Ocampo are agents of Pfizer Inc. Southern does not assert that Hendricks and Ocampo were acting outside the scope of their employment when promoting Neurontin; therefore, the intra-corporate conspiracy doctrine applies. Accordingly, there is no possibility that Southern can maintain a claim for civil conspiracy against either Hendricks or Ocampo in state court.

Conclusion
The court concludes that, based on the foregoing, Southern cannot maintain any cognizable claim against Hendricks or Ocampo in Alabama state court. Accordingly, Hendricks and Ocampo have been fraudulently joined in this action, and their citizenship will be ignored for the purpose of establishing diversity jurisdiction in this case.
A separate Order will be entered consistent with this Memorandum Opinion.
NOTES
[1]  Plaintiff requested that, should the court determine a hearing to be necessary, such a hearing be conducted in an expedited fashion.
[2]  Defendants invite the court to stay this case without reaching a decision on Plaintiff's Emergency Motion to Remand so that the instant motion may be decided by the MDL once the case is transferred. Such a course of action would be improper in that the parties are entitled to a determination of this court's jurisdiction as soon as is practicable. The interests of judicial economy, which the MDL has, in part, been established to preserve, are best served through a jurisdictional determination by this court at this time. Additionally, the facts which establish (or fail to establish) fraudulent joinder are likely to be unique to this case.
[3]  As it must, the court will decide all disputed issues of fact in favor of the plaintiff; however, where an affidavit is undisputed by the plaintiff; the court will give weight to the sworn statement over unsupported allegations in the Complaint. See Legg v. Wyeth, 428 F.3d 1317, 1323 (11th Cir.2005). None of the evidence offered by Southern rebuts the statements in Hendricks' or Ocampo's affidavits. Under Legg, absent rebuttal, the court gives weight to the affidavits.
[4]  Nothing in the voluminous evidentiary submission provided by Southern in regard to the instant motion to remand suggests a plan by any of the Defendants to market Neurontin as a treatment for Southern's diagnosed chronic fatigue syndrome. The evidence however, outlines detailed plans by the corporate defendants to this action to market Neurontin as a treatment for a host of specific diseases and ailments. Southern begs this court to infer that, despite a lack of any evidence to support her position, and in light of the overwhelming evidence of Defendants' actions of promoting Neurontin for other specific diseases and ailments, Defendants also promoted, to Southern's treating physician, Neurontin as a treatment for chronic fatigue syndrome. Hendricks' and Ocampo's affidavits clearly contradict Southern's allegations. Following the Eleventh Circuit's holding in Legg, Southern's allegations and evidence is insufficient to contradict Hendricks' and Ocampo's sworn affidavits to the contrary. See 428 F.3d 1317 (11th Cir.2005).
[5]  The use of Neurontin to treat chronic fatigue syndrome is an off-label use.
[6]  In the present case, Defendants assert that only the first type of fraudulent joinder is applicable; accordingly, the court will offer no analysis as to the second and third situations under which a fraudulent joinder can occur.
[7]  Southern contends, in her Emergency Motion to Remand, that this court "need not reach the issue of whether Ocampo is fraudulently joined, because a possible cause of action exists against Defendant Hendricks, rendering her claims of fraudulent joinder untenable." A court's decision on a motion to remand is a jurisdictional determination under which the court is obligated to determine whether any nondiverse defendant has been fraudulently joined in an action. See Triggs, 154 F.3d at 1287. An acquiescence to Southern's position leading to a refusal by this court to examine the merits of Southern's claims against Ocampo would be contrary to this court's necessary task of a jurisdictional determination and would violate the interests of judicial economy.
[8]  Casrell, along with Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), define the scope of the AEMLD. Neither case addresses a distinction between a "seller" or a "representative of the seller."
[9]  The court notes that district court decisions, including decisions of this district, are not binding on this court.
[10]  Southern does not assert that Hendricks or Ocampo is holding money that in equity or good conscience belongs to Southern nor does Southern claim that Hendricks or Ocampo was paid money as a result of mistake. Accordingly, the court will not offer analysis as to those instances under which a claim for unjust enrichment can occur pursuant to Alabama law.


116 F.3d 476
Nicholsv.Wal-Mart Stores, Inc.*
NO. 96-60801
United States Court of Appeals,Fifth Circuit.
Apr 15, 1997
Appeal From:  N.D.Miss. ,No.1:95CV372

1
Affirmed.

*
 Fed.R.App.P. 34(a); 5th Cir.R. 24.2


                    COURT OF APPEALS OF VIRGINIA

Present:   Judges Baker, Elder and Fitzpatrick

MERCHANT'S TIRE
AND
FIRST NATIONAL INSURANCE COMPANY OF AMERICA

v.         Record No. 1880-95-1          MEMORANDUM OPINION *
                                              PER CURIAM
EDWIN CHARLES HOLDEN                      DECEMBER 27, 1995

         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (Robert C. Baker, Jr.; Mell, Brownell & Baker,
            on brief), for appellants.

           (Byron A. Adams, on brief), for appellee.

     Merchant's Tire and its insurer (collectively referred to as

employer) appeal a decision of the Workers' Compensation

Commission (commission) awarding benefits to Edwin C. Holden

(claimant).   Employer contends that the commission erred in

finding that claimant sustained an injury by accident arising out

of and in the course of his employment on September 5, 1994.

Specifically, employer argues that the commission erred in

reversing the deputy commissioner's credibility determination and

in not following this Court's holding in Pence Nissan Oldsmobile
v. Oliver, 20 Va. App. 314, 456 S.E.2d 541 (1995).     Finding no

error, we affirm the commission's decision.

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.    R.G. Moore Bldg. Corp. v.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence.       James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

     On September 5, 1994, claimant worked for employer as a

general service mechanic.   He testified that, on that date, he

felt a sharp pain in his lower back while twisting his body and

lifting an automobile tire from a stand-up tire machine.      The

pain was so severe that it caused him to drop the tire and drop

to his knees.   Claimant was not able to complete his work shift

due to increasing back pain.   The next day claimant told Jay

Myers, the assistant store manager, about the incident and his

injury.   Thereafter, claimant reported to Sentara Hampton General

Hospital's emergency room for treatment.      The emergency room

attending physician reported a history of lifting at work the

previous day, with an acute onset of low back pain.      He diagnosed

an acute lumbar strain and referred claimant to Dr. Bruce Reid,

an orthopedic surgeon.
     On September 12, 1994, Dr. Reid noted that claimant's back

pain began on September 5, 1994, but that claimant did not admit

to any specific episode at work.       Dr. Reid also noted that

claimant believed the sum total of his work activities caused his

back pain.   Dr. Reid diagnosed myofascial-type pain and a

thoracic/lumbar strain.   On November 10, 1994, after a short

course of physical therapy, Dr. Reid released claimant to return

                                   2
to full-duty.   Claimant denied telling Dr. Reid that his injury

did not result from a specific incident at work.    Claimant also

denied telling Dr. Reid that he believed the sum total of his

lifting activities at work caused his injury.

     The deputy commissioner did not accept claimant's testimony

because it was not consistent with the medical history collected

by Dr. Reid.    The full commission reversed the deputy's

determination, and found that
          the claimant has met his burden.    He

          testified that he felt a sharp pain in his

          lower back while lifting a tire and twisting.

           The record reflects that the claimant left

          work due to his pain.    His testimony that he

          informed the assistant manager of the injury

          the following day is uncontradicted.     We next

          consider whether the medical record supports

          the claimant's testimony.    A medical history

          cannot be relied on to determine how an

          accident occurred.    Board of Supervisors v.

          Martin, 3 Va. App. 139, 348 S.E.2d 540

          (1986), appeal dismissed, 363 S.E.2d 703 (Va.

          1987).    However, it is admissible as either a

          prior consistent or inconsistent statement,

          or as an admission of a party opponent.    2

          Charles E. Friend, The Law of Evidence in

                                  3
          Virginia, §§ 18-33, 34 (4th ed. 1993).       Here,

          the initial treating physician noted a

          history of lifting at work, with an acute

          onset of lower back pain.       His diagnosis of

          an acute lumbar strain is more consistent

          with an injury from an identifiable incident,

          rather than a cumulative trauma injury.

     If, as in this case, "the deputy commissioner's

determination of credibility is based upon the substance of the

testimony rather than upon the witness's demeanor, such a finding

is as determinable by the full commission as by the deputy."
Kroger Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 880

(1992).

     Claimant's testimony, which is consistent with the emergency

room attending physician's notes, provides credible evidence to

support the commission's finding that claimant sustained an

injury by accident arising out of and in the course of his

employment on September 5, 1994.       The deputy commissioner's

credibility determination was based on the evidence and the

substance of claimant's testimony.      Therefore, the full

commission could make its own credibility determination.       Id.   In

its role as fact finder, the commission was entitled to give

little weight to Dr. Reid's history notes in light of claimant's

denial that he made such statements to Dr. Reid.      Moreover,

without specifically citing to Pence, the commission followed

                                   4
Pence's directive by considering claimant's description of his

accident in light of the medical histories he gave to his

physicians. 1

     The commission could reasonably infer from claimant's

testimony and the emergency room attending physician's history

and diagnosis that claimant sustained an identifiable incident on

September 5, 1994, which caused an obvious sudden mechanical or

structural change in his body.   "Where reasonable inferences may

be drawn from the evidence in support of the commission's factual

findings, they will not be disturbed by this Court on appeal."
Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d

695, 698 (1988).

     For the reasons stated, we affirm the commission's decision.

                                                   Affirmed.

     1
      The commission stated that "a medical history cannot be
relied on to determine how an accident occurred." Martin, 3 Va.
App. at 144, 348 S.E.2d at 542. We note that this rule applies
when the claimant fails to testify to facts showing an injury by
accident. In that situation, the rule prevents the claimant from
using a medical history to meet his burden of proof. Pence, 20
Va. App. at 318, 456 S.E.2d at 543. As the commission correctly
noted, medical histories are admissible to corroborate or impeach
testimony where a claimant has testified to facts showing an
injury by accident. McMurphy Coal Co. v. Miller, 20 Va. App. 57,
59, 455 S.E.2d 265, 266 (1995).

                                 5


        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

631
KA 11-00486
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KENT D. SPRATLEY, DEFENDANT-APPELLANT.

CHRISTOPHER JUDE PELLI, UTICA, FOR DEFENDANT-APPELLANT.

SCOTT D. MCNAMARA, DISTRICT ATTORNEY, UTICA (STEVEN G. COX OF
COUNSEL), FOR RESPONDENT.

     Appeal from a judgment of the Oneida County Court (Barry M.
Donalty, J.), rendered November 17, 2010. The judgment convicted
defendant, after a nonjury trial, of assault in the second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Oneida County Court for further
proceedings.

     Memorandum: On appeal from a judgment convicting him upon a
nonjury verdict of assault in the second degree (Penal Law § 120.05
[2]), defendant contends that the verdict is against the weight of the
evidence because any injury to the victim was not caused by a deadly
weapon and such injury did not constitute a “ ‘[p]hysical injury’ ”
within the meaning of Penal Law § 10.00 (9). Viewing the evidence in
light of the elements of the crime in this nonjury trial (see People v
Danielson, 9 NY3d 342, 349), we reject defendant’s contention (see
generally People v Bleakley, 69 NY2d 490, 495). We conclude that a
finding by County Court that the victim’s injury was not caused by a
deadly weapon would have been unreasonable (see generally Danielson, 9
NY3d at 348; Bleakley, 69 NY2d at 495).

     With respect to the element of physical injury, we note that
“ ‘[p]hysical injury’ ” is defined as “impairment of physical
condition or substantial pain” (Penal Law § 10.00 [9]). Substantial
pain means “more than slight or trivial pain[, but it] need not . . .
be severe or intense to be substantial” (People v Chiddick, 8 NY3d
445, 447). “A variety of factors are relevant in determining whether
physical injury has been established, including ‘the injury viewed
objectively, the victim’s subjective description of the injury and
[his or] her pain, and whether the victim sought medical treatment’ ”
(People v Dixon, 62 AD3d 1036, 1039, lv denied 12 NY3d 912, 914; see
Chiddick, 8 NY3d at 447-448).
                                 -2-                           631
                                                         KA 11-00486

     Here, the victim was injured by a bullet that grazed his face,
“an experience that would normally be expected to bring with it more
than a little pain” (Chiddick, 8 NY3d at 447). He went to the
hospital for treatment of his injury and received several stitches.
The victim testified that he was in “excruciating pain” at the
hospital and that he still has pain, as well as difficulty eating and
talking. The hospital records admitted in evidence, however,
demonstrated that the victim described his pain as “zero” out of 10
and that he was not prescribed any pain medication. We conclude that,
although an acquittal based on the lack of a physical injury would not
have been unreasonable, it cannot be said that the court failed to
give the evidence the weight it should be accorded (see People v
Dove, 86 AD3d 715, 717, lv denied 17 NY3d 903, 18 NY3d 882; People v
Moye, 81 AD3d 408, 408-409, lv denied 16 NY3d 861; see also People v
Slater, 13 AD3d 732, 734, lv denied 4 NY3d 803; see generally
Danielson, 9 NY3d at 348-349; Bleakley, 69 NY2d at 495).

     As defendant correctly notes, the court failed to rule on his
renewed motion to dismiss the indictment based on allegedly
prejudicial conduct during the grand jury proceeding. Contrary to the
People’s contention, pursuant to People v Concepcion (17 NY3d 192,
197-198) and People v LaFontaine (92 NY2d 470, 474, rearg denied 93
NY2d 849), we cannot deem the court’s failure to rule on the renewed
motion as a denial thereof (see People v Chattley, 89 AD3d 1557,
1558). We therefore hold the case, reserve decision and remit the
matter to County Court for a ruling on defendant’s renewed motion to
dismiss the indictment.

Entered:   June 8, 2012                         Frances E. Cafarell
                                                Clerk of the Court


749 So.2d 538 (2000)
Charles Henry PREST, Appellant,
v.
Patricia Faye TRACY, Appellee.
No. 98-04844.
District Court of Appeal of Florida, Second District.
January 5, 2000.
Joryn Jenkins of Joryn Jenkins, P.A., Tampa, for Appellant.
David T. Weisbrod, Tampa, for Appellee.
PARKER, Judge.
Charles Henry Prest (husband) appeals the second amended final judgment of dissolution of marriage, dissolving his marriage to Patricia Faye Tracy (wife), and the order amending the final judgment of dissolution of marriage. We affirm that portion of the order amending the final judgment that requires the husband to maintain his existing life insurance policies as security for his alimony obligation. The trial court did not abuse its discretion in making this award. See Sobelman v. Sobelman, 541 So.2d 1153 (Fla.1989). However, we reverse that portion of the second amended final judgment relating to the equitable distribution of the parties' assets because the trial court failed to comply with section 61.075(1), Florida Statutes (1997), in setting forth its findings. Because of this error, upon remand the trial court must also reconsider the award of permanent periodic alimony.
In fashioning an equitable distribution scheme, the trial court is required to set apart to each spouse his or her non-marital assets and liabilities because those are not subject to equitable distribution. See § 61.075(1), Fla. Stat. (1997). The trial court must then identify and value the *539 marital assets and distribute those equitably between the parties. Id. See also Robertson v. Robertson, 593 So.2d 491 (Fla. 1991); Embry v. Embry, 650 So.2d 190 (Fla. 2d DCA 1995). The trial court must begin its distribution with the premise that the distribution should be equal unless equitable factors compel a different result. See Robertson, 593 So.2d at 493; Lavelle v. Lavelle, 634 So.2d 1111, 1112 (Fla. 2d DCA 1994). The final distribution must be supported by factual findings based on substantial competent evidence. See § 61.075(3), Fla. Stat. (1997). A final judgment which purports to equitably distribute the parties' marital assets but which fails to comply with the statutory requirements is difficult, if not impossible, to review and requires reversal. See Staton v. Staton, 710 So.2d 744, 745 (Fla. 2d DCA), review denied, 728 So.2d 205 (Fla. 1998).
On the date of dissolution in 1998, the husband was seventy-seven years old and the wife was sixty-six. The couple had married in 1993 and lived together for a little over four years before separating. As is to be expected in a marriage this late in life, the parties each entered the marriage with assets obtained prior to the marriage. The evidence established that the husband owned a mobile home, two cars, and various household furnishings prior to the marriage. He received income from a pension plan in which he was completely vested prior to the marriage, from Social Security, and from a part-time job as a maintenance man. He had his own checking account and maintained cash savings in a safe. The evidence established that the wife owned a car and various household furnishings prior to the marriage. She received income from Social Security and from a part-time job as a nanny. She had her own checking and savings accounts and maintained additional cash savings in a safe.
After the marriage, the parties lived in the husband's mobile home. They opened a joint checking account into which the husband deposited his pension and Social Security payments. The parties paid all their household expenses from this joint checking account. The husband maintained his earnings from his job separately, and the wife maintained both her earnings and her Social Security payments separately. During the marriage, the parties purchased additional household furnishings and made some improvements to the mobile home. In addition, the wife sold her car during the marriage and purchased a newer one, paying for it in part with funds borrowed from the husband.
In fashioning its equitable distribution scheme, the trial court awarded the husband the two cars he owned prior to the marriage and a bureau he owned prior to the marriage. The trial court awarded the wife the mobile home owned by the husband prior to the marriage and the vehicle purchased during the marriage. The trial court did not distribute the parties' household furnishings, other than the husband's bureau, or the joint checking account. The trial court never identified or set apart the parties' nonmarital assets prior to distribution as required by section 61.075(1). The second amended final judgment does not identify the husband's mobile home and two cars as nonmarital property, nor does it provide any explanation as to how these items became marital property subject to equitable distribution. The trial court's failure to identify and separate the nonmarital assets from the marital assets prior to distribution constitutes reversible error. Moreover, the second amended final judgment contains no findings as to the value of the assets that were indisputably marital property, such as the majority of the household furnishings, the car purchased during the marriage, and the parties' joint checking account. The failure to identify and value the marital assets also constitutes reversible error.
While the trial court has broad discretion in fashioning an equitable distribution scheme, the trial court must support its *540 distribution with specific factual findings. See § 61.075(1), Fla. Stat. (1997). In this case, the lack of the required statutory findings as to which assets were marital and nonmarital and as to the value of the various marital assets makes review of the trial court's equitable distribution scheme impossible. See Staton, 710 So.2d at 745. Because the trial court must address the equitable distribution of property on remand and because the distribution may affect the award of permanent periodic alimony, we also reverse the award of permanent periodic alimony and remand for reconsideration by the trial court.
Reversed and remanded for a new trial.
CAMPBELL, A.C.J., and CASANUEVA, J., Concur.


                                                               [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-13973         ELEVENTH CIRCUIT
                         Non-Argument Calendar    NOVEMBER 29, 2011
                       ________________________        JOHN LEY
                                                        CLERK
                D.C. Docket No. 5:08-cr-00043-WTH-GRJ-2

UNITED STATES OF AMERICA,

                               llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                   versus

OSBALDO FARIAS,
a.k.a. Baldo,

                             llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                           (November 29, 2011)

Before BARKETT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
       Osbaldo Farias appeals his conviction for the lesser included offense of

second degree murder, pursuant to 18 U.S.C. § 1111(a). On appeal, Farias argues

the district court abused its discretion in (1) denying his request for instructions on

voluntary manslaughter, and (2) responding to a jury question regarding the

meaning of the terms “wanton,” “callous,” and “reckless” as used in the jury

instructions.1 After review, we affirm Farias’s conviction.

                                                I.

       Farias first argues the district court abused its discretion by denying his

request for instructions on the lesser included offense of voluntary manslaughter.

Specifically, he claims the district court erred in determining there was no proof of

“sudden quarrel or heat of passion.”

       Voluntary manslaughter “is the unlawful killing of a human being without

malice . . . . [u]pon a sudden quarrel or heat of passion.” 18 U.S.C. § 1112(a).

Farias failed to show any evidence of “sudden quarrel or heat of passion” caused

by adequate provocation. Rather, the evidence showed the victim was unarmed,

       1
          Farias also argues the district court abused its discretion in denying his request for
instructions on the lesser included offense of assault with a dangerous weapon. Farias conceded
before the district court that assault with a dangerous weapon was “not a lesser included
[offense], unlike vol[untary] and invol[untary manslaughter].” We are now precluded from
reviewing this issue based on the doctrine of invited error. See United States v. Brannan, 562
F.3d 1300, 1306 (11th Cir. 2009) (noting the doctrine of invited error is implicated when a party
induces or invites the district court into making an error).

                                                2
was attacked from behind, quickly fell to the ground, and never got back to his

feet after the initial attack. The evidence also showed the assault was planned

with another inmate, that Farias followed through with the assault, and that Farias

continued the assault for an extended period of time until a corrections officer

intervened. Thus, the district court did not abuse its discretion in denying Farias’s

request for a voluntary manslaughter instruction. See United States v. Williams,

197 F.3d 1091, 1095 (11th Cir. 1999) (noting “[a]n abuse of discretion may occur

where the evidence would permit the jury rationally to acquit the defendant of the

greater, charged offense and convict him of the lesser”).

                                         II.

      Farias next argues the district court abused its discretion in responding to

the jury question regarding the definitions of the terms “wanton,” “callous,” and

“reckless” by defining “wanton and reckless” in the conjunctive and improperly

blending the terms and their meanings.

      “A challenged supplemental jury instruction is reviewed as part of the entire

jury charge, in light of the indictment, evidence presented and argument of counsel

to determine whether the jury was misled and whether the jury understood the

issues.” United States v. Lopez, 590 F.3d 1238, 1248 (11th Cir. 2009),

cert. denied, 131 S. Ct. 413 (2010). We will generally only reverse a district

                                          3
court’s refusal to give a requested jury instruction “when we are left with a

substantial and ineradicable doubt as to whether the jury was properly guided in its

deliberations.” Id. (citation omitted).

      The district court did not abuse its discretion in its response to the jury’s

question. The district court reasonably determined that the jurors were

considering these terms as used in its prior explanation of murder and involuntary

manslaughter. Moreover, the district court provided definitions consistent with

Farias’s proposed definitions and with the dictionary definitions of the terms. See

Lopez, 590 F.3d at 1248.

      AFFIRMED.

                                          4


340 S.W.3d 315 (2011)
Leodegaria Sanchez PONTIGON, Respondent,
v.
Udis Sanchez LORD, Appellant.
No. ED 95677.
Missouri Court of Appeals, Eastern District, Division One.
April 19, 2011.
Udis Sanchez Lord, O'Fallon, MO, pro se.
S. Martin Kansky, St. Louis, MO, for respondent.
KENNETH M. ROMINES, J.
This is an appeal from the registration of a Canadian defamation judgment. We reverse.
Because only questions of law are at issue, we review de novo. State ex rel. Nixon v. Griffin, 291 S.W.3d 817, 819 (Mo. App. W.D.2009).
The appellant, Ms. Lord, is an American citizen, resident of St. Charles County, Missouri, who was born in the Philippines. The respondent, Leodegaria Sanchez, is Ms. Lord's cousin, and a resident of Ontario, Canada, who was likewise born in the Philippines. The basis of the complaint before the Canadian Court was Ms. Lord's *316 self-published life story told in From Fieldhand to Ph.D., Ms. Asia International (Fieldhand).
One of the incidents set out in "Fieldhand" is an incident which is the subject of ongoing litigation to set aside a deed for fraud in the Philippines by Ms. Lord and her sister against Ms. Sanchez. Although unclear as to how it occurred, "Fieldhand" was put on the internet and downloaded in Ontario, Canada by Ms. Sanchez.
Ms. Sanchez filed a petition in Canada for defamation in regard to the fraud claim in the Philippines. The record reflects that Ms. Lord received service of process of the suit by email and a fax from Ms. Sanchez's lawyer. Ms. Lord did not make a personal appearance in Canada, and a judgment for thirty-seven thousand five hundred dollars ($37,500) together with pre-judgment interest and costs of thirteen thousand seven hundred and sixteen dollars and forty six cents ($13,716.46) was entered.
This "judgment" was filed in St. Charles County, Missouri  Ms. Lord was given notice  and after hearing the Circuit Court granted the registration, from which a garnishment issued. Our review of the record  a review of the First Amendment to the U.S. Constitution  a review of Title 28 §§ 4101-4105  and a review of § 511.760 and § 511.770-511.785 RSMo, compel the cause to be reversed, the underlying registration set aside and the garnishment quashed.
Congress passed Title 28 §§ 4101-4105 with the following historical note:
Congress finds the following:
(1) The freedom of speech and the press is enshrined in the first amendment to the Constitution, and is necessary to promote the vigorous dialogue necessary to shape public policy in a representative democracy.
(2) Some persons are obstructing the free expression rights of United States authors and publishers, and in turn chilling the first amendment to the Constitution of the United States interest of the citizenry in receiving information on matters of importance, by seeking out foreign jurisdictions that do not provide the full extent of free-speech protections to authors and publishers that are available in the United States, and suing a United States author or publisher in that foreign jurisdiction.
(3) These foreign defamation lawsuits not only suppress the free speech rights of the defendants to the suit, but inhibit other written speech that might otherwise have been written or published but for the fear of a foreign lawsuit.
(4) The threat of the libel laws of some foreign countries is so dramatic that the United Nations Human Rights Committee examined the issue and indicated that in some instances the law of libel has served to discourage critical media reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to publish their work. The advent of the internet and the international distribution of foreign media also create the danger that one country's unduly restrictive libel law will affect freedom of expression worldwide on matters of valid public interest.
(5) Governments and courts of foreign countries scattered around the world have failed to curtail this practice of permitting libel lawsuits against United States persons within their courts, and foreign libel judgments inconsistent with United States first amendment protections are increasingly common.
With this background then Title 28 § 4101 states:
In this chapter:

*317 (1) Defamation.The term "defamation" means any action or other proceeding for defamation, libel, slander, or similar claim alleging that forms of speech are false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person.
(2) Domestic court.The term "domestic court" means a Federal court or a court of any State.
(3) Foreign court.The term "foreign court" means a court, administrative body, or other tribunal of a foreign country.
(4) Foreign judgment.The term "foreign judgment" means a final judgment rendered by a foreign court.
(5) State.The term "State" means each of the several States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
(6) United States person.The term "United States person" means
(A) a United States citizen;
(B) an alien lawfully admitted for permanent residence to the United States;
(C) an alien lawfully residing in the United States at the time that the speech that is the subject of the foreign defamation action was researched, prepared, or disseminated; or
(D) a business entity incorporated in, or with its primary location or place of operation in, the United States.
These definitions apply to the facts before us. Substantively, Title 28 § 4102 compels:
(a) First Amendment considerations.
(1) In general.Notwithstanding any other provision of Federal or State law, a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that
(A) the defamation law applied in the foreign court's adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by the first amendment to the Constitution of the United States and by the constitution and law of the State in which the domestic court is located; or
(B) even if the defamation law applied in the foreign court's adjudication did not provide as much protection for freedom of speech and press as the first amendment to the Constitution of the United States and the constitution and law of the State, the party opposing recognition or enforcement of that foreign judgment would have been found liable for defamation by a domestic court applying the first amendment to the Constitution of the United States and the constitution and law of the State in which the domestic court is located.
(2) Burden of establishing application of defamation laws.The party seeking recognition or enforcement of the foreign judgment shall bear the burden of making the showings required under subparagraph (A) or (B).
(b) Jurisdictional considerations.
(1) In general.Notwithstanding any other provision of Federal or State law, a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that the exercise of personal jurisdiction by the foreign court comported with the due process requirements that are imposed on domestic *318 courts by the Constitution of the United States.
(2) Burden of establishing exercise of jurisdiction.The party seeking recognition or enforcement of the foreign judgment shall bear the burden of making the showing that the foreign court's exercise of personal jurisdiction comported with the due process requirements that are imposed on domestic courts by the Constitution of the United States.
(c) Judgment against provider of interactive computer service.
(1) In general.Notwithstanding any other provision of Federal or State law, a domestic court shall not recognize or enforce a foreign judgment for defamation against the provider of an interactive computer service, as defined in section 230 of the Communications Act of 1934 (47 U.S.C. 230) unless the domestic court determines that the judgment would be consistent with section 230 if the information that is the subject of such judgment had been provided in the United States.
(2) Burden of establishing consistency of judgment.The party seeking recognition or enforcement of the foreign judgment shall bear the burden of establishing that the judgment is consistent with section 230.
(d) Appearances not a bar.An appearance by a party in a foreign court rendering a foreign judgment to which this section applies shall not deprive such party of the right to oppose the recognition or enforcement of the judgment under this section, or represent a waiver of any jurisdictional claims.
(e) Rule of construction.Nothing in this section shall be construed to
(1) affect the enforceability of any foreign judgment other than a foreign judgment for defamation; or
(2) limit the applicability of section 230 of the Communications Act of 1934 (47 U.S.C. 230) to causes of action for defamation.
Though cited to the Circuit Court these provisions were not applied, indeed these provisions were not considered. Title 28 § 4101 through Title 28 § 4105 must be considered and applied by the Circuit Court.
Ms. Lord additionally cited to the Circuit Court §§ 511.760(3) RSMo and § 511.778. They state:
A verified petition for registration shall set forth a copy of the judgment to be registered, the date of its entry and the record of any subsequent entries affecting it, all authenticated in the manner authorized by the laws of the United States or of this state, and a prayer that the judgment be registered. The clerk of the registering court shall notify the clerk of the court which rendered the original judgment that application for registration has been made, and shall request him to file this information with the judgment.
Section 511.760.3 RSMo.
Except as provided in section 511.780, a foreign country judgment meeting the requirements of section 511.775 is conclusive between the parties to the extent that it grants or denies recovery of a sum of money. The foreign country judgment is enforceable in the same manner as the judgment of a sister state which is entitled to full faith and credit.
Section 511.778 RSMo.
In tandem, these sections require a certified and authenticated copy of any writing purporting to be a judgment before a Missouri Court can make the inquiries *319 compelled by Title 28 §§ 4101-4105 and § 511.780 RSMo.
This record does not contain a certified and authenticated copy of the Canadian "judgment" by the Canadian court and thus fails to comply with the full faith and credit clause of the U.S. Constitution. Art. IV § 1, U.S. Constitution. There is simply not enough here to show that this "judgment" is entitled to full faith and credit in a Missouri court. As such, the Circuit Court should not have proceeded to hearing, judgment and execution.
It is in the first instance the duty of a Circuit Court to make the factual determinations required by Title 28 § 4102, and § 511.780 and § 511.783 RSMo, and not this Court. These sections of our statutes state:
1. A foreign country judgment is not conclusive if:
(1) The judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
(2) The foreign court did not have personal jurisdiction over the defendant; or
(3) The foreign court did not have jurisdiction over the subject matter.
2. A foreign country judgment need not be recognized if:
(1) The defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend;
(2) The judgment was obtained by fraud;
(3) The claim for relief on which the judgment is based is repugnant to the public policy of this state;
(4) The judgment conflicts with another final and conclusive judgment;
(5) The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or
(6) In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.
Section 511.780 RSMo.
1. The foreign country judgment shall not be refused recognition for lack of personal jurisdiction if:
(1) The defendant was served personally in the foreign country;
(2) The defendant voluntarily appeared in the proceedings, other than for the purpose of protecting property seized or threatened with seizure in the proceedings or of contesting the jurisdiction of the court over him;
(3) The defendant prior to the commencement of the proceedings had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved;
(4) The defendant was domiciled in the foreign country when the proceedings were instituted, or, being a body corporate had its principal place of business, was incorporated, or had otherwise acquired corporate status, in the foreign country;
(5) The defendant had a business office in the foreign country and the proceedings in the foreign court involved a claim for relief arising out of business done by the defendant through that office in the foreign country; or
(6) The defendant operated a motor vehicle or airplane in the foreign country and the proceedings involved a claim for relief arising out of such operation.

*320 2. The courts of this state may recognize other bases of jurisdiction consistent with fairness and substantial justice in the context of international commerce or relations.
Section 511.783 RSMo.
We do note that Ms. Sanchez  who sought registration below  had no burden of proof placed on her before the Circuit Court in contravention of Title 28 § 4102. Likewise the application of § 511.780 RSMo was not considered.
To the extent that a certified and authenticated Canadian judgment is filed and registration sought, the Circuit Court shall impose the procedures as set out above.
In sum, this case is reversed and remanded to the Circuit Court and the Circuit Court is ordered to set aside the registration granted and quash the execution issued.
ROY L. RICHTER, C.J., and KELLY BRONIEC, SP. J., concur.


In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3941

United States of America,

Plaintiff-Appellee,

v.

Twaine Jones,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 99-CR-30249-WDS--William D. Stiehl, Judge.

Argued April 6, 2001--Decided April 24, 2001

  Before Flaum, Chief Judge, and Posner and
Williams, Circuit Judges.

  Flaum, Chief Judge. Twaine Jones
appeals his convictions for possession
with intent to distribute various
controlled substances as well as his
sentence. He contends that impermissible
character evidence was introduced at his
trial and that the judge increased his
sentence based on quantities of drugs
that were not presented to the jury nor
proven beyond a reasonable doubt. For the
reasons stated herein, we affirm.

I.   Background

  On August 10, 1998, police executed a
search warrant at 1120 North 45th Street
in Washington Park, Illinois. They
discovered and seized crack cocaine,
cocaine hydrochloride, marijuana, and
guns. The police also recovered
photographs of Twaine Jones and his
family along with bills, letters, and
other items addressed to the defendant at
the house, indicating that Jones lived
there. The government indicted Jones for
possessing the narcotics found in the
North 45th Street home. The counts of the
indictment relevant on appeal are all
violations of 21 U.S.C. sec. 841(a)(1):
possession with intent to distribute
135.8 grams of cocaine base; possession
with intent to distribute 75.9 grams of
cocaine hydrochloride; and possession
with intent to distribute 2,658.29 grams
of marijuana.

  Prior to trial, the government filed a
notice of intent to present testimony
concerning prior drug dealing by the
defendant and evidence that was recovered
from the same home through a previous
search warrant. The defendant filed a
motion in limine seeking to exclude any
testimony regarding his prior acts, which
was opposed by the government. Applying
the four-pronged test for admission of
prior acts evidence under Federal Rule of
Evidence 404(b), see, e.g., United States
v. Williams, 238 F.3d 871, 874 (7th Cir.
2001), the district court decided that
the evidence proffered by the government
could be introduced.

  Jones’s trial began on July 18, 2000.
The government’s evidence included the
testimony of three individuals who had
purchased drugs from Jones in the past.
Pervis Harris, Rodney Weatherby, and
Cortez Wooten all testified that they
repeatedly purchased drugs from Jones at
the North 45th Street house during the
late nineteen-nineties. Harris and
Weatherby also testified that Jones told
them about the 1998 search warrant and
what the police recovered from the
residence. The government also presented
Terrence Delaney, who testified that he
had been the captain of a drug and gang
tactical unit that executed a search
warrant at 1120 North 45th Street in
1993. His group seized crack cocaine,
marijuana, and various personal papers
belonging to Jones from that home. The
defendant did not object to any of this
evidence when it was introduced at trial.
Jones’s primary defense was that he did
not reside at the North 45th Street house
during the time the 1998 search warrant
was executed and thus any drugs found
there did not belong to him. At the close
of evidence, the court instructed the
jury that they could consider the above
described prosecution evidence "only on
the question of identity, knowledge, and
intent. You should consider this evidence
only for this limited purpose."
  On July 20, 2000, the jury returned a
guilty verdict on the three counts of
possession with intent to distribute. The
court held a sentencing hearing on
November 6, 2000. The government argued
that the drugs sold by Jones to Harris,
Weatherby, Wooten, and other witnesses
should be considered relevant conduct and
added to the amounts seized from 1120
North 45th Street for sentencing
purposes. The defendant objected on the
basis of Apprendi v. New Jersey, 530 U.S.
466, 120 S. Ct. 2348 (2000), claiming
that quantities of narcotics not proven
to the jury could not be used to increase
his sentence. The court agreed with the
government and found Jones responsible
for 1.2 kilograms of cocaine base, more
than 14 kilograms of cocaine
hydrochloride, and the amount of
marijuana alleged in the indictment.
These extra amounts of drugs translated
into a two-point increase in Jones’s
offense level. Jones received concurrent
sentences on each of the three counts,
with the longest being thirty years for
possession with intent to distribute
cocaine base.

II. Discussion
A. Rule 404(b) Evidence

  Under Rule 404(b), evidence of a
defendant’s other acts may be introduced
if a four-part test is satisfied. See
Williams, 238 F.3d at 874; United States
v. Wash, 231 F.3d 366, 370 (7th Cir.
2000). Jones claims that the 404(b)
testimony admitted at his trial fails the
first and fourth prongs of this test: the
evidence did not establish any matter in
issue besides propensity, and the danger
of unfair prejudice substantially
outweighed the probative value. This
argument is apparently premised on the
fact that Jones’s defense at trial was
that he did not live at the North 45th
Street residence during the time the 1998
search warrant was executed and so any
narcotics found in the house were not
his. Jones contends that the statements
of Harris, Weatherby, and Wooten do not
counter his defense and are thus
irrelevant because none of the three drug
purchasers could directly testify that
Jones stored any controlled substances in
the house. Similarly, Jones argues that
Delaney’s testimony also does not cast
doubt on his defense because Delaney’s
evidence shows only that drugs were
stored in the house five years earlier,
rather than that Jones lived in the house
and knew of the narcotics in 1998.
According to Jones, because the Rule
404(b) evidence was not relevant to
whether he lived in the house and thus
possessed the drugs, its only effect was
to unfairly prejudice him by showing his
propensity to traffic in controlled
substances. The government contends that
the evidence was admissible to show
Jones’s intent and knowledge and did not
unduly prejudice him. The parties also
dispute whether we should review for
abuse of discretion or plain error,/1
but we need not address this question
because under either standard Jones’s
challenge fails.

  1.   Matter other than propensity.

  The elements of possession with intent
to distribute under 21 U.S.C. sec.
841(a)(1) are: (1) possession of a
controlled substance; (2) knowledge that
the material is a controlled substance;
and (3) intent to distribute it. Lanier
v. United States, 220 F.3d 833, 840 (7th
Cir. 2000). Jones argues that because he
was only disputing the first element,
possession, the government should not
have been permitted to present evidence
on the second and third elements.
However, this contention misapprehends
the government’s burden in a criminal
trial. In all criminal cases, the
government must prove each element, even
those that the defendant does not
specifically contest, beyond a reasonable
doubt to convict a defendant. Estelle v.
McGuire, 502 U.S. 62, 69 (1991) ("[T]he
prosecution’s burden to prove every
element of the crime is not relieved by a
defendant’s tactical decision not to
contest an essential element of the
offense."); see also Mathews v. United
States, 485 U.S. 58, 64-65 (1988) ("A
simple plea of not guilty puts the
prosecution to its proof as to all
elements of the crime charged.")
(citation omitted). Even though Jones
focused only on the first element of the
alleged crime, denying that he possessed
the drugs contained in the house on North
45th Street, the government was still
required to prove both his knowledge that
the substances were narcotics and his
intent to distribute by submitting
evidence on those issues. United States
v. Kellum, 42 F.3d 1087, 1093 (7th Cir.
1994).

  The Rule 404(b) evidence submitted in
this case aided the prosecution in
carrying its burden of proving intent and
knowledge, and so satisfies the first
prong of the Rule 404(b) test. Jones’s
transactions with Harris, Weatherby, and
Wooten showed that Jones in the past had
sold drugs that he had possessed.
Evidence that he previously distributed
narcotics supports a finding that he
intended to distribute the drugs found
when the 1998 search warrant was executed
and that he knew these substances were
drugs. Indeed, intent to distribute drugs
and knowledge that a particular substance
is a narcotic often are proven through
testimony about prior sales of controlled
substances. See, e.g., United States v.
Denberg, 212 F.3d 987, 993-94 (7th Cir.
2000); United States v. Tringali, 71 F.3d
1375, 1379 (7th Cir. 1995). Jones’s
discussions with Harris and Weatherby
concerning the search warrant and
confiscation of Jones’s drugs aided the
prosecution in establishing that Jones
knew he was selling a controlled
substance. Delaney’s testimony furthered
the government’s case by demonstrating
that Jones had repeatedly possessed large
amounts of narcotics, which supports a
finding that the possessor intended to
distribute the drugs to others since such
quantities are unlikely to be consumed by
a single person. Also, Delaney’s
testimony supported the proposition that
Jones had previously been present in the
house when substantial amounts of drugs
were present, increasing the probability
that he knew that the substances in the
house in 1998 were narcotics.

  2.   Unfair prejudice.

  Evidence is unfairly prejudicial only to
the extent that it will cause the jury to
decide the case on improper grounds. See
Denberg, 212 F.3d at 994; United States
v. Long, 86 F.3d 81, 86 (7th Cir. 1996).
As discussed above, the Rule 404(b)
testimony presented in this case was
primarily directed toward elements of the
crime that the prosecution was required
to establish, namely, Jones’s intent to
distribute and his knowledge that he
possessed narcotics. The jury’s use of
the Rule 404(b) evidence on these legally
relevant issues of intent and knowledge
does not constitute unfair prejudice.

  The jury might also have been tempted to
use the Rule 404(b) evidence to infer a
propensity of Jones to engage in drug
trafficking activities, which would have
been unfairly prejudicial. However, any
such potential prejudice was ameliorated
by the limiting instruction given by the
trial court. Williams, 238 F.3d at 876;
Denberg, 212 F.3d at 994. We assume that
juries follow a court’s instructions,
United States v. Wilson, 237 F.3d 827,
835 (7th Cir. 2001), which means in this
instance that we assume the jury used the
evidence only for intent and knowledge
and not to infer a propensity for
committing illegal acts. Therefore, Jones
was not unfairly prejudiced by the Rule
404(b) evidence.

B.   Apprendi

  Jones argues that the trial court
improperly increased his sentence on the
basis of drug quantities that were
notalleged in the indictment or proven to
the jury. The court did this by
attributing the drugs Jones sold to
Harris, Weatherby, Wooten, and others as
relevant conduct under the Sentencing
Guidelines, increasing Jones’s offense
level under the Guidelines by two and
thus lengthening his sentence. In
support, Jones relies on a number of
cases holding that drug quantities must
be proven to increase a defendant’s
sentence under sec. 841(b).

  Apprendi holds that "[o]ther than the
fact of a prior conviction, any fact that
increases the penalty for a crime beyond
the prescribed statutory maximum must be
submitted to a jury, and proved beyond a
reasonable doubt." 120 S. Ct. at 2362-63.
The jury found that the government had
proven the charges listed in the
indictment, one of which was that Jones
possessed with the intent to distribute
135.8 grams of cocaine base, beyond a
reasonable doubt. The statutory maximum
for possession with intent to distribute
50 or more grams of cocaine base is life
imprisonment. 21 U.S.C. sec.
841(b)(1)(A)(iii). Since the thirty-year
sentence that Jones received is less than
the statutory maximum of life
imprisonment, Apprendi is not implicated.
  The principal thrust of Jones’s argument
is that relevant conduct under the
Sentencing Guidelines must be proven to
the jury beyond a reasonable doubt before
it can be used to increase a defendant’s
sentence. We have squarely rejected this
argument. "[P]ursuant to the sentencing
guidelines, district courts may still
determine a drug offender’s base level
offense by calculating quantities of
drugs that were not specified in the
count of conviction but that the court
concludes, by a preponderance of the
evidence, were a part of the defendant’s
relevant conduct, as long as that
determination does not result in the
imposition of a sentence that exceeds the
statutory maximum penalty for that
crime." United States v. Jones, No. 00-
2531, 2001 WL 294306, at *5 (7th Cir.
Mar. 28, 2001); see also Talbott v.
Indiana, 226 F.3d 866, 869 (7th Cir.
2000) ("Apprendi does not affect
application of the relevant-conduct rules
under the Sentencing Guidelines to
sentences that fall within a statutory
cap."). Because the district court’s
reliance on Jones’s relevant conduct in
applying the Guidelines did not result in
a sentence exceeding the statutory
maximum of life imprisonment, the court
did not violate the rule of Apprendi.

III.   Conclusion

  The evidence regarding Jones’s prior
drug sales and having a large quantity of
drugs in his alleged residence was
probative of his intent to distribute
narcotics and knowledge that the
substances he possessed were controlled.
The evidence was not unfairly prejudicial
given its probative value and the trial
court’s limiting instruction. Because the
jury found beyond a reasonable doubt
facts that made Jones eligible for a
statutory maximum sentence of life
imprisonment, the district court did not
violate Apprendi in enhancing Jones’s
offense level under the Sentencing
Guidelines by including uncharged drug
sales as relevant conduct. Therefore,
Jones’s convictions and sentence are

Affirmed.

1/ The standard of review issue centers around
whether the district court’s denial of Jones’s
pre-trial motion to exclude the Rule 404(b)
evidence was conditional or definitive. If the
pre-trial denial was definitive, then Jones did
not need to object during the trial to preserve
the issue and so we would review for abuse
ofdiscretion; if the pre-trial denial was condi-
tional, objections during the trial would be
necessary and Jones’s failure to make those would
cause us to review only for plain error. See
Wilson v. Williams, 182 F.3d 562, 567 (7th Cir.
1999) (en banc). Because the standard of review
does not affect the outcome, we need not decide
whether the trial court’s denial of the motion in
limine was definitive or conditional.