183 S.W.3d 793 (2005)
Eugene Morris HARTIS, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 14-04-00441-CR.
Court of Appeals of Texas, Houston (14th Dist.).
December 13, 2005.
*795 Charley L. Smith, Bellville, for appellants.
Daniel W. Leedy, Bellville, for appellees.
Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.

OPINION
EVA M. GUZMAN, Justice.
We withdraw our opinion of August 30, 2005, and issue this substitute opinion.
A jury convicted appellant Eugene Morris Hartis, Jr. of resisting arrest or transportation, and the trial court sentenced him to 180 days in jail and a $4,000 fine.[1] In four issues, appellant challenges (1) the legal and factual sufficiency of the evidence supporting his conviction; (2) the trial court's denial of his motion for election; and (3) the trial court's admission of portions of a videotape evidencing his arrest. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND
The events at issue began with a traffic stop by Officer William Palmer of the Sealy Police Department on November 21, 2002 after he observed appellant exceeding the posted speed limit. Appellant insisted that he was not speeding and refused to sign the citation. After Palmer informed appellant that he would be arrested if he did not sign, appellant replied, "Well, then, you do it." Appellant submitted to being handcuffed, but struggled with Palmer as they walked to the patrol car. The entire encounter was recorded on videotape by a camera inside Palmer's patrol car. Appellant was taken to the Austin County Jail and was subsequently charged by information with "prevent[ing] or obstruct[ing]" Palmer "from effecting an arrest, a search, or transportation," a violation of TEX. PEN. CODE ANN. § 38.03 (Vernon 2002).
Appellant made a motion for election, stating that there are three ways in which one can commit an offense violating Section 38.03, and asking the trial court to order the State to identify which of these ways it would attempt to prove. But, at the hearing on the motion, appellant took a different position, and argued that this section actually constitutes three different offenses, rather than three ways to commit a single offense; therefore, the basis of appellant's motion is unclear. Appellant also filed a motion in limine, seeking to exclude a portion of the State's videotaped evidence. The trial court denied both motions. At the conclusion of the trial, the court issued a jury charge that asked jurors to determine whether appellant was guilty of resisting arrest and also whether *796 he was guilty of resisting transportation.[2] The jury unanimously found him guilty of each individual charge.

II. ISSUES PRESENTED
In four issues before us, appellant challenges (1) the legal and factual sufficiency of the evidence supporting a conviction for resisting arrest; (2) the legal and factual sufficiency of the evidence supporting a conviction for resisting transportation; (3) the trial court's ruling on his motion for election; and (4) the trial court's ruling on his motion in limine. For the sake of clarity, we address these issues chronologically, reflecting the order in which they arose in the court below. We therefore turn first to appellant's third issue.

III. DISCUSSION

A. Did the trial court err by denying appellant's motion to require the State to elect a theory of prosecution under Section 38.03?
In appellant's brief, he argues the trial court erred in denying his motion to require election because "[section 38.03] provided three ways to commit the offense and the state should be required to specify the manner in which the [appellant] violated the statute." By denying his motion, appellant argues his ability to prepare a defense was impacted because he "could have made different motions, pretrial motions, presented different evidence and different motions for directed verdict." He also argues the trial court's ruling "clearly confused the jury." Because we conclude that section 38.03 states only one offense, and that appellant was on notice of the offense alleged in the information, we overrule appellant's third issue.
The State is not required to elect between separate manners and means of committing the same offense. Rodriguez v. State, 970 S.W.2d 66, 69 (Tex.App.-Houston [14th Dist.] 1998, pet. ref'd) ("[t]he State may plead all three forms of delivery [of cocaine] and it may not be forced to elect a particular method on which to prosecute"); Braughton v. State, 749 S.W.2d 528, 530 (Tex.App.-Corpus Christi 1988, pet. ref'd) ("[t]he State need not elect between various theories alleged and the jury may consider all theories and return a general verdict of guilty") (citing Cook v. State, 741 S.W.2d 928, 935 (Tex. Crim.App.1987) (en banc) and Franklin v. State, 606 S.W.2d 818, 821 (Tex.Crim.App. 1979) (en banc)). Although a defendant may be charged multiple times for committing the same offense in different ways,[3] where only a single offense is charged, and when that offense can be committed in more than one way, a defendant is entitled to be informed of the manner in which he allegedly violated the statute. See Ferguson v. State, 622 S.W.2d 846, 850 (Tex. Crim.App. [Panel Op.] 1981).
In addressing this issue, we must first decide whether section 38.03 addresses more than one offense. If it does, then appellant was entitled to force the State to elect which offense it would attempt to prove. But, if the statute instead addresses various ways to commit a single offense, we must determine whether the State informed appellant of the type of violation it would attempt to prove.

*797 1. Section 38.03 addresses only one offense
Section 38.03 of the Texas Penal Code states:
Resisting Arrest, Search, or Transportation
(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another.
TEX. PEN.CODE ANN. § 38.03 (Vernon 2002). Appellant argues arrest, search, and transportation constitute three separate offenses, whereas the State argues these words describe three different ways of committing a single offense. Although we approached the issue in dicta in Vaughn v. State, 983 S.W.2d 860 (Tex.App.-Houston [14th Dist.] 1998, no pet.), this is the first time that this court has been asked to address this issue directly.
In Vaughn, the defendant pleaded not guilty to the offense of resisting arrest under section 38.03. On appeal, he challenged both the legal and factual sufficiency of the evidence to support his conviction of the offense as charged in the information. Id. at 861-62. Vaughn's information stated:
Defendant, on or about January 30, 1997, did then and there unlawfully intentionally PREVENTS [sic] a person he knows is A PEACE OFFICER from effecting AN ARREST of LARRY MICHAEL VAUGHN buy using force against S.D. THOMPSON, namely by STRIKING S.D. Thompson WITH HIS HANDS.
Id. To convict Vaughn under this information, the State was required to prove beyond a reasonable doubt the elements of the offense with which he was charged. See id. at 862. Those elements were (1) that the appellant intentionally; (2) prevented or obstructed; (3) a person he knows is a peace officer; (4) from effecting an arrest; (5) of himself; and (6) by using force against the peace officer. Id. At trial, Officer Thompson testified that Vaughn "wasn't under arrest, but he was resisting just me detaining him...." Id. at 863. He further testified that Vaughn's action in flailing his arms did not constitute force directed against him, but was to avoid being handcuffed. Id. We concluded that the evidence was legally insufficient to support appellant's conviction because no evidence established defendant was ever under arrest. Id.
Though not necessary to the holding of the case, this court also stated:
Three different offenses are covered in section 38.03resisting arrest, resisting search or resisting transportation.... The State could have charged appellant alternatively with all three offenses which would have forced appellant to file a motion to quash the information and require the State to charge him more specifically. See Ferguson v. State, 622 S.W.2d 846, 850 (Tex.Crim.App.1981). Rather, the State charged appellant specifically with resisting arrest, thus relieving appellant from defending against the other two offenses.
Id. at 862. As support for the conclusion that resisting arrest, resisting search, and resisting transportation constitute three separate offenses, this court merely restated the statute and cited to Ferguson. Id. at n. 1. A closer reading of Ferguson, however, reveals that Ferguson did not address a situation in which more than one offense was or could have been alleged. To the contrary, Ferguson explained that there can be more than one type of act or *798 omission by which a defendant could commit the same offense.[4]
In Ferguson, the defendant was charged with delivery of a controlled substance, and the Court noted that the statute allowed "three different and distinct ways of establishing the accused's criminal conduct." Ferguson, 622 S.W.2d at 850 (emphasis added). The Court of Criminal Appeals found that the type of delivery the State would attempt to prove would be critical to the appellant's defense, because the "`delivery' is the act by the appellant which constitutes the criminal conduct." Id. Accordingly, the Court held that when there is more than one distinct manner by which the defendant could have committed an offense, the State must put the defendant on notice of the manner it intends to prove. Id. 622 S.W.2d at 851.
Ferguson was applicable to the facts in Vaughn, and would have dictated the same result that Vaughn reached. By stating in the information that Vaughn resisted arrest, the State provided notice to Vaughn that it intended to prove he committed an offense in that manner. But by stating only that Vaughn resisted arrest, the State was limited to proving he violated section 38.03 in that manner only. As a result, Vaughn could not lawfully have been convicted by proof that showed only that he resisted search or transportation.
Because Vaughn's references to section 38.03's "three offenses" are mere dicta, no court has followed that language, nor do we feel bound to do so. See Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (noting, "Dictum is not binding as precedent under stare decisis"). In Vaughn, we did not conduct a "separate offense" analysis, nor did we refer to any of the cases acknowledging that a single offense can be committed in different ways. See, e.g., Gibbons v. State, 652 S.W.2d 413, 415 (Tex. Crim.App. [Panel Op.] 1983) (holding when the penal statute provides multiple ways an offense may be committed, the charging instrument must allege every alternative means of commission upon which a conviction will be sought); Renfro v. State, 827 S.W.2d 532 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (allowing each method of committing the same offense to be submitted alternatively in the charge to jury); Finster v. State, 152 S.W.3d 215 (Tex.App.-Dallas 2004, no pet.) (conducting a "separate offense" analysis on section 38.03 and concluding that it addresses one offense that can be committed in a variety of ways). Although such analysis was unnecessary to the holding in Vaughn, it is required in the present case.
Where a statute proscribes different types of conduct, the use of the word "or" between the descriptions of that conduct is some indication that the legislature intended each to be a separate offense. Vick v. State, 991 S.W.2d 830, 832-33 (Tex.Crim.App.1999). Such use is not dispositive, however.[5] In order to determine *799 the number of offenses addressed by the statute, we examine the language of the statute to identify the conduct that constitutes a violation, and the object of the prohibited conduct for whose benefit the statute was likely enacted.
In section 38.03, the conduct proscribed is not "effecting an arrest, search, or transportation;" it is "intentionally prevent[ing] or obstruct[ing] ... by using force." We must therefore determine if "preventing" and "obstructing" are different types of conduct. The definitions of the word "obstruct" include "to hinder or prevent from progress, check, stop, ... to impede; to interpose impediments to the hindrance or frustration of some act or service, as to obstruct an officer in the execution of his duty." BLACK'S LAW DICTIONARY 1077 (6th ed.1990). "Prevent" is similarly defined as "to hinder, frustrate, prohibit, impede, or preclude; to obstruct... [t]o stop or intercept the approach, access, or performance of a thing." BLACK'S LAW DICTIONARY 1188 (6th ed.1990). Both words can be used to mean "hinder," "prevent," "stop," or "impede." Based on the definitions and common usage of these words, we cannot conclude that they describe different types of conduct.
The object of the conduct is also relevant to the determination of the number of offenses a statute proscribes. A defendant violates section 38.03 by intentionally preventing or obstructing a peace officer or a person acting at a peace officer's direction "from effecting an arrest, search or transportation... by using force...." In other words, the conduct proscribed is the act of intentionally preventing or obstructing an authorized person from effecting his duties. See Finster, 152 S.W.3d at 219. The particular duty the defendant impedes "is simply another means by which a person could be interfering with a police officer in effecting his duties." Id. We therefore agree with the Fifth Court of Appeals in finding that section 38.03 of the Texas Penal Code addresses a variety of ways in which to commit a single offense. See id.
Because the text of section 38.03 does not prohibit differing types of conduct, we do not read the statute as describing different offenses. Accordingly, we conclude the information did not allege that appellant committed more than one offense, therefore the State was not required to make an election.

2. Appellant had notice of the type of violation alleged
Because the information charged appellant with the commission of a single offense, our next inquiry focuses on whether the State informed appellant of the type of violation it attempted to prove. The rule requiring the State to elect serves four purposes: (1) ensuring unanimous verdicts; (2) giving the defendant notice of the particular offense with which he is charged; (3) protecting the accused from the introduction of extraneous offenses; and (4) minimizing the risk that the jury may convict because the combined weight of several offenses convinced the jury the defendant was guilty. See Francis v. State, 36 S.W.3d 121, 123-25 (Tex.Crim. App.2000) (en banc); O'Neal v. State, 746 S.W.2d 769, 772-73 (Tex.Crim.App.1988) (en banc); Fisher v. State, 33 Tex. 792, 794 (1870). We now examine whether these purposes were frustrated by the trial court's ruling.
The need to ensure a unanimous verdict is not at issue. At the hearing on the motion to require election, the appellant *800 and the State agreed to submit separate verdicts regarding each way he allegedly violated the statute. See Renfro v. State, 827 S.W.2d 532 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (allowing each method of committing same offense alleged in indictment to be submitted alternatively in charge to jury). The jury unanimously found him guilty of resisting arrest, and in a separate finding, unanimously found him guilty of resisting transportation. In other words, the jury unanimously agreed on the facts supporting the conviction. Based on these findings, the trial court entered judgment on a single count of "resisting arrest or transportation."
The third and fourth purposes underlying a motion to elect are also not applicable here. We are not concerned with the possible effect of extraneous or multiple offenses in this case because the appellant was charged with only one offense. We are concerned instead with the whether the information provided appellant with sufficient notice of the charged offense.
Appellant focuses his argument on the second of the four goals. He argues that the information impermissibly alleged all of the ways in which the statute can be violated.[6] Although it appears to be appellant's position that the State can charge him with only one way of violating section 38.03, Texas courts have identified the circumstances under which the State can charge a defendant with committing a single offense in more than one way. If a statute sets out several ways for committing an offense, and those ways embrace the same definition, are punishable in same manner, and are not repugnant to each other, the State need not elect between various theories alleged; rather, the jury may consider all of the theories and return a general verdict of guilty. See, e.g., Renfro, 827 S.W.2d at 536; Sperling v. State, 924 S.W.2d 722, (Tex.App.-Amarillo 1996 pet. ref'd); State v. Garrett, 798 S.W.2d 311 (Tex.App.-Houston [1st Dist.] 1990, aff'd, 824 S.W.2d 181 (Tex.Crim.App.1992) (en banc)) (holding an indictment for delivery of controlled substance that alleged the delivery was by actual transfer, by constructive transfer, or by offer to sell, provided sufficient notice to defendant that he should prepare to defend prosecution on all three theories of delivery); see also, Carpenter v. State, 952 S.W.2d 1 (Tex. App.-San Antonio 1997, aff'd, 979 S.W.2d 633) (finding an indictment paragraph stating defendant "did then and there, with the intent to defraud and harm Ernest Mireles, intentionally remove, conceal, and impair the availability of a government record, to-wit" properly alleged alternative ways of committing offense of tampering with government documents and did not allege three different offenses in same count of indictment); Kingsley v. State, 744 S.W.2d 191, 194 (Tex.App.-Dallas 1987), pet. dism'd, 784 S.W.2d 688 (Tex. Crim.App.1990) (en banc) (holding indictment against defendant alleging "purchase of child" did not violate article pertaining to joinder of certain offenses, despite claim that it alleged multiple means for commission of the offense or alleged more than one offense in a single paragraph; allegations that defendant gave money to pregnant woman for purposes of acquiring child to place for adoption complied with article 21.24 of the Texas Code of Criminal Procedure); Carlock v. State, 8 S.W.3d 717, 721 (Tex.App.-Waco 1999, pet. ref'd) (stating, "It has long been held that where there are several ways or means by which an offense may be committed set forth in the same statute, and those ways or means are subject to the same punishment, they *801 may be charged conjunctively in one paragraph").[7] The State may specifically allege, in the conjunctive or disjunctive, any or all of the statutorily-defined types of conduct regarding an offense. State v. Carter, 810 S.W.2d 197, 199 (Tex.Crim. App.1991) (en banc) (citing Ferguson, 622 S.W.2d at 851). Such a charging instrument still places a defendant on clear notice of what the State will attempt to prove at trial. Id. (citing State v. Winskey, 790 S.W.2d 641 (Tex.Crim.App.1990) (en banc)).
A defendant is constitutionally entitled to know what behavior he allegedly engaged in so that he can properly prepare a defense to that allegation. Id. (citing Ferguson, 622 S.W.2d at 850-51). Under the constitutional guarantee of adequate notice, a defendant may not "be left to guess or assume that the State [is] going to prove one or all the types of [statutorily-defined] conduct." Id. (citing Ferguson, 622 S.W.2d at 851).
The information in this case met the standard set forth in Ferguson and Carter for providing notice. It identified several ways (resisting arrest, search, or transportation) a single offense (intentionally preventing or obstructing a peace officer in the completion of his duties by using force) could be committed. Each of these ways of committing the offense was set forth in the same statute, and was subject to the same punishment. Because appellant was not entitled to greater notice than that which was given to him in the information, the trial court properly denied his motion to elect.
Accordingly, we overrule appellant's third issue.

B. Did the trial court err in admitting the videotaped evidence of verbal resistance?
In his motion in limine, appellant argued that the State should not be allowed to show or refer to those portions of the videotape showing appellant's verbalbut not physicalresistance to Palmer's questioning. Appellant objected to the evidence as irrelevant and prejudicial on the grounds that oral statements do not constitute a "use of force" in violation of section 38.03. The State argued that the evidence was relevant to show appellant's intent to use physical force against Palmer. The trial court denied the motion, finding appellant's verbal actions to be part of the resistance. We agree.

1. Standard of Review
The Texas Rules of Evidence favor admissibility of relevant evidence and the presumption is that relevant evidence will be more probative than prejudicial. Smith v. State, 105 S.W.3d 203, 207 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (citing Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App.1990) (en banc)); TEX.R. EVID. 403. The burden is on the opponent of the proffered evidence to demonstrate the negative attributes of the evidence and to show how these negative attributes substantially outweigh the probative value of the evidence. Id. Further, an appellate court reviewing the trial *802 court's decision to admit certain evidence may reverse it only for an abuse of discretion, i.e., only when it is outside the zone of reasonable disagreement. Id. (citing Guzman v. State, 955 S.W.2d 85, 94 (Tex.Crim. App.1997) (en banc); Apolinar v. State, 155 S.W.3d 184, 186 (Tex.Crim.App.2005)). An abuse of discretion occurs only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim.App.2003).

2. Analysis
The videotape in this case shows the entire traffic stop from beginning to end. While the videotape depicts appellant's harsh language toward Palmer, it also shows the escalating degree of force appellant used in pulling against Palmer as Palmer led him to the patrol car. Palmer testified that appellant was belligerent and continually cursed, yelled, and screamed at Palmer. He further stated appellant repeatedly pulled against him, and was able to break his grasp. Although appellant reurged his objections to admitting the videotape, he did not object to Palmer's testimony. Although appellant now contends that the prosecutor compounded error by "argu[ing] over and over" during closing arguments that Palmer received a great deal of verbal abuse from the appellant, appellant did not object to those comments.[8]
Section 38.03 only prohibits conduct that is intentional. In addition to showing the escalating degree of force appellant used, the audio portion of the tape was relevant in deciding whether appellant intentionally used force against Palmer. For example, the tape revealed that immediately after Officer Palmer told appellant he would be taken to jail, appellant twice told the officer "you're going to regret this," and repeatedly said "get your hands off of me." Although Palmer testified that he outweighed appellant by almost a hundred pounds, the videotape showed appellant pulling Palmer up an incline. Appellant was not merely pulling away from the officer, but pulling the officer.
Viewing the entire videotape and Palmer's testimony, we cannot say the probative value of the videotape is substantially outweighed by its prejudicial effect. See TEX.R. EVID. 403. Palmer testified without objection to a similar course of events and some of the dialogue contained in the videotape. The videotape was helpful to the jury because it placed Palmer's testimony about appellant's increasing use of force against him in the proper context and provided an objective measure of that force. It also provided objective evidence that appellant's use of force was intentional. We conclude the trial court's decision to admit the videotape was well within the zone of reasonable disagreement, and therefore overrule appellant's fourth issue. See Apolinar, 155 S.W.3d at 186.

C. Is the Evidence Legally and Factually Sufficient to Support the Conviction?
In his first two issues, appellant contends the evidence is legally and factually insufficient to support the jury's finding that he resisted arrest and resisted transportation. In support of his argument, he argues that there is no evidence to show he performed any act that could be construed as resisting arrest.[9] He also *803 argues that his actions could not be interpreted as resisting transportation. Although appellant separated these two issues in his brief, we consider them under the same standard of review.

1. Standard of Review
When an appellant challenges both the legal and factual sufficiency of the evidence, we address the legal sufficiency challenge first because an affirmative finding on that issue will result in a rendition of a judgment of acquittal, while a finding of factual insufficiency warrants a remand for a new trial. Nickerson v. State, 69 S.W.3d 661, 668 (Tex.App.-Waco 2002, pet. ref'd).
When conducting a legal sufficiency review, we must determine whether, after viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim.App.2004). During this process, we do not re-evaluate the credibility of witnesses or the weight of evidence, and we will not substitute our judgment for that of the fact-finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App.1998). We affirm the judgment if any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim.App.1997) (en banc).
In reviewing the evidence for factual sufficiency, we view it neutrally, setting aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to sustain the finding of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the State could not have met its burdend of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim. App.2004). In our evaluation of the evidence, we must be deferential to the jury's findings and resist intruding on its role as the sole judge of the witnesses' credibility and of the weight to be given to the evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000) (en banc).

2. Analysis
Although appellant separates his sufficiency issues into resisting arrest and resisting transportation, the judgment reflects that appellant was convicted of a single offense. To obtain a conviction, the State was required to prove appellant intentionally prevented or obstructed Palmer, a person appellant knew to be a police officer, from effecting the arrest or transportation of appellant by using force against Palmer. See TEX. PEN.CODE ANN. § 38.03(a) (Vernon 2002).
An arrest is a process with a beginning and an end, the end being a successful restriction of liberty of movement by either force or submission. See Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim.App.2000). Appellant argues nothing in the record shows he resisted arrest because the (1) videotape shows him turning around and placing one hand behind his back after Palmer told him he was being arrested, and (2) Palmer stated that at that point, he was "in control of the situation."
Appellant further claims he did not resist transportation because "merely pulling away" from the officer is not sufficient to resist transportation, nor did appellant "shove the officer or hit the officer or *804 touch the officer in any way." But, the videotape shows that as Palmer led appellant to the patrol car, appellant attempted to twist away from Palmer's grasp, and pulled Palmer up an incline, away from the patrol car. The record also reflects that out of the camera's view, appellant was able to break Palmer's grasp and "pull [Palmer] off [his] feet." Further, as Palmer attempted to place appellant in the patrol car, appellant repeatedly pulled Palmer away from the door's lock, causing Palmer to have to "struggle" to unlock the door. Palmer also testified that after appellant was placed in the patrol car, he was told not to kick the window, but continued to do so. The videotape demonstrates the shaking of the patrol car as appellant kicked the window with enough force to dislodge it. Palmer testified without objection that another officer was standing "right there next to the car,"[10] and that the appellant's actions at this time might have been directed at the other officer.
Viewing the evidence in the light most favorable to the verdict, we conclude a reasonable juror could have found beyond a reasonable doubt that appellant resisted arrest or transportation. See Moff, 131 S.W.3d at 488. The evidence showed appellant intentionally obstructed Palmer, a person appellant knew to be a peace officer, from effectuating appellant's arrest or transportation by using force against Palmer. Further, when the evidence is cast in a neutral light, we are not convinced the evidence supporting conviction, taken alone, is too weak to sustain the jury's finding of guilt beyond a reasonable doubt, nor is the contrary evidence so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. Accordingly, we overrule appellant's first and second issues concerning sufficiency of the evidence.

IV. CONCLUSION
In sum, we conclude Section 38.03 encompasses various ways of committing the single offense of resisting arrest, search, or transportation. Appellant was charged by information with violating section 38.03 in three different ways, and received sufficient notice of the need to defend against evidence of resisting arrest and resisting transportation.[11] Appellant specifically agreed to separate jury questions on resisting arresting and resisting transportation, and the evidence was legally and factually sufficient to support the jury's unanimous finding on both of these issues. The trial court did not err in admitting the challenged portions of the videotape of appellant's traffic stop; the tape provided evidence that appellant used force against a police officer effecting an arrest or transportation, and that appellant did so intentionally.
Having overruled each of appellant's objections and sustained each challenged ruling, we affirm the judgment of the trial court.
NOTES
[1]  Appellant's sentence was suspended and he was placed on community supervision for 180 days.
[2]  The State abandoned the allegation that appellant resisted a search.
[3]  See Carlock v. State, 8 S.W.3d 717, 721 (Tex.App.-Waco 1999, pet. ref'd) (stating, "It has long been held that where there are several ways or means by which an offense may be committed set forth in the same statute, and those ways or means are subject to the same punishment, they may be charged conjunctively in one paragraph").
[4]  See Queen v. State, 662 S.W.2d 338, 340 (Tex.Crim.App.1983) (en banc) (noting, "We observe then that the Ferguson opinion stands for the proposition that an indictment for the delivery of a controlled substance must specify which type or types of delivery the State would rely upon and need not allege the precise manner by which a specified type of delivery was performed") (emphasis in original).
[5]  If the mere use of the word "or" indicated a different offense, section 38.03(a) would not constitute three offenses, but forty-eight offenses, addressing every combination of "prevents or obstructs" (two possibilities) "a person he knows is a peace officer or a person acting in a peace officer's presence and at his direction" (two possibilities) from effecting "an arrest, search, or transportation" (three possibilities) "of the actor or another" (two possibilities) by using force "against the peace officer or another": (two possibilities). See TEX. PEN.CODE ANN. § 38.03(a) (Vernon 2005) (emphasis added).
[6]  But see n. 5, supra.
[7]  Though the information in this case alleged alternate means of committing the same offense in a single paragraph, appellant did not object to the information on that basis. For a complaint to be preserved on appeal, there must be a timely objection stating the specific grounds for the ruling sought. TEX.R.App. P. 33.1; TEX.CODE CRIM. PROC. ANN. art. 1.14(b) (Vernon 2002). That is to say, the specific complaints urged on appeal must have been made obvious to the trial court at the time trial objections were made. See Jones v. State, 843 S.W.2d 92, 98 (Tex.App.-Dallas 1992, pet. ref'd). Because appellant failed to object to the information on the basis that a single paragraph contained more than one means of committing the same offense, we do not address that issue.
[8]  Appellant's own counsel asked Palmer to identify "which cuss word" on the videotape coincided with the end of appellant's use of force.
[9]  Appellant's argument on this issue is likely predicated on his claim that the portion of the videotape to which he objected in his motion in limine was inadmissible. Having overruled appellant's issue contesting the trial court's ruling in the section above, we will consider the contents of all admitted portions of the video as part of our legal and factual sufficiency analysis.
[10]  The other officer's voice is heard on the videotape during this time, although he is out of range of the camera.
[11]  Appellant was aware prior to trial that the State abandoned its claim of resisting search.


695 N.W.2d 506 (2005)
HAAG v. TUDOR
No. 04-0674
Court of Appeals of Iowa
February 24, 2005.
Decision without published opinion. Affirmed.


977 F.2d 580
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.William Hayward DRUMMOND, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 92-5179.
United States Court of Appeals, Sixth Circuit.
Oct. 14, 1992.

Before RALPH B. GUY, Jr. and BATCHELDER, Circuit Judges, and LIVELY, Senior Circuit Judge.

ORDER

1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.   Upon examination, this panel unanimously agrees that oral argument is not needed.   Fed.R.App.P. 34(a).

2
William Drummond filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 in which he challenged the constitutionality of a 1990 sentence for bank robbery.   The district court denied the relief sought and this appeal followed.

3
Upon consideration, we find no merit to the appeal.   Drummond's various claims for relief center around his contention that prior unconstitutional convictions were improperly used in the calculation of his sentence.   The record reflects Drummond waived these objections in open court, with counsel, in exchange for the government's promise not to oppose a sentence at the lower end of the guideline range.   Drummond's related claims involving ineffective assistance of counsel, involuntary guilty plea and illegal sentence are patently meritless.

4
Accordingly, the district court's judgment is affirmed.   Rule 9(b)(3), Rules of the Sixth Circuit.


861 F.Supp. 1544 (1994)
UNITED STATES ex rel. Harold R. FINE, Plaintiff,
v.
MK-FERGUSON COMPANY and Industrial Contractors Corporation, Defendants.
Civ. No. 91-1122 JB.
United States District Court, D. New Mexico.
August 29, 1994.
*1545 Duff H. Westbrook, Maureen Sanders, Albuquerque, NM, for plaintiff.
Paul Bardacke, Kerry Kiernan, Eaves, Bardacke & Baugh, Albuquerque, NM, for defendant Indus. Contractors Corp.
William P. Snyder, Kramer, Rayson, Leake, Rodgers & Morgan, Knoxville, TN, for defendant M-K Ferguson Co.

MEMORANDUM OPINION AND ORDER
BURCIAGA, Chief Judge.
THIS MATTER came on for a hearing before the Court on July 15, 1994, on Plaintiff's December 21, 1993 motion to strike the affidavit of Walter Perry and Defendants Industrial Contractors Corporation's and MK-Ferguson's August 12, 1993 motions to dismiss. The Court, having reviewed the submissions of the parties, the relevant law, and having heard the arguments of counsel, finds Plaintiff's motion is not well taken and is denied.[1] Defendant Industrial Contractors Corporation's motion is also not well taken and is denied. The Court finds Defendant MK-Ferguson's motion is well taken in part and is granted in part.
*1546 Harold Fine initiated this qui tam[2] action on behalf of the United States Government and himself pursuant to the private enforcement provision of the False Claims Act, 31 U.S.C. § 3730 (1988) ("FCA"). Defendant Industrial Contractors Corporation ("ICC") asserts that present and former employees of any Inspector General's office should be absolutely barred from bringing qui tam actions based on information which they received via their employment. Defendant MK-Ferguson ("MK-F") contends that the Court is statutorily barred from asserting jurisdiction over this action because it is based on publicly disclosed transactions and allegations of which the Relator[3] was not an original source.

I. BACKGROUND
In 1978, Congress passed the Uranium Mill Tailings Radiation Control Act. 42 U.S.C. §§ 7901-7942 (1988). This Act authorized the establishment of the Uranium Mill Tailings Remediation Action ("UMTRA"), a program designed to safely remediate and contain residual mill tailings from uranium mining sites. UMTRA designated 24 sites for remediation. A site in Lakeview, Oregon was among them.
UMTRA directed the United States Department of Energy ("DOE") to enter into cooperative agreements with states containing UMTRA sites. Under these agreements, the DOE is responsible for 90 percent of the costs of remediation; the state is responsible for the remaining 10 percent. The state is authorized to question any of the costs incurred by the DOE.
The State of Oregon and the DOE entered into a UMTRA cooperative agreement. The DOE selected MK-F as the prime contractor responsible for the performance of all engineering and construction activities at the Lakeview UMTRA site. MK-F selected ICC to perform all construction work. The State of Oregon was not a party to either the prime contract between the DOE and MK-F or the subcontract between MK-F and ICC.
Some time after commencing work on the site, MK-F and ICC claimed additional costs, asserting that conditions at the site were not as anticipated. The DOE reimbursed the Defendants for these additional costs. The State of Oregon, however, questioned some of the additional costs claimed by the Defendants, ordered audits of Defendants' records, and sent a report of these contested costs to the DOE. The DOE's subsequent investigation concluded that most of the allegations made by Oregon had been resolved. Oregon, unsatisfied with the DOE investigation, requested that an audit of Defendants' records be performed by the DOE's Inspector General's ("DOE-IG's") Office. The DOE-IG subcontracted the performance of this audit to ADC, Ltd., an independent contracting firm. The Inspector General's Office issued its final report, based on ADC's audit, on April 30, 1991.
The Relator, now treasurer of Bernalillo County, was an employee of the United States Government for 31 years. He served 22 years with the General Accounting Office and nine with the DOE's Inspector General's Office, where he was an assistant manager of the Western Region Audit Office. Between July of 1987 and July of 1991, 84 to 97 percent of the audit reports issued by the Western Region Audit Office came from employees under his supervision. Fine retired in July of 1991, "motivated in part by (his) perception that (his) supervisors ... condoned fraud against the government by `watering down' reports" and by reporting false claims not as such, but as "unnecessary expenditures," "questioned costs," or "unsupported costs." (Fine Aff. ¶ 5).
While working for the DOE's Inspector General, the Relator was peripherally involved *1547 in the audits of the MK-F and ICC cost claims. After retiring, he filed this qui tam action under the FCA in November of 1991, alleging that Defendants made false claims against the federal government through their contract to remediate the Lakeview UMTRA site.

II. THE FALSE CLAIMS ACT
The False Claims Act is a tool for combatting fraud perpetrated against the United States Government. S.Rep. No. 345, 99th Cong., 2d Sess. 4 1986, reprinted in 1986 U.S.C.C.A.N. 5266, 5274 (hereinafter "S.Rep."). It was enacted during the Civil War at the behest of President Abraham Lincoln to control fraud in defense contracts. Erickson v. Am Inst. of Bio. Sciences, 716 F.Supp. 908, 915 (E.D.Va.1989). The original Act made use of the ancient concept of qui tam actions, allowing private citizens with knowledge of fraud to sue the perpetrators of the fraud on behalf of the government. Successful relators recovered 50 percent of the awarded damages under the 1863 Act, and the government received the other half. Such was the state of the FCA for the next 80 years.
During World War II, several qui tam actions were brought by relators who had no independent or personal knowledge of the fraud which they were alleging, but apparently based their actions on information obtained from criminal indictments brought by the government. Such actions were labeled "parasitic" or "copy-cat" suits. The Supreme Court addressed the legitimacy of such suits in United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943). The Court held that such actions were not barred by the statute and that qui tam actions may be filed by anyone, regardless of the source of the information forming the basis of the suit. Id. at 540-48, 63 S.Ct. at 382-86. The ruling in Hess led Congress to amend the qui tam provisions of the FCA. The 1943 amendments barred qui tam actions based on information which the Government possessed, regardless of whether the Government was actually utilizing the information to prosecute fraud. S.Rep. at 5277.
During the late 1970s and early 1980s, incidents of fraud in government contracts once again became prevalent. A 1981 General Accounting Office study reported that "most fraud goes undetected, [and of] the fraud that is detected, ... the Government prosecutes and recovers its money in only a small percentage of cases." S.Rep. at 5267 (quotation omitted). In 1978, Congress passed the Inspector General Act ("IGA") to combat fraud in government contracts and within government agencies and departments. The IGA created independent IG offices within government departments. These offices are charged with monitoring, investigating, and reporting fraud. See United States ex rel. Fine v. Univ. of Cal., 821 F.Supp. 1356, 1361 (N.D.Cal.1993).
Even after passage of the IGA, Congress felt that there existed "serious roadblocks to obtaining information as well as weaknesses in both investigative and litigative tools" for prosecuting fraud. S.Rep. at 5269. In an attempt to remedy this perceived problem, Congress amended the False Claims Act in 1986 by expanding the scope of qui tam actions. The 1986 amendments sought to strike a balance between, on the one hand, encouraging people to come forward with information regarding fraud, and on the other, preventing parasitic lawsuits. The amendments replaced the general jurisdictional bar on qui tam actions based on information in the possession of the government with a more specific and less restrictive set of jurisdictional bars. The amended FCA now prohibits courts from asserting jurisdiction over the subject matter of qui tam actions which are:
based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an Original source of the information.
31 U.S.C. § 3730(e)(4)(A) (emphasis added). 31 U.S.C. § 3730(e)(4)(B) defines the phrase "original source" as "an individual who has direct and independent knowledge of the information *1548 on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information."

III. ANALYSIS

A. WHETHER INSPECTOR GENERAL EMPLOYEES ARE PER SE BARRED FROM BRINGING QUI TAM ACTIONS UNDER THE FCA
The FCA states that "a person may bring a civil action," 31 U.S.C. § 3730(b)(1), under its provisions. This section has been consistently interpreted to include government employees, so long as they were not specifically barred by other provisions of the Act. United States ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1501 (11th Cir.1991); Erickson v. Am. Inst. of Bio. Sciences, 716 F.Supp. 908, 912-18 (E.D.Va.1989).
Limited caselaw exists on the more specific issue of whether IG employees should be prohibited from bringing qui tam actions. The District Court for the Southern District of Florida refused to prohibit a former IG employee from bringing a qui tam action based on information he had obtained as an IG employee. United States v. CAC-Ramsay, Inc., 744 F.Supp. 1158, 1159-61 (S.D.Fla.1990). The District Court for the Northern District of California, however, held that IG employees were barred, for policy reasons, from bringing qui tam actions under the FCA where "the relevant information was obtained as part of an IG investigation." United States ex rel. Fine v. Univ. of Cal., 821 F.Supp. 1356, 1361 (N.D.Cal.1993).
Section 3730(e) of the Act expressly enumerates certain actions over which no court may assert jurisdiction.[4] Government employees, including IG employees, are not so excluded. These enumerated exclusions should be considered exhaustive. "[E]numeration of specific exclusions from the operation of a statute is an indication that the statute should apply to all cases not specifically excluded." In re Cash Currency Exchange, Inc., 762 F.2d 542, 552 (7th Cir.1985) (citation omitted).
The IGA is discussed at some length in the legislative history of the 1986 Amendments to the FCA. See S.Rep. at 5269-73. To judicially imply an IG employee jurisdictional bar in the qui tam provisions of the FCA would be, in essence, a declaration that Congress failed to consider Inspector General employees as possible qui tam relators, and that if Congress had considered them, they would have been compelled to exclude them from the operation of the Act. It is not for this Court to make such assumptions, especially in light of the importance of qui tam jurisdiction to the history of the FCA and the attention the IGA received in the legislative history of the 1986 amendments. As the Ninth Circuit wrote, "The new jurisdictional bars were carefully crafted. They were framed by those surely aware of [Marcus v.] Hess, its holding that `any person' means `any person,' and its declaration that arguments about the limits on suits by informers should be addressed to Congress not the courts." United States ex rel. Hagood v. Sonoma County Water Agency, 929 F.2d 1416, 1420 (9th Cir.1991).
*1549 In its argument, Defendant adopts the position that "it makes no sense to permit government employees who receive salaries for the purpose of uncovering and reporting fraud to collect bounties under the FCA," United States ex rel. Fine v. Chevron, U.S.A., Civ. No. 91-3224 (N.D.Cal.1991), and that to permit such suits is an "absurd result." United States ex rel. Fine v. Univ. of Cal., 821 F.Supp. 1356, 1361 (N.D.Cal.1993). This Court cannot agree.
The concerns motivating Congress to amend the FCA in 1986 were that fraud was rampant, that it was undetected, and that even if detected, it was not prosecuted. S.Rep. at 5267. The legislative history notes the limited success of the IGA, and that "available Department of Justice records show most fraud referrals ... remain uncollected." Id. at 5269. The report further addressed the problem of government employees' unwillingness to report fraud in the belief that nothing would be done to correct the activity even if it was reported. Id. at 5270. Allowing IG employees to bring qui tam suits certainly addresses this problem of governmental failure to prosecute. Because the federal government must necessarily select, from among numerous allegations of fraud, which to prosecute, allowing IG employees to pursue qui tam claims based on information obtained while employed as IG investigators might enhance the government's limited ability to detect and remedy fraud. The premise behind the qui tam provisions applies to IG employees as well as to other citizens  if not more so, as IG employees have access to information that most other citizens do not.
Admittedly, the benefits of permitting IG employees to bring qui tam suits could be outweighed by potential conflicts of interest. As the court in Fine posited, "Allowing IG auditors to reap huge bounties from qui tam actions could create serious ethical conflicts and prevent them from fulfilling their employment responsibilities." Fine, 821 F.Supp. at 1361. That IG employees might be willing to risk their employment by withholding information, out of greed, for a chance to recover a maximum of 30 percent of a qui tam award is a possibility, albeit speculative, which might undermine the effectiveness of the Inspector General's offices. Such concerns, however, are not a valid basis for judicially implying restrictions to the application of the FCA. This concern is more properly addressed to Congress. As the Eleventh Circuit Court of Appeals reasoned, when faced with the more general question of whether any government employees should be able to bring qui tam actions:
[T]he concerns articulated by the United States [that government employees should not be personally rewarded for "parasitical use of information obtained and developed in the course of government employment"] may be legitimate ones, and application of the [FCA] since its 1986 Amendment may have revealed difficulties in the administration of qui tam suits, particularly those brought by government employees. Notwithstanding this recognition, however, we are charged only with interpreting the statute before us and not with amending it....
United States ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1503-04 (11th Cir.1991) (citations omitted). Because it is the domain of the legislature and not the judiciary to create exceptions to statutory rules, this Court will not prohibit IG employees from bringing otherwise legitimate qui tam actions under the FCA.

B. WHETHER THE RELATOR'S CLAIMS ARE BASED UPON PUBLICLY DISCLOSED INFORMATION OF WHICH THE RELATOR WAS NOT AN ORIGINAL SOURCE
MK-F contends the Relator is barred under section 3730(e)(4) of the FCA from bringing this action. MK-F argues that the Relator's action is based upon allegations and transactions which were publicly disclosed (1) in a draft report of an audit conducted by the State of Oregon, (2) during an investigation by DOE of the costs questioned by the Oregon audit, and (3) by the DOE-IG audit report. MK-F further argues the Relator is not an original source of this publicly disclosed information.
The inquiry into whether the Court has jurisdiction under section 3730(e)(4) is a *1550 four-tiered analysis. The Court must determine (1) whether disclosure has occurred in one of the methods listed in section 3730(e)(4); (2) whether the information has been "publicly" disclosed within the meaning of the statute; (3) if so, whether the relator "based" his suit on the public disclosure; and (4) if so, whether the relator is an "original source" of the information in question. See United States ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1500 n. 12 (11th Cir.1991), quoting United States ex rel. Stinson et al. v. Prudential Ins. Co., 736 F.Supp. 614, 617 (D.N.J.1990), aff'd, 944 F.2d 1149 (3d Cir. 1991).

1. Methods of Disclosure
The Eleventh Circuit has held that the list of the methods of public disclosure in section 3730(e)(4) of the statute is exclusive; disclosure by other means will not invoke the bar. United States ex rel. Williams v. NEC Corp., 931 F.2d 1493, 1499-1500 (11th Cir. 1991) ("Congress could easily have used `such as' or `for example' to indicate that its list was not exhaustive. Because it did not, however, we will not give the statute a broader effect than that which appears in its plain language."). The Court agrees.
Defendant MK-F contends the draft report of the audit conducted by the State of Oregon publicly disclosed transactions or allegations which form the basis of Relator's action. Regardless of the verity of this assertion, such public disclosures will invoke the jurisdictional bar only if it is in one of the forms listed in section 3730(e)(4)(A): "a criminal, civil, or administrative hearing, [or] in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media...." The terms "report" and "audit" are both modified by "congressional, administrative, or Government Accounting Office." Neither the Oregon audit nor the draft of the report of that audit was made by Congress, an administrative agency, or the Government Accounting Office. Neither, then, can form the basis for invocation of the section 3730(e)(4)(A) jurisdictional bar. The other sources of information at issue in this case derive from reports or investigations of the DOE, however, and therefore fall within one of the listed methods of disclosure.

2. "Public" Disclosure
Given that one of the listed methods of disclosure is implicated, the next inquiry is how "publicly" must the information have been disclosed for the jurisdictional bar to apply? The Tenth Circuit is basically silent as to the extent to which given information must have been disclosed so at to bar qui tam actions.[5] Other circuits have taken a variety of approaches. The Third Circuit held that information has been publicly disclosed if it "would have been equally available to strangers to the transaction had they chosen to look for it, as it was to the relator." United States ex rel. Stinson et al. v. Prudential Ins. Co., 944 F.2d 1149, 1155-1156 (3d Cir.1991). The First Circuit stated, "[T]he logical reading [of the statute] is that [section 3730(e)(4)] serves to prohibit courts from hearing qui tam actions based on information made available to the public during the course of a government hearing, investigation or audit or from the news media." United States ex rel. LeBlanc v. Raytheon Co., 913 F.2d 17, 20 (1st Cir.1990), cert. denied, 499 U.S. 921, 111 S.Ct. 1312, 113 L.Ed.2d 246 (1991). The Second Circuit held that allegations are publicly disclosed when they are placed in the "public domain." United States ex rel. Dick v. Long Island Lighting Co., 912 F.2d 13, 18 (2d Cir.1990).
Analysis of the rationale governing these cases, and the purposes underlying the FCA, yields the following principle: aside from disclosures resulting from news media exposure, public disclosure occurs when the government has affirmatively provided to *1551 members of the general public access to information upon which the FCA claim is based. The linchpin of this formulation of the public disclosure test is the requirement that the government perform some affirmative act of disclosure. The mere existence of a report, audit, or investigation containing information pertaining to fraud does not, in and of itself, constitute public disclosure.
The plain meaning of the FCA supports this interpretation. "Disclosure" is modified by "public." 31 U.S.C. § 3730(e)(4)(A). "Disclosure" is defined, in part, as "the act" of disclosing, Webster's Third New International Dictionary 645 (1976), a definition which connotes some positive action taken with the intent to disclose.
Not only does this interpretation comport with the FCA's plain meaning, but it also furthers the Act's purposes and is consistent with its legislative history. "Public disclosure" must mean something more than the mere preparation of documentation regarding fraud. Equating public disclosure with the existence of documentation would be tantamount to barring qui tam actions based on information in the possession of the government  exactly the situation Congress was attempting to eliminate in 1986. Not requiring some positive act of disclosure would reinstate the pre-1986 jurisdictional bar based on mere "government knowledge" of information pertaining to fraud. Congress sought to replace this restrictive jurisdictional prerequisite in part because of its concern that the government was not pursuing known instances of fraud. S.Rep. at 5267-69. As a consequence of the government's perceived inability or unwillingness to prosecute fraud, Congress gave private attorneys general greater access to the courts. If the mere existence of a "no action" recommendation buried in an unreleased internal audit report has the effect of foreclosing qui tam actions, the 1986 amendments were for naught.
Generally, this affirmative disclosure requirement has significance only in cases where the disclosure is predicated solely on a report, audit, or investigation. A criminal or civil action in state or federal court always constitutes public disclosure. An open administrative hearing would likewise constitute public disclosure. However, an audit, report, or investigation would not constitute public disclosure unless the audit, report or investigation culminated in a civil, criminal, or administrative hearing, was the subject of a news media report, or was meaningfully documented and published or otherwise made available to the public.
Applying these principles to the case at bar, Defendant MK-F argues that the DOE investigation publicly disclosed the allegations at issue. Defendant does not reveal how the investigated information became public, only that MK-F, by providing information and documentation to the DOE, publicly disclosed that information. Defendant relies on United States ex rel. Doe v. John Doe Corp., 960 F.2d 318 (2nd Cir.1992), in which the court held that interviews of "innocent" employees of the defendant's company, during the execution of a search warrant, constituted public disclosure of fraud allegations to those employees. Id. at 322-23. Because some of those employees were "strangers to the fraud," the court reasoned that they constituted "the public" for the purposes of section 3730(e)(4). Id. at 322. The questionable reasoning of the Doe court aside, the record in this case does not indicate to whom the relevant allegations or transactions were divulged and whether those people were "innocent" or unknowing of the fraud allegations.
From the record, it is difficult to determine the extent to which, if any, the DOE investigation disclosed meaningful information to the public. In any event, it is apparent to the Court that the DOE did not perform any affirmative act of disclosure during the course of its investigation. Therefore, the Court concludes that the DOE investigation was not publicly disclosed within the meaning of the FCA.
Defendant finally claims that the audit performed by the DOE Inspector General's Office and the final report made of that audit publicly disclosed transactions and allegations upon which the Relator's action is based. If the audit report was publicly disclosed, any qui tam action based on allegations or transactions reported therein will be *1552 barred under the statute unless the Relator was an original source of this information.
As discussed, the mere preparation of a report by an administrative agency will not constitute public disclosure. However, the report was released to the State of Oregon before this action was commenced, and the Relator conceded in his deposition that once the State of Oregon received the final report of the Inspector General's audit, it became publicly available. Therefore, if any of the Relator's claims are based upon allegations and transactions disclosed in the DOE-IG audit report, they will be subject to the jurisdictional bar of section 3730(e)(4)(A).

3. "Based Upon" Public Disclosures
31 U.S.C. § 3730(e)(4)(A) states that courts will not have jurisdiction over claims based upon publicly disclosed allegations or transactions unless the person bringing the action is an original source of the information. The Relator in this case has alleged wrongdoing by Defendants in six matters under the Lakeview UMTRA contract between the DOE and MK-F and under the subcontract between MK-F and ICC. These matters are as follows:
1. Cost of Waste Water Retention Pond Liner  Relator claims that ICC fraudulently submitted a claim which exceeded the actual cost by $14,690.
2. Winter Shutdown Costs  Relator alleges that ICC had been using equipment at other job sites for which it made fraudulent claims as idle equipment, totalling $127,110.
3. Overhead Costs for Deleted Work  Relator alleges that ICC made fraudulent claims for overhead costs associated with construction of a wood chip cell, which it knew had been deleted from the project, in the amount of $40,168.
4. Construction of the Decontamination Pad  Relator claims that ICC falsely submitted claims totalling $86,009 for reconstruction of the decontamination pad as new work outside of the original contract, when it knew that such work was part of its initial bid.
5. Rental Costs During Winter Shutdown  Relator claims that defendant ICC submitted claims for rental costs based on estimates (65 percent of "Blue Book" costs), when it knew that actual costs were required and that actual costs were much less than 65 percent of the Blue Book costs. (Amount undetermined).
6. Use of Estimated Overhead Rates  Relator alleges that ICC made claims of overhead for contract modifications at a 15 percent rate when it knew the actual costs to be between eight and 13 percent. (Amount undetermined).
The DOE Inspector General's audit questioned the costs of four activities associated with the DOE-MK-F contract and the MK-F-ICC subcontract:
1. The deletion of an unnecessary wood chip encapsulation cell (design costs for item not approved by the State of Oregon and with unearned overhead costs), totalling $44,263;
2. Decontamination pad reconstruction (costs of meeting the subcontract commitments of ICC and which were the responsibility of ICC), for $86,009;
3. Payment of equipment standby costs during the 1987-1988 and 1988-1989 winter periods (costs not allowable against Oregon because total costs exceeded the approved total cost limitation in the DOE-Oregon agreement), for $940,457; and
4. Construction of waste water retention ponds  specifically, water retention pond number three (unreasonable costs supported only by inaccurate, incomplete, and outdated cost data), for $14,690.
The purposes of the audit were to determine if the costs of the four activities were allowable under the terms of the MK-F contract and the DOE-Oregon agreement and incurred under generally accepted business practices.
Of the Relator's six allegations, three were publicly disclosed in the DOE-IG audit. Relator's claim involving the wood chip encapsulation cell is essentially the same as the costs questioned by the audit report. The Relator's claims for costs of reconstruction of the *1553 decontamination pad and the cost of the liner in water detention pond number three are precisely those questioned by the audit report. Relator's actions regarding these costs are therefore based on publicly disclosed allegations. The Court is prevented from adjudicating these claims unless the Relator is an original source of this information.
Both the Relator and the audit report questioned winter shutdown costs. However, the audit report questioned the entire $940,000 cost of winter shutdown, while the Relator's claim only alleges that certain specific costs associated with winter shutdown were fraudulent. Additionally, Relator argues that the audit report did not question the acceptability of the Defendant's claims for winter shutdown costs, but only questioned whether the DOE could seek ten percent of those costs from the State of Oregon because, at the time the claims were made, the cost of the project exceeded the total cost limitation stated in the DOE-Oregon agreement.
Nevertheless, the Relator does make allegations about the permissibility of some of the same costs questioned by the DOE-IG audit report, and therefore the Court must dismiss these claims regarding winter shutdown costs pursuant to United States ex rel. Precision Co. v. Koch Indus., 971 F.2d 548 (10th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1364, 122 L.Ed.2d 742 (1993). In that case, the Tenth Circuit ruled that "the threshold `based upon' analysis is intended to be a quick trigger for the more exacting original source analysis." Id. at 552. Therefore, "a plaintiff whose qui tam action which is based in any part upon publicly disclosed allegations or transactions is subject to the `original source' jurisdictional requirement." Id. at 553 (emphasis added). As the Relator's claims are based in part upon the allegations contained in the DOE-IG report, they are barred by section 3730(e)(4).
Relator's final claim (item 19 of Relator's complaint), that ICC has unreasonably and impermissibly used estimates that were higher than actual costs in billing overhead, when it knew that actual figures were required, has not been addressed in any publicly disclosed document. The jurisdictional bar does not at all apply to this part of the Relator's action.

4. Original Source
If a relator brings an action under the FCA which is based upon the public disclosure of allegations or transactions, the Court may only assert subject matter jurisdiction over that action if the relator shows that he is an original source of the publicly disclosed information. Section 3730(e)(4)(B) defines "original source" as "an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information." The Relator must demonstrate that he is an original source of the information upon which he bases his claims surrounding the construction of the waste water retention pond, the reconstruction of the decontamination pad, the unearned overhead for the deleted wood chip encapsulation cell, and costs associated with winter shutdowns. These are the only allegations based upon publicly disclosed information.
Under the FCA, an original source must have "direct and independent knowledge of the information" that was publicly disclosed. Some courts have added the requirement that the relator "must have directly or indirectly been a source to the entity that publicly disclosed the allegations on which a suit is based." United States ex rel. Dick v. Long Island Lighting Co., 912 F.2d 13, 16 (2nd Cir.1990); see also United States ex rel. Wang v. FMC Corp., 975 F.2d 1412, 1418 (9th Cir.1992) ("To bring a qui tam suit, one must have had a hand in the public disclosure of allegations that are a part of one's suit."). "The paradigmatic `original source' is a whistleblowing insider[, such as] `individuals who are close observers or otherwise involved in the fraudulent activity.' Other relators may also qualify if their information results from their own investigations." United States ex rel. Stinson et al. v. Prudential Ins. Co., 944 F.2d 1149, 1161 (3rd Cir.1991), quoting S.Rep. at 5269.
This Court agrees with the above reasoning. The purpose of requiring "direct and independent" knowledge of the information *1554 upon which an action is based is to prevent relators from bringing parasitic actions and contributing little or no additional information of value. With regard to the four claims the Relator has made which were publicly disclosed in the DOE-IG audit report, he has contributed no real personal effort or knowledge. His claims basically mimic the allegations made in that audit and in the Oregon audit with which he was familiar. He did not conduct the investigations which led to those publicly disclosed allegations.
Because the Relator did not have direct and independent knowledge of the information upon which his allegations are based, this Court need not consider whether he "voluntarily provided the information to the Government," as is required of an "original source" under section 3730(e)(4)(B).

IV. CONCLUSION
The Court concludes that nothing in the False Claims Act precludes IG employees from maintaining qui tam actions. Additionally, the jurisdictional bar of section 3730(e)(4) does not bar the Relator's claim based on higher than actual overhead costs, an allegation which was not publicly disclosed. The Court, however, may not assert jurisdiction over the Relator's remaining claims because they are based upon allegations publicly disclosed in the DOE-IG audit report.
Wherefore,
IT IS ORDERED, ADJUDGED AND DECREED that Defendant ICC's motion to dismiss be, and hereby is, denied.
IT IS FURTHER ORDERED that Defendant MK-F's motion to dismiss be, and hereby is, granted in part. The Relator's claims other than item 19 of the complaint are dismissed.
IT IS FURTHER ORDERED that Plaintiff's motion to strike the affidavit of Walter Perry be, and hereby is, denied.
IT IS FURTHER ORDERED that Defendants' request for attorney's fees be, and hereby is, denied.
NOTES
[1]  Matters outside the pleadings may be considered in deciding on a motion to dismiss for lack of subject matter jurisdiction. Village Harbor, Inc. v. United States, 559 F.2d 247, 249 (5th Cir.1977). The affidavit of Walter Perry conforms to the Federal Rules of Evidence and will therefore be admitted for the limited purpose of determining whether the Court has subject matter jurisdiction over this action.
[2]  Qui tam comes from the Latin phrase, "qui tam pro domino rege quam pro si ipso in hac parte sequitur," which translates, "who sues on behalf of the King as well as for himself." A qui tam action is one to recover a penalty "brought by an informer, under a statute which establishes a penalty for the commission or omission of a certain act, and provides that the same shall be recoverable in a civil action, part of the penalty to go to any person who will bring such action and the remainder to the state...." Black's Law Dictionary 867 (6th ed. 1990).
[3]  In qui tam actions, the informer who initiates the action is termed the "relator." The United States of America is technically the Plaintiff.
[4]  31 U.S.C. § 3730(e) Certain actions barred.

(1) No court shall have jurisdiction over an action brought by a former or present member of the armed forces under subsection (b) of this section against a member of the armed forces arising out of such person's service in the armed forces.
(2)(A) No court shall have jurisdiction over an action brought under subsection (b) against a Member of Congress, a member of the judiciary, or a senior executive branch official if the action is based on evidence or information known to the Government when the action was brought.
....
(3) In no event may a person bring an action under subsection (b) which is based upon allegations or transactions which are the subject of a civil suit or an administrative civil money penalty proceeding in which the Government is already a party.
(4)(A) No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office, report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information.
....
[5]  In United States ex rel. Precision Co. v. Koch Industries Inc., 971 F.2d 548 (10th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1364, 122 L.Ed.2d 742 (1993), the only Tenth Circuit case to discuss qui tam jurisdiction under the FCA since 1986, the court focused on the "based upon" component of the analysis. The court in Precision seemed to assume, without discussion or analysis, that the allegations and transactions at issue had been publicly disclosed. Id. at 552. All that remained of the court's analysis was whether the relator's action was based upon those publicly disclosed allegations or transactions. Id. at 552-54.


                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE

                      STATE OF ARIZONA, Respondent,

                                         v.

                          BILLY BURTON, Petitioner.

                          No. 1 CA-CR 16-0339 PRPC
                               FILED 9-7-2017

     Petition for Review from the Superior Court in Maricopa County
                          No. CR2009-113204-001
                     The Honorable Rosa Mroz, Judge

                   REVIEW GRANTED; RELIEF DENIED

                                    COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Diane Meloche
Counsel for Respondent

Billy Burton, Florence
Petitioner

                        MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Acting Presiding Judge Peter B. Swann and Judge Paul J. McMurdie joined.
                             STATE v. BURTON
                             Decision of the Court

C R U Z, Judge:

¶1             Billy Burton petitions for review of the summary dismissal of
his second post-conviction relief proceeding. We have considered the
petition for review and, for the reasons stated, grant review but deny relief.

¶2            A jury convicted Burton of burglary in the first degree, armed
robbery, and kidnapping, each a Class 2 dangerous felony. The superior
court sentenced him to three presumptive, concurrent 15.75-year prison
terms. This court affirmed the convictions and sentences on appeal. State
v. Burton, 1 CA-CR 09-0963, 2011 WL 2176457 (Ariz. App. May 24, 2011)
(mem. decision).

¶3             Burton filed a timely notice of post-conviction relief. After his
appointed counsel notified the superior court that counsel found no basis
for post-conviction relief, Burton filed a pro se petition alleging claims of
trial error and ineffective assistance of trial, appellate, and post-conviction
relief counsel. The superior court summarily dismissed the petition,
holding the claims of trial error were precluded and Burton failed to state a
colorable claim of ineffective assistance of counsel. This Court affirmed.
State v. Burton, 2 CA-CR 2014-0261-PR, 2014 WL 4363834 (Ariz. App. Sept.
3, 2014) (mem. decision).

¶4            Three years later, Burton filed a notice and petition for post-
conviction relief alleging, in part, claims of ineffective assistance of trial and
appellate counsel, significant change in the law, and prosecutorial
misconduct. The superior court summarily dismissed the proceeding,
holding Burton failed to state a claim that would entitle him to relief in a
successive post-conviction relief proceeding. This petition for review
followed.

¶5            On review, Burton reurges the claims raised below in his
petition for post-conviction relief. We review the summary dismissal of a
proceeding for post-conviction relief for an abuse of discretion. State v.
Bennett, 213 Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67 (2006).

¶6           There was no error by the superior court in summarily
dismissing the proceeding for post-conviction relief. The superior court
issued a ruling that clearly identified, fully addressed, and correctly
resolved the claims raised by Burton. Further, the court did so in a
thorough, well-reasoned manner that will allow any future court to
understand the court’s ruling. Under these circumstances, “[n]o useful
purpose would be served by this court rehashing the superior court’s

                                        2
                            STATE v. BURTON
                            Decision of the Court

correct ruling in a written decision.” State v. Whipple, 177 Ariz. 272, 274, 866
P.2d 1358, 1360 (App. 1993). We therefore adopt the superior court’s ruling.

¶7            Accordingly, although we grant review, we deny relief.

                          AMY M. WOOD • Clerk of the Court
                           FILED: AA

                                         3


598 F.Supp. 1111 (1984)
CITIZENS STATE BANK OF WITTENBERG, Valders State Bank, Bank of Spring Green, The Farmers State Bank of Waupaca, Cedarburg State Bank, Bank of Mauston, Waukesha State Bank, and The Northwestern Bank (Chippewa Falls), Wisconsin banking corporations, and The First National Bank of Eagle River, The Union National Bank of Ashland, and The First National Bank of Rhinelander, national banking associations, and The WBA Pension Plans of the Above-Named Banks, Allen M. Voelz, an individual, The M. & I. Marshall & Ilsley Bank, a Wisconsin banking corporation, The First Wisconsin Trust Company, a Wisconsin banking corporation, and The Marine Trust Company, N.A., a national banking association, Plaintiffs,
v.
CONTINENTAL ASSURANCE COMPANY, a.k.a. CNA Insurance Companies, Defendant.
No. 84-C-362-D.
United States District Court, W.D. Wisconsin.
December 14, 1984.
*1112 Michael P. May of Boardman, Suhr, Curry & Field, Madison, Wis., for plaintiffs.
Linda M. Clifford of La Follette, Sinykin, Anderson & Munson, Madison, Wis., for defendant.

OPINION AND ORDER
JAMES E. DOYLE, District Judge.
The second cause of action in the complaint alleges: Plaintiff employers established pension plans for the benefit of their employees. The plans were established through agreements among plaintiff employers, plaintiff trustees, and defendant insurance company. Under the plans and agreements, the future pension plans were to be funded in part by the establishment of an investment fund. In this respect, the agreement offered by defendant was a "security," within the meaning of the Securities Act of 1933 ("the Act"). Defendant made representations and omissions of fact which were false, fraudulent, deceptive and misleading, in violation of § 17(a) of the Act, 15 U.S.C. § 77q (hereinafter, "17(a)").
Defendant has moved to dismiss the second cause of action under Fed.R.Civ.P. 12(b)(1) or (6), on the ground that § 17(a) does not provide a private right of action for damages. Unless subject matter jurisdiction is present, I cannot reach the question whether the second cause of action states a claim upon which relief can be granted. Accordingly, I turn to defendant's 12(b)(1) motion. Only if it is denied can I address its 12(b)(6) motion. However, for either purpose, I look to only the allegations of the complaint.
To this date the United States Supreme Court has reserved ruling whether § 17(a) implies a private right of action.[1]Herman & Maclean v. Huddleston, 459 U.S. 375, 103 S.Ct. 683, 685 n. 2, 74 L.Ed.2d 548 (1983); International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 557 n. 9, 99 S.Ct. 790, 795 n. 9, 58 L.Ed.2d 808 (1979). The circuit courts of appeals are divided. See Kimmel v. Peterson, 565 F.Supp. 476, 482 n. 6 (E.D.Pa.1983) and cases cited therein.
The Seventh Circuit Court of Appeals has recently commented: "Whether Section 17(a) can be enforced by private damage suits is an open question in this circuit ...." Peoria Union Stock Yards Co. v. Penn Mut. Life Ins., 698 F.2d 320, 323 (7th Cir.1983). In Peoria, the court deemed this "not a terribly important" question, noting that Rule 10b-5 can be enforced by a private damage action, and that "10b-5 tracks § 17(a) closely." Id.[2] The court reversed a district court decision which had held that the pension plan at issue was not a security, that plaintiffs were barred by a statute of limitations, and that plaintiffs' complaint *1113 was not pleaded with sufficient particularity. Id. at 324-328.
Prior to Peoria the court had held in Daniel v. Inter. Broth. of Tmstrs, Chauf., Etc., 561 F.2d 1223, 1244-46 (7th Cir.1977), rev'd on other grounds sub nom., Inter. Broth. of Teamsters v. Daniel, 439 U.S. 551, 99 S.Ct. 790, 58 L.Ed.2d 808 (1979), that § 17(a) did create a private right of action. In Daniel, however, the court had "proceed[ed] on the assumption that the operative provisions of the antifraud sections of the 1933 and 1934 Acts are identical ...." 561 F.2d at 1245.[3] Defendants in Daniel did not contest the § 17(a) issue.
Subsequent to the Seventh Circuit's decision in Daniel, and prior to its decision in Peoria, the United States Supreme Court had distinguished the kind of proof necessary to establish a violation of § 17(a) of the 1933 Act from that required under § 10(b) of the 1934 Act and Rule 10b-5. In Aaron v. Securities and Exchange Commission, 446 U.S. 680, 695-97, 100 S.Ct. 1945, 1954-56, 64 L.Ed.2d 611 (1980), the Court held "that the language of § 17(a) requires scienter under § 17(a)(1), but not under § 17(a)(2) or § 17(a)(3)." Id. at 697, 100 S.Ct. at 1956.[4] The Court had previously limited the reach of § 10(b) and Rule 10b-5 by requiring that a plaintiff prove scienter. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201, 96 S.Ct. 1375, 1384, 47 L.Ed.2d 668 (1976).
I inquire first whether I should address and decide the question whether § 17(a) does or does not imply a private right of action for damages. Defendant argues that Peoria renders the question open in this circuit and that I should address it fully and decide it. Plaintiffs argue that Peoria renders the question open only in a case in which a § 17(a) claim is pleaded singly, uncoupled to a Rule 10b-5 claim. I understand plaintiffs to argue that in cases like Peoria itself, Daniel before it, and now this present case, in which a § 17(a) claim and a Rule 10b-5 claim are coupled, the question is not open. Rather, it is closed in this circuit, closed in favor of the existence of an implied private right of action under § 17(a). Thus, while plaintiffs agree I should address the question and decide it in their favor, they mean address it not freshly and fully but in the course of recognizing the controlling force of appellate precedent in this circuit.
I am disposed to read "open question in this circuit," as the words appear in Peoria, as more liberating than plaintiff suggests. In part, I am so disposed because in the earlier cases like Daniel, the court of appeals had itself addressed the issue only provisionally. First, it had accepted the premise that § 17(a) afforded would-be plaintiffs an opportunity for success no broader than that afforded by Rule 10b-5 and, second, it had been aware that § 10(b) and Rule 10b-5 do give rise to private rights of action. Therefore, it had considered it unnecessary to address seriously the availability or nonavailability of a private right of action under § 17(a). While ambiguity has its charms, it may never have been the wiser course to leave uncertain whether a judgment for a successful private plaintiff rested only on § 10(b) and Rule 10b-5, only on § 17(a), or on both. Nevertheless, there is some merit to a suggestion that a trial court should emulate the manner in which the appellate court behaves as well as obey its direct and substantive holdings.
Even if I were otherwise disposed to continue in the paths of ambiguity, however, the effect of the 1980 decision of the Supreme Court in Aaron must be measured. Aaron undercut the earlier assumption of the court of appeals for the seventh circuit that the opportunity for success for a private party on a § 17(a) claim, if a *1114 private right of action should exist, would be no broader than the established opportunity on a § 10(b) and Rule 10b-5 claim. Some § 17(a) claims may no longer be considered "slender enough to remain in the shadow of ... § 10(b) claims." Roskos v. Shearson/American Express, Inc., 589 F.Supp. 627 at p. 629 (E.D.Wis.1984). We know now that practical consequences may flow from the presentation of a § 17(a) claim even when coupled with a § 10b-5 claim.
I understand plaintiff to argue that in the wake of Aaron, the issue may yet be avoided when the § 17(a) claim presented in a particular lawsuit in tandem with a § 10(b) and Rule 10b-5 claim is strictly a § 17(a)(1) claim, as contrasted with a § 17(a)(2) or (3) claim, because Aaron expands the opportunity for success on § 17(a) claims beyond the opportunity on § 10(b) and Rule 10b-5 claims only when the § 17(a) claims rest in subsections (2) and (3) of § 17(a). Plaintiff does not appear to suggest, and such a suggestion would surely fail in any event, that § 17(a) may be dissected as among its three subsections for the purpose of determining whether Congress implied the existence of a private right of action under one or two but not three of the subsections. Rather, the argument seems to be that it continues to be unnecessary to confront fully the question whether an implied private right of action exists under § 17(a), when the case at hand combines a claim strictly confined to § 17(a)(1), coupled with a claim under § 10(b) and Rule 10b-5.
I would not be persuaded by such exquisite refinement even if it were true that the present case combines a strictly § 17(a)(1) claim with a § 10(b) and Rule 10b-5 claim. But the second cause of action presently under consideration is not so confined. It cites § 17(a) generally and its language, including the language it incorporates by reference, does not track the language of § 17(a)(1) alone, as distinct from the language of § 17(a)(2) or (3). If plaintiff is allowed to proceed to trial on its second cause of action and the evidence proves arguably sufficient to support a verdict for plaintiff under § 17(a)(2) or (3) but not under § 17(a)(1), much time and effort will have been expended for the sake of avoiding careful inquiry now into the presence or absence of subject matter jurisdiction under § 17(a). Rather than risk such costs of continued ambiguity and equivocation, I will decide whether § 17(a) implies a private right of action.
In Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975), the Court stated the factors to consider when deciding questions of statutorily implied private rights of action. Those criteria were summarized in Bassler v. Central Nat. Bank of Chicago, 715 F.2d 308, 310 (7th Cir. 1983):
(1) whether the plaintiff is a member of the class for whose "especial benefit" the statute was passed; (2) whether there is any indication of legislative intent, explicit or implicit, either to create a private right of action or to deny one; (3) whether a private right is consistent with underlying purposes of the legislative scheme; and (4) whether the claim is one traditionally assigned to state law so that it would be inappropriate to infer a claim based on federal law.
In Allison v. Liberty Savings, 695 F.2d 1086, 1088 (7th Cir.1982), the court observed that legislative intent is key:
The Court has since explained and clarified the test's application. All four factors are not equally weighted; the central inquiry is whether Congress intended to create a private right of action. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2488, 61 L.Ed.2d 82 (1979). If Congress has indicated its intent, either expressly or by implication, the court's inquiry ends without consideration of the remaining Cort factors.
Similarly, in Bassler, the court observed "that the Cort mode is but one of several permissible approaches to ascertainment of that intent." 715 F.2d at 310.
*1115 When the House Committee report listed those sections of the Securities Act of 1933 that create and define civil liability, it identified only sections 11 and 12, adding that "[t]o impose a greater responsibility ... would unnecessarily restrain the conscientious administration of honest business with no compensating advantage to the public." H.R.Rep. No. 85, 73rd Cong., 1st Sess. 9-10 (1933). This piece of legislative history has been frequently cited by courts which have considered the § 17(a) private remedy question. See Landry v. All American Assurance Co., 688 F.2d 381, 389 and n. 34 (5th Cir.1982); SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 867 (2nd Cir.1968) (Friendly, J., concurring), cert. denied, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969); Kimmel v. Peterson, 565 F.Supp. at 486; Basile v. Merrill Lynch, Pierce, Fenner, & Smith, 551 F.Supp. 580, 586 (S.D.Ohio 1982); Reid v. Mann, 381 F.Supp. 525, 526 (N.D.Ill.1974). These courts have concluded uniformly that Congress did not intend a private right of action under § 17(a).
Further evidence of Congress' intention in enacting § 17(a) appears in a memorandum explaining an amendment offered by Senator Fletcher to Title II of the Securities and Exchange Act of 1934, which was an amendment to the Securities Act of 1933. Senator Fletcher proposed that § 17(a) be amended to require compliance with certain registration provisions by groups purporting to act on behalf of stockholders. The explanatory memorandum ends with the following statement: "It is to be noted that enforcement of the provisions of the new subsection is left to injunction, stop order, and criminal prosecution. No civil liability attaches for any violation thereof." 78 Cong.Rec. 8711-12 (1934). The Fletcher amendment was not included in the bill which emerged from the Senate-House Conference. However, the portion of the explanatory memorandum I have quoted is cited in Ruder, Civil Liability under Rule 10b-5: Judicial Revision of Legislative Intent? 57 Nw.U.L.Rev. 627, 656-57 (1963), where it is noted that Fletcher was well acquainted with the regulatory provisions of the 1934 Act and the 1933 Act. Other scholars and participants have concluded that Congress intended that only the SEC enforce § 17(a), using it as a basis for injunctive or criminal liability, and that § 17(a) not supplement the actions for damages provided by §§ 11 and 12 of the 1933 Act. See L. Loss, Fundamentals of Securities Regulation 1148 (1983); Landis, Liability Sections of the Securities Act, 18 Am.Acct. 330, 331 (1933); Douglas and Bates, Federal Securities Act of 1933, 43 Yale L.J. 171, 181-82 (1933).
The context of the entire securities law scheme reinforces such a view. I have referred, for example, to the securities regulatory framework when discussing the practical significance of the § 17(a) private remedy issue given the differences in proof required to substantiate § 17(a)(2) and (3) claims versus a § 10(b) claim. Also, certain procedural safeguards attend lawsuits filed under §§ 11 and 12 but not those filed under § 17(a). "To permit a private right of action under § 17(a) would cause the statutory and judicially-crafted restrictions on § 10(b) of the 1934 Act and §§ 11 and 12 of the 1933 Act to atrophy and fall away as securities fraud cases hustled in the back door of § 17." Roskos, at p. 631. See Landry, 688 F.2d at 390, and Kimmel, 565 F.Supp. at 487.
I conclude there is no indication of legislative intent, explicit or implicit, to create a private right of action under § 17(a). Every indication points to the conclusion that there is no implied private remedy. In the absence of the existence of such a remedy, subject matter jurisdiction of this action is lacking.

ORDER
Defendants' motion to dismiss plaintiffs' second cause of action, pursuant to Fed.R. Civ.P. § 12(b)(1), is granted. I refrain from directing entry of judgment, presently, dismissing the second cause of action. Fed.R. Civ.P. 54(b).
NOTES
[1]  Section 17(a) provides:

(a) It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly
(1) to employ any device, scheme, or artifice to defraud, or
(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.
[2]  SEC Rule 10-b5, 17 C.F.R. § 240.10b-5, was promulgated under the Securities Exchange Act of 1934, see 15 U.S.C. § 78j(b).
[3]  In Peoria and in Daniel, the complaints included a claim based on § 17(a), and also a claim based on Rule 10b-5.
[4]  Although Aaron involved a civil enforcement action by the SEC, there is no basis in the Court's analysis of the statutory language for distinguishing, in terms of proofs required of plaintiffs, between SEC actions and private actions. See Hudson v. Capital Management Intern., Inc., 565 F.Supp. 615, 626 (N.D.Cal.1983).