166 Ariz. 359 (1990)
802 P.2d 1058
John Hubert TAYLOR, Petitioner,
v.
The Honorable William SHERRILL, Judge of the Superior Court of the State of Arizona, County of Pima, Respondent. and The STATE of Arizona, Real Party in Interest.
Nos. 2 CA-SA 90-0135, 2 CA-CR 90-0399-PR.
Court of Appeals of Arizona, Division 2, Department B.
September 25, 1990.
Petition for Review Granted in part and Denied in part January 15, 1991.
*360 Susan A. Kettlewell, Pima County Public Defender by Peter J. Eckerstrom, Tucson, for petitioner.
Stephen D. Neely, Pima County Atty. by Thomas J. Zawada, Tucson, for real party in interest.
OPINION
HOWARD, Judge.
The State of Arizona has filed a petition for review of the order of the trial court granting defendant John Hubert Taylor's petition for post conviction relief under Rule 32, Ariz.R.Crim.Proc., 17 A.R.S. A new trial was set and Taylor filed a motion to dismiss various charges, relying upon the United States Supreme Court opinion in Grady v. Corbin, 495 U.S. ___, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Taylor seeks special action relief from the trial court's denial of that motion. The petition for review and the special action have been consolidated. For the reasons stated below, the petition for review is denied. Because Taylor has no equally plain, speedy and adequate remedy by appeal and because we find that the trial court abused its discretion, we accept jurisdiction of Taylor's petition for special action and grant relief. Rules 1 and 3, Ariz.R.P.Spec.Ac., 17B A.R.S.
FACTS AND PROCEDURAL BACKGROUND
On July 18, 1988, Taylor turned left in front of an oncoming vehicle. As a result *361 of the subsequent collision, the passenger and driver of the other car were injured. Taylor was cited for an unsafe turn, in violation of A.R.S. § 28-754; speeding, in violation of A.R.S. § 28-701; failure to provide proof of insurance, in violation of A.R.S. § 28-1253; providing false information to the police, in violation of A.R.S. § 13-2907.01; driving on a suspended license, in violation of A.R.S. § 28-473; driving while under the influence of alcohol (DUI), in violation of A.R.S. § 28-692(A); and driving with a blood alcohol level of above .10 percent, in violation of A.R.S. § 28-692(B).
On October 12, 1988, a default judgment was entered against Taylor in Tucson City Court on the unsafe turn and speeding charges as a result of his failure to appear at his pretrial conference. The DUI charges were dismissed in November 1988 and referred to the Pima County Attorney's Office for felony prosecution.
On November 9, 1988, Taylor was indicted on numerous felony charges arising out of the July 1988 incident. On August 17, 1989, following a jury trial, he was convicted of two counts of aggravated assault, class 3 dangerous nature felonies, one count of theft over $1,000, a class 3 felony, two counts of criminal damage less than $1,500, class 6 felonies, DUI and DUI with a blood alcohol level of above .10 percent, and driving on a suspended license. On October 5, Taylor was sentenced to five years' imprisonment on the theft charge, 7.5 years for both aggravated assault charges, to be served consecutively to the theft charge, 1.5 years for both criminal damage charges, to be served concurrently, with time served on three remaining misdemeanors. In March 1990, Taylor filed a petition for post conviction relief under Rule 32, Ariz.R.Crim.Proc., 17 A.R.S., based upon a significant change in the law. Specifically, Taylor argued that the trial court erroneously denied his motion to suppress the results of a breathalyzer test, in violation of State v. Juarez, 161 Ariz. 76, 775 P.2d 1140 (1989), and this court's decision in Saenz v. Rodriguez, 163 Ariz. 386, 788 P.2d 119 (App. 1989). In Saenz, this court overruled its prior decision in State v. Superior Court (Matthews), 158 Ariz. 500, 763 P.2d 996 (App. 1988) in light of Juarez. The state had relied on Matthews in support of its contention that the breathalyzer test did not need to be suppressed. On April 18, 1990, the trial court granted the petition for post conviction relief based upon Juarez and Saenz, finding that it could not say that the verdict would have been the same had evidence been excluded. The case was set for a new trial. The state's motion for rehearing was denied and this petition for review followed.
Taylor then filed a motion to dismiss with prejudice the two counts of aggravated assault and two counts of criminal damage based upon Grady v. Corbin, supra. The motion was denied on August 16, 1990, and this special action followed.
PETITION FOR REVIEW
The language in the police advisory given to Taylor regarding the right to counsel before submitting to a breathalyzer test was rejected in Saenz because it had the practical effect of advising the defendant that he could not consult counsel, in violation of Juarez. The state argues, however, that Taylor had no factual support for his Rule 32 petition, as he was not confused by and understood the warning that he was given, adding that Taylor did not even ask for an attorney. The state claims that Taylor did not, therefore, establish a prima facie case that the breathalyzer results should be suppressed, in violation of Rule 16.2(b), Ariz.R.Crim.Proc., 17 A.R.S., and did not meet the burden set forth in Rule 16.1. Additionally, the state criticizes this court's finding in Saenz that Matthews was incorrectly decided because the state in Matthews had not presented evidence that permitting the defendant to contact his attorney would have hindered an ongoing investigation; the state argues that it should not have to present such evidence where, as here, the arrestee did not request counsel. The state also argues that the police officer acted in good faith reliance on the law in existence at the time. The state claims that Saenz should not be applied retroactively, relying upon State v. *362 Garcia, 152 Ariz. 245, 731 P.2d 610 (App. 1986).
Whether Taylor was confused or not by the affidavit is irrelevant as are the other issues the state raises. In Juarez, the supreme court stated:
Informing the driver that he may not call his attorney before taking the test misstates the law and violates the driver's right to counsel under the sixth amendment of the United States Constitution and art. 2, section 24 of the Arizona Constitution.
161 Ariz. at 81, 775 P.2d at 1145. Juarez does not require that the defendant establish prejudice. Indeed, in Juarez the incorrect affidavit resulted in reversible error per se. Saenz is in accord with Juarez, recognizing that the affidavit in that case was at best confusing; it did not require that the defendant establish actual confusion. The state's contention that Saenz merely clarifies Matthews is belied by the opinion itself. Saenz explicitly overruled Matthews based upon Juarez.
Juarez was based upon constitutional principles and was a significant change in the law as contemplated by Rule 32.1(g). We reject the state's argument that Saenz should not be applied "retroactively" to this case. The motion to suppress was denied based upon Matthews, although Juarez had been decided. The advisory given here was contrary to Juarez as elucidated in Saenz. We see no reason why, under these circumstances, Saenz, which was a significant change in that it overruled Matthews, should not be applied to this case, just as the court in Saenz reversed the denial of the motion to suppress in light of Juarez, even though Matthews had not been expressly overruled by Juarez.
Taylor points out that a new trial was warranted on all counts because the state failed to present evidence of intoxication other than the breathalyzer results, relying on the presumptions raised by A.R.S. § 28-692(E). Additionally, Taylor claims that the breathalyzer results which should have been suppressed constituted the evidence of recklessness for purposes of failure to yield to the oncoming vehicle and were the basis for the aggravated assault and criminal damage charges. The state does not dispute these contentions. Under these circumstances, we cannot say that the trial court erred in summarily granting Taylor's Rule 32 petition. The state's petition for review is therefore denied.
DENIAL OF THE MOTION TO DISMISS
The issue raised by Taylor's special action is whether the civil traffic default judgments for unsafe turn and speeding placed him in jeopardy and preclude subsequent prosecution on the aggravated assault and criminal damage charges. We believe they do.
In Grady v. Corbin, supra, the United States Supreme Court held that:
[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant had already been prosecuted.... The critical inquiry is what conduct the State will prove....
495 U.S. at ___, 110 S.Ct. at 2093, 109 L.Ed.2d at 564. The defendant in Grady had been involved in an automobile accident which resulted in the death of a passenger in an oncoming vehicle. He was cited for the misdemeanor of driving while under the influence of alcohol and failing to keep his vehicle right of the median, the latter a non-criminal offense under New York law. He was subsequently charged with manslaughter. Before the trial on the manslaughter charge the defendant was found guilty in justice court of the two traffic violations. The Supreme Court held that evidence that the defendant was intoxicated and that he crossed the center line could not be used against him in the manslaughter trial.
The state cites State v. Walker, 159 Ariz. 506, 768 P.2d 668 (App. 1989), for the proposition that traffic charges, which are civil in nature must be distinguished from criminal charges. The penalties for violating *363 those charges, the state argues, are civil in nature  liquidated damages intended to reimburse the state for the cost of any such infraction. The state claims that the fine for an unsafe turn and speeding cannot exceed $250 under A.R.S. § 28-1076, an indication that it is a fine that is remedial in nature as opposed to one designed to punish a lawbreaker.
First, we disagree with the reasoning in Walker as applied to this case. We do not believe that the penalties which may be assessed for speeding or an unsafe lane change are truly only remedial in nature. Second, Walker was decided before Grady and United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), and must be examined in light of those cases.
In Grady, jeopardy was held to attach to a "civil" traffic violation under the New York Code. That charge, crossing the center line, is hardly distinguishable from charges of unsafe turning or even speeding. In Halper, the Supreme Court considered whether a fine imposed for the submission of false claims to Blue Cross/Blue Shield could be characterized as civil in nature. Rejecting the notion that the determination of whether a proceeding is criminal or civil is merely a matter of statutory construction, the court noted that the "character of the actual sanctions imposed on an individual by the machinery of the state" are what must be focused upon. 490 U.S. at 447-448, 109 S.Ct. at 1901, 104 L.Ed.2d at 501. The court held:
In making this assessment, the labels "criminal" and "civil" are not of paramount importance. It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties. The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law, and for the purposes of assessing whether a given sanction constitutes multiple punishment barred by the Double Jeopardy Clause, we must follow the notion where it leads.... To that end, the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.
Id. (Citations omitted). Those goals include retribution and deterrence. The sanctions that flow from violating the speeding and unsafe turning laws are clearly intended to deter the offender and other drivers from committing such infractions and to promote retribution. Indeed, if a driver accumulates a certain number of infractions the driver can lose his or her license, a consequence that can hardly be characterized as remedial. Additionally, the penalty for any violation of a "civil" traffic offense is referred to as a sanction, A.R.S. § 28-1076(B), and although it may not exceed $250, there is nothing in the statute indicating that the amount imposed is to be determined by the actual damage to the state. Indeed, the court is obligated to "levy penalty assessments pursuant to § 41-2403" in addition to imposing a sanction. A.R.S. § 28-1076(E).
We also reject the state's argument that neither Grady nor the double jeopardy principle are applicable because the parties in the city court and supreme court proceedings are not the same, the former being prosecuted by the city attorney and the latter by the county attorney. The parties clearly are the same; the state and Taylor are plaintiff and defendant in both. "[T]he state and all its offices must be considered a single entity" in this context. State v. Tucker, 133 Ariz. 304, 308, 651 P.2d 359, 363 (1982).
The state's argument that Grady should not be applied "retroactively" to this case is also rejected. Unquestionably, Grady is a "new rule for the conduct of criminal prosecutions" and because Taylor's case is not final, it is applicable, even assuming that Grady is a "clear break" *364 with the past. Griffith v. Kentucky, 479 U.S. 314, 327-328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661 (1987).
The inquiry remains however, whether under Grady the facts giving rise to the charges of unsafe turning and speeding are elements of the aggravated assault and criminal damage charges. Taylor argues that the state will be unable to convict him of either of these charges without using the evidence that must be precluded under Grady. Taylor claims that causation is an essential element of either of these two crimes. Under A.R.S. § 13-1203(A), "[a] person commits assault by ... intentionally, knowingly, or recklessly causing any physical injury to another person...." See also A.R.S. § 13-1204 (defining aggravated assault). Similarly, to support a conviction of criminal damage under A.R.S. § 13-1602(A)(1) or (B)(3), the state must establish that Taylor recklessly caused the damage. Based upon the necessary elements of these crimes, we conclude that the state may not present evidence of either an unsafe turn or that Taylor was traveling at an excessive rate of speed in the trial for aggravated assault and criminal damage. The trial court abused its discretion in concluding that, based on Walker, double jeopardy did not attach and in denying Taylor's alternate request for relief, the preclusion of evidence of the unsafe left turn and speeding.
We note that our result in this case is distinguishable from our recent decision in Lewis v. State of Arizona, 166 Ariz. 354, 358-359, 802 P.2d 1053, 1057-1058 (App. 1990) (Roll, J., dissenting). In Lewis we found that the dismissal of certain charges pursuant to a plea agreement was not a "prosecution" for purposes of the constitutional protection against double jeopardy under Grady. We cited State v. Boudreaux, 402 So.2d 629, 632 (La. 1981) for the proposition that where the defendant had not been "convicted and punished ... [h]e was not forced to `run the gauntlet' on that charge." However, a conviction or judgment of guilt of a traffic violation is treated the same whether rendered following an admission of responsibility, a trial on the merits, or default. See A.R.S. § 28-444(D). If a person fails to appear on a traffic complaint, "... allegations in the complaint shall be deemed admitted and the court shall enter judgment for this state...." A.R.S. § 28-1076(D).
CONCLUSION
The state's petition for review is denied. Taylor's petition for special action relief is granted and this matter is remanded for further proceedings consistent with this opinion.
FERNANDEZ, C.J., and ROLL, P.J., concur.


TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00514-CR

Teodoro Sosa, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. D-1-DC-05-300497, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING

M E M O R A N D U M   O P I N I O N

		Appellant's brief was due April 27, 2009.  The brief has not been received, no
extension of time has been requested, and appellant's retained attorney, Leonard Martinez, did not
respond to this Court's notice that the brief is overdue.
		The appeal is abated.  The trial court shall conduct a hearing to determine whether
appellant desires to prosecute this appeal and whether retained counsel has abandoned the appeal.
See Tex. R. App. P. 38.8(b)(2). (1)  The court shall make appropriate findings and recommendations.
A record from this hearing, including copies of all findings and orders and a transcription of the court
reporter's notes, shall be forwarded to the Clerk of this Court for filing as a supplemental record no
later than July 16, 2009.  See Tex. R. App. P. 38.8(b)(3).

__________________________________________
						Diane M. Henson, Justice
Before Chief Justice Jones, Justices Puryear and Henson
Abated
Filed:   June 16, 2009
Do Not Publish
1.   Significantly, this appeal was previously abated on March 12, 2008, due to counsel's failure
to file an appellate brief.  After a hearing, in which the trial court found that Leonard Martinez
intended to continue his representation of appellant, the appeal was reinstated.


           Case: 17-11385   Date Filed: 10/11/2017   Page: 1 of 4

                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-11385
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:13-cr-00114-WKW-WC-1

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JEFFREY THOMAS GOLA,

                                                         Defendant-Appellant.

                      ________________________

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

                            (October 11, 2017)

Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:
              Case: 17-11385     Date Filed: 10/11/2017    Page: 2 of 4

      Jeffrey Gola appeals the denial without prejudice of his motion to stay the

collection of restitution. We affirm.

      Gola pleaded guilty to using a computer to distribute child pornography. 18

U.S.C. § 2252A(a)(2). In his written plea agreement, Gola agreed to pay restitution

for the costs that his victims incurred for mental health treatment. The district court

entered an order of restitution, but deferred ruling on the amount owed to the

victims. On August 13, 2014, the district court entered an amended judgment

stating that Gola owed $11,000 in restitution, which was due immediately, and that

he had to satisfy any balance remaining when he began supervised release by

making minimum monthly payments of $100. Gola did not appeal.

      In September 2016, the government notified Gola that unless he paid the full

amount of restitution owed, the debt would be referred to the Department of the

Treasury for collection through its offset program. The notice stated that the

Department could withhold payments due to Gola from the federal treasury to

offset his debt. The notice also stated that the Department could not garnish money

in Gola’s prison account unless he was participating voluntarily in the inmate

financial responsibility program.

      In January 2017, Gola moved pro se to stay the collection of restitution.

Gola argued that he was indigent and should be required to make only nominal

periodic payments, 18 U.S.C. § 3664(f)(2), (f)(3), and he acknowledged that he

                                           2
              Case: 17-11385     Date Filed: 10/11/2017    Page: 3 of 4

had to offset the balance he owed with any substantial resources he received

unexpectedly, id. 3664(n). Gola also argued that he intended to collaterally

challenge the order of restitution on the ground that he was not the proximate cause

of the victims’ injuries. See 28 U.S.C. § 2255.

      The district court denied Gola’s motion to stay. The district court stated that

Gola’s concern about the restitution being “offset from his inmate account” was

unsubstantiated because the government could not garnish his inmate account

“unless he volunteers to do so under his prison-sponsored financial responsibility

plan.” The district court also denied Gola’s motion for reconsideration.

      The district court did not err in denying Gola’s motion for a stay. Gola could

not challenge the validity of his order of restitution or of his payment plan for the

first time in a collateral proceeding. See Arnaiz v. Warden, 594 F.3d 1326, 1330

(11th Cir. 2010); Cani v. United States, 331 F.3d 1210, 1213–14 (11th Cir. 2003).

To the extent that Gola alleged that his payment schedule failed to account for his

inability to pay and constituted an improper delegation of authority to the Bureau

of Prisons, he waived those arguments by failing to raise them in a direct appeal

and has not established that exceptional circumstances excuse his waiver. See

Cani, 331 F.3d at 1213–14. Gola alleged that he was indigent and requested to

“make nominal periodic payments,” but he failed to allege he had undergone a

                                           3
               Case: 17-11385     Date Filed: 10/11/2017   Page: 4 of 4

“material change in [his] economic circumstances” that warranted his belated

request for an “adjust[ment] [in] the payment schedule,” see 18 U.S.C. § 3664(k).

       Insofar as Gola argues that he is being coerced by prison officials to

participate in the financial responsibility program in violation of his liberty and

property interests in his inmate account, Gola would have to present that argument

in a petition for a writ of habeas corpus. 28 U.S.C. § 2241. And that petition about

the execution of Gola’s sentence would have to be filed against the prison officials

in the district of his confinement.

       We AFFIRM the denial of Gola’s motion to stay the collection of

restitution.

                                           4


942 S.W.2d 139 (1997)
Todd Lee CHURCH, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-96-00827-CR.
Court of Appeals of Texas, Houston, (1st Dist.).
March 13, 1997.
Discretionary Review Refused May 21, 1997.
Keith Hampton, Houston, for appellant.
John H. Harrity, Richmond, for appellee.
Before NUCHIA, COHEN, and ANDELL, JJ.

OPINION
NUCHIA, Justice.
We hereby withdraw our opinion and judgment of February 27, 1997.
Appellant, Todd Lee Church, appeals the denial of habeas corpus relief after he asserted a double jeopardy bar to the prosecution of a driving while intoxicated (DWI) charge against him. We affirm.
After his arrest for DWI, appellant refused to submit to a breath test to determine his blood alcohol content. Because of his refusal to submit, an administrative license revocation (ALR) hearing was held pursuant to TEX.TRANSP. CODE ANN. ch. 724 (Vernon Pamph.1996). At the conclusion of the ALR hearing, the administrative law judge (ALJ) found the Department of Public Safety (DPS) "did not prove, by a preponderance of the evidence[,] that [appellant] was operating a motor vehicle," and denied the State's petition to suspend appellant's license. In a single point of error, appellant argues thatin light of the facts found by the ALJthe doctrine of collateral estoppel bars the DWI prosecution. We disagree.
Although an administrative agency acting under a general grant of power has the implied authority "reasonably necessary to accomplish a delegated purpose," Texas Dep't of Human Servs. v. Christian Care Ctrs., 826 S.W.2d 715, 719 (Tex.App.Austin 1992, writ denied) (emphasis in original), the power to determine whether appellant did in fact operate the vehicle is not necessary to accomplish any purpose delegated to the DPS under chapter 724 of the Transportation Code. To the contrary, TEX.TRANSP. CODE ANN. § 724.048 provides that the administrative findings shall not constitute a bar to any criminal proceedings. This reflects the Legislature's intent that the ALJ limit herself to the issues set out in section 724.042 rather thanas this judge didattempting to rule on issues of ultimate fact to be presented at the DWI prosecution.
*140 In an ALR hearing, the ALJ is to decide "whether probable cause existed to believe... [appellant] was operating a motor vehicle in a public place while intoxicated." TEX. TRANSP. CODE ANN. § 724.042(2) (Vernon Pamph.1996). The statute authorizing the suspension hearing neither requires nor empowers the ALJ to decide the ultimate issue of whether appellant was actually operating a motor vehicle while intoxicated.[1] In short, the "fact" forming the basis of appellant's collateral estoppel argument was beyond the authority of the ALJ to find. As such, any finding of fact on that issue by the ALJ is of no import. The administrative judge's finding, therefore, cannot operate as a collateral estoppel bar to the DWI prosecution of appellant.
We overrule appellant's sole point of error.
We affirm the judgment of the trial court.
COHEN and ANDELL, JJ., concur.
NOTES
[1]  That issue is one to be litigated during the DWI prosecution: "A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place." TEX. PENAL CODE ANN. § 49.04(a) (Vernon Supp.1997).


51 F.3d 1045
U.S.v.Reve*
NO. 94-10541
United States Court of Appeals,Fifth Circuit.
Mar 31, 1995
Appeal From:  N.D.Tex., No. 3:93-CR-215-H

1
AFFIRMED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


233 Cal.App.2d 284 (1965)
THE PEOPLE, Plaintiff and Respondent,
v.
JOHN EDWARD DAUGHERTY, Defendant and Appellant.
Crim. No. 1676.
California Court of Appeals. Fourth Dist.
Mar. 29, 1965.
 John Edward Daugherty, in pro. per., and Harold P. Curtis, under appointment by the District Court of Appeal, for Defendant and Appellant.
 Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and C. Anthony Collins, Deputy Attorney General, for Plaintiff and Respondent.
 FINLEY, J. pro tem.  [fn. *]
 This is an appeal by defendant from judgment and sentence imposed subsequent to the making of an order revoking probation.
 On December 15, 1952, a complaint was filed in the Municipal Court of the City of San Diego charging defendant with the theft of a motorcycle in violation of section 503 of the California Vehicle Code. On December 18, 1952, defendant while represented by an attorney and with the consent of the district attorney entered his plea of guilty to the charge. Transfer was then made to the superior court where defendant moved for leave to withdraw his plea of guilty and enter a plea of not guilty. The matter was remanded to the municipal court for further proceedings in connection with defendant's motion. After a hearing in the municipal court, during which defendant was represented by his attorney, the motion to withdraw the plea *286 was denied and an order was made returning the matter to the superior court. On January 21, 1953, (the time fixed for pronouncement of judgment and sentence) the superior court duly pronounced judgment and sentence and made its order suspending the execution of sentence for a term of five years and granted the defendant probation.
 Sometime prior to February 19, 1954, defendant was convicted of a federal offense, and was sent to McNeil Island Prison, whereupon the office of the warden notified the San Diego Probation Department. On August 11, 1954, the superior court issued a bench warrant ordering defendant's arrest and return to show cause why his probation should not be revoked. No further action was taken at that time. On January 14, 1958, an order was made revoking defendant's probation and issuing a bench warrant for his arrest and return to the court for judgment, the warrant "to be effective in the State of California only." On November 5, 1963, by an order entered nunc pro tunc as of November 4, 1963, the order of January 14, 1958, revoking defendant's probation was revoked and defendant was "... reinstated to a probationary status for a term of three (3) years, or until November 3, 1966. ..." The clerk's minutes for November 1, 1963, show that on that date defendant appeared before the court for the pronouncement of judgment and sentence; that his attorney of record did not appear; that defendant requested an attorney and the court appointed one for him and continued the matter until November 4, 1963, when, both defendant and his attorney being present, the above order reinstating probation was made. No appeal was taken from this order which has long since become final.
 On January 6, 1964, another bench warrant was issued for defendant's arrest and return to show cause why his probation should not be revoked, "to be effective in the State of California only." The warrant referred to John Edward Daugherty, Silver Bow County Jail, Butte, Montana. No further action was taken at that time.
 On April 16, 1964, the court made another order reciting that:
 "Whereas, it appears that on April 13, 1964 the defendant, John Edward Daugherty, made a demand for hearing pursuant to the provisions of Section 1381 of the Penal Code of the State of California, and recited the fact that he had been convicted of the crime of Grand Theft in the Superior Court of the State of California, in and for the County of *287 Orange, on March 22, 1964, and had on said date been sentenced to State Prison therefor; ..."
 The order then continued by ordering the defendant to appear on April 22, 1964, to show cause why the probation theretofore granted should not be revoked and ordered the San Diego County Sheriff to receive custody of defendant at the California Institution for Men at Chino and have him in court on April 22, 1964.
 A hearing was held on April 22, 1964, pursuant to this order, at which time defendant was personally present, represented by a court-appointed attorney and questioned the court's jurisdiction to sentence him. The court, however, made its order revoking the probation granted on November 4, 1963, and made and entered its judgment and order sentencing defendant to be punished by imprisonment in the California Institution for Men for the term prescribed by law.
 Defendant's notice of appeal reads as follows:
 "The Notice of Appeal"
 "Greeting comes now the defendant John Edward Daugherty and enters his appeal from the conviction of 503 CVC and Judgement entered on all statutory grounds set forth within his case on File and that he be permitted to become Propria Persona."
 "Further the aforenamed defendant respectfully requests that a reasonable bail be affixed pending the prosecuting of his appeal."
 "Respectfully submitted"
 "John Edward Daugherty"
 "Executed on"
 4/28/64""
 First, it will be noted that according to the notice, the appeal is taken from the judgment itself and not from any subsequent order granting or revoking probation. Since in this case judgment and sentence were pronounced on January 21, 1953, and an order made suspending their execution, the judgment itself has long since become final and cannot now be questioned in an appeal. [1] While the order made by the court on April 22, 1964, is in the form of a judgment, it cannot be so considered, but is merely an order made after judgment revoking the suspension of execution of judgment. (People v. Larsen, 144 Cal.App.2d 504, 508 [301 P.2d 298]; In re Dearo, 96 Cal.App.2d 141 [214 P.2d 585].) [2] Where sentence is imposed and the execution thereof stayed, a judgment *288 of conviction has been rendered. (People v. Arguello, 59 Cal.2d 475, 476 [30 Cal.Rptr. 333, 381 P.2d 5].) For purposes of our discussion we shall treat this as an appeal from the order revoking probation.
 In a document entitled "Appellant's Supplemental Opening Brief," filed by appellant in propria persona, and in another document entitled "Closing Brief and Motion for Oral Argument," appellant urges for reversal a number of specifications of error. Most of those having any conceivable merit would be reviewable only on appeal from the judgment itself and not, as will be considered here, merely from an order made after judgment. The validity of that order is the ultimate question before the court for consideration. However, the validity of this order revoking the suspension of execution of judgment depends in turn upon the validity of the orders made subsequent to the making of the original order of probation, for upon their validity depends the continuing jurisdiction of the court.
 [3] The first order to be made after the original order of probation was for the issuance of a bench warrant upon receipt by the court of information that the defendant had been convicted of a federal offense and was confined to McNeil Island Prison. This conviction and imprisonment constituted a patent violation of probation and the bench warrant was obviously proper. [4] A serious violation of probation having occurred and no cause to the contrary appearing, the order of January 14, 1958 revoking the original order granting probation and ordering issuance of a bench warrant were also proper. [5] There is neither a constitutional nor a statutory right to notice and hearing preceding a revocation of probation and under our law probation is not a right but a matter of grace. Penal Code, section 1203.2 merely provides that a rearrested probationer "may" be taken before the court. (In re Davis, 37 Cal.2d 872 [236 P.2d 579].)
 The five-year period of probation granted in the original order would not have expired until January 21, 1958, so the order of January 14, 1958, revoking probation was made within the probationary period. Defendant having been confined to McNeil Island, a federal prison out of the State of California, and having taken no steps on his own behalf when released, is in no position to complain that a search was not made for him outside the State of California or that the bench warrant was expressly made effective only in the State of California. Outside of any interstate compact agreements, and the record discloses none here, the effect of the warrant would be *289 limited by the state boundaries regardless of such a court order. In addition, however, this court, in People v. Gish, 230 Cal.App.2d 544, 547 [41 Cal.Rptr. 155], held as follows: "it is apparent that a reasonable explanation for the limitation of service of the bench warrants to California was that the court did not feel that the case, at the time the warrants were issued, was of such nature as to require extradition in the event that defendant, whose whereabouts were unknown, was outside the state."
 [6] Under the provisions of the 1957 amendment to Penal Code, section 1203.2, defendant's probation having been legally revoked, the court was thereupon empowered to again place defendant on probation for "such period of time and with such terms and conditions as it could have done immediately following conviction." Therefore, the order of November 5, 1963, entered nunc pro tunc as of November 4, 1963, which reinstated defendant to a probationary status for a term of three years, or until November 3, 1966, was within the court's jurisdiction. (People v. Gish, supra, 230 Cal.App.2d 544.) At the time this order was made defendant was before the court in person and also by an attorney appointed by the court. No objection of any kind was registered and time for appeal from this order has long since expired.
 [7] When on January 6, 1964, well within the limits of the second term of defendant's probationary period, the court was again apprised that defendant was in Silver Bow County Jail in Butte, Montana, and again issued its order for a bench warrant and to show cause, "to be effective only in the State of California," the court was again acting within its jurisdiction and prerogative. [8] The same may be said for its order of April 16, 1964, when, upon defendant's demand, he being incarcerated in the California Institution for Men at Chino, California, the court issued the warrant, made its order for his appearance to show cause why his probation should not be revoked and sentence imposed, and after a hearing, defendant being personally present, the court revoked its order of suspension and proceeded to impose the suspended judgment and sentence. (People v. Gish, supra, 230 Cal.App.2d 544.)
 One final point urged by defendant should be noted and that is his claim that, "it was error to prepare the record on appeal without the presence of defendant or counsel."
 [9] Preparation of the record on appeal is purely a ministerial *290 or clerical function. It is in no sense an adversary proceeding entitling defendant to be present. (People v. Ang, 204 Cal.App.2d 553 [22 Cal.Rptr. 455]; People v. Isby, 30 Cal.2d 879 [186 P.2d 405].)
 Judgment affirmed.
 Brown (Gerald), P. J., and Coughlin, J., concurred.
NOTES
[fn. *]  *. Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.


123 B.R. 623 (1991)
In re LENDVEST MORTGAGE, INC., Debtor.
Charles E. SIMS, Trustee, Plaintiff,
v.
Willard and Norma DE ARMOND, Defendants.
Bankruptcy No. 1-88-01058, Adv. No. 1-90-0134.
United States Bankruptcy Court, N.D. California.
February 4, 1991.
*624 J. Roland Wagner, P.C., Napa, Cal., for defendants.
Steven M. Olson, Geary, Shea, O'Donnell & Grattan, Santa Rosa, Cal., for plaintiff.

MEMORANDUM OF DECISION
ALAN JAROSLOVSKY, Bankruptcy Judge.
Before its collapse, the debtor operated a mortgage brokerage. Much of its operational financing came from individual investors. In this adversary proceeding, the Trustee seeks to recover as a preference $50,000.00 from defendant investors Willard and Norma De Armond.
In 1986, the debtor made a $300,000.00 loan to its president, David Hansen. The loan was secured by a deed of trust to Hansen's property. The debtor then sold fractional interests in the note and its deed of trust to individual investors; the De Armonds purchased a 1/6 interest for $50,000.00 in July, 1987.
The debtor was the trustee under the deed of trust. In addition, the De Armonds gave the debtor a special power of attorney to manage their investment and sign all papers relating to it.
In January, 1988, Hansen paid off the loan in full; all funds went to the debtor. A full reconveyance executed by the debtor was recorded on January 22, 1988. Instead of paying the De Armonds their share, however, the debtor instead gave them its unsecured note for $50,000.00 and kept the cash for itself.
On May 5, 1988, just a few weeks before the bankruptcy filing, the debtor and the De Armonds entered into a written agreement whereby the debtor's note was deemed paid in full and the debtor transferred $50,000.00 to LendVest Mortgage Fund II ("Fund II"), a limited partnership, on the De Armonds' behalf. This is the transfer alleged to be preferential, along with $920.23 in interest payments.
Earlier in these bankruptcy proceedings, the Trustee brought an adversary proceeding against Fund II, seeking a declaration that he and not Fund II was the owner of certain notes having nothing to do with the De Armonds. Fund II filed its own bankruptcy, and then reached a settlement with the Trustee regarding those notes whereby the Trustee received several hundred thousand dollars. As part of the settlement, the Trustee agreed to withdraw the claim he had filed in the Fund II bankruptcy relating to the same preferential transfer which is the subject of this adversary proceeding.
Only two issues are raised by the De Armonds in response to the Trustee's complaint. First, they allege that the reconveyance of the deed of trust was not authorized and therefore was not effective, so that the transfer in May should be deemed a contemporaneous exchange under section 547(c)(1) of the Bankruptcy Code. Second, they allege that the settlement between the Trustee and Fund II fully satisfied the preference claim which is the subject of this action.
The court sees no merit in the 547(c)(1) defense. Any wrongdoing on the part of the debtor is not imputed to the Trustee so as to inhibit his avoidance powers. In re Davis, 785 F.2d 926, 927 (11th Cir.1986); Matter of Intern. Gold Bullion Exchange, Inc., 60 B.R. 261, 263 (Bkrtcy.S. D.Fla.1986). Rightly or wrongly, the debtor reconveyed the Hansen deed of trust some four months before the transfer here alleged to be a preference. On May 5, 1988, the estate was diminished by the $50,000.00 transfer to Fund II. It got no new value, as that term is defined in section 547(a)(2), in return.
Pursuant to section 550(a)(1), the Trustee is entitled to recover the preference from either Fund II, as the initial transferee, or the De Armonds, the persons for whose benefit the transfer was made. Section 550(c) limits the Trustee to a single recovery, so the total of his recoveries from both on account of the avoided transfer may not exceed $50,920.23. The De Armonds argue that by withdrawing his claim against Fund II as a part of his settlement with it, the Trustee has in essence had his *625 recovery on the preference which is the subject of this action.
The court does not find persuasive the Trustee's argument that he withdrew his claim against Fund II rather than compromised it. The court must consider the substance of the transaction, not the form. In substance, the Trustee had multiple claims against Fund II, some of which were raised in his adversary proceeding against it and some of which were raised in the proof of claim he filed. By a single agreement, all of the claims were resolved. It is a fiction to argue that some claims were compromised and others were dropped.
On the other hand, it may well be, as the Trustee argues, that the primary thrust of the settlement was resolution of the dispute over who owned certain notes. The Trustee argues that the dropping of the preference claim was a small additional concession to Fund II, made largely because it was not worth pursuing anyway. As far as the court can see, neither Fund II nor the Trustee ever thought about the De Armonds when they negotiated the settlement; certainly they did not intend the settlement to protect the De Armonds.
The issue before the court can be stated as follows: Where the Trustee may proceed against either of two parties to recover an avoidable transfer, and one party discharges his liability by settlement as a small part of larger litigation, should the court in a subsequent action against the non-settling party attempt to allocate the settlement or must it give the non-settling party full credit for the entire settlement?
The court has been unable to discover any bankruptcy precedent or authority applicable to this situation, and none has been cited by the parties. However, the court finds helpful a few state court decisions involving joint tortfeasors which are very analogous to the facts now before the court.
In Nauman v. Eason, 572 So.2d 982 (Fla.App.1st Dist.), plaintiffs settled with one tortfeasor and proceeded to trial as to another person who was jointly liable on some, but not all, of the causes of action asserted against the party who settled. After a jury verdict in favor of the plaintiffs, the trial court allocated the settlement between the various causes of action and gave the defendant credit only for those on which he was jointly liable. The appellate court reversed, holding that where the original settlement failed to allocate between various causes of action the defendant was entitled to a setoff of the entire amount of the settlement; post-hoc allocation by the court was error. The court cited Dionese v. City of West Palm Beach, 485 So.2d 1361, 1363 (Fla. 4th CDA 1986), aff'd 500 So.2d 1347 (Fla.1987). The court there held:
When claimants enter into a settlement which fails to preserve or otherwise differentiate settlement sums which pertain to separate causes of action, the total amount of the prior settlement is setoff against the total sum of subsequent verdicts entered against a separate joint tortfeasor.
See also Knox v. County of Los Angeles, 109 Cal.App.3d 825, 836, 167 Cal.Rptr. 463 (1980), to the same effect.
After considerable reflection, the court concludes that the same rule should apply to joint liability under section 550(a)(1) of the Bankruptcy Code, and it is therefore improper to allocate the prior settlement as the Trustee urges. While such an allocation appeals to the court's equitable instincts, there are two countervailing considerations. First, allocation of a settlement after the fact would almost certainly be highly arbitrary. Second, it would force the court to try the merits of the settled litigation, thereby defeating a primary purpose of settlement. Public policy is better served by requiring settling parties who do not wish their settlement to inure in toto to nonsettling parties to allocate their settlement and give any jointly liable parties fair notice of the allocation and an opportunity to object if they believe it has not been made in good faith.
The court accordingly holds that where a trustee seeks to compromise litigation which includes avoidance matters without prejudicing his rights against third parties *626 who might be jointly liable for the avoided transfer, he must (1) as part of the settlement allocate that portion which is attributable to the avoidance action; (2) give all nonparties to the settlement who might be jointly liable fair notice of the settlement and how it might affect their rights; and (3) obtain a judicial determination that the allocation is made in good faith. This procedure, somewhat akin to the procedure for determining the good faith nature of tort settlements vis-a-vis nonsettling joint tortfeasors under state law (California Code of Civil Procedure section 877.6), would afford due process protection to persons who might be jointly liable with the settling party, and would encourage the resolution of all avoidance claims regarding the same transfer at the same time.
The court further holds that where there has been no allocation and notice at the time of the settlement, in any subsequent avoidance action the defendants may apply the entire amount of the settlement as a credit toward their joint liability with the settling party.
For the foregoing reasons, the Trustee shall take nothing by his complaint and this adversary proceeding shall be dismissed, with prejudice. Each side shall bear its own costs.
Counsel for the De Armonds shall submit an appropriate form of judgment forthwith. This memorandum constitutes the court's findings and conclusions pursuant to FRCP 52(a) and Bankruptcy Rule 7052.


                                                         NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                               ______

                                 No. 08-3540
                                   ______

                      UNITED STATES OF AMERICA

                                       v.

                           JOSE PEREZ-BARRON,
                               also known as
                                Jose Medina

                                            Jose Perez-Barron,

                                                       Appellant
                                    ______

                On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                       (D.C. Criminal No. 07-cr-399-08)
                 District Judge: Honorable Sylvia H. Rambo
                                   ______

               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               March 22, 2011

       Before: FUENTES, SMITH, and VAN ANTWERPEN, Circuit Judges.

                             (Filed: April 1, 2011)
                                     ______

                          OPINION OF THE COURT
                                  ______

VAN ANTWERPEN, Circuit Judge.
                                             I.

       Because we write only for the benefit of the parties, we will presume their

familiarity with the facts and procedural history of this case. On March 26, 2008,

pursuant to a written plea agreement, Jose Perez-Barron (“Perez”) entered a guilty plea to

conspiring with the intent to distribute 500 grams or more of cocaine hydrochloride in

violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(iii).

       Under the terms of the plea agreement, Perez agreed to an appellate waiver.

According to the provisions of the waiver, Perez ceded “the right to appeal any

conviction and any sentence imposed within the statutory maximum, or the manner in

which that sentence was determined, on the grounds set forth in Title 18, United States

Code, Section 3742, or any other grounds, constitutional or non-constitutional, including

the manner in which that sentence was determined in light of United States v. Booker,

125 S. Ct. 738 (2005).” (App. at 48.) In exchange for Perez’s plea, the Government

agreed: (1) to move for dismissal of an earlier multi-count indictment charging Perez

with additional crimes; (2) to move for a three level reduction to his offense level for

acceptance of responsibility; (3) to move for a two level reduction to his offense level for

his minor role; and, (4) to stipulate that Perez was responsible for a smaller quantity of

drugs than originally charged. As discussed below, the District Court conducted a

colloquy with Perez with regard to the waiver.

       The District Court sentenced Perez on July 30, 2008. Prior to sentencing, Perez

submitted a sentencing memorandum objecting to the attribution of drug weight and

                                              2
application of a dangerous weapon enhancement set forth in his pre-sentence report

(“PSR”).1 During the sentencing hearing, Perez also requested a ten month downward

variance to address a perceived sentencing disparity that would otherwise result from the

Government’s inadvertent failure2 to move for the application of a dangerous weapons

enhancement to one of Perez’s co-defendants, Oscar Miramontes. Perez urged the

District Court to remedy this perceived disparity under 18 U.S.C. § 3553(a)(6).3

Although the District Court sustained Perez’s objection concerning the weight of drugs

attributed to him in the PSR, it rejected his arguments regarding application of the

dangerous weapon enhancement and the perceived co-defendant sentence disparity. The

District Court sentenced Perez to 70 months of imprisonment, which was at the bottom of

the applicable 70 to 87 month Guideline range.

1
  The Probation Officer calculated Perez’s Total Offense Level as 28. This calculation
factored in a three level reduction for his mitigating role, a two level reduction for his
minor role in the offense, and a two level enhancement for his constructive possession of
a handgun located in the ceiling of a room where he was allegedly staying. The
Probation Officer determined that Perez fit into Criminal History Category I and
recommended a Guidelines range of 78 to 97 months. The District Court adopted the
PSR with the exception of a lesser quantity of drugs attributed to Perez as a result of the
sustained objection. This reduced his Total Offense Level to 27. The resulting
recommended Guidelines range was 70 to 87 months.

2
  At sentencing, the Government described its failure to press for application of the
dangerous weapon enhancement in Miramontes’s case as an “oversight,” (App. at 97), a
point reiterated on appeal, (Gov. Br. at 6, 21).
3
  Section 3553(a)(6) directs sentencing courts to consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty
of similar conduct.” 18 U.S.C. § 3553(a)(6).
                                            3
                                            II.4

       Where a person knowingly and voluntarily waives his right to appeal, we

generally do not exercise our jurisdiction to review the merits of the appeal “unless the

result would work a miscarriage of justice.” See United States v. Gwinnett, 483 F.3d 200,

203 (3d Cir. 2007). Perez concedes that his waiver was knowing and voluntary, (Perez

Br. at 14), and our independent review of the record substantiates this concession.

During his plea hearing, with the assistance of a court translator, Perez affirmatively

acknowledged that he and his attorney reviewed the plea agreement and that he

understood his right to appeal as well as the effect of the appellate waiver. The District

Court examined Perez regarding the voluntariness of his acceptance of the plea

agreement and correctly concluded that his acceptance was both knowing and voluntary.

Additionally, the imposed sentence is covered by the terms of the waiver.

       Perez nonetheless argues that the District Court misunderstood its authority to

grant a downward variance based on 18 U.S.C. § 3553(a)(6), and he therefore contends

that enforcement of the appellate waiver would “work a miscarriage of justice.” Id. We

disagree.

       In our view, the sentencing colloquy Perez relies upon in making this argument

does not demonstrate that the District Court misunderstood its authority to vary

4
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. See Gwinnett, 483 F.3d at 203 (holding
that a defendant’s waiver of appellate rights does not divest this Court of jurisdiction to
hear an appeal).
                                              4
downward. Therein, the District Court stated “[w]ith regard to your argument on the

disparity, I can only say that what is before me justifies the sentence of 70 to 87 months .

. . . Now if the Third Circuit says that I have to make that adjustment, I’ll do it. But at

this moment, I cannot do it.” (App. at 97-98.) When pressed further, the District Court

explained, “I don’t intend to buy your argument, counsel. I just don’t know how far this

Court has to go in avoiding disparate sentences . . . . I do believe that the facts of this case

support the guideline that’s involved. . . . And I do not believe that your request under

3553(a) to adjust the sentence to avoid what you perceive to be alleged disparity is

appropriate.” (Id. at 99.) Taken together, these statements do not support Perez’s

contention that the District Court rejected his variance request based upon the mistaken

belief that it lacked the authority to grant it. Instead, the District Court’s statements

indicate that unless compelled to do otherwise, it intended to exercise its discretion to

reject Perez’s request based on the totality of circumstances before it.

       This position is not inconsistent with our precedent. Although a sentencing court

may consider sentencing disparities between similarly situated co-defendants, it is not

required to do so under § 3553(a)(6). United States v. Parker, 462 F.3d 273, 277 (3d Cir.

2006). “We have concluded that Congress’s primary goal in enacting § 3553(a)(6) was

to promote national uniformity in sentencing rather than uniformity among co-defendants

in the same case.” Id. Moreover, “a defendant cannot rely upon § 3553(a)(6) to seek a

reduced sentence designed to lessen disparity between co-defendants’ sentences.” Id.

Thus, the District Court was correct in its understanding that it was not required to

                                               5
remedy any perceived disparity between Perez and his co-defendants. See id. at 277-78

(“[Section] 3553(a) does not require district courts to consider sentencing disparity

among co-defendants.”). Finally, we do not believe that the Government’s oversight in

not pressing for application of a dangerous weapon enhancement in the case of one of

Perez’s co-defendants obliged the District Court to extend the same windfall benefit to

Perez.5 Accordingly, we are satisfied that enforcement of the appellate waiver does not

work a miscarriage of justice. Gwinnett, 483 F.3d at 203.

                                             III.

       For these reasons, we conclude that Perez’s waiver of his right to appeal was valid

and is effective. Accordingly, we decline to exercise jurisdiction, and we will dismiss his

appeal.

5
  Perez argues that the facts before us are analogous to circumstances we discussed in
United States v. Seligsohn, 981 F.2d 1418, 1428-29 (3d Cir. 1992). In Seligsohn, a pre-
Booker case, we noted that “unusual circumstances,” such as where a prosecutor moved
for a downward departure in the case of some but not all similarly situated co-defendants,
might compel a lesser sentence in order to avoid the resulting disparity. See id. at 1428.
Therein, we were concerned about the power of a prosecutor to “bring about downward
departures for some defendants while opposing like treatment for co-defendants similarly
situated.” Id. (emphasis added). Here, the Government’s failure to move for application
of the dangerous weapon enhancement during the sentencing of Miramontes appears to
be accidental and not a deliberate, contradictory position with respect to similarly situated
co-defendants. Thus, the case before us is not analogous. Even if it were, however, the
District Court was nonetheless free to exercise its discretion to reject Perez’s request for a
variance. See Parker, 462 F.3d at 277-78.

                                              6


975 F.2d 45
UNITED STATES of America, Appellee,v.Andres AGUIAR, Defendant-Appellant.
No. 1917, Docket 92-1168.
United States Court of Appeals,Second Circuit.
Argued Aug. 12, 1992.Decided Sept. 10, 1992.

Jeremy Gutman, New York City, for defendant-appellant.
Susan Corkery, Asst. U.S. Atty., Brooklyn, N.Y.  (Andrew J. Maloney, U.S. Atty., E.D.N.Y., Emily Berger, and A. Ross Pearlson, Asst. U.S. Attys., of counsel), for appellee.
Before:  WINTER, MINER and McLAUGHLIN, Circuit Judges.
WINTER, Circuit Judge:

1
Andres Aguiar appeals from his convictions after a jury trial in the Eastern District of New York before Judge Johnson for conspiring to import heroin into the United States in violation of 21 U.S.C. § 963 (1988), importing heroin into the United States in violation of 21 U.S.C. §§ 952(a) and 960 (1988), and possessing with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (1988).   Aguiar also appeals from a conviction for witness-tampering in violation of 18 U.S.C. § 1512(b)(1) (1988).   We affirm.

2
On June 25, 1991, George Albino was arrested at John F. Kennedy Airport when heroin was found in his luggage.   Albino agreed to cooperate and told authorities that he was to deliver the narcotics to a "Henry" in the public area of the International Arrivals Building.  (A subsequent check revealed that Aguiar was also known as Henry Delgado.)   Equipped with a concealed tape recorder, Albino approached Aguiar.   Aguiar asked in Spanish if everything was okay and where the bag was.   Albino responded affirmatively, and Aguiar then picked up the suitcase containing the heroin and was shortly arrested.

3
Albino subsequently entered into a plea agreement.   He was interviewed pursuant to this agreement by Joint Narcotics Smuggling Unit Special Agent Peter Amentas and Assistant United States Attorney Andrew Weissmann.   Albino stated that Aguiar had hired him to go to Brussels to obtain the heroin.   Aguiar had made Albino's travel arrangements, obtained his passport, paid his expenses, and agreed to pay him five to six thousand dollars upon delivery of the heroin.   Albino also stated that, after the arrest, Aguiar told him to deny everything and to say that Aguiar was just a taxi driver.

4
On October 3, 1991, however, Albino told the government that he no longer wanted to cooperate.   The following day he changed his mind again and explained that he had received written and verbal threats from Aguiar.   He also expressed concern about his family's welfare.   Albino gave Amentas one of the letters he had received from Aguiar.   That letter threatened to expose criminal conduct by Albino, including murder.   It urged Albino to "act quick and contact [his] lawyer to clear" Aguiar.

5
On October 7, Albino again refused to cooperate and withdrew from his plea agreement.   On October 11, pursuant to a search warrant, agents found two threatening letters in Albino's cell.   The first letter was from "a very good friend of Andy" who wrote that Albino would be convicted of murder and that other prisoners would be told that Albino was an informer.   The second letter, which was unsigned but contained Aguiar's fingerprints and is thus attributable to him, stated that if Albino cleared Aguiar, Albino would not have to worry about the evidence of his state crimes.   The letter also advised Albino to falsify his testimony, or so the jury could easily have found.   Albino, even though he was granted immunity and faced civil and criminal contempt charges, refused to testify for the government or in Aguiar's defense.

6
At trial, the government sought to introduce Albino's prior statements to Amentas and Weissmann.   Pursuant to United States v. Mastrangelo, 693 F.2d 269 (2d Cir.1982), the court held a hearing to determine whether Aguiar procured the unavailability of Albino.   The government produced evidence of the events detailed above.   Aguiar introduced a letter in Albino's handwriting, supposedly delivered to Aguiar in August but not given to Aguiar's attorney until the beginning of trial on November 12, 1991, in which Albino stated that he had falsely incriminated Aguiar.   The district court held that Aguiar had procured Albino's unavailability and thereby waived his confrontation rights and hearsay objections.   The court then admitted Albino's hearsay statements to Amentas and Weissmann as evidence.

7
Aguiar claims that his due process rights were violated by the introduction of Albino's hearsay statements.   We disagree.   In Mastrangelo, we held that where, after a hearing, a district court determines by a preponderance of the evidence that a defendant procured the absence of a witness, the defendant will be deemed to have "waived his sixth amendment rights and, a fortiori, his hearsay objection."  Id. at 272.   Aguiar argues that Mastrangelo involved grand jury testimony and does not apply to unsworn statements such as those at issue in the instant case.   He further argues that the waiver of his Sixth Amendment confrontation rights does not obviate the need for a further inquiry into the reliability and trustworthiness of the witness's prior statements on due process grounds.

8
Although Mastrangelo involved sworn grand jury testimony, we did not there, and do not here, limit its rationale to such testimony.   A defendant who procures a witness's absence waives the right of confrontation for all purposes with regard to that witness, not just to the admission of sworn hearsay statements.   We may assume that the admission of facially unreliable hearsay would raise a due process issue, although it is hard to imagine circumstances in which such evidence would survive Fed.R.Evid. 403's test of weighing probative value against prejudicial effect, an objection that is not waived by procuring a witness's absence.   In any event, there was no error of constitutional or non-constitutional dimension here.   First, the district court gave appropriate limiting instructions concerning the hearsay statements.   Second, the statements were amply corroborated by the events at the airport, which demonstrated that Albino was bringing the luggage containing heroin into the country for Aguiar, and by Aguiar's letter telling Albino how to testify, a tale that did not purport to be the truth.

9
Aguiar next argues that the "lawful conduct" affirmative defense of Section 1512(d) of Title 18 is unconstitutional because it impermissibly shifts the burden of proof.   He further argues that Judge Johnson's jury instructions gave insufficient guidance to the jury on the burden of proof.   We reject these arguments for the reasons stated in United States v. Johnson, 968 F.2d 208, 213-215 (2d Cir.1992).

10
Aguiar argues that Johnson is based on the particular charge given in that case and did not uphold the constitutionality of the statute.   However, Johnson is not limited to its particular facts.  Johnson thus specifically stated that "we see no constitutional defect either in the statute or in Judge Leval's charge."  Id. at 215 (emphasis added).   Moreover, the charge in the instant matter gave sufficient guidance to the jury.   Judge Johnson charged that "[i]f you find that [Aguiar] only engage[ed] in lawful conduct and that his sole intention was to encourage, induce or cause George Albino to testify truthfully, then you must find him not guilty of Count Four."   Given the simplicity and clarity of this instruction, an added instruction that it is not unlawful to advise another how to testify in the most favorable light would have had a potentially confusing effect in light of the fact that Aguiar's advice did not purport to seek truthful testimony.

11
Judge Johnson also gave a lengthy instruction on the burden of proof, emphasizing that the burden shifted only with regard to the affirmative defense and that Aguiar had to prove the affirmative defense only by a preponderance of the evidence.   Although Aguiar argues that the judge should have granted his request to include in the charge that the act of writing a letter was lawful conduct, we agree with Judge Johnson not only that it is self-evident that the actual writing of a letter by itself is lawful, but also that it is up to the jury to determine the lawfulness of the content of such a letter.   Judge Johnson's charge gave adequate guidance as to what constituted such lawful conduct and did not require Aguiar "to prove that his conduct violated none of the panoply of state and federal laws that might apply to his situation."  Id. at 212.

12
We therefore affirm.


[Cite as Tuleta v. Med. Mut. of Ohio, 2014-Ohio-930.]

                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA

                              JOURNAL ENTRY AND OPINION
                                      No. 100032

                           ANTHONY TULETA, ET AL.
                                                              PLAINTIFFS-APPELLANTS

                                                        vs.

                 MEDICAL MUTUAL OF OHIO, ET AL.
                                                              DEFENDANTS-APPELLEES

                                           JUDGMENT:
                                            AFFIRMED

                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-793800

            BEFORE:          Blackmon, J., Boyle, A.J., and E.A. Gallagher, J.

            RELEASED AND JOURNALIZED:                           March 13, 2014
ATTORNEYS FOR APPELLANTS

Henry W. Chamberlain
Chamberlain Law Firm Co., L.P.A.
36368 Detroit Road, Suite A
Avon, Ohio 44011

David A. Hamamey, II
Hamamey Law Firm, L.L.C.
P.O. Box 30543
Middleburg Heights, Ohio 44130

John J. Sheehan, Jr.
Sheehan Law
503 East 200th Street
Euclid, Ohio 44119

ATTORNEYS FOR APPELLEES

For city of Cleveland and Michael McGrath

Barbara A. Langhenry
Director of Law

William M. Menzalora
Chief Assistant
Department of Law
Cleveland City Hall

Alejandro V. Cortes
Assistant Director of Law
City of Cleveland - Law Department
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114

For Cuyahoga County, Ohio, Cuyahoga County Prosecutor’s Office, William D.
Mason, James Gutierrez, and Mary McGrath

Timothy J. McGinty
Cuyahoga County Prosecutor

Brian R. Gutkoski
John F. Manley
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

For Medical Mutual of Ohio

Lindsey A. Carr
Christopher G. Keim
Frantz Ward L.L.P.
2500 Key Center
127 Public Square
Cleveland, Ohio 44114

PATRICIA ANN BLACKMON, J.:
       {¶1} In this companion appeal, appellants Anthony Tuleta, et al. (“Tuleta”),

appeal the trial court’s dismissal of his complaint and assigns the following errors for our

review:

       I. The trial court erred in determining defendants James Gutierrez, Mary H.
       McGrath and William D. Mason had absolute immunity on appellants’
       claims.

       II. The trial court erred in determining defendants James Gutierrez, Mary H.
       McGrath and William D. Mason, were statutorily immune to all of
       appellants’ claims.

       {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

       {¶3} In 2009, the Cuyahoga County Grand Jury indicted Tuleta on numerous

counts of drug possession and one count of aggravated theft. The indictment and bill of

particulars provided that the dates of the alleged offenses occurred between the years of

2003 and 2007.

       {¶4} The trial court denied Tuleta’s motion to dismiss the indictment and the

matter proceeded to a jury trial. Tuleta was found guilty of all charges. The trial court

sentenced Tuleta to one year in prison and five years community control sanctions, but

stayed the sentence pending his direct appeal.

       {¶5} In his direct appeal, Tuleta argued, among other things, that the trial court

erred in denying his pretrial motions to dismiss and his Crim.R. 29(A) motion for

judgment of acquittal because a licensed physician prescribed the controlled substances
he allegedly possessed, and therefore the exception set forth in R.C. 2925.11(B)(4)

applied.

      {¶6} In State v. Tuleta, 8th Dist. Cuyahoga No. 94992, 2011-Ohio-1923, we

vacated Tuleta’s convictions because we found that the facts and evidence adduced prior

to and at trial revealed that Tuleta was prescribed the controlled substances by a licensed

health professional authorized to prescribe drugs between January 2003 and April 2007.

As such, the exception set forth in R.C. 2925.11(B)(4) applied; consequently, no criminal

charge for drug possession existed against Tuleta.

      {¶7} On October 18, 2012, Tuleta filed a complaint against Cuyahoga County,

Ohio, the Cuyahoga County Prosecutor’s Office (the Prosecutor’s Office”), the former

Cuyahoga County Prosecutor William D. Mason (“Mason”), Assistant Cuyahoga County

Prosecutors James Gutierrez (“Gutierrez”), Mary H. McGrath (“McGrath”), the city of

Cleveland (“the City”), and the Chief of Police, Michael McGrath (“the Police Chief”).

Also named in the complaint was Medical Mutual of Ohio and its investigator, Bruce

Sieniawski (“Sieniawski”).

      {¶8} Tuleta alleged several causes of action including malicious prosecution,

abuse of process, and breach of confidentiality, and/or inducing breach of confidentiality.

 Tuleta also alleged causes of action for intentional infliction of emotional distress,

negligent infliction of emotional distress, and loss of consortium.     On December 28,

2012, claiming absolute and statutory immunity, Cuyahoga County, the Cuyahoga County

Prosecutor’s Office, Mason, Gutierrez, and McGrath filed their motion to dismiss. On
December 31, 2012, also claiming absolute and statutory immunity, the City and the

Police Chief filed their motion to dismiss.

       {¶9} On May 29, 2013, the trial court granted the motions of Cuyahoga County,

the Prosecutor’s Office, Mason, Gutierrez, and McGrath on the grounds that they were all

entitled to absolute immunity. The trial court also granted the City’s motion on the

grounds that they were entitled to statutory immunity.

       {¶10} The trial court denied the Police Chief’s motion on the grounds that even

though a political subdivision is immune from liability, that municipality’s employee

could still be individually liable for an intentional tort when malice or wanton or reckless

behavior is alleged. The trial court reasoned that the Police Chief could be liable for at

least one count.

       {¶11} In Tuleta v. Med. Mut. of Ohio, 8th Dist. Cuyahoga No. 100050,

2014-Ohio-396, we reversed the trial court’s decision denying the Police Chief’s motion

to dismiss. We concluded Tuleta did not allege sufficient facts to state a claim of

malicious prosecution, to bypass immunity, under R.C. 2744.03(A)(6), or to rebut the

presumption that the indictment against him was issued with probable cause.

                                    Motion to Dismiss

       {¶12} In the first assigned error, Tuleta argues the trial court erred in ruling that

Gutierrez, McGrath, and Mason were clothed with absolute immunity on all of his claims.
       {¶13} We review an order dismissing a complaint for failure to state a claim for

relief de novo. Tate v. Garfield Hts., 8th Dist. Cuyahoga No. 99099, 2013-Ohio-2204,

citing Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44.

A motion to dismiss for failure to state a claim on which relief can be granted is

procedural and tests the sufficiency of the complaint. Cleveland v. JP Morgan Chase

Bank, N.A., 8th Dist. Cuyahoga No. 98656, 2013-Ohio-1035, citing State ex rel. Hanson

v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 1992-Ohio-73, 605 N.E.2d 378.

       {¶14} It is well settled that when a party files a motion to dismiss for failure to

state a claim, all factual allegations of the complaint must be taken as true and all

reasonable inferences must be drawn in favor of the nonmoving party. FCR Project,

L.L.C. v. Canepa Media Solutions, Inc., 8th Dist. Cuyahoga No. 97845, 2013-Ohio-259,

citing Byrd v. Faber, 57 Ohio St.3d 56, 60, 565 N.E.2d 584 (1991).

       {¶15} But “unsupported conclusions of a complaint are not considered admitted *

* * and are not sufficient to withstand a motion to dismiss.” U.S. Bank Natl. Assn. v.

Perry, 8th Dist. Cuyahoga No. 99608, 2013-Ohio-3814, citing State ex rel. Hickman v.

Capots, 45 Ohio St.3d 324, 324, 544 N.E.2d 639 (1989). For a defendant to prevail on the

motion, it must appear from the face of the complaint that the plaintiff can prove no set of

facts that would justify a court in granting relief. Id., citing O’Brien v. Univ. Comm.

Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975).

       {¶16} Preliminarily, we note that although the trial court dismissed the complaint

against appellees Cuyahoga County, the Prosecutor’s Office, and the City, Tuleta did not
assign any errors relative to these parties. As such, we conclude Tuleta has abandoned

any arguments relative to the aforementioned appellees. See Wells Fargo Bank, N.A. v.

Jarvis, 7th Dist. Columbiana No. 08 CO 30, 2009-Ohio-3055; Loukinas v. Roto-Rooter

Servs. Co., 167 Ohio App.3d 559, 2006-Ohio-3172, 855 N.E.2d 1272 (1st Dist.);

Helman v. EPL Prolong, Inc., 139 Ohio App.3d 231, 240-241, 2000-Ohio-2593, 743

N.E.2d 484 (7th Dist.).

                                   Absolute Immunity

      {¶17} The absolute immunity defense has been recognized for only a few

executive officials “whose special functions or constitutional status requires complete

protection from suit.” Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73

L.Ed.2d 396 (1982). In such cases, there are other checks to prevent abuses of authority

or provide redress. Mitchell v. Forsyth, 472 U.S. 511, 522, 105 S.Ct. 2806, 86 L.Ed.2d

411 (1985).

      {¶18} Absolute immunity has also been recognized as a defense for judges and

other participants in the judicial process who have taken action necessary to the judicial

process, even if the actions are done maliciously or in excess of the person’s judicial

authority, because the nature of the function involves controversy and the judicial officer

must be able to act without having to consider the negative reaction of an opposing party.

 Id. at 522-525, and Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d

128 (1976).
       {¶19} The absolute immunity afforded to judges has also been extended to

administrative judicial officers. Butz v. Economou, 438 U.S. 478, 512-515, 98 S.Ct. 2894,

57 L.Ed.2d 895 (1978). Courts have extended absolute immunity to prosecutors, as

quasi-judicial officers, for claims arising out of their initiation of a prosecution and

advocating the state’s case. Imbler at 431 and Van de Kamp v. Goldstein, 555 U.S. 335,

342, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009).         Absolute immunity does not extend,

however, to a prosecutor engaged in essentially investigative or administrative functions.

       {¶20} Consequently, we look at the prosecutor’s function and not his or her

identity. See Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988).

The Imbler-Forrester test made it clear that when the prosecutor is acting as an advocate,

he is immune from any liability.    For example, presenting evidence to a grand jury is

advocacy.

       {¶21} Prosecutors are entitled to absolute immunity from liability for damages for

the prosecutor’s appearance as a lawyer for the state in probable cause hearings in which

he examines witnesses and successfully supports applications for search warrants. See

Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). In addition,

where relevant laws arguably provides a basis for a prosecutor’s claims against an

accused, regardless of the prosecutor’s motives, absolute prosecutorial immunity shields

the attorneys from liability for damages. See Shmueli v. New York, 424 F.3d 231 (2d Cir.

N.Y. 2005).
       {¶22} While, in Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125

L.Ed.2d 209 (1993), where a petitioner sought damages after prosecutors allegedly

fabricated evidence and made false statements at a press conference, the Supreme Court

held that the prosecutors were only entitled to qualified immunity.    The Court found that

the alleged fabrication of evidence occurred before a special grand jury was empaneled

and petitioner was arrested. The Court also found that one prosecutor was not acting in

his role as an advocate for the state when he allegedly made false statements to the media

during a press conference.    Thus, the Court held that the prosecutor was not entitled to

absolute immunity.

       {¶23} Further, in Kalina v. Fletcher 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471

(1997), the United States Supreme Court held that (1) a prosecutor’s conduct in making

allegedly false statements of fact in a certification for determination of probable cause is

not protected by the doctrine of absolute prosecutorial immunity, as the prosecutor, in

making such a certification, performs a function of a complaining witness rather than an

advocate; and (2) thus, 42 U.S.C. 1983 may, under some circumstances, provide a

damages remedy against such a prosecutor.

       {¶24} Turning now to Tuleta’s complaint, he must aver that the prosecutors acted

beyond advocacy and allege facts that establish the functionality test in order to override

the prosecutor’s absolute immunity defense.        After viewing Tuleta’s complaint, we

conclude that it is devoid of any facts that establish that the prosecutors Mason, Gutierrez,

and McGrath acted beyond advocacy or acted as investigators. Tuleta’s claims arose
from the prosecutor’s initiating the underlying case and advocating the state’s position.

Nowhere in the pleadings does Tuleta allege that the prosecutors engaged in any

investigative activities over and above that required to professionally evaluate the

evidence assembled by the police, and appropriately prepare for the presentation of that

evidence at trial or before the grand jury following their decision to seek an indictment.

       {¶25} That being said, it is also well-settled that the duties of the prosecutor in his

or her role as advocate for the state involve actions preliminary to the initiation of a

prosecution and actions apart from the courtroom. Imbler. Thus, absolute immunity

extends to the preparation necessary to present a case, and part of that decision involves

an evaluation of the evidence present in each case. Brand v. Geissbuhler, 8th Dist.

Cuyahoga No. 70565, 1997 Ohio App. LEXIS 709 (Feb. 27, 1997).

       {¶26} Applying all of the foregoing, we conclude that prosecutors Mason,

Gutierezz, and McGrath are all entitled to absolute immunity in this matter because the

claims arose from their protected rules as prosecutors. Accordingly, we overrule the first

assigned error.

                                    Statutory Immunity

       {¶27} In the second assigned error, Tuleta argues the trial court erred when it

determined that prosecutors Mason, Gutierrez, and McGrath were entitled to statutory

immunity.

       {¶28} Pursuant to R.C. 2744.03(A)(7),

       The political subdivision, and an employee who is a county prosecuting
       attorney, city director of law, village solicitor, or similar chief legal officer
       of a political subdivision, an assistant of any such person, or a judge of a
       court of this state is entitled to any defense or immunity available at
       common law or established by the Revised Code.

       {¶29} As discussed in the first assigned error, it is well-settled common law that

prosecutors enjoy absolute immunity from suit for acts committed in their roles as judicial

officers.    Thus, R.C. 2744.03(A)(7) preserves the absolute immunity available to

prosecutors at common law. See Jopek v. Cleveland, 8th Dist. Cuyahoga No. 93793,

2010-Ohio-2356.     As such, the trial court did not err when it dismissed Tuleta’s

complaint based also on statutory immunity.         Accordingly, we overrule the second

assigned error.

       {¶30} Judgment affirmed.

       It is ordered that appellees recover from appellants their costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, A. J., and
EILEEN A. GALLAGHER, J., CONCUR


663 F.2d 1077
Kennedy, Appeal of
81-1593
UNITED STATES COURT OF APPEALS Seventh Circuit
8/31/81

1
N.D.Ill.

DISMISSED


991 A.2d 310 (2010)
COM.
v.
CARABALLO.
No. 583 EAL (2009).
Supreme Court of Pennsylvania.
March 22, 2010.
Disposition of Petition for Allowance of Appeal Denied.


233 P.3d 888 (2010)
168 Wash.2d 1036-43
STATE
v.
KOSTRACH-TREMBLAY.
No. 84060-1.
Supreme Court of Washington, Department I.
June 1, 2010.
Disposition of Petition for Review Denied.


198 Va. 91 (1956)
RAY ERWIN SMITH
v.
HURLEY CARPENTER.
Record No. 4500.
Supreme Court of Virginia.
April 23, 1956.
Preston P. Taylor (Taylor, Gustin & Harris    on brief), for the plaintiff in error.
John S. Rixey (Rixey & Rixey    on brief), for the defendant in error.
Present, All the Justices.
Carpenter, driving east on Sheppard street in the city of Norfolk in daylight, approached its intersection with Helen street.  He observed defendant Smith approaching the intersection at what he took to be the lawful speed of 25 miles an hour, and accordingly entered the intersection.  There was evidence from which the jury could conclude that Smith was in fact driving much faster and that the accident occurred as a consequence, the rear end of Carpenter's car being struck just before it cleared the intersection.  On these facts the issue of contributory negligence was properly submitted to the jury.  Their verdict for plaintiff Carpenter would not be disturbed on appeal.
Error to a judgment of the Circuit Court of Norfolk county.  Hon. Edward L. Oast, judge presiding. The opinion states the case.
WHITTLE
WHITTLE, J., delivered the opinion of the court.
Carpenter secured a jury verdict against Smith for personal injuries resulting from an automobile accident.  Smith's motion that the verdict be set aside on the ground that the evidence disclosed that Carpenter was guilty of contributory negligence as a matter of law was overruled and judgment entered on the verdict.  To review the ruling we granted Smith a writ of error.  *92
The sole question presented is:  Was Carpenter guilty of contributory negligence as a matter of law?
The case involved a collision between two passenger vehicles.  The accident occurred in the daytime, at the intersection of Sheppard and Helen streets in the city of Norfolk.  Sheppard street runs east and west and Helen street runs north and south.  Carpenter was driving his Chevrolet car east on Sheppard street and Smith was driving his Ford station wagon north on Helen street.
There were no traffic signs or controls at the intersection.  The speed limit was 25 miles an hour.  The ground was level and the intersection open, the vision of both drivers being unobstructed.
Carpenter testified that as he approached the intersection he was traveling at 15 miles per hour.  When he reached a point about 50 feet from the intersection he saw Smith's station wagon approaching on Helen street approximately 150 feet south of the intersection.  At the time he saw the station wagon it appeared to be traveling at a reasonable rate of speed. Thinking he had time to negotiate the intersection, he proceeded and undertook to cross.  After entering the intersection he saw the on-coming station wagon for the second time and noted that it was bearing down upon him at a rapid rate of speed estimated at 50 miles per hour.  His car was struck on the extreme rear end of the right side, just before it cleared the intersection.  No other traffic was involved and there was ample room for the station wagon to pass to the rear of the Carpenter car.
Smith testified that he could not stop as the street was wet.  However, Carpenter testified to the contrary, stating that at the time of the accident the street was dry and that no rain fell until after the accident.  Carpenter further testified that he had not increased his speed (15 miles per hour) as he thought he had ample time to negotiate the intersection.  Smith testified that he knew the speed limit was 25 miles per hour and that at the time of the accident he was traveling between 25 and 30 miles per hour.  Each of the streets involved was approximately 18 to 20 feet in width.
In this jurisdiction the law is well settled to the effect that questions of negligence, contributory negligence, and proximate cause are ordinarily questions for the jury, and that if reasonable men may differ as to their conclusions on any such question then the jury is the proper tribunal to decide the issue.     Steele     Crocker,    191 Va. 873, 880, 62 S.E.2d 850, 853.
Smith's negligence is conceded; the doctrine of contributory negligence *93  implies negligence upon the part of the person causing the injury.     Yeary Holbrook,    171 Va. 266, 288, 198 S.E. 441.
The jury was instructed that if it believed from the evidence that Carpenter was guilty of contributory negligence he could not recover, and the verdict absolved him from such negligence.
Both parties knew that they were in a 25-mile-per-hour zone; and under the circumstances Carpenter had a right reasonably to believe that he could negotiate the intersection in safety.  He also had the right to assume, where nothing to the contrary appeared, that the defendant would obey the positive speed limitation.     Hardiman, et al.     Dyson,    194 Va. 116, 121, 72 S.E.2d 361.
The law does not require a person to know that he is absolutely safe before taking a given course of action.  He is only required to exercise ordinary care to avoid accidents -- such care as a reasonably prudent person would exercise under the circumstances.     Norfolk & P. Co.     Forrest,    109 Va. 658, 668, 64 S.E. 1034, 1038.
Defendant relies upon our holdings in    Penose     D. Pender Grocery Co.,
177 Va. 245, 13 S.E.2d 310, and    Perry     Thompson,    196 Va. 817, 86 S.E.2d 35.  A reading of these cases will disclose their factual differences from the instant case.
Had the defendant approached the intersection at a lawful speed plaintiff would not have been mistaken in thinking that he could cross in safety.
In our view the question of whether or not plaintiff was guilty of contributory negligence on this occasion presented a factual issue, and we measure the jury's favorable finding for the plaintiff by the aforementioned rule long adhered to by us that such issue falls within the province of the jury unless the evidence is such that there should be no difference in the judgment of reasonable men as to the proper inference to be drawn therefrom.     Hoover
Neff & Son,    183 Va. 56, 62, 63, 31 S.E.2d 265, 268;    Rhoades Meadows,    189 Va. 558, 561, 54 S.E.2d 123, 124;    Clayton     Taylor,    193 Va. 555, 562, 69 S.E.2d 424, 429.
For the foregoing reasons the judgment is
Affirmed.


37 So.3d 922 (2010)
Isaiah CLARK, Petitioner,
v.
STATE of Florida and Florida Department of Corrections, Respondents.
No. 1D10-2180.
District Court of Appeal of Florida, First District.
June 8, 2010.
*923 Isaiah Clark, pro se, Petitioner.
Bill McCollum, Attorney General, Tallahassee, for Respondents.
PER CURIAM.
DENIED. See Fla. R.App. P. 9.141(c)(4)(A).
HAWKES, C.J., VAN NORTWICK and THOMAS, JJ., concur.