                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT

                              No. 08-4830

UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

KELVIN JEROD HOLMAN, a/k/a J-Five,

                  Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Orangeburg.    Margaret B. Seymour, District
Judge. (5:04-cr-00964-MBS-2)

Submitted:    October 22, 2009              Decided:   November 13, 2009

Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant.      W. Walter Wilkins, United States
Attorney, Stacey D. Haynes, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Kelvin Jerod Holman timely appeals from the 360-month

sentence     imposed    after       pleading     guilty    to     one    count    of

conspiracy to distribute five kilograms or more of cocaine and

fifty grams or more of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), 846 (2006).                On appeal, Holman argues

that the district court erred in applying the two-level sentence

enhancement,      pursuant     to     U.S.    Sentencing   Guidelines       Manual

(“USSG”)      §   3B1.1(c)      (2007),       and   that   his      sentence      is

unreasonable.       We affirm Holman’s conviction, but vacate his

sentence and remand for resentencing.

             Holman first asserts that the district court erred in

applying the two-level sentence enhancement, pursuant to USSG

§ 3B1.1(c), for his role in the conspiracy.                Holman urges us to

review      the   district     court’s        imposition   of      the    sentence

enhancement for clear error.             Generally, “[a] district court’s

findings regarding sentence enhancement are factual in nature

and   are    reviewed   only    for    clear    error.”     United       States   v.

Carter, 300 F.3d 415, 426 (4th Cir. 2002).                 However, where the

defendant failed to object to the enhancement in the district

court, this court reviews for plain error.                      United States v.

Wells, 163 F.3d 889, 900 (4th Cir. 1998).                  Upon review of the

sentencing hearing transcript, it appears that Holman did not

object to the USSG § 3B1.1(c) sentence enhancement; his only

                                          2
objections were to the amount of drugs attributed to him in the

Presentence Investigation Report (“PSR”).                     Thus, we review for

plain error.

            To    demonstrate       plain       error,    a   defendant    must    show

that: (1) there was an error; (2) the error was plain; and

(3) the     error     affected      his     “substantial        rights.”      United

States v. Olano, 507 U.S. 725, 732 (1993).                     We are not required

to correct a plain error unless “a miscarriage of justice would

otherwise result,” meaning that “the error seriously affects the

fairness,        integrity,        or     public       reputation     of     judicial

proceedings.”        Id. at 736 (internal quotation marks, alteration,

and citations omitted).

            Pursuant to USSG § 3B1.1(c), a two-level increase to

the   defendant’s      base     offense        level     is   warranted    “[i]f   the

defendant was an organizer, leader, manager, or supervisor” in

the   charged     offense    and    the    offense       involved   less   than    five

participants.          The      adjustment         applies     if   the    defendant

organized, led, managed, or supervised one or more participants.

USSG § 3B1.1, cmt. n.2.             The Guidelines identify the following

factors     courts     should      use    to     distinguish     between    leaders,

organizers, managers, supervisors and other participants:

      the exercise of decision making authority, the nature
      of participation in the commission of the offense, the
      recruitment of accomplices, the claimed right to a
      larger share of the fruits of the crime, the degree of
      participation in planning or organizing the offense,

                                            3
       the nature and scope of the illegal activity, and the
       degree of control and authority exercised over others.

USSG § 3B1.1, cmt. n.4.

             Holman   contends   that        the      district       court    erroneously

relied    on    disputed     facts     in        the        PSR   in      assessing        the

enhancement.       Federal    Rule     of       Criminal      Procedure       32(i)(3)(B)

requires the district court to “make a finding with respect to

each   objection      a   defendant    raises          to    facts      contained        in   a

presentence report before it may rely on the disputed fact in

sentencing.”      United States v. Morgan, 942 F.2d 243, 245 (4th

Cir.   1991).      However,    in     doing        so,      the   district         court      is

permitted to “expressly adopt the recommended findings contained

in the presentence report.”            Id.       When the district court takes

this approach, “it must make clear on the record that it has

made an independent finding and that its finding coincides with

the recommended finding in the presentence report.”                          Id.

           Here,      the   district    court          stated      that    “we      have      an

adjustment for role, which is a plus two” and later adopted the

findings of fact in the PSR as the reasons for the sentence.                                  In

the PSR, the probation officer relied on paragraphs 17, 19, and

54 in applying the USSG § 3B1.1(c) enhancement.                           While there is

no mention of an objection to paragraph 54, Holman asserts that

he   objected    to   paragraphs      17        and    19.        Our   review      of     the

sentencing      transcript    reveals        that      Holman      only      objected         to

                                            4
paragraph 19, and only to the extent that he disagreed with the

drug amounts attributed to him.                      The district court resolved

that objection, stating that “the court will not use . . . the

testimony    .       .    .   with   regard   to     counting     the     drug     weights.”

Because Holman failed to object to any information in the PSR

with respect to the sentence enhancement, the district court

properly     adopted          the    undisputed       findings       in     the     PSR,    as

permitted       by       Morgan,     and   could     rely    on     those       findings    in

assessing the enhancement.

             Holman,          however,     relying    on    our   decision        in   United

States v. Chambers, 985 F.2d 1263, 1269 (4th Cir. 1993), also

contends that the district court failed to apply the factors in

USSG § 3B1.1, cmt. n.4 or provide specific reasons for applying

the enhancement.              In Chambers, we vacated the district court’s

sentence and remanded for further proceedings because, “without

specific     factual          findings     showing     that       the     district     court

evaluated the defendant’s role in the offense in light of the

factors    in    [USSG        § 3B1.1]      application       note      3[ 1 ],   we   cannot

conduct meaningful appellate review of this issue.”                                 Id.     We

instructed      the       district    court    to    apply    the      above      factors   to

determine       whether        the    defendant’s          role   in      the     conspiracy

     1
         Now application note 4.

                                              5
warranted a sentence enhancement, and if so, note which factors

justified the decision.       Id.

              We   find   that,   while     the    district    court   properly

adopted the findings of fact in the PSR, it erred by failing to

specifically apply the USSG § 3B1.1, cmt. n.4 factors to those

findings to determine whether Holman’s role warranted the two-

level enhancement.         Because the sentence imposed was greater

than that to which Holman would have been subject absent the

error,   we    further    conclude   that    the   error   affected    Holman’s

substantial rights.        See United States v. Hughes, 401 F.3d 540,

548 (4th Cir. 2005).        Therefore, we vacate Holman’s sentence and

remand for the district court to consider the above factors to

determine whether the sentence enhancement is justified. 2

              Accordingly, we affirm Holman’s conviction, but vacate

his sentence and remand for resentencing.             We dispense with oral

argument because the facts and legal conclusions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                              AFFIRMED IN PART,
                                                               VACATED IN PART,
                                                                   AND REMANDED

     2
       Because we conclude that the district court erred in
failing to address the USSG § 3B1.1, cmt. n.4 factors and remand
for further proceedings on that issue, we need not consider
Holman’s alternative challenge to the procedural and substantive
reasonableness of his sentence.

                                       6


133 S.E.2d 457 (1963)
260 N.C. 674
Vada GRANT
v.
Savannah Flora SHADRICK.
Clyde GRANT
v.
Savannah Flora SHADRICK.
No. 602.
Supreme Court of North Carolina.
December 11, 1963.
Morgan, Byerly, Post, Van Anda & Keziah, High Point, for plaintiff appellees.
Deal, Hutchins & Minor, Winston-Salem, for defendant appellant.
PER CURIAM.
Each plaintiff's allegations as to defendant's negligence include the following: (1) She failed to exercise due care to keep a proper lookout; and (2) she "swerved her automobile" into the path of the Grant car, "drove the same upon the left side of the highway," and "failed to yield the right of way" to the Grant car.
There was evidence tending to show: U. S. Highway No. 19, where the collision occurred, is approximately twenty feet wide. It is a two-lane ("blacktop") highway. Grant was proceeding north on his (right) side of said highway at a speed of approximately forty miles per hour. The highway was straight. As Grant approached the point of collision, he met a line of three cars proceeding south on their (right) side of said highway. As Grant approached, the third car, defendant's Volvo, "swerved out" from behind the second car, left its right side of said highway and collided with the Grant Dodge on Grant's right side of said highway.
When considered in the light most favorable to plaintiff, the evidence was sufficient to withstand defendant's motions for judgment of nonsuit and to support the verdicts.
Grant was permitted to testify, over defendant's objection, that a State Highway Patrolman who investigated the collision charged defendant with "failing to yield right of way" and that defendant, before a justice of the peace in Andrews, North Carolina, pleaded guilty to this charge. There was no contention that defendant's plea constituted res judicata or an estoppel with reference to any matter involved therein. The testimony was offered and admitted as evidence in the nature of an admission bearing upon whether defendant operated her car onto the left side of the highway *459 and directly in the path of the approaching Grant car.
"Evidence of a plea of guilty to a criminal charge arising out of an automobile accident is generally admissible, but it is not conclusive, and may be explained." Blashfield, Cyclopedia of Automobile Law and Practice, Volume 9C, Permanent Edition, § 6196; 31 C.J.S., Evidence § 300b; 8 Am.Jur.2d, Automobiles and Highway Traffic § 944; Annotation, 18 A.L.R.2d 1287, 1307, and supplemental decisions.
The patrolman's testimony as to what occurred, if anything, before the justice of the peace in Andrews was subject to contradiction and explanation, the weight to be given his testimony and the matters referred to therein being for jury determination. Defendant did not testify or offer evidence. Defendant's pleading, as noted in our preliminary statement, is to the effect the collision occurred on her left (Grant's right) side of the highway. Under the circumstances, we perceive no prejudicial error in the admission of the patrolman's said testimony.
No error.


968 F.Supp. 610 (1997)
Mark Edward DOWLING, Plaintiff,
v.
Robert HANNIGAN, et al., Defendants.
No. 94-3467-KHV.
United States District Court, D. Kansas.
June 25, 1997.
Mark Edward Dowling, Lansing, KS, pro se.
Lawrence J. Logback, Hsing Kan Chiang, Office of Attorney General, Kansas Judicial Center, Topeka, KS,

Memorandum and Order
VRATIL, District Judge.
This pro se action comes before the Court on Defendants' Motion For Summary Judgment (Doc. # 59) filed October 1, 1996;[1] plaintiff's Motion for Stay of Proceedings (Doc. # 68) filed February 27, 1997; plaintiff's Motion and Brief in Support of Injunction (Doc. # 69) filed March 4, 1997; and plaintiff's Motion to Supplement Motion for Injunction (Doc. # 72) filed March 17, 1997.[2]
Plaintiff filed this action under 42 U.S.C. § 1983 while confined at the Hutchinson Correctional Facility in Hutchinson, Kansas. Defendants are two correctional officers, Sergeant Lavon Dunn and Lieutenant Gordon Brown, each sued in his individual and official *611 capacity.[3] In this action, plaintiff alleges that defendants violated his rights under the Fifth, Eighth and Fourteenth Amendments by failing to protect him from or warn him of an impending attack by another inmate. Plaintiff seeks monetary, injunctive and declaratory relief.
In addition, plaintiff asks the Court to enjoin the Kansas Department of Corrections ("KDOC") and Ms. Charlene Jackson, a Unit Team Manager for the KDOC at the Lansing Correctional Facility in Lansing, Kansas ("LCF"), from confiscating plaintiff's legal materials in the future.[4]

Factual Background
The following material facts are uncontroverted or, where controverted, viewed in the light most favorable to plaintiff.
On August 11, 1994, Lt. Brown received an unsigned note which warned that an inmate, Dan Lyman, was going to injure or kill plaintiff because plaintiff had informed prison authorities of Lyman's drug violations. Prison authorities searched Lyman's cell that same evening and denied Lyman yard privileges. Lt. Brown advised the oncoming shift supervisor of the note and suggested that Lyman be searched before the evening meal. Prison authorities searched Lyman before the evening meal and again denied him yard privileges.
The following day, August 12, 1994, Lt. Brown interviewed Lyman. Lyman denied the accusations contained in the warning note. Prison authorities did not interview or contact plaintiff regarding the warning note, and they took no further protective measures.
On the evening of August 12, plaintiff and Lyman were in the "medication line," outside their cellhouse near the "Rotunda Post." Sgt. Dunn supervised this line. Lyman attacked plaintiff between 9:00 and 9:09 p.m., cutting his face and throat with a weapon fashioned from a razor blade and a toothbrush handle. At 9:09 p.m., Sgt. Dunn communicated a "Condition Medical" to a medical response team which immediately arrived on the scene. Prison officials took plaintiff to the medical clinic, where he received eight stitches.
At 9:20 p.m., Lt. Brown learned that plaintiff had been injured and that Lyman was a suspect. He therefore investigated the scene and directed Sgt. Dunn to prepare various incident reports. Sgt. Dunn informed Lt. Brown that inmates returning from the medication line had seen blood on the floor and explained that it was "snitch blood."
Lt. Brown then visited plaintiff at the medical clinic, where he photographed plaintiffs injuries prior to his sutures. Plaintiff maintains that Lt. Brown visited the clinic a second time that evening, asked the nurse to leave the room, told plaintiff about the warning note, and (based on his prior experience in the Kansas State Police Graphology Department) expressed his belief that Lyman was the author.
The next day, August 13, 1994, Lt. Brown interviewed plaintiff in the clinic. Plaintiff told him that Sgt. Dunn had seen the attack but did not intervene or stop it. Sgt. Dunn denies this allegation with sworn testimony.
That same day, Lt. Brown also questioned Lyman  who ultimately confessed to writing the warning note and attacking plaintiff. Lyman maintained that he and plaintiff had struggled for control of the weapon and that blows were struck.
Sgt. Dunn walked by plaintiff's cell between 3:00 p.m. and 11:00 p.m. that day and, *612 according to plaintiff, threatened him for complaining that Sgt. Dunn had failed to act during the attack. Plaintiff alleges that Sgt. Dunn also threatened him on August 14, 1994, but the record reflects that Sgt. Dunn was stationed in a different facility from that of plaintiff at that time.

Summary Judgment Standards
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). When deciding a summary judgment motion, the Court considers all evidence and reasonable inferences therefrom in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The initial burden of demonstrating want of genuine issue of material fact rests with the movant. Showing lack of evidence to support a nonmovant's case discharges this burden. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). A "material" fact is one "that might affect the outcome of the suit under governing law," and the issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510.

Analysis[5]
Prisoners have a constitutional right under the Eighth Amendment to reasonable protection from attacks by other inmates. Berry v. City of Muskogee, Okla., 900 F.2d 1489, 1498 (10th Cir.1990). See also Blankenship v. Meachum, 840 F.2d 741, 742 (10th Cir.1988) (failure to protect inmate from attacks by other inmates may rise to Eighth Amendment violation). A failure to protect claim must be evaluated under the deliberate indifference standard of Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), as reiterated recently in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Under that standard, "a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." MacKay v. Farnsworth, 48 F.3d 491, 493 (10th Cir.1995), quoting Farmer, 511 U.S. at 847, 114 S.Ct. at 1984. Prison officials who know of a substantial risk to inmate safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. Farmer, 511 U.S. at 844-45, 114 S.Ct. at 1982-83.
Plaintiff alleges that Lt. Brown's response to the note which threatened plaintiff's safety was inadequate in view of the risk that Lyman would attack plaintiff. Plaintiff states that restricting Lyman's yard privileges and searching Lyman on August 11 was not enough and that interviewing Lyman about the note on August 12 only gave Lyman notice that he could attack *613 plaintiff when Lt. Brown was not around. Plaintiff also states that defendants should have warned him of the impending attack and that they should have searched Lyman on August 12, before they released him to the medication line.
Defendants maintain that by segregating Lyman and searching his cell on August 11, Lt. Brown acted appropriately after receiving the note. Defendants argue that these actions demonstrate that Lt. Brown was not deliberately indifferent to plaintiff's safety.
In his sworn affidavit, Sgt. Dunn avers that during the attack he was standing at the cellhouse door, observing what he thought to be all of the inmates exit B 1-Cellhouse into the Rotunda. He then walked to the officer's station and heard an inmate behind him asking for Tylenol. He turned around to realize that plaintiff was behind him requesting a towel, not Tylenol, and that he was covered with blood. Sgt. Dunn avers this was the first he knew of the attack.
Plaintiff claims that Sgt. Dunn and ten to fifteen inmates saw the attack. He states that Sgt. Dunn was in the immediate vicinity of the attack and that he did nothing to intervene or to summon help. Plaintiff claims that testimony of the inmate witnesses will prove Sgt. Dunn's affidavit to be false and that photographs taken by Sgt. Tiedtke will conclusively show that from his vantage point, Sgt. Dunn could not have avoided seeing the attack. Plaintiff alleges that Sgt. Dunn's failure to react to Lyman's attack on plaintiff evidences deliberate indifference to plaintiff's safety.
While the Court accords prison administrators wide-ranging deference in preserving internal order and discipline and maintaining institutional security, see Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979), we cannot say as a matter of law that defendants' actions in this instance were reasonable. Indeed, viewing the facts in a light most favorable to plaintiff, as the Court must do at the summary judgment stage, questions of fact remain as to the reasonableness of the actions of both Sgt. Dunn and Lt. Brown.
The mere showing that an assault occurred will of course not be sufficient for plaintiff to prevail in this action, nor will mere negligence suffice to support a constitutional claim. See Counce v. Goings, 816 F.Supp. 674, 675 (D.Kan.1993). Defendants have failed to demonstrate that there is no genuine issue as to any material fact, however, or that the evidence is such that a reasonable jury could not return a verdict for plaintiff.
IT IS THEREFORE ORDERED that plaintiff's Motion to File Response to Summary Judgment Out of Time (Doc. # 61) filed October 28, 1996, be and hereby is sustained.
IT IS FURTHER ORDERED that Defendants' Motion For Summary Judgment (Doc. # 59) filed October 1, 1996, be and hereby is overruled.
IT IS FURTHER ORDERED that plaintiff's Motion for Stay of Proceedings (Doc. # 68) filed February 27, 1997; plaintiff's Motion and Brief in Support of Injunction (Doc. # 69) filed March 4, 1997; and plaintiff's Motion to Supplement Motion for Injunction (Doc. # 72) filed March 17, 1997, be and hereby are overruled.
NOTES
[1]  In accordance with the Court's Memorandum and Order (Doc. # 62) filed October 29, 1996, plaintiff verified that he did not receive defendants' motion in a timely manner, and plaintiff's Motion to File Response to Summary Judgment Out of Time (Doc. # 61) filed October 28, 1996, is therefore sustained. The Court gives full consideration herein to plaintiff's Motion in Opposition to Summary Judgment (Doc. # 63) filed November 4, 1996.
[2]  In his Motion for Stay of Proceedings (Doc. # 68) filed February 27, 1997, plaintiff requests a stay of proceedings for 30 days or until his legal materials are returned or, alternatively, an injunction commanding defendants to return his legal materials. Plaintiff's Motion and Brief in Support of Injunction (Doc. # 69) filed March 4, 1997, and plaintiff's Motion to Supplement Motion for Injunction (Doc. # 72) filed March 17, 1997, concern the same materials. Plaintiff's legal materials were returned after he filed such motions, and his requests are therefore moot. Accordingly, plaintiff's motions are overruled.
[3]  Plaintiff voluntarily dismissed his claims against Warden Robert Hannigan. See Order (Doc. # 48) filed May 2, 1996.
[4]  Plaintiff was transferred to LCF on February 14, 1997. During a routine inspection upon plaintiff's arrival, LCF personnel found unauthorized items in a cardboard box which belonged to him. After a cursory inspection, LCF personnel confirmed that the box also contained legal research materials, but determined that they did not require plaintiffs immediate attention. LCF retained plaintiff's materials from February 20 until March 7, 1997.

In his motion requesting injunctive relief, plaintiff alleges that LCF and Ms. Jackson denied him access to the courts when they withheld his box of materials. LCF and Ms. Jackson, however, are not parties to this suit, and the Court therefore does not have jurisdiction over them. Plaintiff's allegations concerning LCF and Ms. Jackson are accordingly not discussed further in this order.
[5]  Although plaintiff also alleges that defendants' conduct violated his rights under the Fifth and Fourteenth Amendments, his claim  which is essentially a cruel and unusual punishment claim  is properly analyzed under the Eighth Amendment. The Fifth and Fourteenth Amendments prohibit punishment prior to an adjudication of guilt in accordance with due process of law. Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 1871-72, 60 L.Ed.2d 447 (1979). The Fifth Amendment protects against deprivations of life, liberty or property by the federal government, which plaintiff does not allege in this case. See Berry v. City of Muskogee, Okla., 900 F.2d 1489, 1492 n. 2 (10th Cir.1990). Moreover, where government conduct is constrained by an explicit textual source of constitutional protection  such as the Eighth Amendment's prohibition against cruel and unusual punishment  "that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims." Id. at 1494, citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989). While cases involving the safety and bodily integrity of convicted prisoners implicate both the Eighth and the Fourteenth Amendment, the Eighth Amendment provides the primary source of protection, and the standards under the two amendments are identical. Berry, 900 F.2d at 1494 n. 6. The Court therefore applies Eighth Amendment standards in evaluating plaintiff's claims.


467 F.2d 452
UNITED STATES of America, Plaintiff-Appellee,v.James D. VICARS and Joaquin Him Gonzales, Defendants-Appellants.
No. 71-1995.
United States Court of Appeals,Fifth Circuit.
Sept. 21, 1972.Rehearings Denied Nov. 6, and Nov. 10, 1972.

Larry S. Parnass, Willie E. Phillips, Jr., James G. Clement, of Parnass, Weaver, McKaughan & Clement, Irving, Tex., for Vicars.
James L. McNees, Jr., Dallas, Tex., for Gonzales.
Eldon B. Mahon, U. S. Atty., Charles D. Cabaniss, Cecil Emerson, Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.
Before AINSWORTH, GODBOLD and MORGAN, Circuit Judges.
PER CURIAM:

1
Vicars appeals from jury convictions on five drug violation counts, two of them conspiracy counts and three substantive counts.1  Gonzales was convicted on only the conspiracy counts and appeals therefrom.

2
Vicars' major point is that with respect to the conspiracy counts the court gave an "all or nothing" charge, requiring all defendants to be convicted under each conspiracy count if any one defendant was found to be guilty under that conspiracy count.2  Proceeding count by count through the entire indictment, the court named the respective defendants charged under each count, and carefully defined the elements of each offense in terms of the defendants so named.  Also it instructed that "each offense charged in the indictment and the evidence that is applicable to each defendant should be considered by you separately."  Reading the entire charge, we find that it does not imply that if one defendant is found guilty under one conspiracy count all defendants must be found guilty under that count.

3
As part of the same argument, Vicars assigns as error that Counts 1 and 2 each charge a single conspiracy, while as a matter of law the evidence showed at least two conspiracies, if any.  Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).  There was evidence that Vicars sold a suitcase of cocaine to an agent on September 15, 1970, but he claims to be in no way involved in any activities after that date.  The short answer is that there was evidence of acts by Vicars as late as January 1971, within the time during which the conspiracy is charged to have existed.  The evidence does not preclude the existence of a single general and overall conspiracy-in fact, we find it surprising that the argument is even made.  In any event the question of single versus multiple conspiracies is for the jury, Paz v. United States, 462 F.2d 740 (5th Cir. 1972), and while the jury was not in exact terms charged to determine whether there was one conspiracy or several, there was no objection to the failure.  If error at all, it is not plain error requiring reversal.

4
The argument that there was insufficient evidence to support the conviction of Vicars under the conspiracy counts is frivolous.

5
Neither of the appellants is entitled to reversal on the basis of the courtroom conduct of codefendant Robertson.  While testifying on direct examination on April 22, 1971, Robertson left the witness stand, stating that he "quit" and would refuse to testify.  A recess was declared, and outside the presence of the jury Robertson began to cry and to both admit his involvement but deny his guilt.  Defendant Vicars made a motion for a mistrial, which was denied.  At the insistence of the court Robertson resumed the stand and the direct examination continued, after which counsel for Vicars cross-examined for a few minutes.  The following morning the trial continued without any difficulty, and cross examination by counsel for Vicars was completed, followed by cross by counsel for Gonzales and counsel for the government, and redirect by counsel for Robertson.  All examination of Robertson after his outburst consumed nearly 100 pages of the transcript, without further incident.  Respective counsel for Vicars and Gonzales, after completing cross, announced that they had no questions, and neither made known to the court any claim that his cross examination was restricted, impeded or curtailed by the outburst of the preceding day.

6
On the morning of April 26, Robertson refused to leave his cell, and was examined by a psychiatrist who gave an opinion that he was faking.  That afternoon the trial was resumed with Robertson present, and he immediately engaged in a brief emotional and disruptive outburst in which he referred to himself as Judge Sarah T. Hughes (the trial judge), Ron Watkins (a witness for the government) and President John F. Kennedy.  When he did not subside the judge had him removed from the courtroom.  Motions for mistrial by the other defendants were denied.

7
The competency of the witness to continue his testimony on April 22 was a matter for the discretion of the court.  The examination, and cross examination, which took place when Robertson resumed the stand, contains nothing to show to us that the judge's discretion was not correctly exercised.  The same is true of the lengthy testimony the following day.

8
It is difficult to perceive how Vicars and Gonzales could have suffered any injury by the outburst of April 26.  It did not establish retrospectively that Robertson was incompetent when he had testified, because the psychiatrist, after examination, had given an opinion that he was faking.  Insofar as his conduct may have caused the jury to have a diminished belief in his credibility, so long as he was competent credibility was a proper issue for the jury to resolve.3

9
There was no error in denying the motions of both appellants for severance.

10
Turning to points raised only by Gonzales, there was no reversible error in refusal of his motion for a continuance.  His counsel was appointed on March 8, and trial was set for April 19.  The motion for continuance on the ground of inadequate time to prepare for trial was not filed until April 13, which in the circumstances of this case was sufficiently close to the trial date that the court did not abuse its discretion by denying the motion.

11
On due process grounds, Gonzales objects to the fact that his counsel was allowed only 15 minutes for oral argument.  All that occurred was this:

12
THE COURT: How much time do you want to open, Mr. Emerson [prosecutor].

13
MR. EMERSON: Fifteen minutes.  Counsel for Gonzales neither objected to the time allocated as insufficient, nor requested additional time, nor called the matter to the trial judge's attention in any respect.  All counsel proceeded without objection on the basis that each had 15 minutes.  There is no error.

14
Even if, as Gonzales claims, he was illegally arrested in the Panama Canal Zone and brought to the United States, this is not grounds for requiring that the trial court release and discharge him without trial.  E. g., Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541, 545 (1952) ("This Court has never departed from the rule . . . that the power of a court to try a person for crime is not impaired by the fact that he has been brought within the court's jurisdiction by reason of a 'forcible abduction."');  Stamphill v. Johnston, 136 F.2d 291, 292 (9th Cir.) cert. denied, 320 U.S. 766, 64 S.Ct. 70, 88 L.Ed. 457 (1943) ("The personal presence of a defendant before a District Court gives that court complete jurisdiction over him, regardless of how his presence was secured, whether by premature arrest . . . wrongful seizure beyond the territorial jurisdiction of the court . . . false arrest . . . or extradition arising out of an offense other than the one for which he is being tried.");  United States ex rel. Voigt v. Toombs, 67 F.2d 744 (5th Cir. 1933), petition for cert. dismissed, 291 U.S. 686, 54 S.Ct. 442, 78 L.Ed. 1072 (1934) ("It is well settled in the courts of the United States that jurisdiction once acquired in a criminal case is not impaired by the manner in which the accused is brought before the court.").

15
Even if all acts done by Gonzales in furtherance of the conspiracy were done in the Republic of Panama, the United States District Court for the Northern District of Texas did not lack jurisdiction over him.  A United States court has jurisdiction over violations of narcotics statutes of the sort involved here, whose effectiveness necessarily depends on extraterritorial jurisdiction.  E. g., Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927); Marin v. United States, 352 F.2d 174 (5th Cir. 1965); Rocha v. United States, 288 F.2d 545 (9th Cir.), cert. denied, 366 U.S. 948, 81 S.Ct. 1902, 6 L.Ed.2d 1241 (1961).

16
There was no reversible error in allowing the indictment to be taken into the jury room.  This is discretionary with the trial judge.  E. g., Bruce v. United States, 351 F.2d 318, 320 (5th Cir. 1965), cert. denied, 384 U.S. 921, 86 S.Ct. 1370, 16 L.Ed.2d 441 (1966).

17
The trial was completed on April 27.  On May 2, defendant Robertson died in his jail cell.  Autopsy disclosed the cause to be a pulmonary embolism in an artery leading to the lungs.  The medical examiner stated that Robertson may have been or could have been suffering anoxia (lack of oxygen in the blood supply to the brain) for several days before death.  This highly speculative information did not require the court to grant a new trial on the gound of newly discovered evidence.

18
All the other numerous points raised are without merit and require no discussion.

19
Affirmed.

1
 Count 1-conspiracy to sell (etc.) cocaine in violation of 26 U.S.C. Sec. 4705(a) and 7237(b); Count 2-conspiracy to receive, conceal (etc.) cocaine after importation in violation of 21 U.S.C. Sec. 174; Counts 3, 4 and 5-substantive violations of Secs. 4705(a), 4704(a) and 174

2
 Vicars also asserts that the errors relating to the conspiracy counts are such that retrial is necessary on the substantive counts

3
 In this connection, we note that some of Robertson's testimony was inculpatory and some exculpatory


381 F.2d 858
Donald F. LANNOM, Appellant,v.UNITED STATES of America, Appellee.
No. 21243.
United States Court of Appeals Ninth Circuit.
Aug. 23, 1967, Rehearing Denied Oct. 11, 1967.

1
Peter Hughes, Sheela, O'Laughlin & Hughes, San Diego, Cal., for appellant.

2
Edwin L. Miller, Jr., U.S. Atty., Phillip Johnson, Asst. U.S. Atty., San Diego, Cal., for appellee.

3
Before CHAMBERS and ELY, Circuit Judges, and FERGUSON, District Judge.

FERGUSON, District Judge:

4
Appellant was convicted in a jury trial for violation of 21 U.S.C. 176a, by an information which charged that he, with intent to defraud the United States, knowingly concealed and facilitated the transportation and concealment of approximately 88 pounds of marihuana, which marihuana, as he well knew, had been brought into the United States contrary to law.

5
Appellant seeks reversal on the basis of four asserted errors: (1) refusal to require disclosure of the identity of an informer in order to test his reliability on the issue of probable cause for search and seizure; (2) refusal to require disclosure of the informer on the issue of guilt or innocence; (3) an instruction to the jury that possession was evidence of illegal importation and knowledge thereof; and (4) the evidence was insufficient as a matter of law to sustain the conviction.

6
On November 18, 1965, the day before the arrest, Customs Agent Walter Gates, stationed at the San Ysidro border station, across from Tijuana, Mexico, was told by an informant that a blue 1950 Mercury, California license EIC 132, would enter the United States from Mexico the next morning sometime after 9:00 o'clock.  Agent Gates was told that the Mercury would contain a quantity of marihuana, would be driven into San Ysidro, parked at a laundromat and picked up when the driver had returned to Mexico.  Agent Gates had known the informer for about six years, and he had provided information that had led to three previous arrests, one of which was four months prior to the arrest of appellant.  Agent Gates told Customs Agent Clarence Spohr of the information he had received and directed Spohr to stand by for a surveillance.

7
At 10:08 A.M. on November 19, 1965, Customs Agent Donald Carter observed the Mercury cross the border, driven by an adult male, with a child as a passenger.  After entering, it was driven off the highway and parked behind a laundromat in San Ysidro.  The driver and the child left the automobile and walked toward the border.

8
Agent Carter and Customs Investigator Gore had the Mercury under constant surveillance.  At approximately 1:25 P.M.  Investigator Gore watched a 1956 Ford park near it.  Two men, one of them the appellant, got out, walked over to the Mercury and looked inside.  One of them twice got in and out.  Five minutes later the appellant entered the Mercury and drove it away.  When informed of this by radio, Agent Spohr gave an order to arrest the driver.  Twenty minutes later, at a point 1 1/2 miles from the border, the Mercury was stopped by Customs Agent Thaine Ellis.  Investigator Gore, who had been following, removed an interior side panel and found a package of marihuana.  The automobile was returned to the border station where a thorough search revealed approximately 88 pounds of marihuana, most of which was in a metal container welded under the frame.

9
The government agents did not have a search warrant nor a warrant of arrest.  They had paid the informer $200.00 for the information that he had supplied.  The marihuana was worth $1,560.00 in Mexico.

10
Prior to trial the appellant moved to suppress, claiming the marihuana to have been obtained as the result of an unlawful search.  The motion was denied on the ground that the search was a border search.

11
At the trial, outside the presence of the jury, Agent Gates was called by the defense for the purpose of establishing that the informer was a material witness on the question of the appellant's guilt or innocence.  At this hearing it was established that the informer initially contacted Agent Gates on November 14th.  Gates was told that a 1950 Mercury had been purchased in Tijuana and would be used to import marihuana.  He was given the name and identity of the purchaser.  On November 18th, the day before the arrest, the informer contacted Gates twice.  The first time he told Gates that the Mercury would be driven into the United States but would not contain contraband, the purpose being to determine whether or not it had been placed on a 'lookout'.  At the second contact, Gates was told that the marihuana had been loaded, this having been witnessed by the informer.  A motion that his identity be revealed on the ground that he could give material testimony on the question of guilt was denied.

12
With respect to the issue of revealing the identity of the informer for the purpose of testing his reliability, appellant concedes the rule that a border search is an exception to the general requirement of probable cause which must support a search.  Alexander v. United States, 362 F.2d 379 (9th Cir. 1966), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966).  He contends, however, that the search here was not a border search for the reason that the appellant had not driven the automobile into the United States.

13
After the appeal and briefs were filed in this case, Rodriguez-Gonzales v. United States, 378 F.2d 256 (9th Cir. 1967), was decided on May 11, 1967.  The facts there were almost identical with those here.  In both cases the appellants were not present when the automobiles were driven across the border but drove them away after they had been parked in the United States.  In Rodriguez-Gonzales this court held that the search was a valid border search.  The trial court here was correct in so finding.  Further justification for denying the motion is set forth in McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), where it was held that the identity of the informer need not be disclosed on the issue of probable cause.

14
Appellant alleges, however, that the informer's identity should be disclosed as he was a material witness on the question of guilt.  It was established that the informer was present when the marihuana was placed in the automobile in Mexico.  It is further established that the appellant was not present when the car was loaded, nor was the informer present when the appellant was arrested in the United States.  In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), it was held that the informer there must be disclosed when he was an active participant in the crime in that he 'had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged'.  353 U.S. at 55, 77 S.Ct. at 625.  The 'informer was the sole participant, other than the accused, in the transaction charged'.  353 U.S. at 64, 77 S.Ct. at 630.

15
Here the trial judge asked 'for some tangible evidence that would allow the Court to find that the informant could be of addistance in the defense of the case'.  No such evidence was presented, and the record discloses nothing except mere speculation.  The trial court was eminently fair in protecting the rights of the appellant.  It sought in all ways possible, outside the presence of the jury, to have appellant present any evidence whatsoever that the identity of the informer could assist in his defense.  Mere speculation that the informer might possibly be of some assistance is not sufficient to overcome the public interest in the protection of the informer.  See McCray v. State of Illinois, supra.  The claim that the informer was a participant was merely hopeful thinking.  Hurst v. United States, 344 F.2d 327, 328 (9th Cir. 1965).

16
Appellant, however, contends that the denial of the identity of the informer foreclosed him from showing that the informer was the driver of the Mercury into the United States.  The trial court precluded the appellant from determining whether or not the informer actually loaded the marihuana into the automobile.  From this, appellant claims he was not permitted to explore the possibility of the informer transporting it across the border.  It is argued that if the description of the informer would have matched that of the driver, then it would have been established that the informer was the driver.  However, appellant was not stopped at any time from reaching the issue of the identity of the driver directly, and he has no just cause to claim error.  In fact he asked the agents if the informer ever told them that he was the driver and was told that the informer did not.  His position is similar to that in Miller v. United States, 273 F.2d 279 (5th Cir. 1959), cert. denied, 362 U.S. 928, 80 S.Ct. 756, 4 L.Ed.2d 747 (1960).  'If the informer's relation to the acts leading directly to or constituting the crime may be assumed from a fertile imagination of counsel, the Government in practically every case would have to prove affirmatively that the informant had not done any such likely acts.  Having done that, all would be revealed and the informer privilege, deemed essential for the public interest, for all practical purposes would be no more.'  273 F.2d at 281.

17
Appellant argues that it was error to include the statutory possession presumption under 21 U.S.C. 176a in the instructions to the jury.  He claims that the following in Erwing v. United States, 323 F.2d 674 (9th Cir. 1963), is applicable:

18
'We are of the opinion that there is no rational connection between the unexplained possession of the cocaine hydrochloride and the presumed fact that such narcotic drug was illegally imported to the knowledge of the appellant, and that the inference of the one from the proof of the other is arbitrary because of lack of connection between the two in common experience.'  323 F.2d at 682.

19
A complete answer is found in Klepper v. United States, 331 F.2d 694 (9th Cir. 1964):

20
'The Mexican origin of the drug and its unlawful importation was established by the eyesight of the border officials: They saw the vehicle, in which the marihuana was concealed, physically come across the imaginary border line.  What better proof is needed?' 331 F.2d at 702.

21
Lastly, it is claimed that the evidence is insufficient to support the verdict.  The same charge was made in Rodriguez-Gonzales v. United States, supra, and it was held that the assertion was patently without merit.

22
Affirmed.

ELY, Circuit Judge (dissenting):

23
I respectfully dissent.  The district judge, in line with the offense which was charged, properly instructed the jury that it was required to determine, as a requisite for conviction, 'that the defendant knew that the marijuana had been imported or brought into the United States contrary to law.'

24
The Government had been informed that the importation would occur in the Mercury automobile, specifically identified.  Its agent actually observed the transportation across the international frontier.  He saw the driver of the vehicle in which the contraband was concealed.  That driver was not the appellant,1 and his identity was either known to the Government or might, by it, have been easily ascertained.  The prosecution refused the request of the accused that he be supplied with the name of the informer, and I do not now question the refusal of the district judge to require the requested revclation.  I do, however, because of the circumstances which I have outlined, challenge the propriety of authorizing the jury to infer, from the fact of the accused's subsequent possession of the contraband, that the accused 'knew that the marijuana had been imported into the United States, illegally, contrary to law.'2

25
The prosecution should have been required to prove, at the very least, that the Government itself did not, through one of its own agents, accomplish the importation.  If the Government itself imported the marijuana, it is indeed anomalous that it is now permitted to say that the accused 'knew' that the substance had been imported 'illegally, contrary to law.'  Believing it to have been erroneous to instruct the jury as to the presumption in the light of the peculiar facts of this case and the lack of proof in the particular which I, in the circumstances, would require, I would reverse.3

1
 In Klepper v. United States, 331 F.2d 694 (9th Cir. 1964), emphasized by the majority, border police observed the automobile in which contraband was concealed as it crossed the border.  The vehicle was being driven at that time by an identified friend of the accused, and the accused was observed as a passenger

2
 When the accused objected to the instruction, it appears that the Government attorney himself questioned its applicability.  Said he, 'What I am saying is that since we have direct evidence of the smuggling by the person who drove it in, I don't see any need to use the statutory presumption to prove that it was imported.'

3
 I cannot see that the majority attempts to answer the question which troubles me.  Significantly, it does not mention the two cases upon which the Government, in its brief, relies.  These are Haynes v. United States, 319 F.2d 620 (5th Cir. 1963), cert. denied, 375 U.S. 885, 85 S.Ct. 161, 11 L.Ed.2d 115 (1963), and Miller v. United States, 273 F.2d 279 (5th Cir. 1960), cert. denied, 362 U.S. 928, 80 S.Ct. 756, 4 L.Ed.2d 747 (1960).  Neither is in point
Compare United States v. Taylor, 266 F.2d 310 (7th Cir. 1959), cert. denied, 361 U.S. 853, 80 S.Ct. 96, 4 L.Ed.2d 92 (1959), wherein Government agents, informers, did not transport the contraband Until it had already been imported into the United States.


412 B.R. 15 (2009)
In re LATIN AMERICAN ROLLER CO., Debtor.
Latin American Roller Co., Plaintiff
v.
Cooperativa De Seguros Multiples De Puerto Rico, Defendant.
Bankruptcy No. 07-06101(ESL). Adversary No. 08-0007.
United States Bankruptcy Court, D. Puerto Rico.
January 29, 2009.
*18 Fausto D. Godreau Zayas, Rafael A. Gonzalez Valiente, Latimer, Biaggi, Rachid & Godreau, San Juan, PR, for Plaintiff.
Victor J. Casal Vazquez, San Juan, PR, for Defendant.

OPINION AND ORDER
ENRIQUE S. LAMOUTTE, Bankruptcy Judge.
Latin American Roller Co. (the "Debtor") filed a Chapter 11 petition on October 18, 2007, Case No. 07-0610, and subsequently filed the instant complaint against Cooperativa de Seguros Multiples de Puerto Rico ("Cooperativa") on January 18, 2008. An amended complaint was filed on March 28, 2008. At the status conference held on August 1, 2008 the parties were directed to brief if the claims for relief in the amended complaint were core or non core matters. After considering the legal memoranda filed by the parties the court concludes that the causes of action in the amended complaint are non-core but otherwise related to the above captioned bankruptcy case.

Background
The Debtor operates a cardboard tubes manufacturing plant in Rio Grande, P.R., The Debtor had a commercial property and casualty insurance policy to protect against property damage and business losses provided by Cooperativa; policy No. CPP-0506039-6/000 (the "Policy"). The Policy was in effect from May 30, 2006 to May 30, 2007.
On or about October 19, 2006, a fire broke out in the Debtor's business premises, damaging several parts of the business, including manufacturing and office equipment, and supplies.[1] The Debtor filed claims for reimbursement for damage to offices supplies and raw materials. Cooperativa reimbursed these claims. The Debtor also filed a claim for the repair and cleanup work done to the facility. Cooperativa partially reimbursed this claim. The amended complaint centers around Cooperativa's alleged failure and/or refusal to reimburse the Debtor for losses to the manufacturing plant and equipment, and for $13,485 in cleanup work expenses. The Debtor submitted an expert report regarding the nature and scope of the damage to the manufacturing plant and equipment, and claims to have complied with the policy's claim filing requirements. Pursuant to the terms of the policy, the Debtor is entitled to reimbursement for the "replacement value" (i.e., today's value without reference to original cost or depreciation) for property that was damaged "beyond repair" (or total loss). Property is considered damaged beyond repair if the cost of fixing it is more than the replacement value. The Debtor claims that the content of its expert's damage report satisfies *19 the criteria for coverage under the policy. Consequently, the Debtor raises the following three claims for relief in the amended complaint:
1) for the turnover of $254,691 in various types of damage/loss claims resulting from coverage under the policy, matured and payable on demand, plus $12,000 a month in continuing damages for loss of income until the new equipment is installed and for six additional months for the stabilization of the business, pursuant to 11 U.S.C. § 542(b);
2) for breach of insurance contract (P.R.Civ.Code articles 1041-1062, 32 LPRA §§ 2991-3026), the sum of $254,691 plus legal interest and $12,000 a month in continuing damages for loss of income until the new equipment is installed and for six additional months for the stabilization of the business;
3) for extra-contractual damages (P.R.Civ.Code article 1082, 32 LPRA § 5141), the sum of $1,098,941, plus legal interest and $12,000 a month until the new equipment is installed and for six additional months for the stabilization of the business, plus $1,000,000 in "punitive damages".
The Debtor alleges that the first two claims for relief are core matters. The first, because it is brought under section 542 of the Bankruptcy Code. As to the second, Debtor concedes that normally a cause of action based on a breach of contract is considered to be non-core. However, the Debtor argues that several circuits, particularly the Second Circuit, have held that insurance policies are assets of the estate, and the determination of rights under the policies is essential to the administration of the estate, and consequently these actions are considered core proceedings pursuant to 28 U.S.C. § 157(b)(2)(A). The Debtor maintains that this insurance claim is the main asset of the estate and that this is a breach of contract that is still occurring post-petition, thus this is a core proceeding under the holding of United States Lines, Inc. v. American Steamship Owners Mutual Protection an Indemnity Assoc., Inc. (In re United States Lines, Inc.), 197 F.3d 631 (2nd Cir.1999). The Debtor argues that the third cause of action is non core related to, as it invokes art 1802 of the Civil Code of Puerto Rico. As to this third claim for relief the Debtor submits that the bankruptcy court need not abstain and it may submit its proposed findings of fact and conclusions of law to the district court.
Cooperativa denies that this is a core proceeding because in the absence of bankruptcy these actions would have been brought before the Office of the Insurance Commissioner of Puerto Rico and/or the Superior Court of Puerto Rico, and suggests that the actions should be dismissed. As to the first cause of action Cooperativa argues that the Debtor did not comply with the terms and conditions of the insurance policy in its claims of loss and for that reason the claim cannot be matured and payable on demand, hence, the turnover action falters. They further state that it is an action based on state law arising before the bankruptcy was filed thereby being a non core matter according to the First Circuit case of In re Arnold Print Works, Inc., 815 F.2d 165 (1st Cir.1987). As to the second cause of action Cooperativa alleges that because it would survive outside of bankruptcy, it is a non core matter. Cooperativa does not consent to this court hearing this matter. And in conclusion, Cooperativa submits that this court may choose to discretionally abstain from hearing this case for reasons of justice, comity with state courts or respect for state law, pursuant to 28 U.S.C. § 1334(c)(1), because the applicable law is state law and the Superior Court of Puerto Rico or the *20 Office of the Insurance Commissioner will be a more appropriate forum to entertain and adjudicate the case.

Discussion

Core and `related' proceedings
Federal courts have jurisdiction over bankruptcy cases pursuant 28 U.S.C. § 1334, which provides in subsection (a) that the district courts have original and exclusive jurisdiction over "cases under title 11" (such as the bankruptcy petition itself), and in subsection (b) that the district courts have original but not exclusive jurisdiction over "proceedings arising under title 11, or arising in, or related to cases under title 11". Pursuant to 28 U.S.C. § 157(a), the district courts may refer to the bankruptcy courts any or all cases and proceedings arising under title 11 or proceedings arising in or related to a case under title 11[2]. Cases under title 11 and "core proceedings" arising under or arising in cases under title 11 constitute the bankruptcy court's "core" jurisdiction. 28 U.S.C. § 157(b)(1); Concerto Software, Inc. v. Vitaquest International Inc., 290 B.R. 448, 452 (D.Maine 2003). "[C]ore proceedings are integral to the core bankruptcy function of restructuring debtor-creditor rights." In re Arnold Print Works, Inc., 815 F.2d 165, 167 (1st Cir. 1987). Subsection 157(b)(2) sets forth a non-exhaustive list enumerating sixteen actions that constitute core proceedings which fall into five categories, to wit, 1) matters of administration, 2) avoidance actions, 3) matters concerning property of the estate, 4) omnibus categories and 5) cases filed under chapter 15 of the Bankruptcy Code. 1 Alan N. Resnick and Henry J. Sommer, Collier on Bankruptcy, ¶ 3.02[3] at 3-35 (15th Ed. Rev'd 03/2008).
The statute distinguishes between cases "arising under", "arising in" (core) and "related to" (non-core) proceedings under title 11, although it provides no definitions. "`Arising under' proceedings have been interpreted as those cases in which the cause of action is created by title 11, as are a claim of exemptions under 11 U.S.C. § 522 and any action by a trustee under an avoiding power." In re Middlesex Power Equipment & Marine, Inc., 292 F.3d 61, 68 (1st Cir.2002); 1-3 Collier on Bankruptcy ¶ 3.01[4][c][i]. "`Arising in' proceedings are those that are not based on any right expressly created by title 11, but nevertheless, would have no existence outside of the bankruptcy." Middlesex, 292 F.3d at 68 (citation omitted). "Claims that `arise in' a bankruptcy case are claims that by their nature, not their particular factual circumstance, could only arise in the context of a bankruptcy case." Marotta Gund Budd & Dzera LLC v. Costa, 340 B.R. 661, 666 (D.N.H.2006) (citation omitted).
`Related to' proceedings are "the broadest of the potential paths to bankruptcy jurisdiction." In re Seven Fields Development Corp., 505 F.3d 237, 257 (3rd Cir.2007). "[B]ankruptcy courts ordinarily may exercise related to jurisdiction as long as the outcome of the litigation potentially could have some effect on the bankruptcy estate, such as altering debtor's rights, liabilities, options, or freedom of action, or otherwise have an impact upon the handling and administration of the bankrupt estate." In re Boston Regional Medical Center, Inc., 410 F.3d 100, 105 (1st Cir. 2005); In re G.S.F. Corp., 938 F.2d 1467, 1475 (1st Cir.1991). If the determination of the case could have an effect on the bankruptcy estate, it is a related matter. *21 Id. citing Pacor v. Higgins, 743 F.2d 984, 994 (3d Cir.1984).
The determination of the bankruptcy court's "core" or "related to" jurisdiction is committed to the judgment of the court, and it shall not be affected solely because resolution of the proceeding may be affected by state law. 28 U.S.C. § 157(b)(3); In re Arnold Print Works, Inc., 815 F.2d 165, 169 (1st Cir.1987). If a bankruptcy judge chooses to hear a non-core proceeding, also referred to as a `related' proceeding, the judge shall submit proposed findings of fact and conclusions of law to the district court, subject to de novo review by such court. 28 U.S.C. § 157(c)(1). However, a bankruptcy judge may enter final orders and judgments concerning `related' matters if all parties to the proceeding have consented. 28 U.S.C.A. § 157(c)(2); In re G.S.F. Corp., 938 F.2d 1467, 1477 (1st Cir. 1991).
These classifications and parameters were introduced by the Bankruptcy Amendments and Federal Judgeship Act of 1984 ("BAFJA") as a result of the landmark decision by the Supreme Court in the case of Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). The Supreme Court held unconstitutional the grant of Article HI judicial powers upon non-tenured Article I courts. Article I judges do not have the constitutional power to enter final orders without the parties' consent in traditionally common law cases involving state-created private rights. As a result of this decision, the bankruptcy court may not enter a final determination in those cases that are classified as non-core related matters. The Marathon decision, however, has been given a narrow interpretation by subsequent Supreme Court opinions, In re Arnold, 815 F.2d at 166, citing Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) and Commodity Futures Trading Com. v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986).
In Arnold the Court of Appeals for the First Circuit differentiates Marathon-type contract claims arising pre-petition from the ones arising post-petition. In Arnold the First Circuit stated that if the claim arises after the filing of the petition it involves a matter directly related to the administration of the estate; thus, it is a core matter upon which a bankruptcy judge has the power to enter final orders. On the other hand, if the claim arose before the filing of the petition it is only a related case and a bankruptcy judge is limited to submit proposed findings of fact and conclusions of law to the district court. "It should be clear that actions to collect prepetition accounts receivable are straightforward Marathon-type [`related'] contract actions and are, thus, not core proceedings. However, courts have used sections ... 157(b)(2)(E) (turnover) ... to obliterate Marathon. These cases ... should not be followed." 1 Collier on Bankruptcy ¶ 3.02[4].
There is `related' jurisdiction in this case because the Debtor's claim on the policy is an asset of the estate, which includes all of the Debtor's legal or equitable interests in property as of the commencement of the case. 11 U.S.C. § 541(a)(1). To the extent that any recovery on these claims will fund the plan and contribute to the Debtor's rehabilitation, such claims are related to the Debtor's case. To the extent that resolution of the Debtor's insurance claim could conceivably have any effect on the estate or could alter the Debtor's rights, liabilities, options or freedom of action, this case falls within the court's "related to" jurisdiction. See, Pacor, Inc. v. Higgins, 743 F.2d at 994. Thus, Cooperativa's contention that this *22 court is not a proper forum to hear this case is misplaced.
Nevertheless, the Debtor's insurance claim could have been brought and would have survived in the appropriate state forum, absent the bankruptcy case, In this case, the Debtor had property insurance and wants to recover for apparent losses allegedly covered by the insurance policy. Factually similar cases reveal that in situations where a debtor is making a pre-petition claim under a property insurance policy against an insurer that is contesting liability, such a claim is not a "turnover" action and does not support core proceeding jurisdiction. See, e.g., In re R.I. Lithograph Corp., 60 B.R. 199 (Bkrtcy.D.R.1.1986) (action by debtor against insurer to recover for losses under a property insurance policy was not a core proceeding where insurer contested liability); Matter of Pied Piper Casuals, Inc., 65 B.R. 780 (S.D.N.Y.1986) (holding that a debtor's action for reimbursement under a theft insurance policy was not a core proceeding in a case where the insurer contested coverage, because the alleged debt was not a matured obligation payable on demand).
If the insurer is contesting liability, the debtor's action is not a `turnover' proceeding and thus not core. "A turnover action can only be considered a core proceeding when the purpose of the proceeding is to obtain the turnover of property or the collection of a matured debt, rather than the creation, recognition, or liquidation of a debt. When a bona fide dispute exists as to liability involving state law, then the proceeding is not core." 2 Bankruptcy Desk Guide § 14:81 (2008). After all, "not every cause of action demanding money damages or payment of sums due under a contract should be construed as a turnover action ... [A] debtor's suit against an insurer to recover for losses covered under a policy is not a turnover proceeding where the insurer disputes liability." 9 Am.Jur.2d Bankruptcy § 788 (2008) (citing Pied Piper & Lithograph Corp.) "[A]s long as there is some doubt as to the defendant's liability[,]" the action cannot be considered a turnover action. In re Mec Steel Bldgs., Inc., 136 B.R. 606, 610 (Bankr.D.P.R.1992).[3]
The claims for relief raised in the amended complaint are non-core `related' matters to the bankruptcy case. As discussed above, the first cause of action cannot be considered a `turnover' action as it does not seek to collect a "matured, payable on demand, or payable on order" debt as required by 11 U.S.C. § 542. The second and third cause of action exist independently of the bankruptcy. They are ordinary, Marathon-type, pre-petition breach of contract actions. Therefore, this court is limited to submit its `proposed findings of fact and conclusions of law' to the district court. 28 U.S.C. § 157(c)(1).

Abstention
The discretionary abstention provision of 28 U.S.C. § 1334(c)(1) provides that the district court may abstain from hearing a particular proceeding "arising under title 11 or arising in or related to a case under title 11" if to do so would be "in the interest of justice, or in the interest of comity with State courts or respect for State law". See Middlesex, 292 F.3d at 69 (citation omitted). The *23 Supreme Court in the case of Thompson v. Magnolia Petroleum Co., 309 U.S. 478, 60 S.Ct. 628, 84 L.Ed. 876 (1940) reaffirmed the principle that the bankruptcy court had "an exclusive and nondelegable control over the administration of an estate" but "the proper exercise of that control may, where the interests of the estate and the parties will best be served, lead the bankruptcy court to consent to submission to state courts of particular controversies involving unsettled questions of state property law and arising in the course of bankruptcy administration." 309 U.S. at 483-484, 60 S.Ct. 628; 1 Collier on Bankruptcy ¶ 3.05[1]. In affirming the bankruptcy court's decision to abstain the First Circuit Court of Appeals in Middlesex, the First Circuit Court of Appeals observed that the bankruptcy court "took into account judicial economy and comity", "noted that the issues between the parties had already been fully litigated in the [state] court", stated that the party moving the court "essentially ask this court to review a final judgment of the state court" and commented on "`avoidance of forum shopping'". Middlesex, 292 F.3d at 69. "This discretionary abstention is intended to soften the tensions inherent in a system that contemplates parallel judicial processes." In re Texaco, 77 B.R. 433, 437-438 (Bankr.S.D.N.Y.1987) (citation omitted). Cooperativa has failed to raise grounds warranting discretionary abstention from this proceeding. The only grounds raised by Cooperativa in favor of abstention is that state law must be applied, no reference to unsettled questions of state law is made. State law is applied in bankruptcy proceedings routinely, as in order to determine the nature and existence of property rights reference must made to state law. William Norton, Jr., Norton Bankruptcy Law and Practice 3d § 4:119 (Thomson Reuters/West 2008). Without more, discretionary abstention is not applicable in this case.

Withdrawal of Reference
Section 157(d) of the Judicial Code provides in part that "[t]he district court may withdraw, in whole or in part, any case or proceeding referred under this section, on its own motion or on timely motion of any party, for cause shown." 28 U.S.C. § 157(d). In determining whether cause exists to withdraw reference of a case, courts have examined the following factors: judicial economy, whether withdrawal will promote uniformity of bankruptcy administration, reduction of forum shopping and confusion, conservation of debtor and creditor resources, expedition of the bankruptcy process and whether jury trial has been requested. Holland America Insurance Co. v. Succession of Roy, 777 F.2d 992 at 999 (5th Cir.1985) The analysis of judicial economy depends largely on whether the claims asserted are core or non-core; "it is upon this issue that questions of efficiency and uniformity will turn." In re Orion Pictures Corp., 4 F.3d 1095, 1101 (2d Cir.1993).

Conclusion
The claims for relief in the amended complaint are non core `related' matters which may be heard by this court but may not be finally resolved by a bankruptcy judge. Therefore, cause exists under 28 U.S.C. § 157(d) for the withdrawal of reference of these claims. This court hereby recommends that reference be withdrawn in this adversary proceeding. The Clerk of the Bankruptcy Court shall certify to the United States District Court for the District of Puerto Rico its recommendation for the withdrawal of reference of the present case.
SO ORDERED.
NOTES
[1]  On page 3 of the amended complaint (Dkt. 6), the Debtor mistakenly states that the fire occurred on October 19, 2007, that is, one day after the petition date of October 18, 2007. However, as per other documents filed, both parties agree that the fire broke out on October 19, 2006, one year before the petition date. (See, Dkt. 6 Main Document at 9, ¶ 37; Dkt. 6, Exhibit, page 9, Fire Report dated October 19, 2006; Dkt. 26 at 2, ¶ 4; 31 at 2, ¶ 10).
[2]  As provided by L.Civ.R. 77.2, pursuant to 28 U.S.C. § 157(a) and the District Court's Resolution of July 19, 1984, the District Court of Puerto Rico has referred all cases and proceedings in bankruptcy to the Bankruptcy Court for the District of Puerto Rico.
[3]  Other insurance-related actions that did not involve disputed claims for reimbursement brought by a debtor against an insurer have nonetheless also been treated as non core proceedings. See, In re Baldwin-United Corp., 52 B.R. 541 (Bkrtcy.S.D.Ohio 1985) (declaratory action regarding debtor's right to indemnification not a core proceeding); In re Ramex International, Inc., 91 B.R. 313 (E.D.Pa.1988) (declaratory action regarding coverage not a core proceeding).


                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                           Assigned on Briefs October 4, 2010

           DONALD M. MERRIWEATHER v. LUTHER SMITH, JR.

                 An Appeal from the Circuit Court for Shelby County
                    No. CT-003147-07     Lorrie K. Ridder, Judge

               No. W2009-02656-COA-R3-CV - Filed December 2, 2010

This is a personal injury action based on intentional assault. The plaintiff threw a beer bottle
at the defendant, but missed him. As the plaintiff was walking away, the defendant hit the
plaintiff on the back of the head with a beer bottle, causing a head injury. The plaintiff then
sued the defendant. After a bench trial, the trial court held in favor of the plaintiff. The
defendant now appeals. We affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.

Luther Smith, Jr., Memphis, Tennessee, Defendant/Appellant, Pro Se

Ellen Fite, Memphis, Tennessee, for the Plaintiff/Appellee, Donald M. Merriweather

                                          OPINION

                             F ACTS AND P ROCEEDINGS B ELOW

Defendant/Appellant Luther Smith (“Smith”) owns a rental house on North Dunlap in
Memphis, Tennessee. The house has ten bedrooms, and they are rented to different tenants
on a weekly basis.

Plaintiff/Appellee Donald M. Merriweather (“Merriweather”) is a carpenter by trade.
Sometime in 2006, Merriweather rented a room from Smith in the house on Dunlap. The
first week’s rent was paid by a contractor. After that, Merriweather and Smith entered into
an arrangement whereby Merriweather would be permitted to stay in the house rent-free, and
in exchange Merriweather would repair and replace twelve windows in the house. This
arrangement was to last for as long as it took for Merriweather to replace the twelve
windows.

While Merriweather was staying at the Dunlap house, but before the window work was
completed, Smith accused Merriweather of stealing wood from his property. Consequently,
Smith forced Merriweather to leave the property and told him not to come back for any
reason. Smith has a no-trespassing sign posted on the Dunlap property.

On August 26, 2006, Merriweather returned to the Dunlap property, ostensibly to retrieve
personal belongings left there when Smith forced him to move. While he was standing on
the porch talking with some residents, Smith arrived on the scene. After a verbal
confrontation, Merriweather threw a beer bottle at Smith, but missed him. As Merriweather
walked past Smith and toward the gate to leave, Smith hit Merriweather on the back of the
head with a beer bottle, injuring his head. Merriweather was transported by ambulance to
a hospital and treated in the emergency room. A CAT scan of his head was ordered, and a
laceration was repaired. Merriweather incurred medical bills related to his head injury in the
amount of $3,799.

On March 28, 2007, Merriweather filed a lawsuit against Smith in the Shelby County General
Sessions Court, asserting intentional assault. Merriweather prevailed in the general sessions
court and was awarded a judgment of $24,999. Smith appealed to the Shelby County Circuit
Court for a trial de novo, pursuant to Tennessee Code Annotated § 27-5-108.1

On November 3, 2009, the Circuit Court conducted a bench trial on the matter.2 The trial
court heard testimony from both parties and other witnesses.3

Merriweather apparently called Smith to testify first. Smith testified that, prior to the
incident in question, Merriweather had already retrieved his belongings and did not have
permission to return to the property for any reason. Smith said that, when he arrived at the
Dunlap house on the day of the incident, Merriweather was on the porch drinking with seven
or eight residents of the house. Beer bottles were scattered across the area in front of the
porch. When Smith told Merriweather to leave, Merriweather responded, “I am on your

       1
        Although Smith filed his appeal as an indigent, the trial court granted Merriweather’s motion to
depauperize Smith based on the income Smith receives from rental properties.
       2
           Both parties were represented by counsel in the trial court.
       3
        The appellate record does not include a trial transcript, but it does include a statement of the
evidence.

                                                      -2-
porch, not in your house.” When Smith opened the front gate to enter the yard, Merriweather
came off the porch and threw a partially filled forty-ounce beer bottle at him. The bottle did
not hit Smith, but instead skidded across the ground without breaking. Smith testified that
Merriweather then passed him as he was headed out of the open front gate. As Merriweather
passed, Smith hit him on the back of the head with a small beer bottle. Smith claimed that,
at the time, he believed that Merriweather was about to attack him. Smith admitted,
however, that Merriweather has no propensity for violence, and Smith had never known him
to be violent.

Smith called two witnesses on his behalf. David Norwood (“Norwood”) testified that, at the
time of the incident, he was on the porch with four or five other men. Norwood said that it
was his understanding that Merriweather was not supposed to be at the house. Norwood
observed Merriweather “cussing” Smith, and then saw Merriweather throw a beer bottle at
Smith. He said that the beer bottle missed Smith, hit the concrete, and skidded off towards
a flower bed. Then, as Merriweather was on his way out of the front gate, Smith hit him with
a bottle. Another witness, Mike Brim, testified that Merriweather did construction work for
him in November and December of 2006. Brim said that Merriweather did not complain of
headaches at that time.

Merriweather testified on his own behalf. Prior to the incident, Merriweather said, he called
Smith and asked Smith to meet him at the Dunlap property so that Merriweather could
retrieve his belongings. Merriweather then went to the property and waited for Smith for
forty-five minutes. When Smith arrived, Merriweather testified, Smith hit Merriweather on
the head with a beer bottle. Merriweather, knocked to the ground, almost unconscious and
bleeding, got up and walked to a local restaurant, where an ambulance was called. In his
testimony, Merriweather claimed that he continued to suffer from headaches on one side of
his head; he attributed the headaches to the injury inflicted by Smith. In response to the
testimony by David Norwood and Mike Brim, Merriweather testified that he had never seen
Norwood before, and that he had never worked for Brim. That concluded the trial testimony.

On November 12, 2009, the trial court entered an order finding in favor of Merriweather.
The trial court commented that neither party was particularly credible, but it found that
Smith’s version of events was “slightly more credible than Merriweather’s version, as
Merriweather offered no credible reason for the altercation.” However, the trial court did not
credit Smith’s assertion that he was afraid Merriweather was about to attack him, because,
at the time Smith hit Merriweather, Merriweather no longer had anything in his hands and
Merriweather was passing by Smith to leave the property. The trial court also noted that the
location of Merriweather’s head wound indicated that Merriweather’s back was to Smith at
the time Smith hit him. The trial court also relied on Smith’s acknowledgement that
Merriweather did not have a propensity for violence.

                                             -3-
For these reasons, the trial court held in favor of Merriweather and awarded him $3,799 in
medical expenses and $16,000 in compensatory damages. From this order, Smith now
appeals, pro se.

                      ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Smith argues that the preponderance of the evidence weighs against the trial
court’s decision, because the evidence showed that he was acting in self defense when he hit
Merriweather, and that his conduct was based on a reasonable fear that Merriweather
intended to cause him bodily harm. Smith further argues that Merriweather should be denied
any recovery because Merriweather lied to the trial court about the incident in question,
“cajoled” Norwood into “keeping quiet” about what he witnessed, and concealed the fact that
he and Norwood conspired against Smith at trial.4 Finally, Smith argues that the judgment
against him is excessive because, among other things, it is based on fraud, i.e., the untruthful
testimony of Merriweather regarding his ability to work.

Because this was a bench trial, we review the trial court’s findings of fact de novo on the
record, presuming those findings to be correct unless the evidence preponderates otherwise.
Tenn. R. App. P. 13(d). We review questions of law de novo, without such a presumption
of correctness. See State v. Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997).

                                          A NALYSIS

We first address Smith’s argument that the preponderance of the evidence shows that he
established a defense to Merriweather’s claim of assault, namely, that he had a reasonable
fear of bodily harm. He relies on established law that “[s]elf-defense is a complete defense
to civil liability for assault and battery.” Dent v. Holt, No. 01A01-9302-CV-00072, 1994
WL 503891, at *1 (Tenn. Ct. App. Sept. 16, 1994) (order on rehearing).

From our review of the evidence at trial as set forth in the statement of the evidence, Smith
testified that Merriweather threw a beer bottle at him when he arrived at the Dunlap house,
and that Merriweather then “headed out of the open gate when [Smith] hit Merriweather on
the head with a small beer bottle.” Smith asserted that he “felt like Merriweather was going
to attack him,” and the evidence shows that Merriweather threw a beer bottle at Smith and
missed him, thus initiating the physical aspect of the altercation. However, it is undisputed
that Merriweather’s injury was on the back of his head, and the trial court reasonably inferred
from this that Merriweather was walking away from Smith when Merriweather was struck.

       4
       Although Norwood was called to testify by Smith, Smith was apparently dissatisfied with
Norwood’s testimony.

                                              -4-
Under these circumstances, we agree with the trial court that the evidence does not support
Smith’s assertion that he acted out of fear for his person or in protection of his property.
Therefore, we must reject Smith’s argument that the evidence preponderates against the trial
court’s finding on this point.

Smith next argues that the judgment against him must be reversed because Merriweather
committed fraud on the trial court in connection with his testimony and in his collaboration
with Norwood. Smith does not cite to any evidence of such allegations in the record, and the
record does not reflect that this argument was raised in the trial court. This Court will not
consider issues or claims raised for the first time on appeal. See Crossley Constr. Corp. v.
Nat. Fire Ins. Co. of Hartford, 237 S.W.3d 652, 656 (Tenn. Ct. App. 2007). Therefore, we
must conclude that this issue is waived on appeal.

Smith also argues that the damages awarded to Merriweather were excessive. He asserts that
the trial court’s decision was based on Merriweather’s testimony about his earnings prior to
the injury, and that Merriweather was not truthful in his testimony. Smith contends that the
excessive judgment violates his rights under the Eighth Amendment to the United States
Constitution, prohibiting excessive fines and cruel and unusual punishment.

Smith’s first argument is essentially that the trial court erred in crediting Merriweather’s
testimony regarding his previous earnings and his ability to work after his injury. We note
that the statement of the evidence in the appellate record does not include the testimony on
which the award of damages was based, but we must infer from the record that the trial court
credited Merriweather’s testimony on his damages. This Court will not reevaluate a trial
court’s credibility determinations absent clear and convincing evidence to the contrary.
Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). The record in this case
contains no evidence contrary to Merriweather’s claimed damages. Under these
circumstances, there is no basis in the record for a reversal of the trial court’s decision on this
point.

Smith’s argument based on the Eighth Amendment to the United States Constitution must
be rejected because there is no indication that it was raised in the first instance in the trial
court. As we have stated, the appellate court will not consider issues raised for the first time
on appeal. See Crossley Constr. Corp., 237 S.W.3d at 656. For these reasons, the decision
of the trial court must be affirmed.

                                                -5-
                                     C ONCLUSION

The decision of the trial court is affirmed. Costs on appeal are to be taxed to Appellant
Luther Smith, Jr., and his surety, for which execution may issue, if necessary.

                                                 _________________________________
                                                 HOLLY M. KIRBY, JUDGE

                                           -6-


681 F.2d 669
75 A.L.R.Fed. 205
Victor J. CORDERO, Plaintiff-Appellant,v.CIA MEXICANA DE AVIACION, S.A., a corporation, Defendant-Appellee.
No. 81-5400.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted March 3, 1982.Decided July 16, 1982.

Henry Seligsohn, King & Seligsohn, P.C., Los Angeles, Cal., for plaintiff-appellant.
Michael J. Holland, Condon & Forsyth, Los Angeles, Cal., for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Before WALLACE, SCHROEDER and CANBY, Circuit Judges.
CANBY, Circuit Judge:

1
Victor Cordero appeals from the district court's entry of judgment notwithstanding the verdict in a case brought against Mexicana Airlines for wrongful exclusion from a Mexicana flight.  The jury found for Cordero and awarded him $1000 for loss of baggage, $1000 in general damages, and $35,000 in punitive damages.  The district court, 512 F.Supp. 205, granted Mexicana's motion for judgment notwithstanding the verdict on the general and punitive damages awards.  We reverse the judgment denying general damages and reinstate the jury award.  We affirm the judgment denying punitive damages, however, since the evidence adduced at trial does not support such an award.

FACTS

2
Cordero boarded a regularly scheduled non-stop Mexicana flight from Los Angeles to Mexico City.  There was a long delay on the ground in Los Angeles and, once en route, the pilot announced an unscheduled stop in Mazatlan to pick up additional passengers.  Several passengers, disgruntled about the delay in Los Angeles, became visibly upset upon learning of the impending stop in Mazatlan.  One passenger, sitting near Cordero, became loud and directed insults at the pilot.  The pilot came out of the cockpit and warned the passenger that if he didn't control himself, he would be ejected at Mazatlan.  Other than various discontented mutterings, there were no other incidents prior to landing.  Inside the terminal at Mazatlan, Cordero circulated a petition complaining of the stop.  When he sought to reboard the plane, airline ground personnel informed Cordero that he would not be allowed to continue the flight because he had insulted the captain and the crew.  Cordero protested his innocence and informed ground personnel that they had ejected the wrong person.  Mexicana refused to reconsider its decision and reissued Cordero's ticket for the following day.

3
Cordero then brought this action claiming unjust discrimination in violation of section 404(b) of the Federal Aviation Act of 1958, (Act), as amended, 49 U.S.C. § 1374(b) (1976).1  At trial, the head stewardess testified that upon disembarking at Mazatlan, Cordero had uttered an obscenity and had raised his arm as if to strike her.  She further testified that she had reported the incident to the pilot who decided to exclude Cordero from the continuing flight.  Cordero claimed that he was the victim of mistaken identity and produced the testimony of another passenger who confirmed that Cordero had made no untoward remarks or gestures to the stewardess.

4
The district court instructed the jury that denial of passage was not a violation of the Act if, at the time it refused passage, the airline held a reasonable belief that Cordero might have endangered the continuing flight.2  After the jury found for Cordero, the district court, relying on section 1111(a) of the Act, 49 U.S.C. § 1511(a), granted judgment notwithstanding the verdict.  Under section 1511(a), an air carrier is permitted to refuse transportation to a person "when, in the opinion of the carrier, such transportation would or might be inimical to safety of flight."  Contrary to his previously issued jury instructions, the district judge held that section 1511(a) does not require the air carrier's belief that a passenger might create a safety hazard to be a reasonable one in order for the carrier to exclude that passenger from a flight.  The judge also found the evidence insufficient to support an award of punitive damages.  For the reasons set forth below, we reverse in part and affirm in part.

ANALYSIS

5
Although section 1511(a) empowers an air carrier to refuse passage, we do not think that it renders immune from liability a carrier whose decision to deny passage is unreasonably or irrationally formed.  While we agree with the district court that air safety is a paramount concern of air carriers and of the public generally, we do not believe that requiring carriers to act reasonably in formulating opinions to deny passage undercuts this concern.  We note that the Second Circuit in Williams v. Trans World Airlines, 509 F.2d 942 (2d Cir. 1975), has come to a similar conclusion.  In Williams, Trans World Airlines invoked section 1511(a) to justify a denial of passage on the basis of F. B. I. reports to the airline that the ticket-holder was a diagnosed schizophrenic and should be considered armed and dangerous.  Although the airline found no weapons on the ticket-holder, Williams, it nevertheless refused passage on a flight from London to Detroit.  The court of appeals affirmed a finding of no unjust discrimination, holding that the airline had a right to accept the F. B. I. reports at face value.  509 F.2d at 948-49.  In reaching this conclusion, the court found that section 1374(b) does not limit a carrier's discretion to refuse passage under section 1511(a) so long as the carrier acts on evidence which "would cause a reasonably careful and prudent air carrier of passengers to form the opinion that the presence aboard a plane of the passenger-applicant 'would or might be inimical to safety of flight.' " Id. at 948.  To aid the trier of fact in determining whether the carrier acted reasonably under section 1511(a), the court set forth the following test:

6
The test of whether or not the airline properly exercised its power under § 1511 to refuse passage to an applicant or ticket-holder rests upon the facts and circumstances of the case as known to the airline at the time it formed its opinion and made its decision and whether or not the opinion and decision were rational and reasonable in the light of those facts and circumstances.  They are not to be tested by other facts later disclosed by hindsight.  Id.

7
We believe there are persuasive reasons for adopting the Williams test.  First, a requirement of reasonableness under section 1511(a) is consistent with section 1374(b), which was enacted for the benefit and protection of persons using the facilities of air carriers.  E.g., Caceres Agency Inc. v. Trans World Airways, Inc., 594 F.2d 932, 933 (2d Cir. 1979).  We have not found, nor have we been shown, any legislative history indicating that in enacting section 1511(a) Congress intended to limit the protections afforded ticket-holders under section 1374(b).  Second, the Williams test takes into account the fact that air carriers often must make decisions within moments of take-off and with less than perfect knowledge.  The reasonableness of the carrier's opinion, therefore, is to be tested on the information available to the airline at the moment a decision is required.  There is correspondingly no duty to conduct an in-depth investigation into a ticket-holder's potentially dangerous proclivities.  We believe this facet of the test provides a reasonable balance between safety concerns and the right of a ticket-holder to be free from unwarranted discrimination.3

8
Because the district court properly instructed the jury in the precise language of the Williams test4 and because it is peculiarly within the province of the trier of fact to determine whether the defendant's conduct was reasonable, we reverse the judgment on the general damages award and reinstate the jury verdict.  A motion for judgment notwithstanding the verdict should not be granted unless the evidence, viewed in the light most favorable to the prevailing party, permits only one reasonable conclusion.  Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir.), cert. denied, 449 U.S. 875, 101 S.Ct. 218, 66 L.Ed.2d 96 (1980); Kay v. Cessna Aircraft Co., 548 F.2d 1370, 1372 (9th Cir. 1977).  There is ample evidence in the trial record from which the jury might have concluded that Mexicana acted unreasonably in excluding Cordero without even the most cursory inquiry into the complaint against him.

9
We affirm the judgment denying punitive damages, however.  We need not decide the validity of Mexicana's contention that punitive damages are never awardable when a passenger is refused passage on grounds of safety.  For if punitive damages are permissible, they can only be awarded where the defendant has acted " 'wantonly, or oppressively, or with such malice as implies a spirit of mischief or criminal indifference to civil obligation.' "  Archibald v. Pan American World Airways, Inc., 460 F.2d 14, 16 (9th Cir. 1972), quoting Wills v. Trans World Airlines, Inc., 200 F.Supp. 360, 367-68 (S.D.Cal.1961).  Cordero's theory at trial was that he was the victim of mistaken identity.  Assuming that the airline was negligent in failing to ascertain the true identity of the person who offended the stewardess, this conduct does not rise to the level necessary to support an award of punitive damages.  After a careful review of the record, we are unable to locate any other evidence upon which the jury properly might have awarded punitive damages.

10
REVERSED in part and AFFIRMED in part.

1
 Section 404(b) of the Act, 49 U.S.C. § 1374(b) provides:
No air carrier or foreign air carrier shall make, give, or cause any undue or unreasonable preference or advantage to any particular person, port, locality, or description of traffic in air transportation in any respect whatsoever or subject any particular person, port, locality, or description of traffic in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.
It is well settled that a private right of action exists under this section for a passenger who is "bumped" as a result of overbooking.  Archibald v. Pan American World Airways, Inc., 460 F.2d 14 (9th Cir. 1972).  Accord, Karp v. North Central Airlines, Inc., 583 F.2d 364 (7th Cir. 1978); Smith v. Piedmont Aviation, Inc., 567 F.2d 290 (5th Cir. 1978); Nader v. Allegheny Airlines, 512 F.2d 527 (D.C.Cir.1975), rev'd on other grounds, 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976).  Similarly a private right of action exists for racial discrimination.  E.g., Fitzgerald v. Pan American World Airways, Inc., 229 F.2d 499 (2d Cir. 1956).  We see no material distinction between these situations and the present one, for purposes of an implied right of action.

2
 The district court instructed the jury in the following language:
An airline is justified in refusing to transport a passenger if that transportation in the opinion of the airline and, that again, means the pilot, would be inimical to the safety of the flight.  In other words, in judging the legality of a denial of passage, we look to the opinion of the airline pilot, and that opinion controls, if it's a reasonable opinion based on the facts and circumstances as they appear to the pilot at the time that the decision was made.  It is not what is reasonable in the after-light, but what appears to be reasonable at the time.  On the other hand, if the passenger is excluded because the opinion of the pilot is arbitrary or capricious and not justified by any reason or rational appraisal of the facts, then the denial of passage is discriminatory.

3
 We further note that a requirement of reasonableness under § 1511(a) is consistent with the common law rule that "where a carrier has reasonable cause to believe and does believe, that the safety or convenience of its passengers will be endangered by a person who presents himself for transportation, it may refuse to accept such person for transportation and is not bound to wait until events have justified its belief."  14 Am.Jur.2d, Carriers, § 865 at 309, cited in Williams, supra, 509 F.2d at 948 n.10

4
 See note 2 supra


584 F.2d 980
McKinseyv.Times Mirror Co.
No. 75-3754
United States Court of Appeals, Ninth Circuit
9/21/78

1
C.D.Cal.

AFFIRMED