418 F.Supp. 1149 (1976)
ALTON BOX BOARD COMPANY, a corporation, Plaintiff,
v.
GOLDMAN, SACHS & COMPANY, Defendant.
No. 71-185C(3).
United States District Court, E. D. Missouri, E. D.
June 10, 1976.
*1150 John J. Cole, and Joseph S. von Kaenel, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, Mo., for plaintiff.
Jim J. Shoemake, Guilfoil, Symington & Petzall, St. Louis, Mo., and Sullivan & Cromwell, by Michael M. Maney, Philip L. Graham, Jr., and Charles E. Dorkey III, New York City, for defendant.

MEMORANDUM
WANGELIN, District Judge.
This matter is before the Court for a decision on the merits following a trial to the Court sitting without a jury.
The instant action arises from the default of the Penn Central Transportation Company of an unsecured note commonly known as commercial paper.
The Court being fully apprised of the premises hereby makes the following findings of fact and conclusions of law.

Findings of Fact
1. Plaintiff, Alton Box Board Company, (hereinafter Alton Box Board) is a corporation organized and existing under the laws of the State of Delaware, with its principal place of business in the City of Alton, Illinois.
2. Defendant, Goldman, Sachs and Company, (hereinafter Goldman, Sachs) is a partnership engaged in the business of investment banking, including the purchase and sale of commercial paper, securities brokerage, underwriting of securities, and other related financial activities.
3. Goldman, Sachs is a registered broker/dealer with its principal place of business in New York City, New York, with branch offices in other major cities throughout the United States including a branch office in St. Louis, Missouri.
4. At all material times, the First National Bank in St. Louis (hereinafter First National) was a national banking association organized under the laws of the United States of America, and doing general banking business in the State of Missouri.
5. At all material times, First National was the agent of plaintiff Alton Box Board in connection with the purchase of commercial paper.
6. At all material times, J. Edwin Sunderland was Vice President for Finance and Administration, and Treasurer of plaintiff Alton Box Board, and had responsibility for Alton Box Board's investments in short-term money market instruments including commercial paper.
7. At all material times, Frank Spinner was a Vice President of First National and was responsible for the operation of the First National Bond Department.
*1151 8. One part of the Bond Department of First National was the money desk operation, which involved the purchase of commercial paper both for the account of First National and for customers such as plaintiff Alton Box Board.
9. Glennon Schultheis was a Vice President of First National in the Bond Department and had responsibility for buying and selling commercial paper for customers such as Alton Box Board.
10. At all material times, Clarence C. Barksdale was a Vice President of First National who had responsibility for First National's relationship with Penn Central Transportation Company with regard to business loans until he was replaced with respect to that function by Charles S. Betz.
11. During late 1969, Charles S. Betz, an Assistant Vice President in the Loan Department of First National, succeeded Mr. Barksdale with respect to responsibility for First National's relationship with Penn Central Transportation Company.
12. The commercial paper market is a sub-sector within the national money market engaged in by banks and corporations to handle their large and recurrent short-term borrowing and investing requirements.
13. The essential function of the commercial paper market is to use temporary surplus of some firms and banks to meet the temporary deficits of other firms and banks to generally smooth the capital flow throughout the money market.
14. Commercial paper is an unsecured obligation which is issued solely upon the general credit of the borrowing corporation.
15. Due to its unsecured nature for the most part only large corporations whose names are sufficiently well-known are able to use the issuance of commercial paper for financing purposes.
16. The issuer of commercial paper typically issues the obligations in varying maturities to fit the cash needs of the issuer, and to provide a readily marketable issue to fit the investment needs of the buyers.
17. Commercial paper is usually sold on a discounted basis. Essentially this means that the price paid by a purchaser is lower than the face amount of the note by the amount of interest at the stated rate.
18. The various discount rates in effect for commercial paper are generally determined by the relative state of the money market as a whole. As a general rule, commercial paper rates will tend to follow the general money market rate with regard to other obligations of corporations and governments. The discount rate may also be affected by the current money market policy of the Federal Reserve Bank.
19. Commercial paper market is a professional market in which virtually the only participants are knowledgeable financial officers of substantial corporations, insurance companies, banks and mutual funds, and others acting with similar professional advice. Commercial paper is rarely sold in units of less than one hundred thousand dollars ($100,000) and the average purchase of commercial paper is approximately one million dollars ($1,000,000).
20. Most commercial paper is sold between the hours of 9:00 a. m. and 12:30 p. m. Eastern Standard Time for delivery and payment that same afternoon. Since delivery and payment of the note must be arranged through an investor's bank, the entire transaction must be completed by 3:00 p. m. Eastern Standard Time when most banks' security delivery windows close.
21. A typical conversation between an investor or buyer of commercial paper and a commercial paper salesman during which commercial paper is sold consumes two to three minutes. The salesman will offer a potential buyer the paper of a number of different issuers which fits the maturity, face amount, and, perhaps the rate requirement of the investor.
22. The speed of the transaction becomes obvious when the amount of money involved is considered. The interest on a note may amount to several hundred dollars for a period of only one day. Considering the fact that one day's commercial paper transactions for the entire market will *1152 range into billions of dollars, the necessity for speed becomes obvious on the part of the investor as well as the salesman.
23. In approximately July of 1969, plaintiff Alton Box Board began making short-term investments in the commercial paper market.
24. These commercial paper investments were usually made to maximize income for monies set aside for debt service purposes or accumulation of funds for specific large capital purposes.
25. On March 31, 1970, plaintiff Alton Box Board purchased commercial paper of Penn Central Transportation Company having a face amount of Six Hundred and Twenty-Five Thousand Dollars ($625,000) with a maturity date of September 30, 1970, for a purchase price of Five Hundred and Ninety-Nine Thousand One Hundred and Eighty-Six Dollars and Twenty Cents ($599,186.20) at an annual interest rate of eight and one-eighth (8 1/8 %) percent with an effective yield of eight and four-eighths (8 4/8%) percent.
26. The individual at Alton Box Board responsible for the purchase was J. Edwin Sunderland, Vice President and Treasurer.
27. The only criteria or requirement employed by Mr. Sunderland was that the commercial paper purchased be rated "Prime" by the National Credit Office (hereinafter NCO) a division of Dun & Bradstreet, Inc.
28. The requirement of a Prime rating by NCO of any commercial paper purchased by plaintiff Alton Box Board was due to a lending agreement between plaintiff Alton Box Board and a primary lender, Aetna Insurance Company.
29. The purchase by Alton Box Board on March 31, 1970, was the tenth commercial paper transaction entered into by plaintiff Alton Box Board.
30. As was the case with other previous purchases of commercial paper by plaintiff Alton Box Board, the March 31st transaction was arranged between Mr. Sunderland and Frank Spinner of the Bond Department of First National. In the case of the Penn Central purchase, Mr. Spinner, himself, also called defendant Goldman, Sachs to order the note in question. This was a slight variation from the usual practice of the past whereby Mr. Schultheis of First National maintained communications with defendant Goldman, Sachs during the selling day.
31. On March 31, 1970, Goldman, Sachs offered to Mr. Spinner of First National a group of commercial paper obligations with the face amount and maturity dates requested by Mr. Sunderland of plaintiff Alton Box Board. All of the commercial paper was rated NCO Prime. Mr. Sunderland of plaintiff Alton Box Board instructed Mr. Spinner of First National to purchase the commercial paper with the highest yield, which was that of the Penn Central Transportation Company.
32. The ultimate responsibility for choosing the commercial paper purchased by plaintiff Alton Box Board rested with Mr. Sunderland. However, neither he nor anyone else at plaintiff Alton Box Board made any credit investigation or analysis with respect to Penn Central Transportation Company or any other issuer of commercial paper. Mr. Sunderland relied upon the Prime rating given Penn Central by NCO, and upon the judgment of plaintiff's agent, First National.
33. The criteria for which First National Bank purchased commercial paper for its own portfolio and account was also an NCO Prime rating. In fact, if commercial paper was rated NCO Prime, no financial statement of the issuer was examined by First National for purchases for its own account and portfolio. Neither defendant Goldman, Sachs nor plaintiff Alton Box Board was aware until after the transaction had been completed that Goldman, Sachs had sold the commercial paper of September 30, 1970, to Alton Box Board.
34. The Bond Department of First National, which was responsible for the mechanics of commercial paper transactions, made no investigation of Penn Central Transportation Company or any other commercial *1153 paper. However, the Credit Department of First National, acting in conjunction with the senior lending officer of the Bank having responsibility for Penn Central was engaged in an ongoing financial analysis of the Penn Central Transportation Company.
35. First National had a significant banking relationship with Penn Central for a period of years. This relationship included the two million dollar ($2,000,000) participation of First National in Penn Central's three hundred million dollar ($300,000,000) revolving credit agreement, along with a one point five million dollar ($1.5 million) unsecured line of credit which was used as a "back-up" for commercial paper. From time to time the First National Bank had also made secured loans to various Penn Central subsidiaries including Manner Real Estate Company and Six Flags Over Mid-America Amusement Park.
36. In connection with the various banking activities described in the preceding finding of fact, First National gathered and analyzed credit information on Penn Central so that it could reach, in its opinion, an adequate credit judgment.
37. This credit analysis included periodic contact with Penn Central management executives, communication with the First National City Bank of New York which was the lead bank for the three hundred million dollar ($300,000,000) revolving credit agreement, maintenance of a credit file consisting of various documents used by lending officers such as financial data sheets, memoranda of meetings between bank and Penn Central personnel, and all annual and quarterly reports of Penn Central, newspaper articles and Dun & Bradstreet and Moody's Investor Service reports.
38. Because of their review of financial articles regarding Penn Central Transportation Company, First National Bank was aware of all significant publicly announced developments regarding the Penn Central Transportation Company.
39. First National Bank was able to obtain financial advice regarding railroad operations due to the fact that it had at least two railroad board chairmen on its own board of directors, and maintained a close relationship with the lead bank for Penn Central's three hundred million dollar ($300,000,000) revolving credit agreement, the First National City Bank of New York.
40. More than one month after the sale of Penn Central commercial paper to plaintiff Alton Box Board, Penn Central requested that First National activate its one point five million dollar ($1.5 million) backup line of credit. As a result of this request, First National lent Penn Central one point five million dollars ($1.5 million), a demonstration that as of that date First National believed that Penn Central Transportation Company was credit worthy.
41. The evidence adduced at trial clearly indicates that First National, acting as agent of plaintiff Alton Box Board, was in possession of substantially the same or the same information that defendant Goldman, Sachs was in possession of regarding the financial condition of the Penn Central Transportation Company.
42. There is no indication within the trial record that indicates that either plaintiff Alton Box Board, or its agent, First National, was induced by any misrepresentation or omission of a material fact made by defendant Goldman, Sachs which caused them to participate in the March 31, 1970 purchase of Penn Central commercial paper.
43. The following colloquy is illustrative of the reliance upon which Alton Box Board's agent placed upon the defendant Goldman, Sachs with regard to the Penn Central Transportation Company:
MR. COLE: Did the fact that they were also acting as dealer [Goldman, Sachs] for Penn Central's commercial paper have been one of the factors that may have lulled you into assuming that the Penn Central was a viable and solvent organization?
MR. BARKSDALE: I don't think anything that Goldman, Sachs did, if that's your question, influenced our decision on Penn Central.

*1154 MR. COLE: I think you indicated that you relied, to a substantial extent, on the lead bank in connection with these two loans that you mentioned, the revolving credit and the fifty million dollar standby.
MR. BARKSDALE: Yes, but that's to be distinguished from Goldman, Sachs.
MR. COLE: Yes, I understand that. Then, I was just asking you the next question  were you also relying upon the fact and lulled in a certain extent by the fact that Goldman, Sachs, the largest dealer in commercial paper, was also handling this account?
MR. BARKSDALE: Right, and I said, No.
(Transcript pp. 501-502.)
44. The plaintiff, Alton Box Board, has failed to produce any credible evidence to show that defendant, Goldman, Sachs was responsible for the continued rating of Penn Central commercial paper as NCO "Prime". There is simply insufficient evidence to prove that NCO relied in toto upon the statements of defendant Goldman, Sachs regarding the credit of Penn Central Transportation Company.
45. After careful review of all the evidence, it is the opinion of the Court that defendant, Goldman, Sachs, was warranted in continuing to assert that Penn Central Transportation Company was credit worthy, and in continuing to sell Penn Central commercial paper.
46. It is clear to the Court sitting as the trier of fact, and charged with the responsibility of assessing the credibility of evidence, that the plaintiff Alton Box Board has developed twenty-twenty hindsight with regard to its purchase of Penn Central commercial paper. All of the information which plaintiff complains was not available to it at the time of the transaction in question was clearly available to plaintiff or its agent, First National Bank. It is simple, human nature to characterize non-material facts as material when a person is faced with an approximate $500,000 loss. This is, in the opinion of the Court, what happened to the plaintiff upon Penn Central's default.
47. Since all relevant information upon which a credit analysis of Penn Central Transportation Company could have been made was available to plaintiff or its agent First National, it is the opinion of the Court that plaintiff cannot be heard to complain that it was damaged by something within its knowledge.
48. Any facts which plaintiff or its agent were not aware of and can be characterized as omissions in information, are in the opinion of the Court not material to the transaction in question, and even if they had been known, the Court is sure that the plaintiff would not have been deterred from continuing with the transaction.
49. The trial of this case and the documentary evidence adduced thereto lead the Court to the inescapable conclusion that plaintiff had a substantial sum of money available to it for short-term investment, and that the plaintiff invested that money in an unsecured obligation having the highest yield available and that there is nothing which defendant could have done which would have deterred the plaintiff from consummating the transaction in question.
50. This conclusion is especially supported due to the quick and volatile nature of the commercial paper market, and in light of the speed with which the transaction upon which this lawsuit is based took place.

Conclusions of Law
The Court has jurisdiction over the parties and the subject matter thereto pursuant to 15 U.S.C. §§ 77v(a) and 78aa, and pendent jurisdiction of plaintiff's state law claim pursuant to § 409.411(a)(2), R.S.Mo., 1969.
The plaintiff has alleged violations of § 12(2) of the Securities Act of 1933, 15 U.S.C. § 77l(2) (hereinafter § 12(2)), and § 10 of the 1934 Securities Act, 15 U.S.C. § 78j (hereinafter § 10(b)), and 17 C.F.R. § 240.10b-5 (hereinafter Rule 10b-5), and § 409.411(a)(2) of the Missouri Uniform Securities Act, R.S.Mo., 1969.

*1155 Section 12(2) Claims

Section 12(2) of the Securities Act states in pertinent part:
Any person who
.   .   .   .   .
(2) offers or sells and security (whether or not exempted by the provisions of § 3 of this Title other than paragraph (2) of subsection (a) of said section), by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care, could not have known, of such untruth or omission,
shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.
It is the contention of the plaintiff Alton Box Board that defendant Goldman, Sachs made both misleading statements as well as omitting to make statements concerning the credit worthiness of the Penn Central Transportation Company at the time plaintiff purchased the commercial paper upon which this lawsuit is based.
The omissions of material facts that defendant Goldman, Sachs is alleged to have made concern the projected losses of Penn Central during 1970. It is clear that plaintiff Alton Box Board's agent, First National, was aware of the purported material facts which were alleged to have been omitted by the defendant. The evidence clearly shows that First National was an active participant in the financing of various Penn Central activities, and maintained an active and continuously updated credit file with regard to the Penn Central Transportation Company. The Court is firmly of the opinion that First National Bank was well aware of the projected losses of the Penn Central during 1970, and particularly notes that even after the transaction upon which this lawsuit is based, First National loaned a substantial amount of money to Penn Central Transportation Company. It would be fatuous to say that a large bank such as First National would lend money to a firm that it knew was not credit worthy. The Court also notes that First National's agent, Mr. Barksdale, asserted twice that no actions of the defendant, Goldman, Sachs, induced in any way the actions of First National Bank with regard to financial dealings with the Penn Central Transportation Company.
Section 12(2) has a key phrase which states: "The purchaser not knowing of such untruth or omission." It is clear that knowledge of an untruth or omission will bar any plaintiff's recovery under § 12(2). Chelsea Associates v. Rapanos, 527 F.2d 1266, 1269 (6th Cir., 1975). It is an axiom of the law of Agency that the knowledge of the agent shall be imputed to the principal. Restatement 2d, of Agency, § 276 (1957).
The Court also notes that the information which plaintiff complains was omitted in communications to it was readily available in the normal financial news such as the Wall Street Journal and other financial reporting services. Cann v. Kane-Miller Corp. [current] CCH Fed.Sec.L.Rep. ¶ 95,446 at pp. 99,242-243 (S.D.N.Y., 1976). Since plaintiff Alton Box Board's agent, First National, was clearly aware of the relevant financial condition of the Penn Central Transportation Company at the time which the transaction in question occurred, and plaintiff Alton Box Board should have been aware from public record of the financial condition of Penn Central, the statutory language of § 12(2) regarding knowledge of the purchaser clearly bars *1156 any recovery of the plaintiff with regard to a material omission of fact.
In addition to its contention that defendant Goldman, Sachs failed to make certain statements with regard to the condition of the Penn Central Transportation Company, the plaintiff alleges that defendant Goldman, Sachs made a material misstatement for purposes of liability under § 12(2) by being the cause of the continued "Prime" rating of the Penn Central commercial paper by NCO. Unfortunately, the person who could best testify as to the continued rating of Penn Central commercial paper as "Prime" by NCO, Alan Rogers, NCO's Credit Analyst for Penn Central, died before his deposition could be taken concerning this litigation. Plaintiff Alton Box Board has introduced into evidence certain documents which contain hearsay statements that Mr. Rogers, and NCO would continue to rate Penn Central commercial paper as "Prime" due to the defendant's continuing to sell Penn Central commercial paper. Such statements are clearly admissible as plaintiff contends, as proof of the continued rating of Penn Central commercial paper as "Prime" by NCO. Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706 (1892). Such hearsay statements, while admissible, are in the opinion of the Court not entirely probative of the future conduct in such a complex financial situation as the one presently at bar. It must be noted that the Hillmon doctrine has been characterized as the high water mark of past statements being used to cast light upon future actions. Shepard v. United States, 290 U.S. 96, 105, 54 S.Ct. 22, 78 L.Ed. 196 (1933). The primary use of Hillmon doctrine statements has been to verify deaths of missing persons, changes in beneficiaries of insurance policies, and amendments of wills and other testamentary documents. 6 Wigmore, Evidence, § 1725 (3rd Ed., 1940). It is the opinion of the Court that since the continuing credit investigation of a large corporation involves a series of complex actions involving a number of people, the evidence of one hearsay statement made by one person is not entirely probative of whether or not the intended action took place. When the hearsay statement attributed to Mr. Rogers is considered along with other evidence regarding the ongoing granting of credit to the Penn Central Transportation Company by various other large financial institutions, such as plaintiff's agent, First National, the hearsay statement pales in significance and importance in relationship to the other direct evidence. After careful weighing of the evidence it is the opinion of the Court sitting as the trier of fact that the plaintiff has failed to prove that defendant Goldman, Sachs was responsible for the continued "Prime" rating of the Penn Central Transportation Company by NCO. To infer from a single hearsay statement that the NCO would retain its "Prime" rating of Penn Central Transportation Company would be to ignore all the other evidence adduced at trial regarding the general financial community's assessment of Penn Central, and would also require the Court to believe that defendant Goldman, Sachs was possessed of a mystical power to hypnotize a corporate branch of Dun & Bradstreet. In short, the contentions of the plaintiff Alton Box Board that defendant Goldman, Sachs made a material misstatement to plaintiff Alton Box Board by causing the continued rating of "Prime" of Penn Central commercial paper by NCO is simply not supported by the evidence, nor by any theory of logical reasoning.
After carefully reviewing the evidence, and the post-trial memoranda of the parties, it is the opinion of the Court that the plaintiff has failed to make a submissible case for the purposes of § 12(2) of the 1933 Securities Act. The evidence is clear that plaintiff Alton Box Board's agent, First National, was aware of the financial condition of Penn Central Transportation Company, and that the plaintiff Alton Box Board should have been aware of the Penn Central's condition. Such knowledge in light of the language of the statute regarding a purchaser's knowledge clearly bars the plaintiff from any recovery with regard to a material omission. As stated above, the Court is also of the opinion that the *1157 plaintiff Alton Box Board has failed to prove that defendant Goldman, Sachs was in any way responsible for the continued NCO rating of "Prime" of Penn Central commercial paper. The failure to prove such a relationship clearly bars any possibility of defendant Goldman, Sachs making a material misstatement of fact under § 12(2) of the 1933 Securities Act. There being no untruth, and no omission beyond the knowledge of the plaintiff or its agent, the defendant shall have judgment with regard to plaintiff's claim regarding § 12(2).
Plaintiff Alton Box Board Company has also alleged that the defendant has violated § 409.411(a)(2), R.S.Mo., 1969. Section 409.411(a)(2) is the Missouri counterpart to § 12(2) of the 1933 Securities Act. Vanderboom v. Sexton, 422 F.2d 1233 (8th Cir., 1970). Since, as stated above, the plaintiff is not entitled to recover under § 12(2), it follows that any recovery under the Missouri statute cited above is also barred.

Section 10(b) and Rule 10b-5 Claims
Plaintiff has also alleged that defendant, by means of statements or omissions of statements, induced the plaintiff Alton Box Board into reliance to plaintiff's detriment and therefore violated § 10(b) of the 1934 Securities Act and Rule 10b-5 promulgated thereto. The defendant has asserted that the commercial paper sold by them to plaintiff is not a security within the meaning of the 1934 Securities Act. It is the opinion of the Court that the commercial paper sold is clearly such a security. Franklin Sav. Bank v. Levy, 406 F.Supp. 40 (S.D.N.Y., 1975).
Section 10(b) of the Securities Act of 1934 states in pertinent part:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or the mails, or of any facility of any national securities exchange
.   .   .   .   .
(b) To use or employ in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
Rule 10(b)-5 states in pertinent part:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange
.   .   .   .   .
(a) to employ any device, scheme, or artifice to defraud,
(b) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,
in connection with the purchase or sale of any security.
The recent decision of the Supreme Court in Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976) makes it clear that for an aggrieved party to recover under § 10(b) or Rule 10b-5 that "scienter" must be proved on the part of the defendant.
As stated in the findings of fact above, the Court after hearing the evidence finds that there was no action undertaken by the defendant Goldman, Sachs to deceive, manipulate or defraud the plaintiff.
The record indicates that the plaintiff, through its agent First National, made approximately a three minute telephone transaction with the defendant regarding the availability of approximately five hundred thousand dollars ($500,000) in commercial paper with a particular due date that was rated NCO "Prime". The defendant *1158 offered plaintiff several pieces of such paper and plaintiff purchased the paper with the highest yield, namely Penn Central.
The omissions which plaintiff Alton Box Board has alleged that defendant Goldman, Sachs failed to make are with regard to the credit worthiness of Penn Central Transportation Company. As stated above in the discussion of plaintiff's § 12(2) claims, such information was clearly available to plaintiff's agent, First National, and was so widely available to the general public and the financial community, that the plaintiff should be charged with the knowledge of the credit worthiness. Chelsea Associates v. Rapanos, supra, and Caan v. Kane Miller Corp., supra.
The alleged misrepresentation of fact which plaintiff asserts that defendant made deals with plaintiff's contention that defendant Goldman, Sachs was responsible for the continued rating of "Prime" of Penn Central commercial paper by NCO. As stated above, the Court is of the opinion that the plaintiff has failed to prove that defendant Goldman, Sachs was responsible for the continued "Prime" rating of Penn Central commercial paper by NCO.
It is clear from the record produced at trial that what actually transpired between the parties in the commercial paper transaction in question, and what plaintiff Alton Box Board says occurred, are two entirely different matters. The record is clear that the Chief Financial Officer of a corporation which in terms of sales ranks as number 637 among all United States corporations[*] was faced with an investment decision regarding approximately five hundred thousand dollars ($500,000) of plaintiff's money upon which he desired to maximize the plaintiff's profit. The financial officer contacted his bank, First National, a lender to Penn Central Transportation Company, and in approximately three minutes received a series of quotes for various pieces of commercial paper which fit his maturity requirements and were rate NCO "Prime". It is obvious that the chief criteria by which the financial officer chose the investment was the rate of return. Unfortunately, for the plaintiff Alton Box Board, the instrument of commercial paper with the highest return on that particular date was that of Penn Central Transportation Company. What has happened in this lawsuit is that the plaintiff has suddenly developed a case of twenty-twenty hindsight. It is very easy once an action has occurred and gone wrong for the actor to say "if I had only known a little more, I might not have done it". The trial record is clear that the plaintiff or his agent did indeed know all that was possible regarding the Penn Central Transportation Company and its credit rating and in no way did the defendant make any material omission or misstatement of fact regarding the creditworthiness of the Penn Central Transportation Company. The plaintiff and its agent are clearly highly sophisticated investors with large amounts of financial resources available to them and accordingly are charged for the purposes of security litigation with the amount of sophistication appropriate to their role. Chelsea Associates v. Rapanos, supra, and Caan v. Kane-Miller Corp., supra, and Eichen v. E. F. Hutton & Co., Inc., 402 F.Supp. 823, 830 (S.D.Calif., 1975). The plaintiff was not a widow defrauded in a blue-sky scheme, but rather was a sophisticated investor who is now seeking to have the defendant pay for the plaintiff's own mistakes. Accordingly, judgment will be entered for the defendant on all issues.
NOTES
[*]   Fortune, July, 1976.


                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 02 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS

                           FOR THE NINTH CIRCUIT

ADOBE SYSTEMS INC.,                              No. 12-16616

              Plaintiff - Appellee,              D.C. No. 4:10-cv-02769-CW

        v.
                                                 MEMORANDUM*
ANTHONY KORNRUMPF, AKA Tony
Kornrumpf; HOOPS ENTERPRISE, LLC,

              Defendants - Appellants.

                   Appeal from the United States District Court
                      for the Northern District of California
                  Claudia Wilken, Chief District Judge, Presiding

                      Argued and Submitted March 12, 2014
                              Berkeley, California

Before: THOMAS, FISHER and BERZON, Circuit Judges.

      Defendants Anthony Kornrumpf and Hoop Enterprises, LLC appeal

judgment in favor of plaintiff Adobe Systems Inc. We have jurisdiction under 28

U.S.C. § 1291, we review de novo the district court’s grant of summary judgment

to Adobe on the defendants’ first sale doctrine defense, and we affirm.

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court did not err in its application of Vernor v. Autodesk, Inc.,

621 F.3d 1102, 1111 (9th Cir. 2010), to Dell’s and HP’s acquisition of copies of

Adobe software products. The original equipment manufacturer contracts

specified that Dell and HP were granted licenses, significantly restricted Dell’s and

HP’s ability to transfer the software and imposed notable use restrictions. A

transfer of software products under these circumstances constitutes a license rather

than a sale. See Apple Inc. v. Psystar Corp., 658 F.3d 1150, 1159 (9th Cir. 2011);

MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 938-39 (9th Cir. 2010), as

amended; Vernor, 621 F.3d at 1111-12.

      The defendants seek to distinguish these cases on grounds not presented to

the district court. Because the defendants raise these arguments for the first time

on appeal, we decline to reach them. See AlohaCare v. Hawaii, Dep’t of Human

Servs., 572 F.3d 740, 744 (9th Cir. 2009).

      AFFIRMED.

                                           2


                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                      No. 16-4504

UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

SULTANA SIDDIQUI, a/k/a Sultana Ahmad,

                    Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Theodore D. Chuang, District Judge. (8:15-cr-00243-TDC-1)

Submitted: April 28, 2017                                         Decided: May 9, 2017

Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Kira Anne West, LAW OFFICE OF KIRA ANNE WEST, Washington, D.C., for
Appellant. Ray Daniel McKenzie, Assistant United States Attorney, Greenbelt, Maryland,
for Appellee.

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

       Sultana Siddiqui appeals her conviction and 24-month sentence after pleading guilty

to conspiracy to commit mail fraud and wire fraud, in violation of 18 U.S.C. § 1349 (2012).

Siddiqui’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating that there are no meritorious issues for appeal but questioning whether Siddiqui

should have received a two-level Sentencing Guidelines offense level reduction for being

a minor participant in the criminal activity. Siddiqui has filed a pro se brief raising the

same issue and further arguing that the district court failed to consider mitigating

circumstances at sentencing, that her loss and restitution amounts are too high, and that her

trial counsel rendered ineffective assistance. Finding no reversible error, we affirm.

       We review Siddiqui’s sentence for both procedural and substantive reasonableness

“under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41

(2007). We must ensure that the district court committed no significant procedural error,

such as improperly calculating the Guidelines range. Id. at 51. If there is no significant

procedural error, we then consider the sentence’s substantive reasonableness under “the

totality of the circumstances, including the extent of any variance from the Guidelines

range.” Id. We presume that a sentence within a properly calculated Guidelines range is

reasonable. United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014). A defendant can

rebut this presumption only “by showing that the sentence is unreasonable when measured

against the 18 U.S.C. § 3553(a) factors.” Id.

       Having carefully reviewed the record, we conclude that Siddiqui’s admitted conduct

was essential to the execution of the fraud conspiracy. Therefore, the district court did not

                                             2
err, let alone plainly so, by denying Siddiqui the two-level reduction she sought. See United

States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001). We further hold that Siddiqui has not

made the showing necessary to rebut the presumption of reasonableness accorded her

within-Guidelines sentence, and we discern no error in the district court’s calculation of

Siddiqui’s loss or restitution amount. Finally, on the record before us, we conclude that

Siddiqui should pursue her ineffective assistance claim, if at all, in a 28 U.S.C. § 2255

(2012) motion. See United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

       In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious issues for appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Siddiqui, in writing, of the right to petition the

Supreme Court of the United States for further review. If Siddiqui requests that a petition

be filed, but counsel believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Counsel’s motion must state

that a copy thereof was served on Siddiqui.

       We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

                                                                                AFFIRMED

                                              3


                                                                       April 3, 2014

                                 JUDGMENT

                 The Fourteenth Court of Appeals
           IN THE INTEREST OF E.M.B AND H.A.B., CHILDREN

NO. 14-14-00011-CV

                     ________________________________

     Today the Court heard its own motion to dismiss the appeal from the
judgment signed by the court below on December 20, 2013. Having considered the
motion and found it meritorious, we order the appeal DISMISSED.

      We further order that all costs incurred by reason of this appeal be paid by
appellant, In the Interest of E.M.B and H.A.B., Children.

      We further order this decision certified below for observance.


446 So.2d 1031 (1984)
Jerry WHITE, Appellant,
v.
STATE of Florida, Appellee.
No. 62144.
Supreme Court of Florida.
January 19, 1984.
Rehearing Denied April 11, 1984.
*1033 Charles A. Tabscott, Orlando, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Daytona Beach, for appellee.
PER CURIAM.
This cause is before us on direct appeal from convictions of first-degree murder and armed robbery, and from a sentence of death imposed in accordance with the jury's recommendation. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
Around 11:00 on the morning of March 8, 1981, appellant was seen in a small grocery *1034 store in Taft, Florida, by a customer, Judith Rayburn. Mrs. Rayburn bought a few items from the proprietor of the store, Alexander H. Alexander, and observed that there was money in the cash register and another customer in the store, James Melson. Shortly after Mrs. Rayburn left the store she heard three shots which were also heard by Frankie Allen Walker and Johnny Glenn Walker, brothers who were in a garage behind the store.
Mr. Henry Tehani and his daughter came into the store shortly after 11:15 a.m. They saw no one besides appellant, who ordered them at gunpoint to get into a freezer. When they refused to comply, appellant pulled the trigger twice. The gun misfired, and the Tehanis fled. Mr. Tehani saw appellant run out the back, and reported the incident to a deputy sheriff. The Walker brothers also saw appellant running away from the store. Frankie Walker looked in the back door of the store and saw Alexander lying on the floor. Frankie told his brother to get an ambulance, and he pursued appellant, who escaped in a car. The deputy sheriff who subsequently arrived at the scene found only some change and food stamps in the cash register, but no currency. Melson was dead with a bullet wound in the back of his head. Alexander had bullet wounds in the back of his head and in his arm and was paralyzed from the neck down.
Appellant testified that he went into the grocery store to buy a beer and change several hundred-dollar bills. He became angry when Alexander shortchanged him, and he displayed a gun which, according to appellant, Melson grabbed. They scuffled with the gun and it fired, wounding appellant in the lower body. Appellant asserts that Alexander then took the gun and, in attempting to shoot appellant, accidentally shot Melson. Appellant claims that Alexander then said he was going to kill him and that he took the gun in self defense. According to appellant the gun went off twice, causing Alexander's wounds. Appellant claims that he then collected his change for the hundred-dollar bills and was about to leave through the front door when the Tehanis entered. When they left, appellant departed through the back door, escaped by car, and disposed of the gun. Shortly thereafter the car malfunctioned and was abandoned. Appellant removed some clothing from a traveling case and walked down a dirt side road. After changing and throwing the bloody clothing into the bushes, appellant, weakened from loss of blood, lay down. He was found by the sheriff's department with a large amount of cash nearby on the ground.
An indictment was filed on April 7, 1981, charging appellant with the first-degree murder of James Melson and armed robbery. He was found guilty as charged and the jury recommended death. After finding four aggravating and no mitigating factors, the judge sentenced appellant to death for murder and life imprisonment for robbery.

TRIAL PHASE
Appellant first contends that there is no authority under which a county court judge can be assigned to preside over a circuit court criminal trial. This issue was waived by failure to object below. Moreover, appellant's position is erroneous on the merits. A county judge who is qualified to serve as a circuit judge may be assigned as a temporary circuit judge to perform any judicial service a circuit judge can perform. See, e.g., State ex rel. Treadwell v. Hall, 274 So.2d 537 (Fla. 1973); State v. Herrera, 407 So.2d 637 (Fla. 3d DCA 1981); Rodgers v. State, 325 So.2d 48 (Fla. 2d DCA 1975), cert. dismissed, 342 So.2d 1103 (Fla. 1977).
Appellant argues for the first time that the trial court erred in allowing the jury to hear details of Alexander's injuries. The state concedes that this information was irrelevant. However, we do not find this error to be of the magnitude that would have prevented the jury from reaching a fair and impartial verdict so as to render the error fundamental. In the absence of fundamental error, we will not consider an issue raised for the first time *1035 on appeal. Steinhorst v. State, 412 So.2d 332 (Fla. 1982).
Appellant contends that there was insufficient evidence to support the convictions of first-degree murder and armed robbery, and that his story offered a reasonable hypothesis of innocence. We find that the evidence in the record supports the jury's finding. A judgment rendered in accordance with a jury verdict supported by substantial, competent evidence will not be reversed by this Court. Rose v. State, 425 So.2d 521 (Fla. 1982), cert. denied, ___ U.S. ___, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983).
Appellant next argues that the court erred in failing to grant his motion to suppress a statement made while he was hospitalized for bullet wounds. The first night he was hospitalized, in response to a detective's question, "Do you know why we're here?" appellant made a statement inconsistent with his later testimony at trial. The state introduced evidence of the previous statement on cross-examination to impeach appellant's trial testimony. We find no error. A prior inconsistent statement may be admitted to impeach a defendant who testifies at his trial. Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 645, 28 L.Ed.2d 1 (1971). Before admitting the statement, the court must determine that it was made voluntarily. Nowlin v. State, 346 So.2d 1020 (Fla. 1977). Upon appellant's objection, the court excused the jury and held a hearing on the motion. The issue before the court was whether the statement was voluntary. Although the court in ruling on the motion did not again use the specific word "voluntary," the evidence supports a finding that the defendant was alert at the time and that the statement was voluntarily given. See Antone v. State, 382 So.2d 1205, 1212-13 (Fla.), cert. denied, 449 U.S. 913, 101 S.Ct. 287, 66 L.Ed.2d 141 (1980).
Appellant argues that the court erred in failing to instruct the jury on the lesser-included offenses of attempted first-degree murder and third-degree murder, robbery with a weapon, and strong-arm robbery. Appellant did not request such instructions or object to their omission. We find there was no fundamental error.
Appellant also argues that the court erred in refusing to instruct the jury on circumstantial evidence. This omission was not error, since the jury was given an instruction on reasonable doubt. In re Florida Standard Jury Instructions in Criminal Cases, 431 So.2d 594 (Fla. 1981).
Appellant contends it was error to exclude potential jurors because they expressed objections to the death penalty. He did not preserve this point by objecting below. Moreover, the argument is meritless. The excused jurors stated that they could not vote for the death penalty. Two of them indicated their opposition to the death sentence might influence their choice of verdict. Prospective jurors may be excused for cause if their opposition to the death penalty might interfere with their ability to decide guilt or innocence or would render them unable to consider the death penalty if a finding of guilt were reached. Steinhorst v. State, 412 So.2d at 335. Appellant also protests that to which he specifically agreed at trial: allowing the prosecutor to withdraw a challenge to a prospective juror, put her on the panel, and remove another juror from the panel to serve as an alternate. This irregular procedure does not constitute fundamental error, especially when, as in this instance, it is agreed to by the defendant.
Appellant complains of several prosecutorial comments to which he did not object below. A contemporaneous objection is required to preserve the issue for appellate review and none was made. Maggard v. State, 399 So.2d 973, 975 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981). Here again, we find no error.
Appellant contends that the trial court should have dismissed the indictment which added the charge of first-degree murder without amending the information. *1036 Having failed to object at trial, appellant cannot now have this issue reviewed.
Appellant finally complains that many of the exhibits introduced into evidence were duplicitous and irrelevant. He does not specify which or how many exhibits belong in this category, and he did not object at trial. The record affords no basis for reversal.
Finding no reversible error in the guilt phase of the trial, we affirm appellant's convictions of first-degree murder and armed robbery.

SENTENCING PHASE
Appellant raises nine issues, four of which were not preserved for appeal by contemporaneous objections. The prosecutor used a chart on which he checked off aggravating and mitigating factors. With the agreement of defense counsel, this chart was allowed to go into the jury room. Appellant's argument that such a chart was an improper item for submission to the jury during its deliberation under Florida Rule of Criminal Procedure 3.400 is correct. However, appellant cannot at trial create the very situation of which he now complains and expect this Court to remand for resentencing on that basis. McCrae v. State, 395 So.2d 1145, 1152 (Fla. 1980), cert. denied, 454 U.S. 1037, 102 S.Ct. 583, 70 L.Ed.2d 486 (1981). The other three issues not preserved are: whether the court gave improper jury instructions, whether the court allowed the improper admission of exhibits, and whether the prosecutor made improper comments. Absent fundamental error, an appellate court will not consider these kinds of issues for the first time on appeal. See, Steinhorst v. State; Smith v. State, 407 So.2d 894 (Fla. 1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2260, 72 L.Ed.2d 864 (1982); Ross v. State, 386 So.2d 1191, 1195 (Fla. 1980). We find no fundamental error.
Appellant argues that the death penalty is unconstitutional. This point has been decided adversely to him. Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir.1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979).
Appellant contends that the trial court found nonstatutory aggravating factors. We do not agree. In his Findings of Fact and Sentencing Order the judge first listed the statutory aggravating factors not found. He then listed the factors he did find. After addressing the aggravating factors, he considered the statutory mitigating factors; finding none, he stated:
The advisory jury is entitled to consider any other mitigating circumstance found in the evidence or the defendant's character. The court has also searched the record and found that none exist. The Defendant is single with no children to support. He has a limited employment background and, in fact, admitted to the sale or delivery of controlled substances shortly before the murder. He has shown no remorse for his actions.
We find that in context these statements were considered not as aggravating factors, but rather as observations in connection with a search of the record for possible nonstatutory mitigating factors.
Appellant also contends that the court either ignored or forgot certain mitigating factors: intoxication at the time, a deprived upbringing without a father, and a heart condition which required medication. The record reflects that the court expressly considered the evidence that appellant had been drinking alcoholic beverages before the crime. Furthermore, the court expressly stated that it "carefully considered the evidence presented at both phases of the trial ... weighed and applied the total evidence to the legislatively mandated criteria of aggravating and mitigating circumstances," and that it searched the record and found no other mitigating circumstance to exist. It is within the trial court's discretion to determine whether sufficient evidence exists of a particular mitigating circumstance and, if so, the weight to be given it. Daugherty v. State, 419 So.2d 1067, 1071 (Fla. 1982), cert. denied, *1037 ___ U.S. ___, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983).
Appellant correctly asserts that the trial court erroneously doubled two aggravating factors by finding that appellant committed the murder both while in the commission of a robbery and for pecuniary gain. Francois v. State, 407 So.2d 885, 891 (Fla. 1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 3511, 73 L.Ed.2d 1384 (1982). The finding embraces but one aggravating factor.
The trial court also found that the killing was cold, calculated, and premeditated. We do not find evidence in the record before us to support a finding beyond a reasonable doubt that there was the kind of heightened premeditation and cold calculation that would permit this factor to be part of the weighing process. Cf. Cannady v. State, 427 So.2d 723 (Fla. 1983) (defendant stole money from Ramada Inn, kidnapped a night auditor, drove him to a wooded area and shot him; defendant said he had not meant to shoot the victim  factor not found); Middleton v. State, 426 So.2d 548 (Fla. 1982) (defendant confessed that he sat with a shotgun in his hands for an hour looking at the victim as she slept and thinking about killing her  factor found); Bolender v. State, 422 So.2d 833 (Fla. 1982), cert. denied, ___ U.S. ___, 103 S.Ct. 2111, 77 L.Ed.2d 315 (1983) (defendant held the victims at gunpoint and ordered them to strip, then beat and tortured them during the evening before killing them  factor found); Mann v. State, 420 So.2d 578 (Fla. 1982) (ten-year-old girl abducted and suffered several cuts and stab wounds and a fractured skull  factor not found); Jent v. State, 408 So.2d 1024 (Fla. 1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982) (defendant beat woman, transported her in a car trunk to a house where four men raped her, put her back in the trunk and took her to a game preserve where the defendant and another poured gasoline on her and set her on fire while alive  factor blended into one with the heinous, atrocious, and cruel factor); Combs v. State, 403 So.2d 418 (Fla. 1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 862 (1982) (defendant first sold cocaine to the victims, then, saying he was leading them to a party, led them instead to a wooded area and held a gun on them, demanded the cocaine, and then shot them  factor found).
The court found another aggravating circumstance which appellant does not contest: that the defendant was previously convicted of a felony involving the use or threat of violence to the person. The record supports this finding as well as the finding that the defendant was engaged in the commission of a robbery when he murdered Melson. When there are one or more valid aggravating factors which support a death sentence, in the absence of any mitigating factor(s) which might override the aggravating factors, death is presumed to be the appropriate penalty. White v. State, 403 So.2d 331 (Fla. 1981), cert. denied, ___ U.S. ___, 103 S.Ct. 3571, 77 L.Ed.2d 1412 (1983); State v. Dixon, 283 So.2d 1 (Fla. 1973), cert. denied, 416 U.S. 943, 94 S.Ct. 1950, 40 L.Ed.2d 295 (1974).
Finally, appellant argues that he should not have been sentenced for the robbery count. This argument presupposes that the sole basis for his conviction was felony murder. However, sufficient evidence existed to support a jury finding of premeditation, so that the separate sentence for robbery was not error. McCampbell v. State, 421 So.2d 1072 (Fla. 1982); Buford v. State, 403 So.2d 943 (Fla. 1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).
Appellant having failed to demonstrate, and our careful search of the record having failed to reveal, reversible error, we affirm appellant's sentence of death.
It is so ordered.
ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.


105 B.R. 120 (1989)
In re Carl R. TRAUGER and his wife, Rosann L. Trauger, Debtors.
Milton Gene FRIEDMAN, Trustee, Plaintiff,
v.
Rhea GROSSMAN, Defendant.
Bankruptcy No. 87-01796-BKC-AJC, Adv. No. 89-0117-BKC-TCB-A.
United States Bankruptcy Court, S.D. Florida.
August 3, 1989.
*121 Richard H.W. Maloy, Key Biscayne, Fla., and Rhea P. Grossman, P.A., Miami, Fla., for defendant.
Rotella & Boone, P.A., Ft. Lauderdale, Fla., for plaintiff.

MEMORANDUM DECISION
THOMAS C. BRITTON, Chief Judge.
This case was originally assigned to Judge Cristol. He recused himself in this adversary proceeding because he is personally acquainted with the defendant. His alternate on this court, Judge Weaver, advised the court that he could not accept the matter and he orally recused himself because he served on the State bench concurrently with the defendant. This adversary proceeding was assigned to me on May 25 in the status of being ready for trial. (CP 6 and 8).
The trustee for this chapter 11 estate seeks avoidance under 11 U.S.C. § 547(b) of an alleged preferential transfer of $18,500 from the debtor to the defendant. The trustee also seeks avoidance under § 548(a)(2) of $21,000 as a fraudulent transfer in connection with and including the same transactions. The third count seeks turnover under § 542 to recover these sums. Defendant has answered and the matter was tried on June 29.
Each theory for recovery of the transfers is the subject of a separate count. At trial I dismissed Count 3 (turnover) without prejudice to the filing of a separate lawsuit, if necessary. I now conclude that the trustee is entitled to recovery of the transfer of $18,500 alleged in Count 1 but has failed to prove a fraudulent transfer, and Count 2, therefore, must be dismissed with prejudice.

The Relevant Facts
The essential facts are not in dispute. The defendant is an attorney who received payments from the debtor for legal services. The first payment in the amount of $2,500 was made on December 6, 1986. Between February 22 and May 1, 1987 defendant received four additional payments in the amount of $18,500, in the following sequence: The debtor's check dated February 22, 1987 in the amount of $2,500 covered defendant's services billed on March 10 in the amount of $7,300. A balance was brought forward on the March invoice and the debtor was billed a total amount of $11,475. He paid $6,000 on March 11. The balance on April 2 was $16,175. The debtor's April 2 check was in the amount of $5,000. The balance was *122 brought forward and the debtor paid $5,000 on May 1. The defendant concedes that each statement was not paid in full. (CP 28a at 8). No payment brought the amount owed current.
Defendant presented her billing statements to the debtor while she provided services in a litigation matter involving the debtor and numerous other related parties, including family members, employees and companies. The debtor was represented by separate counsel. It was his counsel who suggested and engaged defendant as additional trial counsel. Two employees, their spouses and two companies were the clients for whom the defendant made her court appearance on the record.
The debtor filed his chapter 11 petition on May 22, 1987.

Count 1
It is the trustee's burden to establish each of the five elements under § 547(b). It is undisputed that the debtor[1] paid $18,500 to the defendant within the 90-day preference period before May 22, 1987. Only two elements are disputed.
Defendant argues that the trustee has failed to prove insolvency at the time of transfer. Under § 547(f) it is presumed that the debtor was insolvent at the time of transfer, and the defendant has offered no evidence to overcome this presumption. Matter of Emerald Oil Co., 695 F.2d 833, 835 (5th Cir.1983).
It is the defendant's position that the debtor made each payment within 24 to 72 hours of being presented with a bill and, therefore, the transfers were not:
"for or on account of an antecedent debt." § 547(b)(2).
Defendant's argument is that:
"the monies received were applied to the contemporaneous services being performed." (CP 28a at 8).
I disagree.
It is conceded by defendant that each statement was not paid in full. Therefore, balances were carried forward and billed on the following month's statement. All payments were necessarily for past services.
Defendant supports her argument that there was no antecedent debt by relying on two exceptions under § 547(c): (1) contemporaneous exchange for new value; and (2) ordinary course of business or financial affairs. Plaintiff argues that the defendant did not plead these matters as affirmative defenses and is, therefore, estopped from raising these issues. In order to prevail on one of these defenses, the defendant must plead and prove the exception. In re Day Telecommunications, Inc., 70 B.R. 904, 910 (Bankr.E.D.N.C.1987) (and cases cited therein); In re Herman's Tops 'n Bottoms, Inc., 88 B.R. 442, 443 n. 1 (Bankr.S.D.Fla.1988).
It is not necessary to determine whether the answer (CP 18 ¶ 5)[2] sufficiently raises the affirmative defenses to put plaintiff on notice because it is apparent that defendant has argued these defenses only to establish that there was no antecedent debt.[3] (CP 28a at 7). The defendant has not supported these affirmative defenses with sufficient evidence.
I find that the trustee has proved that the legal services were rendered prior to the dates of payment. In re Craig Oil Co., 785 F.2d 1563, 1565 n. 4 (11th Cir.1986). *123 The debtor has not overcome the proof that the payments were on account of antecedent debts, even if the affirmative defenses are considered.[4]
The trustee has, therefore, carried his burden of establishing each of the elements of an avoidable preference under § 547(b), and is entitled to recover $18,500 from the defendant.

Count 2
Under § 548(a)(2), the trustee must prove (1) a transfer of an interest of the debtor in property, (2) within a year before bankruptcy, (3) for which the debtor received less than a reasonably equivalent value, and (4) that the debtor was insolvent on the date of transfer. Defendant has disputed the third and fourth elements in this trial.
The payments in question here were applied by defendant to her charges for the representation of six clients in litigation concerning the debtor's business interests. Her clients were being sued as third-party defendants. She did not represent the debtor as a matter of record. (Ex. 7). He was a plaintiff and third-party defendant.
Based on these facts, the trustee argues that the debtor received no value. Defendant argues that she furnished reasonably equivalent value in the litigation by representing all of the entities and individuals listed as plaintiffs, counter-defendants and third-party defendants. She asserts that her participation with debtor's counsel was for the benefit of the debtor, his family and his financial interests. (CP 28a at 11).
It is undisputed that defendant was engaged by the debtor at the suggestion of his counsel, who delivered the debtor's first $2,500 check (Ex. 1) to defendant, and apparently made the arrangements for the representation. The trial strategy involved the other individuals and entities who were brought into the lawsuit through their association with the debtor's business.
The conflicting evidence convinces me that the debtor's agreement to use defendant's services and pay her bills for his employees was not a gratuitous selfless act of generosity. Upon this record, I can only conclude that a benefit to these litigants represented a benefit to the debtor's position in that trial. Her skill as a trial lawyer and her close contact with his counsel conferred a benefit on the debtor. Defendant's bills represented the reasonable charges for these services at $150/hour and $500/day of trial.
The trustee has failed to prove this essential element of failure to receive reasonably equivalent value.
He also has failed to prove insolvency without the benefit of the presumption applicable to Count 1. The trustee seeks to prove that the debtor was insolvent on the dates of the transfers by relying on matters of record in the bankruptcy file. He points to claims filed in this bankruptcy case that existed prior to December 6, 1986. These claims are in the approximate amount of $14 million. Using the balance sheet test for insolvency, the trustee asserts that:
"the assets of the debtor listed and amended are far less." (CP 28b at 9).
However, the subject foreclosures and abandonment of assets after the filing of the case do not establish values on the dates of the transfers between December 6, 1986 and May 1, 1987. Although the debtor may have been insolvent, I cannot infer from this evidence that the trustee proved the debtor was insolvent on the dates of the transfers or became insolvent as a result of the transfers.
The trustee has, therefore, failed to carry his burden of proving all of the elements of a statutory fraudulent transfer under § 548(a)(2).
It follows that the complaint as to Count 2 must be dismissed with prejudice.
*124 As is required by B.R. 9021, a separate judgment will be entered in accordance herewith. Costs may be taxed on motion.
DONE and ORDERED.
NOTES
[1]  It is not disputed that the May 1, 1987 check (Ex. 5) signed by the debtor's daughter represented money placed into her account by the debtor.
[2]  "Defendant affirmatively states that any monies received from the debtor were for services simultaneously performed on behalf of the debtor . . . and said monies were disbursed accordingly. . . ." (Answer ¶ 5).
[3]  In re Craig Oil Co., 785 F.2d 1563, 1567 (11th Cir.1986):

"[the defenses are] limited to trade credit which is `kept current' or other transactions which are paid in full within the initial billing cycle";
See also Matter of Xonics Imaging Inc., 837 F.2d 763, 766 (7th Cir.1988):
"§ 547(c)(2) envisages situations where the debt is no more `antecedent' than is normal in noncash business transactions."
[4]  In re Jet Florida Systems, Inc., 861 F.2d 1555, 1559 (11th Cir.1988) (no contemporaneous exchange for new value); In re Craig Oil Co., supra at 1566-68; In re Day Telecommunications, Inc., 70 B.R. 904, 910-11 (Bankr.E.D.N.C. 1987) (not ordinary course of business and ordinary business terms).


                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 24 2013

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

                             FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 12-50542

               Plaintiff - Appellee,             D.C. No. 5:10-cr-00075-VAP

  v.
                                                 MEMORANDUM *
VAIKALAFI LUTUI,

               Defendant - Appellant.

                    Appeal from the United States District Court
                        for the Central District of California
                    Virginia A. Phillips, District Judge, Presiding

                              Submitted June 18, 2013 **

Before:        TALLMAN, M. SMITH, and HURWITZ, Circuit Judges.

       Vaikalafi Lutui appeals from the district court’s judgment and challenges the

24-month sentence imposed following the revocation of probation. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Lutui contends that the district court procedurally erred by failing to explain

adequately why it imposed a sentence within the Guidelines range applicable to his

underlying offense instead of the Chapter 7 Guidelines range. He further argues

that the district court procedurally erred by failing to consider the 18 U.S.C.

§ 3553(a) sentencing factors, including his rehabilitation. We review for plain

error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.

2010), and find none. When sentencing a probation violator, the district court may

rely either on the Guidelines range governing the original offense or on the

Guidelines policy statements governing probation violations. See United States v.

Plunkett, 94 F.3d 517, 519 (9th Cir. 1996). The record indicates the district court

considered both sentencing ranges and the section 3553(a) factors, and adequately

explained the sentence.

      Lutui also contends that his sentence is substantively unreasonable because

of his demonstrated commitment to rehabilitation. The district court did not abuse

its discretion in imposing Lutui’s sentence. See Gall v. United States, 552 U.S. 38,

51 (2007). The sentence is substantively reasonable in light of the section 3553(a)

sentencing factors and the totality of the circumstances. See id.

      AFFIRMED.

                                           2                                      12-50542


170 Ga. App. 471 (1984)
317 S.E.2d 295
THE STATE
v.
LESTER.
67531.
Court of Appeals of Georgia.
Decided March 9, 1984.
Rehearing Denied March 26, 1984.
W. Bryant Huff, District Attorney, Johnny R. Moore, Assistant District Attorney, for appellant.
Walter M. Britt, for appellee.
BIRDSONG, Judge.
Motion to Quash. John F. Lester, Judge of Recorder's Court of Gwinnett County, has been charged with malpractice in office. The State obtained an indictment containing five counts, only two of which are of concern in this appeal. In Count I, Judge Lester is accused of improperly entering nolle prosequi action on 100 traffic violations, but at the same time accepting, on behalf of the county, costs of court and payment of fines for serious traffic offenses such as driving under the influence of an intoxicant and similar charges that possibly could result in the suspension and/or revocation of licenses to operate vehicles in this state. As a result of the nolle prosequi action, notification to the Department of Public Safety was not accomplished for its consideration of the traffic violation and the purpose of OCGA § 40-13-3 ostensibly was thwarted. As to Count IV, Judge Lester is accused of accepting pleas of guilty to lesser offenses (pedestrain drunk or public drunk in lieu of driving under influence) by defendants who were not present in court, in 243 traffic cases, and of accepting costs and payment of fines based upon the lesser offenses. Once again the State alleges that the result of these guilty pleas was to thwart the purpose of OCGA § 40-13-3.
Judge Lester entered a motion to quash 24 of the 100 cases in which nolle prosequi had been entered and 91 of the 243 cases in which conviction of a lesser offense had been entered on the ground that the action taken by the judge in each of these 115 cases had occurred over two years before the date of the indictment. Discovery of these actions was based upon an audit by the GBI which reflected the course of conduct followed by the recorder in his court. It is contended by appellant and fully conceded by the State that malpractice in office is a misdemeanor and that the appropriate statute of limitations applicable thereto is two years. The trial court quashed those parts of Counts I and IV which reflected actions taken by the recorder which predated the indictment (and the August, 1983, audit by the GBI) by more than two years. The State appealed, complaining of the trial court's quashing of these portions of the apparently otherwise *472 validly constituted indictment. Held:
It is not contended by the State that any of the four exclusions provided in OCGA § 17-3-2 are applicable so as to remove the two year statute of limitations imposed by OCGA § 17-3-1 (d). Rather, the State argues that as to the nolle prosequi entered by the recorder in the 100 cases that are the subject of Count I, a nolle prosequi is not necessarily a final termination of the case (depending upon the attachment of jeopardy), and the recorder by his improper actions entered a void judgment in each case. As such, the cases are still viable and thus the offense is a continuing one. As to the reduction of the driving under the influence to the lesser offenses of public drunk or pedestrian drunk in Count IV, each of these convictions was based upon an allegedly improper plea of guilty in that the defendant was never advised of the implications of his plea and the recorder never satisfied himself of the providency of the pleas of guilty. Again the State argues that each of these guilty pleas constituted a void judgment. As such, each of these cases remains pending and therefore the malpractice is a continuing offense.
The trial court rejected this argument, concluding that there was a final action in each of the 343 cases and that 115 of the misdemeanors were subject to the two-year statute of limitations. Inasmuch as the State had pled no exception to the operation of the statute, the court accordingly quashed those subject to the statute. State v. Shepherd Constr. Co., 248 Ga. 1, 4 (II (a)) (281 SE2d 151).
There is no basis on which to overturn the judgment of the trial court. In Holloman v. State, 133 Ga. App. 275, 277 (211 SE2d 312), the State made an argument similar to the one advanced in this case. In that case the County Commissioners of Jones County entered into a contract for the renovation of the county courthouse. It was shown that the commissioners entered into a cost plus a fixed percentage fee contract which violated the pertinent statute requiring such a contract to be by bid and awarded to the lowest bidder. In substance, the State argued in Holloman that the contract took many months to complete and thus the malpractice of the county commissioners was a continuing offense until either a legal contract was executed or until the illegal contract actually was completed. This court was not persuaded by that argument. The court found that the violation of the statute occurred when the contract was awarded in March, 1969, and did not continue until the contract was concluded perhaps as late as early 1972. This court did not contemplate the argument that a contract executed in violation of law was a void contract and thus subject to proper execution at any time prior to the final completion of the contract. To the contrary, this court concluded that the gravamen of the offense was the making of a cost plus contract in March, 1969, without compliance with the statutory requirements, and not what *473 was or was not done thereafter. Holloman, supra, p. 277.
In like manner, we conclude, as did the trial court herein, that the recorder's acts were committed at the time he entered a nolle prosequi or when he accepted a plea of guilty and entered the disposition on the traffic citation. Whether the action was lawful or unlawful, it was a final disposition of each case. If the action was authorized, there was no malpractice. If unlawful, there may have been malpractice, but as to the recipient of the action (the defendant in each case), the action became final. See State v. Hanson, 249 Ga. 739, 747 (295 SE2d 297).
The burden unquestionably is upon the State to prove that a crime occurred within the statute of limitation or to prove that the case properly falls within an exception. Williams v. State, 13 Ga. App. 338 (1) (79 SE 207). The fact that the issue is determined pretrial does not relieve the State of this burden.
Under the facts of this case, the trial court correctly concluded that all of the traffic cases in question became final on the date that the recorder's court entered its judgment of nolle prosequi or accepted a plea of guilty to a lesser offense and that result formally was entered by the court as its disposition of the case. Thus, as to the 115 cases where such action occurred more than two years before the audit occurred and an indictment was returned, the statute had run and those incidents are barred. State v. Tuzman, 145 Ga. App. 481, 484 (243 SE2d 675).
Judgment affirmed. Quillian, P. J., concurs. Carley, J., concurs in the judgment only.


People v Anderson (2017 NY Slip Op 05615)

People v Anderson

2017 NY Slip Op 05615

Decided on July 12, 2017

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 12, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
CHERYL E. CHAMBERS
JOSEPH J. MALTESE
COLLEEN D. DUFFY, JJ.

2016-04469
 (Ind. No. 844/14)

[*1]The People of the State of New York, respondent,
vJarette Anderson, appellant.

Martin Geoffrey Goldberg, Franklin Square, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Judith R. Sternberg and Mary Faldich of counsel), for respondent.

DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Honorof, J.), rendered April 7, 2016, convicting him of criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the fourth degree, criminal possession of a controlled substance in the fifth degree (two counts), menacing a police officer, criminal possession of a controlled substance in the fourth degree, criminal possession of a controlled substance in the seventh degree (two counts), and resisting arrest, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of those branches of the defendant's omnibus motion which were to suppress physical evidence and statements he made to law enforcement officials.
ORDERED that the judgment is affirmed.
The hearing court properly found that the police had probable cause to arrest the defendant (see People v Yunga, 110 AD3d 1018; People v Prego, 102 AD3d 814, 814-815; cf. People v Robinson, 103 AD3d 421, 421-422). Accordingly, the court properly declined to suppress the physical evidence recovered, and the statements he made to law enforcement officials, incident to his arrest (see People v Peradze, 15 AD3d 678, 678-679; People v Maldonado, 244 AD2d 759, 762).
The defendant contends that his plea of guilty was not knowing, voluntary, or intelligent. This issue is unpreserved for appellate review, since the defendant failed to move to vacate his plea prior to the imposition of sentence or otherwise raise the issue in the Supreme Court (see People v Molina, 146 AD3d 815, 815-816; People v Sirico, 135 AD3d 19, 22; People v Isaiah S., 130 AD3d 1081, 1081-1082). In any event, the defendant's contentions are belied by the record. The record reveals that the court advised the defendant of his rights under Boykin v Alabama (395 US 238) and other constitutional rights he was forfeiting by pleading guilty (see People v Molina, 146 AD3d at 816; People v Sirico, 135 AD3d at 22; People v Isaiah S., 130 AD3d at 1082). Furthermore, the defendant acknowledged that he had discussed the plea with his attorney and that he was satisfied with his attorney's representation (see People v Molina, 146 AD3d at 816). The [*2]record as a whole affirmatively demonstrates that the defendant entered his plea of guilty knowingly, voluntarily, and intelligently (see People v Conceicao, 26 NY3d 375, 382-383; People v Harris, 61 NY2d 9, 19-20; People v Molina, 146 AD3d at 816).
The defendant's remaining contention is without merit.
BALKIN, J.P., CHAMBERS, MALTESE and DUFFY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAY 19 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SHIRLEY A. WEST,

                Plaintiff-Appellant,

    v.                                                   No. 96-5231
                                                    (D.C. No. 95-CV-955-J)
    SHIRLEY S. CHATER,                                    (N.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.

                             ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and LUCERO, Circuit Judges.

         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff appeals the district court’s order affirming the denial of disability

income benefits by the Secretary. 1 Plaintiff applied for disability benefits in

October 1993, alleging she had been disabled since December 1992. Plaintiff

said she was unable to work because of low energy, stiff joints, headaches,

dizziness, leg cramps, chest pains, inability to deal with people, and inability to

handle stress. In what became the final decision of the Secretary, the

administrative law judge (ALJ) concluded that plaintiff had no severe

impairments other than residuals from coronary artery bypass surgery in 1990, and

that she could return to her past relevant work as either a doctor’s receptionist, a

doctor’s assistant, or a clerical worker, all of which were performed at either the

light or sedentary exertional level.

      On appeal, plaintiff does not challenge the ALJ’s assessment of her

physical ailments. She does, however, contend that the ALJ failed to properly

evaluate the existing evidence of her mental impairments and that he failed to

develop the record further by ordering a consultative psychological examination.

Plaintiff also argues that, in light of the ALJ’s improper evaluation of her mental

1
       Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Although Shirley S. Chater, Commissioner of
Social Security, appears in the caption as the defendant in this action, we continue
to refer to the Secretary in the text, because she was the appropriate party at the
time of the underlying decision.

                                         -2-
impairments, the ALJ’s conclusion that she can return to her past relevant work is

not supported by substantial evidence. Finally, plaintiff contends that, in light of

the errors previously mentioned and the ALJ’s alleged inattention at the hearing,

plaintiff was deprived of a full and fair hearing on her claim for benefits.

      “We review the Secretary’s decision to determine whether her factual

findings are supported by substantial evidence in the record viewed as a whole

and whether she applied the correct legal standards.” Castellano v. Secretary of

Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). “We examine the

record as a whole, including whatever in the record fairly detracts from the

weight of the Secretary’s decision and, on that basis, determine if the

substantiality of the evidence test has been met.” Glenn v. Shalala, 21 F.3d 983,

984 (10th Cir. 1994) (quotation omitted). “If supported by substantial evidence,

the Secretary’s findings are conclusive and must be affirmed.” Sisco v. United

States Dep’t of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993).

      Based upon our review of the record, we conclude that substantial evidence

supports the ALJ’s determination that plaintiff could return to her past relevant

work as a clerical worker. We also conclude that plaintiff received a full and fair

hearing on her claims.

      At the hearing before the ALJ, plaintiff’s counsel asked the vocational

expert (VE) whether, if she credited all of plaintiff’s testimony about her

                                          -3-
impairments, plaintiff could perform any of her past relevant work. The VE’s

testimony reflected that giving full credit to plaintiff’s testimony about her mental

impairments would preclude only her past relevant work as a doctor’s assistant or

a doctor’s receptionist; it would not preclude her past relevant work as a clerical

worker. 2 Because the VE premised her testimony on the assumption that

everything plaintiff said was true and credible, remanding the action for the ALJ

to reconsider the evidence or to develop further medical evidence that might

support plaintiff’s allegations would serve no purpose.

      Plaintiff also argues that she did not receive a full and fair hearing. She

bases this contention on the ALJ’s alleged failure to properly evaluate her mental

impairment and on an isolated comment by the ALJ. After questioning plaintiff

for several minutes, plaintiff’s counsel concluded: “I have no further questions,”

to which the ALJ replied: “Is it my turn? I wasn’t awake.” Appellant’s App.,

Vol. II at 499. The transcript reflects that the ALJ then had the vocational expert

sworn in and began questioning her. The transcript does not indicate any break in

the proceedings, nor is there any indication that the ALJ was actually sleeping or

2
       The VE did testify that plaintiff would be unable to perform her past work
as a clerical worker if one fully credited her testimony about the stiffness in her
hands. The ALJ found that plaintiff’s testimony about her hands was not
supported by the medical evidence, however, and plaintiff does not contest this
finding on appeal.

                                         -4-
was otherwise inattentive to the proceedings. We, therefore, reject plaintiff’s

contention that she did not receive a full and fair hearing on her claims.

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.

                                                     Entered for the Court

                                                     Wade Brorby
                                                     Circuit Judge

                                         -5-