                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-3071
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                    Darran Lohse

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Northern District of Iowa - Sioux City
                                 ____________

                             Submitted: April 13, 2015
                              Filed: August 12, 2015
                                  ____________

Before WOLLMAN and GRUENDER, Circuit Judges, and DOTY, District
Judge.1
                        ____________

WOLLMAN, Circuit Judge.

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
       Darran Lohse was convicted of producing, receiving, and possessing child
pornography, in violation of federal law. On appeal, he argues that the district court2
erred in denying his motion for judgment of acquittal on the production count and in
denying his motion to dismiss the possession counts. We affirm.

                                   I. Background

       Lohse lived with his girlfriend and her three-year-old daughter, K.S. In
November 2011, Lohse’s girlfriend discovered troubling images on an SD card. The
images depicted K.S., who was clothed and sleeping in a natural position on a bed,
and Lohse, who was naked and positioned so that his penis was on or near K.S.’s
face. Lohse’s girlfriend contacted a law enforcement officer, and a search was
executed at the house later that day. Officers seized the following devices that were
later found to contain child pornography: a Gateway 980 server, a Gateway
computer, and a Maxell CD.

      A grand jury returned a two-count indictment. As relevant here, the indictment
charged Lohse with one count of producing child pornography based on the images
found on the SD card. It alleged that Lohse had violated 18 U.S.C. § 2251(a) and (e)
when he “used and attempted to use a minor under the age of 18 to engage in sexually
explicit conduct for the purpose of producing visual depictions of such conduct.”
Lohse moved to dismiss the count, arguing that the images did not depict “sexually
explicit conduct,” as defined by 18 U.S.C. § 2256(2)(A)(v), because the display of
genitals was not lascivious. The district court denied the motion.

     A grand jury later returned a six-count superseding indictment. Along with the
production count set forth above (count 1), the superseding indictment charged Lohse

      2
      The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.

                                          -2-
with one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2)
and (b)(1), and four counts of possession of child pornography, in violation of 18
U.S.C. § 2252A(a)(5)(B) and (b)(2). The receipt count (count 2) did not identify the
device on which Lohse allegedly received child pornography. Rather, it stated that
“[i]n or about February 2010,” Lohse “knowingly received and attempted to receive
visual depictions of minors engaged in sexually explicit conduct.” Each possession
count related to a different device: an IBM Deskstar hard drive from the Gateway 980
server (count 3), a RAID array3 containing two IBM hard drives and two Seagate hard
drives from the Gateway 980 server (count 4), a Western Digital hard drive from the
Gateway computer (count 5), and the Maxell CD (count 6).

       Before trial, the district court issued proposed jury instructions and a proposed
verdict form. It ordered the government to “identify the images of alleged child
pornography on which it intends to rely for each count.” D. Ct. Order of Oct. 28,
2013, at 1. For the receipt offense charged in count 2, the government identified four
videos that had been downloaded onto the IBM Deskstar hard drive. Thereafter, the
district court issued a revised verdict form that listed the videos the government had
identified. The revised verdict form asked whether Lohse was guilty of receiving
child pornography as alleged in count 2 of the superseding indictment. Upon a
finding of guilt, the jury was required to indicate which of the four videos it found
were child pornography received by Lohse. Lohse did not object to the identification
of the four videos on the verdict form. He also did not request an instruction
regarding possession as a lesser-included offense of receipt, which would have
expressly precluded the jury from convicting Lohse of the offenses based on the same
conduct.

      3
        As explained at trial, “A RAID array is a type of hard drive configuration
normally found in servers. It involves two or more hard drives at a minimum. . . . The
drives are arranged in such a manner that the data is written across multiple drives so
that if one drive fails you can replace the drive and the data on the other drives can
rebuild the missing data from the one drive, so it’s done for data security.”

                                          -3-
       The case proceeded to trial. To prove the production offense charged in count
1, the government presented nine images of Lohse and K.S. that were found on the
SD card. With respect to the receipt and possession counts, the government presented
the testimony of Special Agents Tully Kessler of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives and Nathan Teigland of the Iowa Division of Criminal
Investigation. Kessler had examined the Gateway 980 server and the Gateway
computer; Teigland had examined the Maxell CD. Kessler testified that six different
hard drives were associated with the Gateway 980 server, including an IBM Deskstar
hard drive and a RAID array composed of four hard drives. He further testified that
a Western Digital hard drive was associated with the Gateway computer.

        Kessler testified that the IBM Deskstar hard drive contained twenty-eight or
twenty-nine videos that depicted prepubescent children engaging in sexual acts with
adults. The government presented to the jury the four videos that were identified on
the verdict form in support of the receipt count. Kessler explained that zone identifier
files related to the four videos indicated that the videos were downloaded from the
Internet or received in an email program and then saved to the hard drive. He
testified that two files were written to the hard drive at 7:29 and 7:30 p.m. on
February 24, 2010, and two files were written to the hard drive at 12:14 a.m. on
February 25, 2010. The government also entered into evidence three videos that were
found on the RAID array, three videos that were found on the Western Digital hard
drive, and three videos that were found on the Maxell CD.

       At the close of the evidence, Lohse moved for judgment of acquittal. With
respect to the production offense charged in count 1, he reiterated the argument that
the images of Lohse and K.S. did not constitute child pornography. The district court
reserved its ruling on the motion and submitted the case to the jury. The jury was
instructed that to find Lohse guilty of producing child pornography, it must find
beyond a reasonable doubt that Lohse knowingly used K.S. to engage in sexually
explicit conduct. The instructions explained that Lohse “‘used’ K.S. if K.S. was

                                          -4-
photographed or videotaped” and defined the term “sexually explicit conduct” to
include the “lascivious exhibition of the genitals or pubic area of any person.” The
jury found Lohse guilty on all counts, and the district court later denied Lohse’s
renewed motion for judgment of acquittal and his motion for a new trial.

       Months later, Lohse moved to dismiss the possession counts (counts 3 through
6), arguing that his convictions violated the Double Jeopardy Clause of the Fifth
Amendment. He argued that the possession counts must be dismissed as lesser-
included offenses of the receipt count. He also argued that the possession counts
were multiplicitous because his offense conduct constituted only one violation of 18
U.S.C. § 2252A(a)(5)(B). The government conceded that count 3—relating to the
possession of certain videos on the IBM Deskstar hard drive—was a lesser-included
offense of the receipt offense charged in count 2. The district court dismissed count
3 but otherwise denied Lohse’s motion and later sentenced Lohse to 240 months’
imprisonment.

                                   II. Discussion

                  A. Denial of Motion for Judgment of Acquittal

       Lohse first argues that the district court erred by denying his motion for
judgment of acquittal on the production count (count 1). He contends that K.S. was
not used to engage in sexually explicit conduct, arguing that the conduct depicted was
not sexually explicit and that even if it were, K.S. was not used to engage in that
conduct but instead was merely present. We review the denial of a motion for a
judgment of acquittal de novo. United States v. Johnson, 639 F.3d 433, 437 (8th Cir.
2011). We will affirm if, “after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979).

                                         -5-
       Section 2251(a) provides that “[a]ny person who . . . uses . . . any minor to
engage in . . . any sexually explicit conduct for the purpose of producing any visual
depiction of such conduct . . . shall be punished as provided under subsection (e).”
“Sexually explicit conduct” is defined as including the “lascivious exhibition of the
genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). An image is
lascivious “only if it is sexual in nature.” United States v. Kemmerling, 285 F.3d 644,
646 (8th Cir. 2002). Accordingly, “[w]e have held that more than mere nudity is
required before an image can qualify as ‘lascivious’ within the meaning of the
statute.” Id. at 645-46 (citing United States v. Horn, 187 F.3d 781, 789 (8th Cir.
1999)).

       In determining whether an image is lascivious, we have cited with approval the
factors set forth in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).
See, e.g., Johnson, 639 F.3d at 439-40; United States v. Wallenfang, 568 F.3d 649,
657 (8th Cir. 2009); Horn, 187 F.3d at 789. The Dost factors include: (1) whether the
focal point of the image is on the minor’s genital or pubic area; (2) whether the
setting of the image is sexually suggestive; (3) whether the minor is depicted in
unnatural poses or inappropriate attire considering the minor’s age; (4) whether the
minor is fully or partially clothed or is nude; (5) whether the image suggests sexual
coyness or a willingness to engage in sexual activity; and (6) whether the image is
intended to elicit a sexual response in the viewer. Dost, 636 F. Supp. at 832. In
defining the term “lascivious,” the district court instructed the jury to consider the six
Dost factors and two other factors: (7) whether the image portrays the minor as a
sexual object; and (8) any captions on the images. See Eighth Circuit Model Criminal
Jury Instructions 6.18.2252A (citing United States v. Arvin, 900 F.2d 1385 (9th Cir.
1990)). The district court also instructed the jury that it was to decide what weight,
if any, to be given to any of the factors and that “[e]ven images of children acting
innocently can be considered lascivious if they are intended to be sexual.”

                                           -6-
        Lohse argues that a majority of the Dost factors must be present to prove a
lascivious exhibition of genitals. Because several of the Dost factors are not relevant
here, Lohse contends that the evidence did not establish any sexually explicit
conduct. We disagree. Dost involved the allegedly lascivious exhibition of
children’s genitals, but “sexually explicit conduct” includes the lascivious exhibition
of the genitals “of any person.” 18 U.S.C. § 2256(2)(A)(v). Because this case
involved the exhibition of the adult defendant’s genitals, many of the Dost factors
simply do not apply. Moreover, Dost merely set forth a nonexclusive list of factors
to be considered in deciding whether certain conduct is sexually explicit. Horn, 187
F.3d at 789 (“It goes without saying that the Dost criteria are neither definitive nor
exhaustive.”); see also United States v. Rivera, 546 F.3d 245, 253 (2d Cir. 2008) (“As
factors, they mitigate the risk that jurors will react to raw images in a visceral way,
rely on impulse or revulsion, or lack any framework for reasoned dialogue in the jury
room.”); United States v. Amirault, 173 F.3d 28, 32 (1st Cir. 1999) (“Although Dost
provides some specific, workable criteria, there may be other factors that are equally
if not more important in determining whether a photograph contains a lascivious
exhibition.”). In determining whether an image depicts a lascivious exhibition of
genitals, the inquiry is always case specific, and even if a majority of the Dost factors
are absent, an image may still qualify as a lascivious exhibition of genitals under
§ 2256(2)(A)(v). See Wallenfang, 568 F.3d at 657 (“All six Dost factors need not be
present in order to bring the depiction under the proscription of the statute.” (internal
quotation omitted)).

       Lohse also argues that the government did not prove that K.S. was “use[d] . . .
to engage in” sexually explicit conduct under § 2251(a). He contends that the statute
requires “either active participation by the minor or active sexual conduct to an
unconscious minor by an adult defendant.” Appellant’s Br. 20. Lohse did not present
this argument to the district court. He did not object to the jury instruction explaining
that K.S. was “used” if she was photographed or videotaped. Nor did he request that
the term “engage in” be defined for the jury. Although he has maintained throughout

                                          -7-
that the evidence did not support a finding that the conduct was sexually explicit, he
claims for the first time on appeal that the evidence was insufficient to prove that K.S.
was used to engage in it. If Lohse’s argument is that the district court failed to
properly instruct the jury, we find no plain error in the instructions. See United States
v. Fadl, 498 F.3d 862, 866 (8th Cir. 2007) (“[T]he ‘use’ component ‘is fully satisfied
for the purposes of the child pornography statute if a child is photographed in order
to create pornography.’” (quoting United States v. Sirois, 87 F.3d 34, 41 (2d Cir.
1996))). If his argument is that the evidence was insufficient because K.S. was
merely present when Lohse himself engaged in sexually explicit conduct, we disagree
with Lohse’s characterization of the images as “a simple display of adult genitals
around a sleeping minor.” Appellant’s Reply Br. 2. We agree with the district court
that “a jury might find that [K.S.’s] role in the nine photographs was that of an
inanimate body for Lohse to act upon in exhibiting his genitals” and that “a
reasonable jury could conclude that Lohse quite literally used K.S. as a sexual object
in orchestrating the nine photographs.” D. Ct. Order of Jan. 21, 2014, at 11. This is
not a case of mere presence, nor could the images be fairly described as “innocent
family photos, clinical depictions, or works of art.” Johnson, 639 F.3d at 439.

       For example, government’s exhibit 5 depicts K.S. wearing pajamas and
sleeping on a bed. Lohse is naked and straddling the child’s head, with his left foot
on the floor and his right leg on the bed. Lohse has placed his flaccid penis near the
child’s cheek or mouth, and he is pulling or holding her hair with his left hand.
Government’s exhibit 8 again depicts K.S. wearing pajamas and sleeping on a bed.
Lohse is naked and almost straddling the child’s head. He is facing away from the
child and has pushed his penis and scrotum toward his anus with his left hand. His
left hand is also pressed against K.S.’s forehead, with his penis placed near K.S.’s left
eye. These two images and the other seven in the series constitute evidence from
which a reasonable jury could find present three of the factors set forth in the jury
instructions, two of which were enumerated in Dost: the setting of the images was
sexually suggestive; the images were intended to elicit a sexual response in the

                                          -8-
viewer; and K.S. was portrayed as a sexual object. The evidence was sufficient to
allow a reasonable jury to convict Lohse of production of child pornography, as
charged in count 1, and thus the district court properly denied Lohse’s motion for
judgment of acquittal.

               B. Denial of Motion to Dismiss Counts 4 through 6

                            1. Lesser-Included Offense

       Lohse argues that his convictions and separate sentences for the receipt and
possession counts violate the Fifth Amendment’s Double Jeopardy Clause.
Specifically, he contends that the receipt offense charged in count 2 of the
superseding indictment was broad enough to encompass the possession offenses
charged in counts 4 through 6. Thus, Lohse argues, the district court should have
given a lesser-included-offense instruction. Lohse neither raised a double jeopardy
defense before trial nor requested an instruction that possession was the lesser-
included offense of receipt. Accordingly, we review his claim for plain error. United
States v. Huether, 673 F.3d 789, 798 (8th Cir. 2012) (reviewing for plain error the
district court’s failure to give a lesser-included-offense instruction).

       To prevail on this claim, Lohse must first “show he was convicted of ‘two
offenses that are in law and fact the same.’” Id. (quoting United States v.
Muhlenbruch, 634 F.3d 987, 1002 (8th Cir. 2011)). The parties do not dispute that
the possession offenses are lesser-included to the receipt offense under the law.
Lohse has not shown, however, that the receipt conviction is based on the same facts
as the possession convictions. The verdict form conclusively establishes that the
conviction for the receipt offense was based on four videos that were downloaded
onto the IBM Deskstar hard drive, whereas the possession offenses were based on
videos that were found on the RAID array, the Western Digital hard drive, and the
Maxell CD.

                                         -9-
        Although count 2 of the superseding indictment did not allege a device on
which Lohse allegedly received child pornography, the government identified before
trial four videos that were downloaded on the IBM Deskstar hard drive. At trial,
Kessler testified that the zone identifier files related to the four videos indicated that
they had been downloaded to the IBM Deskstar hard drive on February 24 and 25,
2010. The jury returned a guilty verdict on count 2, finding that Lohse had received
those four videos. Counts 4 through 6 of the superseding indictment each identified
a separate device on which Lohse allegedly possessed child pornography, and the
government identified before trial the videos of alleged child pornography on which
it intended to rely for counts 4 through 6. The government presented evidence that
Lohse possessed child pornography on each of those devices, and the jury returned
a guilty verdict on counts 4 through 6, finding that Lohse had possessed certain
videos of child pornography on the RAID array, the Western Digital hard drive, and
the Maxell CD. Because the evidence and the jury verdict form did not allow a
finding of guilt on the receipt offense charged in count 2 based on the same evidence
that supported the possession offenses charged in counts 4 through 6, the district
court did not plainly err in failing to sua sponte give a lesser-included-offense
instruction.

       Lohse also argues that because the superseding indictment did not identify a
device on which child pornography was received, the verdict form impermissibly
expanded the indictment by identifying videos that were found on the IBM Deskstar
hard drive for count 2. In Lohse’s words, the verdict form “created separate
convictions for charges that would otherwise have been dismissed as lesser offenses.”
Appellant’s Br. 36. The verdict form, however, permissibly separated the evidence
for the receipt count from the evidence for the possession counts. The verdict form
also was consistent with Model Criminal Jury Instruction 6.18.2252 which provides,
“You have heard evidence of more than one visual depiction involved in the offense.
You must agree unanimously as to which visual depiction(s) the defendant

                                          -10-
possessed.” We thus cannot say that the district court plainly erred in identifying on
the verdict form the four videos related to the receipt offense charged in count 2.

                                   2. Multiplicity

       Lohse argues that the possession offenses charged in counts 4 through 6 were
multiplicitous. “The rule against multiplicitous prosecutions is based on the Fifth
Amendment’s Double Jeopardy Clause, which ‘protects against multiple punishments
for the same offense.’” United States v. Hinkeldey, 626 F.3d 1010, 1013 (8th Cir.
2010) (quoting Brown v. Ohio, 432 U.S. 161, 165 (internal quotation omitted)).
Where “an indictment includes more than one count charging the same statutory
violation, the question is whether Congress intended the facts underlying each count
to constitute a separate unit of prosecution.” Id.

       As recounted above, Lohse raised this multiplicity defense after his trial had
concluded. Federal Rule of Criminal Procedure 12(b)(3) requires that a motion
alleging a defect in the indictment be made before trial. At the time Lohse filed his
post-trial motion to dismiss, Rule 12(e) provided that “[a] party waives any Rule
12(b)(3) defense, objection, or request not raised by the deadline the court sets” for
pretrial motions. The district court declined to decide whether Lohse had waived his
multiplicity defense by failing to raise it before trial, saying, “Lohse’s potential
waiver notwithstanding, I will address the merits of his double jeopardy claims.” D.
Ct. Order of June 30, 2014, at 3 n.1.

      Certain amendments to Rule 12 took effect during the pendency of Lohse’s
appeal. Rule 12(b)(3) now lists multiplicity as an objection to the indictment that
“must be raised by pretrial motion if the basis for the motion is then reasonably
available and the motion can be determined without a trial on the merits.” A Rule
12(b)(3) motion is untimely if a party does not meet the deadline set for pretrial
motions, but a court may consider such an untimely motion “if the party shows good

                                        -11-
cause.” Fed. R. Crim. P. 12(c)(3). In its April 25, 2014, order amending the Federal
Rules of Criminal Procedure, the Supreme Court instructed that the amended rules
govern proceedings then pending “insofar as just and practicable.” In United States
v. Anderson, 783 F.3d 727 (8th Cir. 2015), we considered the effect of the
defendants’ failure to raise a double jeopardy issue before trial, in light of the
amendments to Rule 12. We applied the amended version of Rule 12 and found no
good cause to consider their argument. Id. at 740. We went on, however, to
determine whether the district court had committed plain error, concluding that “even
if this just-and-practicable standard were not met, [the defendants’] double-jeopardy
argument still fails.” Id. at 741.

        Although Lohse’s motion to dismiss the indictment was untimely, the parties
have not addressed whether there is good cause to consider Lohse’s multiplicity
argument or whether it would be just and practicable to apply the amended version
of Rule 12. The denial of his motion to dismiss based on a mutiplicitous indictment
is entitled to—at best—plain error review based on the former version of Rule 12, see
Anderson, 783 F.3d at 741, and it is under that standard of review that we consider
Lohse’s argument.

       Section 2252A(a)(5)(B) calls for punishment of a person who “knowingly
possesses . . . any book, magazine, periodical, film, videotape, computer disk, or any
other material that contains an image of child pornography.” Lohse asks us to define
the word “any” to mean “‘any one o[r] more’ such that possess[ing] any material
containing child pornography in the same place, at the same time is a single violation
of the statute.” Appellant’s Br. 39. Accordingly, the argument goes, the evidence
presented could support only one count of possession because the RAID Array, the
Western Digital hard drive, and the Maxell CD were found near one another in the
basement of his home. In United States v. Hinkeldey, however, we held that the
defendant’s “double jeopardy challenge to the separate possession counts must fail,
because it is not ‘clear’ or ‘obvious’ under current law that Congress intended that

                                        -12-
conduct like [the defendant’s] make up a single unit of prosecution.” 626 F.3d at
1013. As defense counsel in effect conceded at oral argument, under plain error
review Hinkeldey controls, and thus Lohse’s multiplicity claim fails.

                                III. Conclusion

      The judgment is affirmed.
                     ______________________________

                                      -13-


     Case: 10-10048     Document: 00511205901          Page: 1    Date Filed: 08/17/2010

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 17, 2010
                                     No. 10-10048
                                  Conference Calendar                       Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TIMOTHY GEURIN,

                                                   Defendant-Appellant

                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-95-1

Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
        Appealing the judgment in a criminal case, Timothy Geurin presents
arguments that he concedes are foreclosed by United States v. Brown, 920
F.2d 1212, 1216-17 (5th Cir. 1991), abrogated on other grounds by United States
v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006), which held that a district court
may order a term of imprisonment to run consecutively with an unimposed state
sentence. The Government’s motion for summary affirmance is GRANTED, and
the judgment of the district court is AFFIRMED.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.


Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                 Jul 08 2013, 10:04 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

RICHARD L. LANGSTON                                 GREGORY F. ZOELLER
Frankfort, Indiana                                  Attorney General of Indiana

                                                    ERIC P. BABBS
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                               IN THE
                     COURT OF APPEALS OF INDIANA

JEFFREY BOWLES,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 12A02-1208-CR-654
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )

                      APPEAL FROM THE CLINTON CIRCUIT COURT
                          The Honorable Linley E. Pearson, Judge
                              Cause No. 12C01-0907-FD-142

                                           July 8, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                STATEMENT OF THE CASE

          Jeffrey Bowles (“Bowles”) appeals his conviction for Class D felony domestic

battery.1

          We affirm.

                                            ISSUES

          1. Whether the trial court abused its discretion in trying Bowles in absentia.

          2. Whether the trial court committed fundamental error in instructing the jury
             regarding the elements of domestic battery.

          3. Whether the evidence is sufficient to sustain Bowles’ conviction.

                                            FACTS

          On July 20, 2009, Officer Troy Bacon (“Officer Bacon”) with the Frankfort Police

Department was dispatched to a fight occurring at the City Lagoons in Frankfort. When

Officer Bacon arrived, he observed Melissa Harris (“Harris”) yelling at Bowles. Harris

was visibly upset and had dirt and gravel on her arms and clothing. Harris told Officer

Bacon that she, Bowles, and their teenaged children were at the City Lagoons fishing and

swimming. Harris noticed that two of the teenagers were stumbling around and were

hard to understand when they spoke. She accused Bowles of putting alcohol in their soft

drinks. Bowles and Harris began to argue. Bowles pushed Harris, then grabbed her by

the head and threw her on the ground.               Harris flagged down Johnny Floyd, who

1
    Ind. Code § 35-42-1.3(a).
                                                2
witnessed the incident, and asked him to call the police. Bowles was placed under arrest

for domestic battery.

       On July 22, 2009, the State charged Bowles with domestic battery, a Class D

felony. After several continuances, a jury trial was scheduled for November 8, 2011.

Bowles did not appear the morning of trial.            Bowles’ attorney stated that he had

previously informed Bowles of the date and time of the trial. Bowles’ attorney also

called Bowles on the morning of trial and received no response. During the lunch break,

Bowles called his attorney’s office, saying that he needed a continuance. Bowles never

contacted the trial court or appeared for his trial.

       Before closing arguments, the trial court and the parties reviewed the final

instructions. The trial court’s instruction on domestic battery defined the charge but

omitted the element “is or was living as spouse” from the enumeration of what the State

was required to prove. (App. 108). Neither party objected to the final instructions, and

the jury convicted Bowles of domestic battery.

                                             DECISION

       Bowles claims the trial court erred in trying him in absentia and committed

fundamental error by not instructing the jury on all elements of domestic battery. Bowles

also argues that the State did not present sufficient evidence to sustain his conviction for

domestic battery. We address each of Bowles’ claims separately.

1. Trial In Absentia

       Bowles argues that the trial court erred in trying him in absentia. A defendant in a

criminal proceeding has a right to be present at all stages of his trial. U.S. Const. amend.

                                               3
VI; Ind. Const. art. I, § 13; Lampkins v. State, 682 N.E.2d 1268, 1273 (Ind. 1997). A

defendant may waive this right and be tried in absentia if the trial court determines that

the defendant knowingly and voluntarily waived his right to be present. Lampkins, 682

N.E.2d at 1273. We will consider the entire record in determining whether a defendant

made a voluntary, knowing, and intelligent waiver. Holtz v. State, 858 N.E.2d 1059 (Ind.

Ct. App. 2006), trans. denied. “When a defendant fails to appear for trial and fails to

notify the court or provide it with an explanation of its absence, the trial court may

conclude that the defendant’s absence is knowing and voluntary and proceed with trial

where there is evidence that the defendant knew of his scheduled trial date.” Id. at 1062.

       Here, Bowles attorney stated that Bowles knew when his trial would begin.

Further, Bowles called his attorney’s office after the trial began, spoke to the attorney’s

secretary, and stated that he needed a continuance. Bowles never contacted the court to

explain why he needed a continuance. Explaining his absence at sentencing, Bowles

stated the following: “My mother had asked me not to go because she figured that I was

gonna go to jail and she needed me there to help take care of my sisters.” (Tr. 126).

From the record, it is not unreasonable to infer that Bowles knew the date of his trial and

should have known that his trial would not be delayed after contacting his attorney’s

office. Yet, he still failed to appear. Therefore, the trial court did not err in trying

Bowles in absentia.

2. Fundamental Error

       Bowles further contends that the trial court committed fundamental error when it

gave a final instruction that omitted the element requiring the State to prove the domestic

                                             4
nature of Bowles’ relationship with Harris. We note that in arguing fundamental error

from the outset, Bowles essentially concedes that he failed to object to the error when it

occurred. Unless his challenge meets the standard for fundamental error, his argument is

deemed waived. Lacy v. State, 438 N.E.2d 968 (Ind. 1982).

      Appellate courts may, on rare occasions, resort to the fundamental error
      exception to address on direct appeal an otherwise procedurally defaulted
      claim. Fundamental error is extremely narrow and available only when the
      record reveals a clearly blatant violation of basic and elementary principles,
      where the harm or potential for harm cannot be denied, and which violation
      is so prejudicial to the rights of the defendant as to make a fair trial
      impossible.

Jewel v. State, 887 N.E.2d 939, 942 (Ind. 2008).

      The trial court provided the following final instruction on domestic battery:

             The crime of domestic battery is defined by statute as follows:

             A person who knowingly or intentionally touches an individual who
      is or was a spouse of the other person; is or was living as if a spouse of the
      other person or has a child in common with the other person, in a rude,
      insolent, or angry manner that results in bodily injury to the person
      described, commits battery, a Class A misdemeanor. However, the offense
      is a Class D felony if the person who committed the offense committed the
      offense in the physical presence of a child less than sixteen (16) years of
      age, knowing that the child was present and might be able to see or hear the
      offense.

            To convict the defendant [of], domestic battery, [sic] the State must
      have proved each of the following elements:

             The defendant
             1. knowingly or intentionally
             2. touched Melissa Harris
             3. in a rude, insolent, or angry manner,
             4. resulting in bodily injury.

            If the State failed to prove each of these elements beyond a
      reasonable doubt, you should find the defendant not guilty.

                                            5
              If the State did prove each of these elements beyond a reasonable
       doubt, you should find the defendant guilty of domestic battery, a Class A
       misdemeanor.
              If the State further proved beyond a reasonable doubt that the person
       who committed the offense committed the offense in the physical presence
       of a child less than sixteen (16) years of age, knowing that the child was
       present and might be able to see or hear the offense, you should find the
       defendant guilty of domestic battery, a Class D felony.

(App. 108). While the trial court’s final instruction does not contain language regarding

Bowles’ relationship with Harris in the list of elements, the body of the court’s final

instruction does completely define the crime of domestic battery. In addition, the trial

court’s preliminary instructions included the omitted element. Our Supreme Court has

held that the failure to give a final instruction on the elements of an offense is not

fundamental error if the trial court provided those elements in a preliminary instruction,

and the defendant failed to object. Lacy, 438 N.E.2d at 968. Hence, no fundamental

error occurred.

3. Sufficiency of the Evidence

       Finally, Bowles argues that the State did not present sufficient evidence to sustain

his conviction for domestic battery.

       The standard of review for such a challenge is well settled. “[W]e neither reweigh

evidence nor judge witness credibility.” Henley v. State, 881 N.E.2d 639, 652 (Ind.

2008). “We consider only the evidence supporting the judgment and any reasonable

inferences that can be drawn from such evidence.” Id. “We will affirm a conviction if

there is substantial evidence of probative value such that a reasonable trier of fact could

have concluded the defendant was guilty beyond a reasonable doubt.” Id.

                                            6
       To convict Bowles of domestic battery as charged, the State had to prove that

Bowles: (1) knowingly or intentionally; (2) touched Harris in a rude, insolent, or angry

manner; (3) that resulted in bodily injury; (4) that Harris is or was living as Bowles’

spouse; and (5) Bowles committed the offense in front of a child less than sixteen (16)

years of age knowing that the child was present and might be able to see or hear the

battery taking place. I.C. § 35-42-2-1.3(a).

       Bowles claims that the State did not provide sufficient evidence that Harris is or

was living as Bowles’ spouse. Specifically, Bowles argues that there was insufficient

evidence to show that he and Harris were cohabitating or engaged in a romantic

relationship. However, the Legislature has provided a non-exclusive list of factors to

consider when deciding whether a person was living as the spouse of another for

purposes of the domestic battery statute.

       In considering whether a person is or was living as a spouse of another
       individual for purposes of subsection (a)(2), the court shall review:

              (1) the duration of the relationship;

              (2) the frequency of contact;

              (3) the financial interdependence;

              (4) whether the two (2) individuals are raising children together;

              (5) whether the two (2) individuals have engaged in tasks directed
              toward maintaining a common household; and

              (6) other factors the court considers relevant.

I.C. § 35-42-2-1.3(c).

                                               7
       Here, Harris testified at trial that she and Bowles lived together in a house for

three (3) years, that she worked while he collected disability, and, as of the trial date, she

and Bowles were apart for nine (9) months. At the time of the offense, and apparently at

times during the pendency of the case, Bowles and Harris lived together and engaged in

an ongoing relationship. Thus, the State presented sufficient evidence to sustain Bowles’

conviction for domestic battery.

       Affirmed.

KIRSCH, J., and VAIDIK, J., concur.

                                              8


                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                            No. 12-7341

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEITH BILLINGSLEY,

                Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:03-cr-00395-JCC-3; 1:07-cv-00185-JCC)

Submitted:   December 20, 2012            Decided:   December 26, 2012

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed by unpublished per curiam opinion.

Keith Billingsley, Appellant Pro Se.       Jonathan Leo Fahey,
Lawrence Joseph Leiser, Assistant United States Attorneys, Mark
Alex Grider, Tino Martin Lisella, Luis Morales, Melissa Siskind,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.

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

              Keith Billingsley seeks to appeal the district court’s

order dismissing his 28 U.S.C.A. § 2255 (West Supp. 2012) motion

as   successive      and    time-barred.         The    order    is    not   appealable

unless    a    circuit     justice      or   judge     issues     a    certificate     of

appealability.       28 U.S.C. § 2253(c)(1)(B) (2006).                  A certificate

of appealability will not issue absent “a substantial showing of

the denial of a constitutional right.”                       28 U.S.C. § 2253(c)(2)

(2006).       When the district court denies relief on the merits, a

prisoner       satisfies      this      standard        by      demonstrating         that

reasonable      jurists      would      find     that     the     district      court’s

assessment      of    the     constitutional           claims     is    debatable       or

wrong.     Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-

El v. Cockrell, 537 U.S. 322, 336-38 (2003).                      When the district

court denies relief on procedural grounds, the prisoner must

demonstrate      both      that   the    dispositive         procedural      ruling    is

debatable, and that the motion states a debatable claim of the

denial of a constitutional right.                Slack, 529 U.S. at 484-85.

              We have independently reviewed the record and conclude

that     Billingsley        has    not       made      the      requisite      showing.

Accordingly, we deny a certificate of appealability and dismiss

the appeal.       We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

                                             2
before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                                    DISMISSED

                                     3


          United States Court of Appeals
                     For the First Circuit

No. 15-1045

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                        NICHOLAS WEBSTER

                      Defendant, Appellant.

                          ERRATA SHEET

     The opinion of this Court, issued on April 13, 2016, is
amended as follows:

     On page 3, line 16: "five years" is replaced with "five
years'"

     On page 5, line 1: "18 months" is replaced with "18 months'"

     On page 6, footnote 5, line 2: "Cook," is replaced with
"Cook;"

     On page 9, line 5: "eleven months" is replaced with "eleven
months'"

     On page 10, line 5: "its" is replaced with "their"

     On page 13, line 16: "it" is replaced with "said convictions"

     On page 14, footnote 9, line 14: "firearm," is replaced with
"firearm and"


603 P.2d 141 (1979)
STATE of Hawaii, Plaintiff-Appellee,
v.
Nicholas PIMENTEL, also known as Nicholas Jaime Delgado, Jaime Nicholas Delgado and Nick, Defendant-Appellant.
No. 7075.
Supreme Court of Hawaii.
November 14, 1979.
Rodney Maile, Deputy Public Defender, Honolulu (on the briefs), for defendant-appellant.
Lawrence White, Deputy Pros. Atty., Honolulu (on the brief), for plaintiff-appellee.
Before RICHARDSON, C.J., OGATA and MENOR, JJ., KOBAYASHI, Retired Justice and LUM, Circuit Judge, assigned by reason of vacancies.
PER CURIAM.
Defendant-appellant, Nicholas Pimental (hereinafter appellant), was charged in an indictment with the commission of two counts of promoting a dangerous drug in the second degree, in that he knowingly distributed on two separate days the dangerous drug heroin in violation of HRS § 712-1242(1)(c) (1976).[1] Upon his plea of not guilty, he was tried before a jury. At the conclusion of the testimony, the trial judge gave an instruction to the jury, over the objection of appellant's counsel, in language as follows:

*142 In this case the defendant is charged with two counts of the criminal offense of Promoting a Dangerous Drug in the Second Degree.
A person commits the offense of Promoting a Dangerous Drug in the Second Degree if he knowingly distributes heroin.
There are three material elements in each of these offenses which must be proven by the Prosecution beyond a reasonable doubt. If it has done so, you are to convict, and if it has not done so, you are to acquit. The three material elements are:
1. Was the substance involved heroin?
2. Did the defendant distribute the heroin? To distribute means to sell, transfer, give or deliver to another.
3. Did the defendant know that the substance which he distributed was heroin? If the substance distributed is proven to be heroin, such a finding is sufficient for the jury to find that the defendant knew the character and nature of the substance which he distributed.
The above-quoted instruction was offered by the State and was given to the jury as State's Instruction No. 1. The appellant objected to the last sentence of the final paragraph of the instruction on two grounds. First, the jury was allowed to impute appellant's knowledge solely on the basis of a chemical analysis of the substance showing it to be heroin. Second, the wording of the instruction was ambiguous in that the jury could have believed that it must find that if the substance distributed was heroin, then the appellant knew it was heroin. There was no clear indication in State's Instruction No. 1, or in any other instruction given to the jury, that such a finding was permissive, not mandatory.
On April 18, 1978, the jury found the appellant guilty of both counts of promoting a dangerous drug, and he was sentenced to two ten year concurrent prison sentences and the payment of restitution. We reverse.
The issue upon appeal is whether the State's Instruction No. 1, could have been interpreted by a reasonable juror to allow appellant's knowledge to be inferred from proof of the nature of the substance, or whether the instruction impermissibly shifted the burden of proof of a material element of the offense to the appellant, thereby depriving him of due process of law in his conviction.
The Hawaii Penal Code in HRS § 702-204 (1976) provides that "a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly, or negligently, as the law specifies, with respect to each element of the offense." The code then defines each of these states of mind in HRS § 702-206 (1976), and "knowingly" is defined as:
(2) "Knowingly."
(a) A person acts knowingly with respect to his conduct when he is aware that his conduct is of that nature.
(b) A person acts knowingly with respect to attendant circumstances when he is aware that such circumstances exist.
(c) A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.
The appellant's knowledge that the substance he distributed was heroin was a material element of the crime of Promoting a Dangerous Drug in the Second Degree. HRS § 712-1242(1)(c) (1976). As the Due Process Clause of the Fourteenth Amendment requires that the state prove every element of a criminal offense beyond a reasonable doubt, the state in the instant case bore the burden of so proving the appellant's knowledge. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 2457, 61 L.Ed.2d 39 (1979); Taylor v. Kentucky, 436 U.S. 478, 485-86, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978); Moore v. United States, 429 U.S. 20, 22, 97 S.Ct. 29, 50 L.Ed.2d 25 (1976); Mullaney v. Wilbur, 421 U.S. 684, 701, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Hughes v. Mathews, 576 F.2d 1250, 1255 (7th Cir.1978); State v. *143 Napeahi, 57 Haw. 365, 377, 556 P.2d 569, 577 (1976).
In our opinion, State's Instruction No. 1 required the jury to find the appellant knew the substance was heroin upon a showing by the prosecution that chemical analysis proved it to be heroin. The burden of proof then shifted to the appellant to show that he had no knowledge that the substance involved was heroin. The state was not forced to prove beyond a reasonable doubt every element of the crime of Promoting a Dangerous Drug in the Second Degree. This violated the appellant's due process right to proof beyond a reasonable doubt of the crime charged. Sandstrom v. Montana, supra, 99 S.Ct. at 2459; Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); Mullaney v. Wilbur, supra, 421 U.S. at 701, 95 S.Ct. 1881; State v. Brighter, 61 Haw. 99, 111, 595 P.2d 1072, 1080 (1979).
Further, State's Instruction No. 1 was deficient in that it did not clearly indicate to the jury that any inference which could have been drawn by it was merely permissive. The jurors could have thought that they were required to find knowledge in the absence of defense evidence negating such knowledge. "[T]he jury should have been given a clarifying instruction to the effect that it could  but was not required to  find the element of knowledge possession upon proof of the underlying facts." State v. Brighter, supra at 111, 595 P.2d at 1080 (original emphasis).
The burden-shifting effect of State's Instruction No. 1, coupled with the lack of a clarifying instruction concerning the permissive nature of the inference contained therein, "`so infected the entire trial' that appellant's resulting conviction does not comport with due process." State v. Brighter, supra at 111-12, 595 P.2d at 1080.
Reversed and remanded for a new trial not inconsistent with this opinion.
NOTES
[1]  HRS § 712-1242 (1976) states:

Promoting a dangerous drug in the second degree.
(1) A person commits the offense of promoting a dangerous drug in the second degree if he knowingly:
(a) Possesses fifty or more capsules, tablets, ampules, or syrettes, containing one or more dangerous drugs; or
(b) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of:
(i) One-eighth ounce or more, containing any of the respective alkaloids or salts of heroin, morphine, or cocaine; or
(ii) One-half ounce or more, containing any dangerous drug; or
(c) Distributes any dangerous drug in any amount.
(2) Promoting a dangerous drug in the second degree is a class B felony. [Emphasis added.]


45 So.3d 1077 (2010)
Merlin J. SEMINARY, Jr.
v.
Roberta DUPONT, Wife of/and John C. Dupont.
No. 2010-C-1336.
Supreme Court of Louisiana.
September 24, 2010.
Denied.


              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-81,163-01

                      EX PARTE PEDRO CHAVEZ VASQUEZ, Applicant

                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 39736-01-B IN THE 181ST DISTRICT COURT
                              FROM POTTER COUNTY

        Per curiam.

                                              ORDER

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of robbery and

sentenced to twenty years’ imprisonment. He did not appeal his conviction.

        On April 30, 2014, this Court remanded to the trial court to obtain affidavits and findings

addressing Applicant’s claims that his counsel at the original plea proceeding and counsel at the

revocation hearing rendered ineffective assistance. On August 20, 2014, this Court received the

supplemental record, which included affidavits from both attorneys and findings of fact from the trial
                                                                               2

court.

         The trial court has made findings that Applicant’s plea was voluntary. The trial court also

found that neither trial counsel nor counsel for the motions to proceed with guilt on the original

charge were deficient. The trial court also found that certain medical records were taken into

consideration by the trial court in sentencing the defendant at the June 24, 2008 revocation hearing.

However, the trial court did not make findings as to whether using these medical records constituted

a due process violation.

         In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334

S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact.

The trial court may use any means set out in TEX . CODE CRIM . PROC . art. 11.07, § 3(d). In the

appropriate case, the trial court may rely on its personal recollection. Id.

         If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.

If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

         The trial court shall make a finding as to whether the medical records in the court’s file in

the instant case have any relevance to Applicant. The trial court shall make additional findings as

to whether the medical records were improperly considered, and, if so, if they influenced the amount

of time the trial court imposed. The trial court may also make any other findings of fact and

conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for

habeas corpus relief.

         This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing all
                                                                               3

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.

Filed: September 24, 2014
Do not publish


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               JULY 30, 2007
                               No. 06-14859                  THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                D. C. Docket No. 05-00158-CR-ORL-19-DAB

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                    versus

TYREE RENARD WILSON,

                                                      Defendant-Appellant.

                         ________________________

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

                                (July 30, 2007)

Before ANDERSON, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Tyree Wilson, through counsel, appeals his conviction for conspiracy to
possess with intent to distribute crack cocaine in violation of 21 U.S.C. §§

841(a)(1) and 846.

                                             I.

       On appeal, Wilson challenges the district court’s jurisdiction, arguing that

the application of the Controlled Substances Act (“CSA”) is unconstitutional

because he was the victim of outrageous government conduct. He argues that the

government fabricated the drug conspiracy and engaged in criminal activity in

implementing the investigation, primarily via the use of confidential informants.

       “We review the constitutionality of a [challenged] statute de novo.” United

States v. Ballinger, 395 F.3d 1218, 1225 (11th Cir. 2005) (en banc). We review

issues not raised before the district court for plain error. United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). An unpreserved error will be

corrected only if it is “(1) error, (2) that is plain, and (3) that affects substantial

rights.” Id. (internal quotation marks omitted).

       Wilson’s argument calls into question Congress’s authority under the

Commerce Clause to prohibit the conduct with which he was charged. The

Commerce Clause gives Congress the power to regulate three types of activity: (1)

“the channels of interstate commerce;” (2) “the instrumentalities of interstate

commerce, and persons or things in interstate commerce;” and (3) “activities that

                                             2
substantially affect interstate commerce.” Gonzales v. Raich, 545 U.S. 1, 16-17,

125 S. Ct. 2195, 2205, 162 L .Ed. 2d 1 (2005). The Supreme Court has upheld the

CSA as a valid exercise of Congressional power. Id. at 9, 125 S. Ct. at 2201.

Accordingly, the district court had jurisdiction in this case and Wilson’s argument

is without merit.

      Wilson also argues that that the government’s conduct in this case violated

his due process rights. We have recognized that government conduct, in rare and

outrageous circumstances, might violate the Fifth Amendment. United States v.

Edenfield, 995 F.2d 197, 200 (11th Cir. 1993). Government infiltration of criminal

activity and the furnishing of something of value to the criminal is a recognized

and permissible means of investigation. United States v. Sanchez, 138 F.3d 1410,

1413 (11th Cir. 1998). “[A]lthough a government agent may provide something of

value to a criminal enterprise, he may not instigate the criminal activity, provide

the place, equipment, supplies, and know-how, and run the entire operation with

only meager assistance from the defendants.” Kett v. United States, 722 F.2d 687,

689 (11th Cir. 1984) (per curiam) (internal quotation marks omitted).

      Wilson’s argument is without merit. It is an acceptable and constitutional

investigatory technique to utilize confidential informants to purchase drugs from

suspected drug dealers. The government’s conduct in this case was not outrageous,

                                           3
and Wilson’s argument conflating government conduct and jurisdiction is no basis

for overturning the conviction.

                                          II.

      Next, Wilson argues that the evidence was insufficient to convict him. He

relies heavily on public policy arguments, characterizing government drug

investigations as reliant on “liar’s evidence.” He defines “liar’s evidence” as

evidence that is conducive to fabrication. In the instant case, he objects to the

government’s reliance on and use of confidential informants. He argues that the

testimony of co-defendants Shaun Dawkins and Anthony Sutton contradicted each

other. He further asserts that the evidence was circumstantial and unreliable, and

the jury could only have found him guilty via “guesswork” and “conjecture.”

      “Sufficiency of the evidence is a question of law that we review de novo.”

United States v. Gupta, 463 F.3d 1182, 1193 (11th Cir. 2006), cert. denied, __ S.

Ct. __, No. 06-1388, (May 21, 2007) (mem.). In reviewing the sufficiency of the

evidence, we ask “whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Id. at 1193-94 (internal quotation marks

omitted). Furthermore, we will resolve all reasonable inferences in favor of the

jury’s verdict. Id. at 1194. We keep in mind that credibility determinations are the

                                           4
sole province of the jury. United States v. Chastain, 198 F.3d 1338, 1351 (11th

Cir. 1999).

      In order to support a conspiracy conviction under 21 U.S.C. § 846, the

government must establish that (1) a conspiracy existed, (2) the defendant had

knowledge of it, and (3) he voluntarily became a part of it. United States v.

Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005). The “existence of an agreement

in a conspiracy case is rarely proven by direct evidence that the conspirators

formally entered or reached an agreement . . . . The more common method of

proving an agreement is through circumstantial evidence.” United States v.

Glinton, 154 F.3d 1245, 1258 (11th Cir. 1998) (internal quotation marks omitted).

“[T]he very nature of a conspiracy frequently requires that the existence of an

agreement be proved by inferences from the conduct of the alleged principals or

from circumstantial evidence of a scheme.” United States v. Gold, 743 F.2d 800,

824 (11th Cir. 1984) (internal quotation marks omitted). Uncorroborated

testimony of a co-conspirator may be enough to support a conviction if the

testimony is not incredible on its face or otherwise insubstantial. United States v.

Garcia, 405 F.3d 1260, 1270 (11th Cir. 2005) (per curiam).

      Sufficient evidence supports the jury’s guilty verdict. Sutton stated that he

received drugs from Wilson and shared the profits of drug sales with Wilson.

                                          5
Dawkins stated that he received drugs from Wilson and provided drugs to Wilson.

Co-conspirators’ testimony can be enough to support a conviction, and in this case

the offered testimony was not so incredible that the jury could not have credited it.

Moreover, the testimony from law enforcement agents placing Wilson and Sutton

together before and after the monitored drug deals supports Sutton’s testimony. In

light of the trial testimony, the jury could have concluded beyond a reasonable

doubt that Wilson conspired to possess with intent to distribute crack cocaine.

Therefore, the district court did nor err in denying Wilson’s motion for a judgment

of acquittal.

                                         III.

       Wilson next contends that certain evidentiary rulings by the district court

were erroneous. Wilson argues that the admission of taped recordings between

Dawkins and a confidential informant was erroneous because the recordings (1)

contained statements from a non-testifying confidential informant and (2) were

incomplete and misrepresentative. He also argues that the record supports his

objections regarding the admission of statements he made during the booking

process about his nickname and place of residence. Finally, he argues that the

DEA has an unofficial policy of ensuring that incriminating statements are kept

from defendants before trial.

                                           6
      We review evidentiary rulings for an abuse of discretion. United States v.

Brown, 415 F.3d 1257, 1264-65 (11th Cir. 2005), cert. denied, 126 S.Ct. 1570

(2006). We review constitutional questions de novo. United States v. Brown, 364

F.3d 1266, 1268 (11th Cir. 2004).

      Wilson contends that the confidential informant’s recorded statements

should not have been admitted because they are hearsay. Hearsay is an out-of-

court statement “offered in evidence to prove the truth of the matter asserted.”

Fed. R. Evid. 801(c). A confidential informant’s statement made during a taped

conversation with the defendant can be admitted to provide context, so long as the

informant’s statements are not admitted for the truth asserted. See United States v.

Byrom, 910 F.2d 725, 737 (11th Cir. 1990). The Confrontation Clause “does not

bar the use of testimonial statements for purposes other than establishing the truth

of the matter asserted.” Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct.

1354, 1369 n.9, 158 L. Ed. 2d 177 (2004).

      The admission of the recordings was proper because the confidential

informant’s statements were not admitted for the truth of what he said, but rather

for context. The court instructed the jury not to credit the confidential informant’s

statements as truth, because they were only being provided as context for

Dawkins’s statements. Accordingly, the recording was not hearsay, nor did it

                                          7
violate Wilson’s constitutional right to confrontation because the confidential

informant’s statements were not offered for the truth of the matter asserted.

Wilson’s argument that the recording was incomplete and misrepresentative of the

conversation is not developed beyond mere allegation, and it was not an abuse of

discretion for the court to admit the recording into evidence.

      Wilson also argues that the government committed a discovery violation by

failing to inform him that it intended to introduce at trial statements he made

during booking. The government must disclose the substance of any oral statement

made by the defendant in response to interrogation by a person the defendant knew

to be a government agent if the government intends to use the statement at trial.

Fed. R. Crim. P. 16(a)(1)(A). We will not reverse a conviction based on a

discovery violation unless the appellant can demonstrate that the violation

prejudiced his substantial rights. United States v. Quinn, 123 F.3d 1415, 1423

(11th Cir. 1997). “Substantial prejudice is established when the defendant shows

that he was unduly surprised and did not have an adequate opportunity to prepare a

defense or that the mistake had a substantial influence on the jury.” United States

v. Rivera, 944 F.2d 1563, 1566 (11th Cir. 1991).

      A law enforcement officer’s request for routine information during booking

is not an interrogation, and, therefore, is not subject to Miranda v. Arizona, 384

                                          8
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). United States v. Sweeting, 933

F.2d 962, 965 (11th Cir. 1991).

      The district court’s decision to admit Wilson’s booking statements does not

require reversal. As an initial matter, routine questioning during the booking

process does not constitute interrogation, and, therefore, the statements did not

violate Wilson’s Miranda rights. The government contends that it did not commit

a discovery violation because Wilson’s comment about living in Georgia to avoid

arrest was discussed during the detention hearing, and the “Blacknet” nickname

was on Wilson’s fingerprint card, which was available to the defendant. Even

assuming that the detention hearing discussion and fingerprint card did not satisfy

the government’s obligation, the court did not abuse its discretion by allowing the

statements to be heard by the jury because the evidence did not violate Wilson’s

substantial rights. Wilson’s conviction principally relied upon the testimony of

Sutton and Dawkins, two co-conspirators who directly implicated Wilson in the

provision and sale of illegal drugs. Accordingly, Wilson has failed to establish that

any possible discovery violation affected his substantial rights.

      AFFIRMED.

                                           9


[Cite as Mahoning Cty. Bar Assn. v. Verkhlin, ___ Ohio St.3d ___, 2018-Ohio-79.]

              MAHONING COUNTY BAR ASSOCIATION v. VERKHLIN.
       [Cite as Mahoning Cty. Bar Assn. v. Verkhlin, ___ Ohio St.3d ___,
                                     2018-Ohio-79.]
  (No. 2017-1756—Submitted December 14, 2017—Decided January 11, 2018.)
                           ON CERTIFICATION OF DEFAULT.
                                ____________________
        {¶ 1} On December 14, 2017, and pursuant to Gov.Bar R. V(14)(A), the
Board of Professional Conduct filed with this court a certification of default,
alleging that respondent, Mark Immanuel Verkhlin, failed to file an answer to a
formal complaint pending before the board. Respondent did not file a response.
        {¶ 2} Upon consideration thereof and pursuant to Gov.Bar R. V(14)(B)(1),
it is ordered and decreed that an interim default suspension is immediately entered
against Mark Immanuel Verkhlin, Attorney Registration No. 0083203, last known
business address in Tallmadge, Ohio, and that the suspension is effective as of the
date of this entry.
        {¶ 3} It is further ordered that respondent immediately cease and desist
from the practice of law in any form and that he is hereby forbidden to appear on
behalf of another before any court, judge, commission, board, administrative
agency, or other public authority.
        {¶ 4} It is further ordered that effective immediately, respondent is
forbidden to counsel, advise, or prepare legal instruments for others or in any
manner perform legal services for others.
        {¶ 5} It is further ordered that respondent is hereby divested of each, any,
and all of the rights, privileges, and prerogatives customarily accorded to a
member in good standing of the legal profession of Ohio.
                             SUPREME COURT OF OHIO

       {¶ 6} It is further ordered that before entering into an employment,
contractual, or consulting relationship with any attorney or law firm, respondent
shall verify that the attorney or law firm has complied with the registration
requirements of Gov.Bar R. V(23)(C).         If employed pursuant to Gov.Bar R.
V(23), respondent shall refrain from direct client contact except as provided in
Gov.Bar R. V(23)(A)(1) and from receiving, disbursing, or otherwise handling
any client trust funds or property.
       {¶ 7} It is further ordered that pursuant to Gov.Bar R. X(13), respondent
shall complete one credit hour of continuing legal education for each month, or
portion of a month, of the suspension. As part of the total credit hours of
continuing legal education required by Gov.Bar R. X(13), respondent shall
complete one credit hour of instruction related to professional conduct required by
Gov.Bar R. X(3)(B) for each six months, or portion of six months, of the
suspension.
       {¶ 8} It is further ordered that respondent shall not be reinstated to the
practice of law in Ohio until (1) respondent complies with the requirements for
reinstatement set forth in the Supreme Court Rules for the Government of the Bar
of Ohio, (2) respondent complies with this and all other orders issued by this
court, (3) respondent complies with the Supreme Court Rules for the Government
of the Bar of Ohio, and (4) this court orders respondent reinstated.
       {¶ 9} It is further ordered by the court that within 90 days of the date of
this order, respondent shall reimburse any amounts that have been awarded by the
Lawyers’ Fund for Client Protection pursuant to Gov.Bar R. VIII(7)(F). It is
further ordered by the court that if after the date of this order the Lawyers’ Fund
for Client Protection awards any amount against respondent pursuant to Gov.Bar
R. VIII(7)(F), respondent shall reimburse that amount to the Lawyers’ Fund for
Client Protection within 90 days of the notice of that award.

                                         2
                                  January Term, 2018

        {¶ 10} It is further ordered that on or before 30 days from the date of this
order, respondent shall do the following:
        {¶ 11} 1. Notify all clients being represented in pending matters and any
co-counsel of respondent’s suspension and consequent disqualification to act as
an attorney after the effective date of this order and, in the absence of co-counsel,
also notify the clients to seek legal service elsewhere, calling attention to any
urgency in seeking the substitution of another attorney in respondent’s place;
        {¶ 12} 2. Regardless of any fees or expenses due, deliver to all clients
being represented in pending matters any papers or other property pertaining to
the client, or notify the clients or co-counsel, if any, of a suitable time and place
where the papers or other property may be obtained, calling attention to any
urgency for obtaining such papers or other property;
        {¶ 13} 3. Refund any part of any fees or expenses paid in advance that are
unearned or not paid and account for any trust money or property in his
possession or control;
        {¶ 14} 4. Notify opposing counsel or, in the absence of counsel, the
adverse parties in pending litigation of his disqualification to act as an attorney
after the effective date of this order and file a notice of disqualification of
respondent with the court or agency before which the litigation is pending for
inclusion in the respective file or files;
        {¶ 15} 5. Send all notices required by this order by certified mail with a
return address where communications may thereafter be directed to respondent;
        {¶ 16} 6. File with the clerk of this court and disciplinary counsel of the
Supreme Court an affidavit showing compliance with this order, showing proof of
service of the notices required herein, and setting forth the address where
respondent may receive communications; and
        {¶ 17} 7. Retain and maintain a record of the various steps taken by
respondent pursuant to this order.

                                             3
                             SUPREME COURT OF OHIO

       {¶ 18} It is further ordered that respondent shall keep the clerk, the
Mahoning County Bar Association, and disciplinary counsel advised of any
change of address where respondent may receive communications.
       {¶ 19} It is further ordered that all documents filed with this court in this
case shall meet the filing requirements set forth in the Rules of Practice of the
Supreme Court of Ohio, including requirements as to form, number, and
timeliness of filings. All case documents are subject to Sup.R. 44 through 47,
which govern access to court records.
       {¶ 20} It is further ordered that service shall be deemed made on
respondent by sending this order, and all other orders in this case, by certified
mail to the most recent address respondent has given to the Office of Attorney
Services.
       {¶ 21} It is further ordered that the clerk of this court issue certified copies
of this order as provided for in Gov.Bar R. V(17)(D)(1) and that publication be
made as provided for in Gov.Bar R. V(17)(D)(2).
       O’CONNOR, C.J., and O’DONNELL, KENNEDY, FRENCH, O’NEILL, FISCHER,
and DEWINE, JJ., concur.
                           ________________________

                                          4


273 U.S. 1 (1927)
ALBRECHT ET AL.
v.
UNITED STATES.
No. 9.
Supreme Court of United States.
Argued November 23, 1926.
Decided January 3, 1927.
ERROR TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ILLINOIS.
*2 Mr. Charles A. Houts, with whom Messrs. Samuel W. Baxter and D.E. Keefe were on the brief, for the plaintiffs in error.
Solicitor General Mitchell, with whom Assistant Attorney General Willebrandt and Mr. John J. Byrne, Attorney in the Department of Justice, were on the brief, for the United States.
*3 MR. JUSTICE BRANDEIS delivered the opinion of the Court.
This direct writ of error to the federal court for eastern Illinois, was allowed under § 238 of the Judicial Code prior to the amendment of February 13, 1925. Albrecht and his associates were sentenced to either fine or imprisonment upon each of nine counts of an information charging violations of the National Prohibition Act. *4 There is no contention that the offences charged could not be prosecuted by information. See Brede v. Powers, 263 U.S. 4, 10; Rossini v. United States, 6 F. (2d) 350. The claims mainly urged are that, because of defects in the information and affidavits attached, there was no jurisdiction in the District Court and that rights guaranteed by the Fourth Amendment were violated. Several important questions of practice are presented which have not been passed upon by this Court, and on which there has been diversity of opinion in the lower courts, due in part to language in the opinions in United States v. Morgan, 222 U.S. 274, 282, and in United States v. Thompson, 251 U.S. 407, 413-414.
The information recites that it was filed by the United States Attorney with leave of the court; and the truth of this allegation has not been questioned. A bench warrant issued; and the marshal executed it by arresting the defendants. When they were brought into court, each gave bond to appear and answer; was released from custody immediately; and was not thereafter in custody by virtue of the warrant or otherwise. At the time of giving the bonds, no objection was made to either the jurisdiction or the service by execution of the warrant; and nothing was done then indicating an intention to enter a special appearance. On a later day, the defendants filed a motion to quash the information; declared in the motion that they "specifically limit their appearance in the cause for the purpose of interposing" it; and protested that the court was without jurisdiction. The main ground urged in support of the objection was that the information had not been verified by the United States Attorney; that it recited he "gives the court to understand and be informed, on the affidavit of I.A. Miller and D.P. Coggins"; and that these affidavits, which were annexed to the information, had been sworn to before a notary public  a state official not authorized to administer *5 oaths in federal criminal proceedings. Compare United States v. Hall, 131 U.S. 50. With leave of court, new oaths to the affidavits were immediately sworn to before the Deputy Clerk of the Court, and additional affidavits, also sworn to before him, were filed. Thereupon, a new motion to quash, setting forth the same grounds, was filed by the defendants; and this motion extended to both the information and the warrant. It also was denied; and a demurrer interposed upon the same ground was overruled. Then, upon a plea of not guilty, the defendants were tried, with the result stated; and a motion in arrest of judgment was denied.
As the affidavits on which the warrant issued had not been properly verified, the arrest was in violation of the clause in the Fourth Amendment which declares that "no warrants shall issue but upon probable cause, supported by oath or affirmation." See Ex parte Burford, 3 Cranch 448, 453; United States v. Michalski, 265 Fed. 839. But it does not follow that because the arrest was illegal, the information was or became void. The information was filed by leave of court. Despite some practice and statements to the contrary, it may be accepted as settled, that leave must be obtained; and that before granting leave, the court must, in some way, satisfy itself that there is probable cause for the prosecution.[1] This is done sometimes *6 by a verification of the information, and frequently by annexing affidavits thereto. But these are not the only means by which a court may become satisfied that probable cause for the prosecution exists.[2] The United States Attorney, like the Attorney General or Solicitor General of England, may file an information under his oath of office; and, if he does so, his official oath may be accepted as sufficient to give verity to the allegations of the information. See Weeks v. United States, 216 Fed. 292, 302.
It is contended that this information was not presented on the official oath of the United States Attorney; that instead of informing on his official oath, he gave "the court to understand and be informed on the affidavit[s]" referred to; and that, for this reason, the information is to be likened, not to those filed in England by the Attorney General or the Solicitor General, but to those exhibited there by Masters of the Crown upon information of a private informer; that the latter class of informations *7 were required by Stat. 4 & 5, W. & M.C. 18, to be supported by affidavit of the person at whose instance they were preferred; that this requirement for informations of that character became a part of our common law; and, that, because the affidavits were not properly verified, the information could not confer jurisdiction.
The practice of prosecuting lesser federal crimes by information, instead of indictment, has been common since 1870.[3] But, in federal proceedings, no trace has been found of the differentiation in informations for such crimes, or of any class of informations instituted by a private informer comparable to those dealt with in England by Stat. 4 & 5, W. & M.C. 18.
The reference to the affidavits in this information is not to be read as indicating that it was presented otherwise than than upon the oath of office of the United States Attorney.[4] The affidavits were doubtless referred to in *8 the information, not as furnishing probable cause for the prosecution, but because it was proposed to use the information and affidavits annexed as the basis for an application for a warrant of arrest. If before granting the warrant, the defendants had entered a voluntary appearance, the reference and the affidavits could have been treated as surplusage, and would not have vitiated the information.[5] The fact that the information and affidavits were used as a basis for the application for a warrant did not affect the validity of the information as such.[6] Whether the whole proceeding was later vitiated by the false arrest remains to be considered.
The invalidity of the warrant is not comparable to the invalidity of an indictment. A person may not be punished for a crime without a formal and sufficient accusation even if he voluntarily submits to the jurisdiction of the court. Compare Ex parte Bain, 121 U.S. 1. But a false arrest does not necessarily deprive the court of jurisdiction of the proceeding in which it was made. Where there was an appropriate accusation either by indictment or information, a court may acquire jurisdiction over the person of the defendant by his voluntary appearance.[7] That a defendant may be brought before the court by a summons, without an arrest, is shown by the practice in prosecutions against corporations which are necessarily commenced by a summons.[8] Here, the court had jurisdiction *9 of the subject matter; and the persons named as defendants were within its territorial jurisdiction. The judgment assailed would clearly have been good, if the objection had not been taken until after the verdict.[9] This shows that the irregularity in the warrant was of such a character that it could be waived. Was it waived? And, if not, was it cured?
The bail bonds bound the defendants to "be and appear" in court "from day to day" and "to answer and stand trial upon the information herein and to stand by and abide the orders and judgment of the Court in the premises." It is urged there was a waiver by giving the bail bonds without making any objection. We are of the opinion that the failure to take the objection at that time did not waive the invalidity of the warrant or operate as a general appearance.[10] An objection to the illegality *10 of the arrest could have been taken thereafter by a motion to quash the warrants, though technically the defendants were then held under their bonds, the warrants having performed their functions. But the first motion to quash was not directed to the invalidity of the warrant. As that motion to quash was directed solely to the information, it could not raise the question of the validity of the warrant.[11] The motion to quash the warrant was not made until after the government had filed properly verified affidavits by leave of court. Thereby the situation had been changed. The affidavits then on file would have supported a new warrant, which, if issued, would plainly have validated the proceedings thenceforward. Compare In re Johnson, 167 U.S. 120. There was no occasion to apply for a new warrant, because the defendants were already in court.[12] The defect in the proceeding by which they had been brought into court had been cured. By failing to move to quash the warrant before the defect had been cured, the defendants lost their right to object. It is thus unnecessary to decide whether it would have been proper to allow the amendment, and deny the motion *11 to quash, if the attack on the warrant had been made before the amendment of the affidavits.[13]
There is a claim of violation of the Fifth Amendment by the imposition of double punishment. This contention rests upon the following facts. Of the nine counts in the information four charged illegal possession of liquor, four illegal sale and one maintaining a common nuisance. The contention is that there was double punishment because the liquor which the defendants were convicted for having sold is the same that they were convicted for having possessed. But possessing and selling are distinct offenses. One may obviously possess without selling; and one may sell and cause to be delivered a thing of which he has never had possession; or one may have possession and later sell, as appears to have been done in this case. The fact that the person sells the liquor which he possessed does not render the possession and the sale necessarily a single offence. There is nothing in the Constitution which prevents Congress from punishing separately each step leading to the consummation of a transaction which it has power to prohibit and punishing also the completed transaction. The precise question does not appear to have been discussed in either this or a lower federal court in connection with the National Prohibition Act; but the general principle is well established. *12 Compare Burton v. United States, 202 U.S. 344, 377; Gavieres v. United States, 220 U.S. 338; Morgan v. Devine, 237 U.S. 632.
The remaining objections are unsubstantial and do not require discussion.
Affirmed.
NOTES
[1]   The great majority of the lower courts dealing with the subject have insisted that the district attorney secure leave of court before filing informations, and have refused to grant leave except upon a showing of probable cause. United States v. Shepard, Fed. Cas. No. 16,273; United States v. Maxwell, Fed. Cas. No. 15,750; United States v. Baugh, 1 Fed. 784; United States v. Reilley, 20 Fed. 46; United States v. Smith, 40 Fed. 755; United States v. Schurman, 177 Fed. 581; United States v. Quaritius, 267 Fed. 227. In some districts the United States attorney has been permitted to file an information upon a purely formal allegation of leave, but the court determined the question of the existence of probable cause upon a motion of the defendant to withdraw leave. United States v. Simon, 248 Fed. 980; Yaffee v. United States, 276 Fed. 497. The statements in Ryan v. United States, 5 F. (2d) 667, and Miller v. United States, 6 F. (2d) 463, that the United States attorney may file informations as of right, are based upon an incidental remark in United States v. Thompson, 251 U.S. 407, 413-414, which must be disregarded.
[2]   A few cases have considered a verification essential to the validity of an information. United States v. Tureaud, 20 Fed. 621; United States v. Strickland, 25 Fed. 469. Compare Johnston v. United States, 87 Fed. 187; United States v. Wells, 225 Fed. 320. See United States v. Morgan, 222 U.S. 274, 282. The opposite conclusion was reached after great deliberation in Weeks v. United States, 216 Fed. 292, since followed by many cases. Reference may be made to United States v. Adams Express Co., 230 Fed. 531; Simpson v. United States, 241 Fed. 841; Abbott Bros. Co. v. United States, 242 Fed. 751; Kelly v. United States, 250 Fed. 947; Brown v. United States, 257 Fed. 703; United States v. Newton Tea & Spice Co., 275 Fed. 394; United States v. McDonald, 293 Fed. 433; Vollmer v. United States, 2 F. (2d) 551; Wagner v. United States, 3 F. (2d) 864; Poleskey v. United States, 4 F. (2d) 110; Gray v. United States, 14 F. (2d) 366.
[3]   Two different courts, having before them criminal informations, were able to say, as late as 1870, that there had been no use of that procedure known to them up to that time. United States v. Shepard, Fed. Cas. No. 16,273; United States v. Cultus Joe, Fed. Cas. No. 15,478. See also Abbott's United States Practice, Vol. II, 177. Story writing in 1833, said that there was very little use of informations except in civil prosecutions for penalties and forfeitures. The Constitution, § 1780. In 1864, Congress passed a statute which provided for a summary criminal proceeding, begun by sworn complaint, in cases involving minor offenses by seamen. Act of June 11, 1864, c. 121, §§ 2, 3, 13 Stat. 124. In 1870 was passed a statute authorizing prosecution by indictment or information for crimes against the franchise. Act of May 31, 1870, c. 114, § 8, 16 Stat. 142. While there was probably a sporadic use of informations in criminal proceedings during the first eighty years of the government, as in United States v. Mann, Fed. Cas. No. 15,717 (1812), the use did not become general until after 1870. After 1870 prosecutions by information became frequent. See United States v. Waller, Fed. Cas. No. 16,634; United States v. Maxwell, Fed. Cas. No. 15,750; United States v. Baugh, 1 Fed. 784. See also, Ex parte Wilson, 114 U.S. 417, 425.
[4]   Compare Simpson v. United States, 241 Fed. 841. Contra, United States v. Schallinger Produce Co., 230 Fed. 290.
[5]   Compare Weeks v. United States, 216 Fed. 292; Poleskey v. United States, 4 F. (2d) 110; Miller v. United States, 6 F. (2d) 463. See also Kelly v. United States, 250 Fed. 947; Brown v. United States, 257 Fed. 703; Keilman v. United States, 284 Fed. 845; Carney v. United States, 295 Fed. 606; Wagner v. United States, 3 F. (2d) 864.
[6]   Compare Yaffee v. United States, 276 Fed. 497; Farinelli v. United States, 297 Fed. 198, 199. See Jordan v. United States, 299 Fed. 298.
[7]   See cases cited in note 5, supra.
[8]   The leading case on the use of summons in criminal prosecutions against corporations in the federal courts is United States v. Kelso, 86 Fed. 304, followed in United States v. Standard Oil Co., 154 Fed. 728; United States v. Virginia-Carolina Chemical Co., 163 Fed. 66; John Gund Brewing Co. v. United States, 204 Fed. 17; United States v. Philadelphia & R. Ry. Co., 237 Fed. 292; United States v. Nat. Malleable & S. Castings Co., 6 F. (2d) 40.
[9]   See Dowdell v. United States, 221 U.S. 325, 332; Jordan v. United States, 299 Fed. 298; Yaffee v. United States, 276 Fed. 497; United States v. McDonald, 293 Fed. 433, 437. Compare In re Johnson, 167 U.S. 120; Simpson v. United States, 241 Fed. 841; Abbott Bros. Co. v. United States, 242 Fed. 751.
[10]   There has been no discussion, in the federal courts, of the possible effect of a bail bond as a waiver of the right to object to an illegal arrest. In United States v. Shepard, Fed. Cas. No. 16,273, and United States v. Wells, 225 Fed. 320, the court quashed informations because of the illegality of the arrest, though the defendants had given bond without objecting to the illegality, but the question of waiver was apparently not pressed upon the courts. The trend of authority in the state courts does not consider that giving bond is a waiver, since the defendant must give bond or go to jail, and will ordinarily have little knowledge of his legal rights. People v. Gardner, 71 Misc. 335, 130 N.Y. Supp. 202; State v. Simmons, 39 Kan. 262 (but compare State v. Munson, 111 Kan. 318). Compare Solomon v. People, 15 Ill. 291; State v. Hufford, 28 Ia. 391. See Eddings v. Boner, 1 Ind. Terr. 173, 179-180. Contra, State v. Wenzel, 77 Ind. 428. It is of course possible that giving bail plus very little else may amount to a waiver. Ard v. State, 114 Ind. 542; State v. McClain, 13 N. Dak. 368.
[11]   There has been confusion as to the proper method of taking an objection to an illegal arrest. Some cases in the lower federal courts have apparently allowed it to be taken by a motion to quash the information or indictment. United States v. Illig, 288 Fed. 939. Compare United States v. Tureaud, 20 Fed. 621; Johnston v. United States, 87 Fed. 187; United States v. Wells, 225 Fed. 320. Later decisions require that the objection be taken to the warrant, not to the information or indictment. Farinelli v. United States, 297 Fed. 198, 199; Schmidt v. United States, 2 F. (2d) 367. Compare Christian v. United States, 8 F. (2d) 732, 733.
[12]   Compare Smith v. State, 20 Ala. App. 442; State v. Volk, 144 Minn. 223.
[13]   See the action of the lower court described in Poleskey v. United States, 4 F. (2d) 110. As to allowing, after objection taken, the amendment of the process by which the defendant has been brought into court, see People v. Hildebrand, 71 Mich. 313; Town of Ridgeland v. Gens, 83 S.C. 562; Keehn v. Stein, 72 Wis. 196 (but see Scheer v. Keown, 29 Wis. 586). Compare State v. McCray, 74 Mo. 303. In State v. Turner, 170 N.C. 701, 702, the court said: "Even if one is wrongfully arrested on process that is defective, being in court, he would not be discharged, but the process would be amended then and there, or if the service were defective it could be served again."